Exhibit 10.1
FIRST SUPPLEMENTAL
INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE
(the “ Supplemental Indenture ”), dated as of
March 23, 2009, among Endo Pharmaceuticals Solutions Inc. (formerly
known as Indevus Pharmaceuticals, Inc.), a Delaware corporation
(the “ Company ”), Endo Pharmaceuticals Holdings
Inc., a Delaware corporation (the “ Parent ”),
and The Bank of New York Mellon Trust Company, N.A. (formerly known
as The Bank of New York Trust Company, N.A.), as trustee (the
“ Trustee ”).
WHEREAS, the Company and the Trustee
are parties to an Indenture, dated as of August 6, 2007 (the
“ Indenture ”), pursuant to which the Company
issued its 6.25% Convertible Senior Notes due 2009 (the “
Notes ”);
WHEREAS, on January 5, 2009,
the Company entered into an Agreement and Plan of Merger (as
amended, the “ Merger Agreement ”) with Parent
and BTB Purchaser Inc., a Delaware corporation (the “
Merger Sub ”), and a wholly-owned subsidiary of the
Parent, pursuant to which, among other things, Merger Sub will
merge with and into the Company, with the Company continuing as the
surviving corporation (the “ Merger
”);
WHEREAS, Section 5.1 of the
Indenture provides that the Company shall not merge or enter into
certain other transactions unless certain requirements specified
therein are satisfied;
WHEREAS, Section 9.4 of the
Indenture provides that if a merger or certain other transactions
involving the Company occur, as a result of which holders of common
stock of the Company, par value $0.001 per share (the “
Common Stock ”), shall be entitled to receive stock,
other securities, or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then as of the
effective time of such transaction, the Company or the successor or
purchasing corporation, as the case may be, shall execute with the
Trustee a supplemental indenture providing that the Notes shall be
convertible into the kind and amount of shares of stock and other
securities or property or assets (including cash) which such holder
of a Note would have been entitled to receive upon such merger or
certain other transactions had such Notes been converted into
Common Stock immediately prior to such merger or other transactions
assuming such holder of Common Stock did not exercise its rights of
election, if any, as to the kind or amount of securities, cash or
other property receivable upon such merger or other
transactions;
WHEREAS, as a result of the Merger,
a holder of one share of Common Stock is entitled to receive
(i) cash in the amount of $4.50, net to the seller, without
interest and (ii) the contractual right, (a) subject to
the terms of that certain Octreotide Contingent Cash Consideration
Agreement, dated as of February 23, 2009 (the “
Octreotide Contingent Cash Consideration Agreement ”),
by and between the Parent and American Stock Transfer &
Trust Company (the “ Paying Agent ”), to receive
$1.00 in cash, without interest, in the case that the Approval
Milestone Date (as defined in the Octreotide Contingent Cash
Consideration Agreement) occurs on or before February 23,
2013,
(b) subject to the terms of that certain
Nebido Contingent Cash Consideration Agreement, dated as of
February 23, 2009 (the “ Nebido Contingent Cash
Consideration Agreement ”), by and between the Parent and
the Paying Agent, to receive $2.00 in cash, without interest, in
the case that the Approval With Label Milestone Date (as defined in
the Nebido Contingent Cash Consideration Agreement) occurs on or
before February 23, 2012, (c) subject to the terms of the
Nebido Contingent Cash Consideration Agreement, to receive $1.00 in
cash, without interest, in the case that the Approval Without Label
Milestone Date (as defined in the Nebido Contingent Cash
Consideration Agreement) occurs on or before February 23,
2012, and (d) subject to the terms of the Nebido Contingent
Cash Consideration Agreement, to receive $1.00 in cash, without
interest, in the case that the Net Sales Milestone Date (as defined
in the Nebido Contingent Cash Consideration Agreement)
occurs;
WHEREAS, Section 8.1(c) of the
Indenture provides that the Indenture may be modified or amended by
the Company and the Trustee, without the consent of any holder of
the Notes, to provide for conversion rights of holders of Notes if
any reclassification or change of the Common Stock or any
consolidation, merger or sale of all or substantially all of the
Company’s assets occurs;
WHEREAS, the execution and delivery
of this instrument has been duly authorized and all conditions and
requirements necessary to
