UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): January 4, 2017
St. Jude Medical, LLC
(Exact Name of Registrant as Specified in its Charter)
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Delaware
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1-12441
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38-4020984
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One St. Jude Medical Drive
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55117-9983
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Registrant’s telephone number including area code: (224) 667-6100
St. Jude Medical, Inc.
(Former Name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Introductory Note.
On January 4, 2017, Abbott Laboratories (“ Abbott ”) completed the acquisition of St. Jude Medical, Inc. (the “ Company ”), pursuant to the Agreement and Plan of Merger, dated as of April 27, 2016 (the “ Merger Agreement ”), by and among Abbott, St. Jude Medical, Vault Merger Sub, Inc. (“ Merger Sub 1 ”) and Vault Merger Sub, LLC (the “ Registrant ”). Abbott completed the acquisition of the Company through two mergers: (1) first, Merger Sub 1, a wholly owned subsidiary of Abbott, was merged with and into the Company, with the Company surviving the merger (the “ Initial Surviving Corporation ”) as a wholly owned subsidiary of Abbott (the “ First Merger ”), and (2) second and promptly after the First Merger, the Company was merged with and into the Registrant, with the Registrant surviving the merger as a wholly owned subsidiary of Abbott and being renamed St. Jude Medical, LLC (“ SJM LLC ”) (the “ Second Merger ” and together with the First Merger, the “ Mergers ”).
Item 1.01. Entry into a Material Definitive Agreement.
On January 4, 2017, in connection with and substantially concurrent with the Second Merger, the Company, SJM LLC and U.S. Bank National Association, as trustee (the “ Trustee ”), entered into a Sixth Supplemental Indenture, (the “ Supplemental Indenture ”), pursuant to which SJM LLC assumed the Company’s rights and obligations with respect to (i) the Company’s 2.000% Senior Notes due 2018, 2.800% Senior Notes due 2020, 3.25% Senior Notes due 2023, 3.875% Senior Notes due 2025 and 4.75% Senior Notes due 2043 and (ii) the Indenture, dated as of July 28, 2009, as amended, supplemented or otherwise modified, including by the Fourth Supplemental Indenture, dated as of April 2, 2013, and the Fifth Supplemental Indenture, dated as of September 23, 2015, in each case by and between the Company and the Trustee.
The foregoing description of the Supplemental Indenture is not complete and is qualified in its entirety by reference to the Supplemental Indenture, which is filed as Exhibit 4.1 and is incorporated herein by reference.
Also in connection with the Mergers, the Company entered into an Amendment and Restatement Agreement, dated as of November 16, 2016, by and among the Company, as borrower, Bank of America N.A., as administrative agent and lender, and other lenders party thereto, pursuant to which the parties agreed (subject to completion of the Mergers and certain other customary conditions) to amend and restate that certain Term Loan Agreement, dated as of August 21, 2015, as amended by Amendment No. 1 to Term Loan Agreement, dated as of February 19, 2016 (the “ Term Loan Agreement ”), with an aggregate principal amount outstanding of approximately $2.3 billion. Pursuant to the Amendment and Restatement Agreement, effective upon completion of the Mergers, the Term Loan Agreement was amended and restated (as further amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Amended and Restated Term Loan Agreement ”) and SJM LLC succeeded to the existing obligations of the Company. On January 4, 2017, Abbott fully guaranteed such obligations.
The borrowings under the Amended and Restated Term Loan Agreement will bear interest, at SJM LLC’s option, based on either a base rate or a Eurodollar rate, plus an applicable margin based on Abbott’s credit ratings. The Amended and Restated Term Loan Agreement contains representations and warranties and affirmative and negative covenants customary for unsecured financings of this type as well as customary events of default.
Some of the lenders under the Amended and Restated Term Loan Agreement and/or their affiliates have in the past performed, and may in the future from time to time perform, investment banking, financial advisory, lending and/or commercial banking services, or other services for SJM LLC and its affiliates, for which they have received, and may in the future receive, customary compensation and expense reimbursement.
Item 1.02. Termination of Material Definitive Agreement.
On January 4, 2017, in connection with the completion of the First Merger and as required by the terms of the Merger Agreement, prior to the Second Merger, the Company terminated the Amended and Restated Multi-year $1,500,000,000 Credit Agreement (the “ Credit Agreement ”), dated as of August 21, 2015, among the Company, the lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent, L/C Issuer and lender, as amended, restated, supplemented or otherwise modified. The Credit Agreement created a $1.5 billion unsecured revolving credit facility that the Company could draw upon (i) to refinance certain existing indebtedness of the Company and pay related fees and expenses and (ii) for general corporate purposes. Absent termination, the commitments under the Credit Agreement would have expired on August 21, 2020. Borrowings under the Credit Agreement initially bore interest at LIBOR plus 0.68%, subject to adjustment in the event of a change in the Company’s credit ratings.
Some of the lenders under the Credit Agreement and/or their affiliates have in the past performed, and may in the
future from time to time perform, investment banking, financial advisory, lending and/or commercial banking services, or other services for SJM LLC and its affiliates, for which they have received, and may in the future receive, customary compensation and expense reimbursement.
Item 2.01. Completion of Acquisition or Disposition of Assets.
On January 4, 2017, Abbott completed the acquisition of the Company, pursuant to the Merger Agreement. Abbott completed the acquisition of the Company through two mergers: (1) first, Merger Sub 1, a wholly owned subsidiary of Abbott, was merged with and into the Company, with the Company surviving the merger as a wholly owned subsidiary of Abbott, and (2) second and promptly after the First Merger, the Initial Surviving Corporation was merged with and into Vault Merger Sub, LLC, with Vault Merger Sub, LLC surviving the merger as a wholly owned subsidiary of Abbott and being renamed St. Jude Medical, LLC.
In the First Merger, each share of the Company’s common stock issued and outstanding immediately prior to the first effective time was automatically converted into the right to receive 0.8708 of an Abbott common share and $46.75 in cash, without interest (the “ Per Share Merger Consideration ”), with any fractional Abbott common shares to be settled in cash.
In connection with completion of the First Merger, vested options to purchase shares of the Company’s common stock were deemed exercised pursuant to a cashless exercise and the net number of shares of the Company’s common stock payable in respect thereto were converted into the right to receive the Per Share Merger Consideration, less applicable withholding taxes, with any fractional Abbott common shares to be settled in cash. In addition, unvested options and restricted stock units in respect of the Company’s common stock were assumed by Abbott and converted into Abbott options and restricted stock units (as applicable) of substantially equivalent value, in each case in accordance with the terms of the Merger Agreement.
Based on the closing price of $39.36 for an Abbott common share on the New York Stock Exchange on January 4, 2017, the aggregate implied value of the consideration paid in connection with the Mergers was approximately $23.6 billion, including approximately $10 billion in Abbott common shares and approximately $13.6 billion in cash.
The foregoing description of the Mergers and the Merger Agreement is not complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 and is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
In connection with the closing of the First Merger, on January 4, 2017, the Company notified the New York Stock Exchange (“ NYSE ”) of the effectiveness of the First Merger and requested that trading in the Company Shares be suspended after the close of trading on January 4, 2017, and that the Company shares be withdrawn from listing on the NYSE. Trading of Company Shares on NYSE was suspended after the close of trading on January 4, 2017. The Company also requested that NYSE file with the Securities and Exchange Commission (“ SEC ”) an application on Form 25 to delist and deregister Company Shares under Section 12(b) of the Securities Exchange Act of 1934, as amended. NYSE filed the Form 25 with the SEC on January 4, 2017.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Items 1.01 and 2.01 of this Current Report on Form 8-K is incorporated into this Item 3.03 by reference.
Item 5.01 Changes in Control of Registrant.
The information set forth in Item 2.01 of this Current Report on Form 8-K is incorporated into this Item 5.01 by reference.
The Mergers were funded by a portion of the net proceeds from a public offering of $15.1 billion aggregate principal amount of senior notes (the “ notes ”) that Abbott completed on November 22, 2016, net proceeds from a $2.0 billion 120-Day Bridge Term Loan Agreement, dated as of December 13, 2016, among Abbott, the lenders from time to time party thereto and Bank of America, N.A., as Administrative Agent and lender, as well as with Abbott’s cash on hand. The notes were sold pursuant to a pricing agreement, dated as of November 17, 2016, by and among Abbott, Merrill Lynch, Fenner & Smith Incorporated, Barclays Capital Inc. and Morgan Stanley & Co. LLC, for themselves and as representatives of the several other underwriters named therein.
Item 5.03 Amendment to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the effective time of the Second Merger, the certificate of formation of Vault Merger Sub, LLC, as in effect immediately prior to the effective time of the Second Merger and as set forth on Exhibit 3.1 to this Current Report on Form 8-K, which is incorporated herein by reference, became the certificate of formation of the surviving company in the Second Merger, except that the surviving company’s name was changed to St. Jude Medical, LLC. In addition, at the effective time of the Second Merger, the limited liability company agreement of the surviving company was amended and restated in the form set forth in Exhibit 3.2, which is incorporated herein by reference.
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Item 9.01 |
Financial Statements and Exhibits. |
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(d) |
Exhibits. |
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Exhibit
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of April 27, 2016, by and among St. Jude Medical, Inc., Abbott Laboratories, Vault Merger Sub, Inc. and Vault Merger Sub, LLC (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by St. Jude Medical, Inc. on April 28, 2016).* |
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3.1 |
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Certificate of Formation of Vault Merger Sub, LLC. |
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3.2 |
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Amended and Restated Limited Liability Company Agreement of St. Jude Medical, LLC, dated as of January 4, 2017. |
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4.1 |
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Sixth Supplemental Indenture, dated as of January 4, 2017, among St. Jude Medical, Inc., St. Jude Medical, LLC and U.S. Bank National Association, as trustee. |
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplementally copies of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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ST. JUDE MEDICAL, LLC |
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/s/ Brian B. Yoor |
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By: |
Brian B. Yoor |
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President and Chief Executive Officer |
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Dated: January 5, 2017 |
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EXHIBIT INDEX
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Exhibit
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of April 27, 2016, by and among St. Jude Medical, Inc., Abbott Laboratories, Vault Merger Sub, Inc. and Vault Merger Sub, LLC (incorporated by reference to Exhibit 2.1 to the Current Report on Form 8-K filed by St. Jude Medical, Inc. on April 28, 2016).* |
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3.1 |
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Certificate of Formation of Vault Merger Sub, LLC. |
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3.2 |
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Amended and Restated Limited Liability Company Agreement of St. Jude Medical, LLC, dated as of January 4, 2017. |
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4.1 |
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Sixth Supplemental Indenture, dated as of January 4, 2017, among St. Jude Medical, Inc., St. Jude Medical, LLC and U.S. Bank National Association, as trustee. |
* Schedules and exhibits have been omitted pursuant to Item 601(b)(2) of Regulation S-K. The Registrant hereby undertakes to furnish supplementally copies of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission.
EXHIBIT 3.1
CERTIFICATE OF FORMATION
OF
VAULT MERGER SUB, LLC
This CERTIFICATE of FORMATION of Vault Merger Sub, LLC, dated as of April 26, 2016 is being duly executed and filed by Sebastian L. Fain, as an authorized person of Vault Merger Sub, LLC, to form a limited liability company under the Delaware Limited Liability Company Act (6 Del.C. § 18-101, et seq. ).
FIRST. The name of the limited liability company formed hereby is:
VAULT MERGER SUB, LLC
SECOND. The address of the registered office of Vault Merger Sub, LLC in the State of Delaware is: 1209 Orange Street, in the City of Wilmington, County of New Castle. The name of its registered agent at such address is The Corporation Trust Company.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Formation as of the date first above written.
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By: |
/s/ Sebastian L. Fain |
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Name: |
Sebastian L. Fain, Esq. |
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Title: |
Authorized Person |
EXHIBIT 3.2
AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
OF
ST. JUDE MEDICAL, LLC
(f/k/a Vault Merger Sub, LLC)
January 4, 2017
This AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of St. Jude Medical, LLC, f/k/a Vault Merger Sub, LLC (the “Company”) is entered into by the sole member, Abbott Laboratories, an Illinois corporation (the “Member”), effective as of the date set forth above.
WHEREAS, the Company was formed as a limited liability company on April 26, 2016, by the filing of a Certificate of Formation with the Secretary of State of the State of Delaware (the “Certificate of Formation”) pursuant to and in accordance with the Delaware Limited Liability Company Act (6 Del. C. § 18-101, et seq .), as amended from time to time (the “Act”); and
WHEREAS, the Member agrees that the membership in and management of the Company shall be governed by the terms set forth in this Agreement.
NOW, THEREFORE, the Member agrees as follows:
1. Name . The name of the limited liability company is St. Jude Medical, LLC. The Company may do business under that name and, as permitted by applicable law, under any other name determined from time to time by the Board of Directors (as defined below).
2. Purpose . The Company is formed for the object and purpose of, and the nature of the business to be conducted and promoted by the Company is, engaging in any lawful act or activity for which limited liability companies may be formed under the Act and engaging in any and all activities necessary or incidental to the foregoing.
3. Term . The term of the Company commenced on the date set forth in the Certificate of Formation of the Company and shall continue until the Company is dissolved pursuant to the provisions of Section 10.
4. Principal Business Office . The principal office of the Company shall be at such place as the Board of Directors may determine from time to time.
5. Registered Agent and Office . The registered agent of the Company for service of process and the registered office of the Company shall be that person and location reflected in the Certificate of Formation. In the event that the registered agent ceases to act as such for
any reason or the registered office shall change, the Board of Directors shall designate a replacement registered agent or file a notice of change of address, as the case may be .
6. Certificate of Formation . The Company was formed on April 26, 2016 pursuant to provisions of the Delaware Limited Liability Company Act (the “ Act ”).
7. Membership Interests . There shall be only one class of limited liability company interests (“Common Units”). There shall initially be outstanding 100 Common Units.
8. Member . The name, mailing address and percentage interest of the Member are as follows. The receipt by the Company of cash and/or a note in the amount of $1.00 in respect of its percentage interest from the Member is hereby acknowledged.
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Name |
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Address |
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Agreed Value of
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Percentage
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Abbott Laboratories |
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100 Abbott Park Road
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$ |
1.00 |
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100% (100 Common Units) |
9. Management of the Company .
(a) Except to the extent otherwise expressly provided in this Agreement or required by the Act or other applicable law, the management, operation and control of the Company and its affairs shall be vested in a Board of Directors composed of the persons described in Section 9(c) (the “Board of Directors”). All powers of the Company, for which approval of the Member to the exercise thereof is not expressly required by this Agreement, the Act or other applicable Law, shall be exercised under the authority of, and the business and affairs of the Company (including those related to the Company’s assets) shall be managed by, or under the direction and control of, the Board of Directors in a manner consistent with the terms, provisions and conditions of this Agreement and the Act. The acts of the Board of Directors in carrying on the affairs and activities of the Company (and the management, operation and control thereof and of the Company’s assets) as authorized herein shall bind the Company. Each member of the Board of Directors shall be a “manager” of the Company within the meaning of the Act.
(b) Members of the Board of Directors shall have the responsibilities and authority with respect to the management of the business and affairs of the Company analogous to the responsibilities and authority of the members of the board of directors of a Delaware corporation. As is the case with a Delaware corporation, the Company may employ officers and agents to manage the day-to-day operations of the Company, subject to the direction and supervision of the Board of Directors. Without limiting the generality of the foregoing, the Board of Directors has the right, power and authority, without the approval of the Member,
to cause the Company to (i) authorize by written action any person to enter into and perform any agreement on behalf of the Company, (ii) appoint one or more officers with such titles and duties and powers as the Board of Directors may determine and (iii) appoint individuals, with such titles as the Board of Directors may select, as employees or officers of the Company to act on behalf of the Company, with such power and authority as the Board of Directors may delegate from time to time to any such person. Any such persons, officers and employees designated by the Board of Directors to act on behalf of the Company may be appointed or removed by the Board of Directors at any time and from time to time, with or without cause.
(c) The exact number of directors shall initially be one and may thereafter be fixed from time to time by the Board of Directors or by the Member. Directors shall be elected at the annual meeting of the Member, and each director shall be elected to serve until his or her successor shall be elected and shall qualify. The initial member(s) of the Board of Directors shall be as follows and shall serve until the earlier of his or her death, resignation or removal by the Member of the Company, with or without cause:
Brian B. Yoor
(d) Any director may resign at any time. Such resignation shall be made in writing, and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the Chairman of the Board, the President or the Secretary. The acceptance of a resignation shall not be necessary to make it effective.
(e) If the office of any director becomes vacant, the remaining directors in the office, though less than a quorum, by a majority vote, or the Member may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his or her successor shall be duly chosen. If the office of any director becomes vacant and there are no remaining directors, the Member may appoint any qualified person to fill such vacancy, who shall hold office for the unexpired term and until his or her successor shall be duly chosen.
(f) Except as hereinafter provided, any director or directors may be removed either for or without cause at any time by the Member at an annual meeting or a special meeting called for such purpose or by action by written consent pursuant to Section 9(h).
