Exhibit 4.1
This FIRST SUPPLEMENTAL INDENTURE,
dated as of August 4, 2009 (this “First Supplemental
Indenture”), is made by and among MONOGRAM BIOSCIENCES, INC.,
a Delaware corporation (the “Company”) and U.S. BANK
NATIONAL ASSOCIATION, as Trustee (the “Trustee”), under
the Indenture referred to herein. Capitalized terms used herein and
not otherwise defined herein shall have the meanings ascribed to
them in the Indenture referred to below.
W I T N E S S E T
H:
WHEREAS, the Company and the Trustee
are parties to an Indenture dated as of January 12, 2007 (the
“Indenture”), providing for the issuance of 0%
Convertible Senior Unsecured Notes due 2026 (herein called the
“Notes”);
WHEREAS, the Company entered into an
Agreement and Plan of Merger (the “Merger Agreement”),
dated as of June 22, 2009, with Laboratory Corporation of
America Holdings, a Delaware corporation (“LabCorp”),
and Mastiff Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of LabCorp (“Acquisition Sub”).
Pursuant to the Merger Agreement, on July 1, 2009, Acquisition
Sub commenced a cash tender offer (the “Offer”) to
purchase all of the outstanding shares of common stock, par value
$0.001 per share, of the Company (the “Shares”), at a
purchase price of $4.55 per Share, net to the holders in cash (the
“Offer Price”), on the terms and subject to the
conditions set forth in the Merger Agreement and the offer to
purchase relating to the Offer.
WHEREAS, upon the successful
completion of the Offer, Acquisition Sub will merge with and into
the Company with the Company as the surviving corporation (the
“Merger”).
WHEREAS, upon the Merger, all
publicly-held Shares not purchased in the Offer will be converted
into the right to receive the Offer Price in cash (without interest
and subject to applicable withholding taxes).
WHEREAS, Section 15.7 of the
Indenture provides that in the case of any merger of the Company
with another corporation as a result of which holders of Common
Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange
for such Common Stock, then the Company 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) receivable upon
such merger by a holder of a number of shares of Common Stock
issuable upon conversion of such Notes immediately prior to such
merger assuming such holder of Common Stock did not exercise his
rights of election, if any, as to the kind or amount of securities,
cash or other property receivable upon such merger, and that such
supplemental indenture shall provide for adjustments which shall be
as nearly equivalent as may be practicable to the adjustments
provided for in Article 15 of the Indenture.
WHEREAS, Section 11.1 of the
Indenture provides that the Company and the Trustee may amend the
Indenture and the Notes without the consent or affirmative vote of
any Holders of the Notes for the purposes specified
therein;
WHEREAS, this First Supplemental
Indenture has been duly authorized by all necessary corporate
action on the part of the Company (including a Board
Resolution);
WHEREAS, the Trustee is authorized
to execute and deliver this First Supplemental Indenture;
and
WHEREAS, all things necessary to
make this First Supplemental Indenture a valid indenture and
agreement according to its terms have been done and this First
Supplemental Indenture will become effective immediately upon the
effectiveness of the Merger.
NOW, THEREFORE, in consideration of
the premises and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the
Company and the Trustee mutually covenant and agree as follows for
the equal and ratable benefit of the Holders of the
Notes:
