Exhibit 4.4
NEXSTAR PHARMACEUTICALS, INC.,
GILEAD SCIENCES, INC.
AND
IBJ WHITEHALL BANK & TRUST COMPANY, AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF JULY 29, 1999
TO
INDENTURE
DATED AS OF JULY 31, 1997
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RELATING TO
NEXSTAR PHARMACEUTICALS, INC.
6-1/4% CONVERTIBLE SUBORDINATED DEBENTURES
DUE 2004
FIRST SUPPLEMENTAL INDENTURE (the "FIRST SUPPLEMENTAL INDENTURE"), dated
as of July 29, 1999, by and among NEXSTAR PHARMACEUTICALS, INC., a Delaware
corporation (the "COMPANY"), GILEAD SCIENCES, INC., a Delaware corporation
("GILEAD"), and IBJ WHITEHALL BANK & TRUST COMPANY, a New York banking
corporation, formerly known as IBJ Schroder Bank & Trust Company (the
"TRUSTEE").
RECITALS OF THE COMPANY
WHEREAS, the Company has duly issued its 6-1/4% Convertible Subordinated
Debentures Due 2004 (the "SECURITIES") in the initial aggregate principal
amount of $80,000,000, pursuant to an Indenture (the "INDENTURE"), dated as
of July 31, 1997, between the Company and the Trustee; and
WHEREAS, Gilead, Gazelle Acquisition Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of Gilead ("MERGER SUB"), and the Company have
entered into an Agreement and Plan of Merger, dated as of February 28, 1999
(the "MERGER AGREEMENT"), pursuant to which Merger Sub will merge with and
into the Company and the Company will be the surviving corporation and will
become a wholly owned subsidiary of Gilead (such events being referred to as
the "MERGER"); and
WHEREAS, pursuant to the Merger each outstanding share of Common Stock,
par value $0.01 per share, of the Company (the "NEXSTAR COMMON STOCK") will
be converted into 0.3786 fully paid and nonassessable shares of the Common
Stock, par value $0.001 per share, of Gilead (the "GILEAD COMMON STOCK")
(such fraction being referred to as the "EXCHANGE RATIO"), and cash in lieu
of fractional shares; and
WHEREAS, in the case of any merger of another Person into the Company,
Section 1311 of the Indenture requires that the Person resulting from such a
merger shall execute and deliver to the Trustee a supplemental indenture
providing for certain conversion rights to the holders of the Securities; and
WHEREAS, Section 901(5) of the Indenture provides that the Company and
Trustee may, when authorized by a Board Resolution, without the consent of
any holders of Securities, enter into a supplemental indenture to make
provision with respect to the conversion rights of Holders pursuant to the
requirements of Section 1311 of the Indenture; and
WHEREAS, in accordance with Section 102 and 801 of the Indenture, the
Company has delivered to the Trustee an Officers' Certificate and an Opinion
of Counsel, each stating that all conditions precedent provided in the
Indenture relating to the proposed Merger have been complied with, and in
addition, the Opinion of Counsel referenced in the immediately preceding
sentence, in accordance with Section 903 of the Indenture, states that the
execution of the First Supplemental Indenture is authorized or permitted by
the Indenture; and
WHEREAS, all acts and proceedings required by law and under the Indenture
to constitute this First Supplemental Indenture a valid and binding agreement
for the uses and purposes set forth herein, in accordance with its terms,
have been done and taken, and the execution and
1.
delivery of this First Supplemental Indenture have been in all respects duly
authorized by the Company; and
WHEREAS, the foregoing recitals are made as representations of fact by
the Company and not by the Trustee.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, Gilead and the Trustee hereby agree as follows:
1. For purposes of this First Supplemental Indenture, except as
otherwise herein expressly provided or unless the context otherwise requires:
(i) the capitalized terms and expressions used herein shall have the same
meanings as corresponding terms and expressions used in the Indenture and
(ii) the words "herein," "hereof" and "hereby" and other words of similar
import used in this First Supplemental Indenture shall refer to this First
Supplemental Indenture as a whole and not to any particular section thereof.
2. From and after the effective time of the Merger, the Holder of each
Security then outstanding shall have the right thereafter, during the period
such Security shall be convertible as specified in Section 1301 of the
Indenture, to convert such Security then Outstanding only into the number of
shares of common stock of Gilead and cash, if any, receivable upon the Merger
by a holder of the number of shares of Common Stock into which such Security
might have been converted immediately prior to the Merger, assuming such
holder of NeXstar Common Stock (i) is not a Person into which the Company
merged or which merged into the Company (a "CONSTITUENT PERSON"), or an
Affiliate of a Constituent Person and (ii) failed to exercise his rights of
election, if any, as to the kind or amount of Common Stock and cash in lieu
of fractional shares, receivable upon the Merger is not the same for each
share of NeXstar Common Stock held immediately prior to the Merger by others
than a Constituent Person or an Affiliate thereof and in respect to which
such rights of election shall not have been exercised ("NON-ELECTING SHARE"),
then for the purposes of Section 1311 of the Indenture, the number of shares
of common stock of Gilead, and cash, if any, receivable upon the Merger shall
be deemed to be the kind and amount so receivable per share by a plurality of
the Non-Electing Shares (the "DEBENTURE MERGER CONSIDERATION"). For events
subsequent to the date of this First Supplemental Indenture, adjustments to
the Debenture Merger Consideration shall be made as nearly equivalent as may
be practicable to the adjustments to the Common Stock provided in Article 13
of the Indenture (the "CONVERSION ADJUSTMENTS"). The provisions of Section
1311 of the Indenture shall similarly apply to successive consolidations,
mergers, sales or transfers.
3. Gilead has no responsibility for the correctness of the recitals of
fact herein contained which shall be taken as the statements of the Company
and makes no representations as to the validity or sufficiency of this First
Supplemental Indenture and shall incur no liability or responsibility in
respect to the validity thereof. Gilead is a party to this First
Supplemental Indenture solely for the purposes of agreeing, under paragraphs
1 and 2 above, that from and after the time of the Merger, for the purposes
of Article 13 of the Indenture, (x) the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 1301 of the Indenture, to
convert such Security then Outstanding only into the Debenture Merger
Consideration (subject to paragraph 2 hereof and
2.
the Conversion Adjustments) and (y) Gilead shall deliver the Debenture Merger
Consideration (as so adjusted) to such Holder upon any such conversion.
4. The Trustee has no responsibility for the correctness of the
recitals of fact herein contained which shall be taken as the statements of
the Company and makes no representations as to the validity or sufficiency of
this First Supplemental Indenture and shall incur no liability or
responsibility in respect to the validity thereof.
5. Except as expressly amended hereby, the Indenture is in all respects
ratified and confirmed, and all the terms, conditions and provisions thereof
shall remain in full force and effect.
6. This First Supplemental Indenture shall form a part of the Indenture
for all purposes, and every holder of Securities heretofore or hereafter
authenticated shall be bound hereby.
7. This First Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an
original, and all of such counterparts shall together constitute one and the
same instrument.
8. This First Supplemental Indenture shall be deemed to be a contract
made under the laws of the State of New York and for all purposes shall be
governed by and construed in accordance with such laws.
3.
IN WITNESS WHEREOF, the parties have caused this First Supplemental
Indenture to be duly executed; all as of the day and year first above written.
NEXSTAR PHARMACEUTICALS, INC.
By: /s/ Mark L. Perry
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Name: Mark L. Perry
Title: Secretary
GILEAD SCIENCES, INC.
By: /s/ Mark L. Perry
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Name: Mark L. Perry
Title: Senior Vice President, Chief
Financial Officer and General
Counsel
IBJ WHITEHALL BANK & TRUST COMPANY
By: /s/ Luis Perez
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Name: Luis Perez
Title: Assistant Vice President
4.