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Exhibit 4.2
MATRIA HEALTHCARE, INC.
AND
SOUTHTRUST ESTATE & TRUST COMPANY OF GEORGIA, N.A.,
TRUSTEE
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SUPPLEMENTAL INDENTURE
DATED AS OF JANUARY , 1996
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TO
INDENTURE
DATED AS OF DECEMBER 1, 1986
8% CONVERTIBLE SUBORDINATED DEBENTURES
DUE DECEMBER 31, 2001
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Supplemental Indenture (the "Supplemental Indenture"), dated as of
January __, 1996, made by and between MATRIA HEALTHCARE, INC., a Delaware
corporation ("Matria"), and SOUTHTRUST ESTATE & TRUST COMPANY OF GEORGIA, N.A.,
a national banking association, successor to National Bank of Georgia, as
Trustee (the "Trustee"), under the Indenture dated as of December 1, 1986,
hereinafter mentioned (the "Indenture").
WHEREAS, HEALTHDYNE, INC., a Georgia corporation ("Healthdyne"), and
the Trustee entered into the Indenture in connection with the issuance of
Healthdyne's 8% Convertible Subordinated Debentures due December 31, 2001 (the
"Debentures"); and
WHEREAS, $3,500,000 principal amount of Debentures was issued under
the Indenture and [$2,125,540] is outstanding on the date of the execution and
delivery of this Supplemental Indenture; and
WHEREAS, Healthdyne, Matria and Xxxxx Medical Corporation ("Xxxxx")
have entered into that certain Agreement and Plan of Merger, dated as of
October 2, 1995, as amended by that certain First Amendment to Agreement and
Plan of Merger, dated as of December 4, 1995, and by that certain Second
Amendment to Agreement and Plan of Merger, dated as of January __, 1996, under
which on the date hereof Healthdyne and Xxxxx will merge with and into Matria
(the "Merger"); and
WHEREAS, in connection with the Merger, the parties hereto desire to
amend the Indenture, without the consent of any Debentureholder, to have Matria
assume Healthdyne's obligations under the Indenture (as provided in Section
11.01 of the Indenture) and for the purpose of evidencing certain adjustments
to the conversion rights of the Debenture in connection with the assumption by
Matria of Healthdyne's obligations under the Indenture (as provided in Section
16.05 of the Indenture); and
WHEREAS, Matria has delivered to the Trustee the Board Resolution and
Opinion of Counsel required by Sections 11.01, 11.06 and 12.03 of the
Indenture; and
WHEREAS, all the requirements of law and the Certificate of
Incorporation and Bylaws of Matria have been fully complied with; and all
conditions and requirements necessary to authorize the execution,
acknowledgement and delivery of this Supplemental Indenture and to make the
Indenture, as supplemented by this Supplemental Indenture, a valid, binding and
legal instrument for the benefit of the Debentureholders, have been complied
with or have been done and performed;
NOW, THEREFORE, in consideration of the premises and for good and
valuable consideration, the sufficiency of which is hereby acknowledged, Matria
and the Trustee agree as follows:
SECTION 1. Definitions. For purposes of this Supplemental Indenture,
all terms used herein, unless otherwise defined herein, shall have the meaning
assigned to them in the Indenture, except that references to the "Company" in
the Indenture, as amended and supplemented by this Supplemental Indenture,
shall mean Matria Healthcare, Inc.
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SECTION 2. Succession of Matria to Healthdyne under the Indenture.
Upon the effectiveness of the Merger, and pursuant to the requirements of
Section 11.01 of the Indenture, the due and punctual payment of the principal
of, and premium, if any, and interest on all of the Debentures, according to
their tenor, and the due and punctual performance and observance of all the
covenants and conditions of the Indenture to be kept or performed by Healthdyne
prior to the effectiveness of the Merger, are hereby expressly assumed by
Matria.
SECTION 3. Adjustment of Conversion Rights. Upon the effectiveness
of the Merger, and pursuant to the requirements of Section 16.05 of the
Indenture, holders of each Debenture then outstanding shall have, in lieu of
the right to convert such Debenture into Common Stock of Healthdyne, the right
to convert such Debenture into the number of shares of Common Stock of Matria
receivable upon such Merger by the number of shares of Common Stock of
Healthdyne into which such Debenture might have been converted immediately
prior to the Merger. As provided in Section 12.02 of the Indenture, upon
execution and delivery of this Supplemental Indenture, Matria shall succeed to
and be substituted for Healthdyne with the same effect as if it had been named
in the Indenture as the Company. Accordingly, this Supplemental Indenture does
not amend or supplement the provisions regarding adjustment of the conversion
price; such provisions are subject to the terms and conditions set forth in the
Indenture, taking into account the succession, and substitution as the Company,
of Matria.
SECTION 4. Governing Law, Etc. This Supplemental Indenture shall be
deemed to be a contract made under the laws of the State of Georgia, and for
all purposes shall be construed in accordance with the laws of the State of
Georgia (without regard to principles of conflicts of laws). The terms and
conditions of this Supplemental Indenture shall be, and be deemed to be, part
of the terms and conditions of the Indenture for any and all purposes
applicable to the Debentures. Other than as amended and supplemented by this
Supplemental Indenture, the Indenture is in all respects ratified and
confirmed.
SECTION 5. Acceptance by Trustee. The Trustee hereby accepts this
Supplemental Indenture and agrees to perform the same upon the terms and
conditions set forth in the Indenture.
SECTION 6. The Indenture As Supplemented. From and after the date of
this Supplemental Indenture, all references in the Indenture to this
"Indenture" shall refer to the Indenture as supplemented hereby.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed all as of the day and year first above written.
MATRIA HEALTHCARE, INC.
By:
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Name:
Title:
SOUTHTRUST ESTATE & TRUST COMPANY,
as Trustee
By:
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Name:
Title:
