EXHIBIT 4.1
SUPPLEMENTAL INDENTURE
This Supplemental Indenture (the "Supplemental Indenture") dated as of
December 31, 2004, supplements, amends and modifies that certain Indenture (the
"Indenture") dated as of May 5, 2004 among Matria Healthcare, Inc., a Delaware
corporation (the "Issuer"), Matria Holding Company, Inc., a Delaware corporation
("Holdco"), the subsidiary Guarantors listed therein and ▇▇▇▇▇ Fargo Bank, N.A.,
a national banking association, as Trustee:
WHEREAS, the Issuer, Holdco and Matria MergerSub, Inc., a Delaware
corporation and an indirect, wholly owned subsidiary of the Issuer
("MergerSub"), have executed and delivered an Agreement of Merger and Plan of
Reorganization dated as of December 30, 2004 pursuant to which MergerSub will be
merged with and into the Issuer (the "Merger"), which will be the corporation
surviving the Merger, and the outstanding capital stock of the Issuer will be
converted into capital stock of Holdco.
WHEREAS, to effect the Reorganization, the Issuer has incorporated Holdco
as a direct, wholly-owned subsidiary corporation, which in turn has incorporated
MergerSub.
WHEREAS, as a result of effectuation of the Merger, Holdco will become a
holding company and the Issuer will become a direct wholly-owned subsidiary of
Holdco.
WHEREAS, the Merger will be effected pursuant to Section 251(g) of the
General Corporation Law of the State of Delaware ("DGCL"), which permits
effectuation of such a merger without a vote of stockholders of either
constituent corporation.
WHEREAS, pursuant to the Merger, the corporate name of the Issuer will be
changed to "Matria Women's and Children's Health, Inc." and immediately
thereafter, the corporate name of Holdco will be changed to "Matria Healthcare,
Inc."
WHEREAS, the Issuer has outstanding certain indebtedness issued pursuant
to the Indenture and the Holding Company and the Issuer intend that Holdco will
assume the obligations of the Issuer with respect to such indebtedness and with
respect to the Indenture and that the Issuer's obligations with respect to such
indebtedness and with respect to the Indenture shall be that of Guarantor.
NOW, THEREFORE, in consideration of the premises, the covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by the parties hereto, the parties hereto
covenant and agree as follows:
ARTICLE I
Section 1.1 Capitalized Terms. Capitalized terms used but not defined
herein are defined in the Indenture and are used herein with the meanings
ascribed to them therein.
Section 1.2 Notes. Holdco shall, effective as of the effective time of the
Merger under the DGCL (the "Effective Time"), assume, and shall thereafter
timely pay, perform and discharge, each and every obligation of the Issuer under
and with respect to those certain 4.875% Convertible Senior Subordinated Notes
due 2024 (the "Notes") issued by the Issuer in an aggregate principal amount of
$86,250,000 pursuant to the Indenture.
Section 1.3 Indenture. Pursuant to Section 5.01 and 5.02 of the Indenture,
Holdco shall, effective as of the Effective Time, assume, and shall thereafter
timely pay, perform and discharge, each and every obligation of the Issuer under
and with respect to the Indenture, including without limitation that certain
covenant contained in Section 4.09 of the Indenture (the "Restricted Subsidiary
Covenant"). In this regard, the Restricted Subsidiary Covenant shall be
interpreted, from and after the Effective Time, (i) to apply to Holdco, as the
"Issuer" thereunder, and to the Issuer, as a "Restricted Subsidiary" thereunder,
and (ii) not to apply to the Issuer, as the "Issuer" thereunder. From and after
the Effective Time, the Issuer's obligation to pay, perform or discharge any
indebtedness issued under the Indenture shall be that of a Guarantor.
Section 1.4 Conversion of Note. At the Effective Time, the Notes shall
cease to be convertible into shares of the Issuer's Common Stock and shall be
convertible, under the same terms and conditions as were applicable to such Note
immediately prior to the Effective time, into shares of Holdco $.01 par value
Common Stock.
Section 1.5 Agreement to Guarantee. Issuer hereby agrees that Article XII
of the Indenture shall apply to Matria to the same effect as if Issuer had been
named as a "Guarantor" in the Indenture.
Section 1.6 No Recourse Against Others. No past, present or future
director, officer, employee, incorporator, shareholder of Issuer, as such, shall
have any liability for any obligations of Holdco or Issuer under the Notes, and
subsidiary guarantee, the Indenture or this Supplemental Indenture or any claim
based on, in respect of, or by reason of, such obligations or their creation.
Each Holder, by accepting Notes, waives and releases all such liability. The
waiver and release are part of the consideration for issuance of the Notes.
ARTICLE II
Section 2.1 Effectiveness. Although this Indenture may be executed and
delivered by the parties hereto prior to the Effective Time of the Merger, the
provisions hereof shall not become effective unless and until the Merger becomes
effective under the DGCL and, under such circumstances, shall become effective
concurrently with the Effective Time of such Merger. From and after the
Effective Time of such Merger, the Indenture, as hereby supplemented, amended
and modified, shall remain in full force and effect.
Section 2.2 References. Each reference in the Indenture or this
Supplemental Indenture to any article, section, term or provision of the
Indenture shall mean and be deemed to refer to such article, section, term or
provision of the Indenture, as modified by this Supplemental Indenture, except
where the context otherwise indicates.
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Section 2.3 Benefit. All the covenants, provisions, stipulations and
agreements contained in this Supplemental Indenture are and shall be for the
sole and exclusive benefit of the parties hereto, their successors and assigns,
and of the holders and registered owners from time to time of the Notes as
hereby amended and supplemented.
Section 2.4 Receipt by Trustee. In accordance with Section 13.04 of the
Indenture, the Trustee acknowledges that it has received an Officer's
Certificate and Opinion of Counsel stating that all conditions precedent to the
execution of this Supplemental Indenture have been satisfied.
Section 2.5 Counterparts. This Supplemental Indenture may be executed in
any number of counterparts, each of which shall be deemed an original and all of
which taken together shall be deemed to be a single instrument.
Section 2.6 Governing Law. This Supplemental Indenture shall be deemed to
be a contract under the laws of the State of New York, and for all purposes
shall be construed in accordance with the laws of such state without regard to
principles of conflicts of laws, except as may otherwise required by mandatory
provisions of law.
Section 2.7 Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
Section 2.8 The Trustee. The Trustee shall not be responsible in any
manner whatsoever for or in respect of the validity, legality or sufficiency of
this Supplemental Indenture or for or in respect of the recitals contained
herein, all of which recitals are made solely by Matria.
Section 2.9 Separability. Each provision of this Supplemental Indenture
shall be considered separable and if for any reason any provision which is not
essential to the effectuation of the basic purpose of this Supplemental
Indenture shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 2.10 Ratification of Indenture; Supplemental Indenture Part of
Indenture. Except as expressly supplemented 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. This Supplemental Indenture shall
form a part of the Indenture for all purposes, and every Holder of Notes
heretofore or hereafter authenticated and delivered shall be bound hereby.
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IN WITNESS WHEREOF, the undersigned have each caused this Supplemental
Indenture to be executed in its corporate name by the officer whose name is
subscribed below, all as of the day and year first above written.
MATRIA HEALTHCARE, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chairman and Chief Executive Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
MATRIA HOLDING COMPANY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
FACET TECHNOLOGIES, L.L.C
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Secretary
QUALITY ONCOLOGY, INC.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Chairman
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Secretary
▇▇▇▇▇ FARGO BANK, N.A.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Title: Assistant Vice President
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