Exhibit 4.1
SECOND SUPPLEMENTAL
INDENTURE
S ECOND S UPPLEMENTAL I NDENTURE (this “ Second Supplemental
Indenture ”), dated as of February 25, 2009, by and
among Advanced Medical Optics, Inc. (or its permitted successor), a
Delaware corporation (the “ Company ”), the
Guarantors (as defined in the Indenture referred to below) and
Wilmington Trust Company, a Delaware banking corporation, as
Trustee under the Indenture referred to below (the “
Trustee ”). Capitalized terms used herein without
definition shall have the meanings assigned to them in the
Indenture.
W I T N E S S E T H
WHEREAS, the Company
and the Guarantors have heretofore executed and delivered to the
Trustee an indenture, dated as of April 2, 2007, by and among
the Company, the guarantors named therein, and the Trustee, as
supplemented by a supplemental indenture, dated as of April 2,
2007, by and among the Company, IntraLase Corp., a subsidiary of
the Company, and the other guarantors named therein (together with
IntraLase and such other Persons listed on the signature page of
this Second Supplemental Indenture that have become guarantors by
the terms of the Indenture after the Issue Date, the “
Guarantors ”) and the Trustee (collectively, and as
amended, supplemented or otherwise modified from time to time, the
“ Indenture ”), providing for the issuance of
(and pursuant to which the Company has issued) $250,000,000
aggregate principal amount of the Company’s 7
1 / 2 % Senior Subordinated Notes due
2017 (the “ Notes ”);
WHEREAS, the Company has entered
into an Agreement and Plan of Merger, dated as of January 11,
2009 (as amended or supplemented from time to time, the “
Merger Agreement ”), by and among Abbott Laboratories,
an Illinois corporation (“ Parent ”), Rainforest
Acquisition Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent (the “ Purchaser ”), and
the Company, pursuant to which, on the terms and conditions set
forth therein, (i) Purchaser agreed to commence a tender offer
to acquire all of the outstanding shares of common stock, par value
$0.01 per share of the Company, including the associated preferred
stock purchase rights, at a purchase price of $22.00 per share, net
to the holder in cash, without interest and subject to any
withholding taxes (the “ Offer ”), and
(ii) as soon as practicable after the consummation of the
Offer, Purchaser will merge with and into the Company (the “
Merger ”), with the Company surviving as a wholly
owned subsidiary of Parent;
WHEREAS, the Company has
(i) offered to purchase for cash any and all outstanding Notes
(the “ Tender Offer ”) and (ii) requested
that Holders of the Notes deliver their consents (the “
Consent Solicitation ”) to eliminate certain
restrictive covenants, certain Events of Default and all of the
restrictions on the ability of the Company to merge or consolidate,
and to waive any and all Defaults and Events of Default that may
have resulted in connection with, or may result from and after the
consummation of, the transactions contemplated by the Merger
Agreement (the “ Consents ”), in each case
pursuant to an Offer to Purchase and Consent Solicitation Statement
dated as of January 27, 2009 (the “ Offer to
Purchase ”);
WHEREAS, Section 9.02 of the
Indenture provides that the Company, the Guarantors and the Trustee
may amend or supplement the Indenture, the Notes and any Guarantee,
with the consent of the Holders of at least a majority in principal
amount of the then outstanding Notes voting as a single class, and
that, subject to Sections 6.04 and 6.07 of the Indenture, any
existing Default
or Event of Default (other than a Default or
Event of Default in the payment of the principal of, premium, if
any, or interest on, the Notes, except a payment default resulting
from an acceleration that has been rescinded) or compliance with
any provision of the Indenture may be waived with the consent of
the Holders of a majority in aggregate principal amount of the then
outstanding Notes voting as a single class;
WHEREAS, pursuant to the Consent
Solicitation by the Company, Holders of at least a majority in
aggregate principal amount of the Notes have duly consented to the
proposed amendments and waivers set forth in this Second
Supplemental Indenture in accordance with Section 9.02 of the
Indenture;
WHEREAS, the Company has furnished,
or caused to be furnished, to the Trustee, and the Trustee has
received, (i) a copy of the resolutions of the Board of
Directors of the Company authorizing the execution of this Second
Supplemental Indenture, (ii) evidence of the written consent
of the Holders set forth in the immediately preceding paragraph;
and (iii) an Officers’ Certificate and an Opinion of
Counsel described in Section 13.04 and Section 13.05 of
the Indenture;
WHEREAS, all conditions necessary to
authorize the execution and delivery of this Second Supplemental
Indenture have been complied with or have been done or performed;
and
WHEREAS, this Second Supplemental
Indenture, and the amendments and waivers effected hereby, shall be
effective and binding immediately upon its execution by the
Company, the Guarantors and the Trustee;
NOW, THEREFORE, the Company and the
Guarantors hereby covenant and agree with the Trustee for the equal
and proportionate benefit of the Holders as follows:
ARTICLE 1
AMENDMENTS
Section 1.01
Amendments
(a) Amendment of Article 4 .
The Indenture is hereby amended by deleting the following Sections
of Article 4 of the Indenture and all references thereto: 4.03,
4.04, 4.05, 4.06, 4.07, 4.08, 4.09, 4.10, 4.11, 4.12, 4.13, 4.14,
4.15, 4.16, 4.17, 4.18 and 4.19, in each case in its entirety, and
replacing each such Section with the following:
“Intentionally omitted.”
(b) Amendment of Article 5 .
The Indenture is hereby amended by deleting the following Sections
of Article 5 of the Indenture and all references thereto: 5.01 and
5.02, in each case in its entirety, and replacing each such Section
with the following: “Intentionally omitted.”
2
(c) Amendment of
Section 6.01 . Section 6.01 of Article 6 of the
Indenture is hereby amended by deleting the section in its
entirety, together with any references to subsections thereof in
the Indenture that, as provided below, are being replaced with the
words “intentionally omitted,” and replacing such
Section 6.01 with the following:
“Each of the following is an
“Event of Default”:
(1) failure by the Company
to