(g) A majority of the Board of Directors shall constitute a quorum for the transaction of business. If at any meeting of the Board of Directors there shall be less than a quorum present, a majority of those present may adjourn the meeting from time to time until a quorum is obtained, and no further notice thereof need be given other than by announcement at the meeting which shall be so adjourned. The vote of
the majority of the Directors present at a meeting at which a quorum is present shall be the act of the Board of Directors.
(h) Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof and any action required or permitted to be taken by the Member may be taken without a meeting if a written consent thereto is signed by all members of the Board of Directors or of such committee or the Member, as the case may be.
10. Dissolution; Liquidation . (a) The Company shall dissolve, and its affairs shall be wound up, upon the first to occur of the following: (i) the written consent of the Member; or (ii) any other event or circumstance giving rise to the dissolution of the Company under the Act, unless the Company’s existence is continued pursuant to the Act.
(b) Upon dissolution of the Company, the Company shall immediately commence to wind up its affairs and the Board of Directors shall promptly liquidate the business of the Company. During the period of the winding up of the affairs of the Company, the rights and obligations of the Board of Directors under this Agreement shall continue.
(c) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied as follows: (i) first, to creditors, to the extent otherwise permitted by law, in satisfaction of liabilities of the Company (whether by payment or the making of reasonable provision for payment thereof); and (ii) thereafter, to the Member.
(d) Upon the completion of the winding up of the Company, the Board of Directors or Member shall file a certificate of dissolution in accordance with the Act.
11. Capital Contributions . The Member shall have the right, but not the obligation, to make additional capital contributions to the Company at the times and in the amounts determined by the Member.
12. Distributions . Distributions may be made to the Member at the times and in the aggregate amounts determined by the Board of Directors. Anything to the contrary contained herein notwithstanding, the Company and the Board of Directors on behalf of the Company shall not make a distribution to the Member on account of the interest of the Member in the Company if such distribution would violate § 18-607 of the Act or any other applicable law.
13. Assignments . The Member shall be permitted to transfer all or any portion of its interest in the Company to any person or entity.
14. Resignation . The Member may resign at any time permitted by the Act.
15. Admission of Additional Members . One or more additional members of the Company may be admitted to the Company with the written consent of the Member.
16. Liability of the Member . Except as otherwise provided by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member of the Company.
17. Exculpation . (a) None of the Member, current or former members of the Board of Directors, current or former officers, employees or agents of the Company, any authorized person, nor any of their respective affiliates, directors, trustees, members, officers, controlling persons or employees (each, a “Covered Person”), shall be liable to the Company or the Member for any loss, liability, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company. Whenever in this Agreement a Covered Person is permitted or required to make decisions in good faith, the Covered Person shall act under such standard and shall not be subject to any other or different standard imposed by this Agreement or any relevant provisions of law or in equity or otherwise.
(b) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any person or entity as to matters the Covered Person reasonably believes are within such person’s or entity’s professional or expert competence.
(c) If the Act hereafter is amended to authorize the further elimination or limitation of the liability of any Covered Persons (including, but not limited to, with respect to fiduciary duties as described in Section 18, below), then the liability of such Covered Persons shall be eliminated or limited to the fullest extent permitted by the Act, as amended.
18. Fiduciary Duty . To the extent that, at law or in equity, a Covered Person has duties (including fiduciary duties) and liabilities relating thereto to the Company or to the Member, a Covered Person acting under this Agreement shall not be liable to the Company or to the Member for such Covered Person’s good faith reliance on the provisions of this Agreement. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of such Covered Person.
19. Indemnification and Insurance . (a) Right to Indemnification . Each person who was or is made a party or is threatened to be made a party to or is involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she, or a person of whom he or she is the legal representative, is or was a director or officer of the Company (including, for purposes of this Section 19, any domestic or foreign corporation that was a predecessor of the Company in a merger or other transaction in which the predecessor’s existence ceased upon consummation of the transaction) or is or was serving at the request of the Company or the Board of Directors as a manager, member of a committee of the Board
of Directors, director or officer, employee or agent of the Company or another company, corporation, partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, whether the basis of such proceeding is an alleged action in an official capacity as a director, officer, employee or agent or in any other capacity while serving as a director, officer, employee or agent, shall be indemnified and held harmless by the Company to the fullest extent authorized by the Act, as the same exists or may hereafter be amended (but, in the case of any such amendment, to the fullest extent permitted by law, only to the extent that such amendment permits the Company to provide broader indemnification rights than said law permitted the Company to provide prior to such amendment), against all expense, liability and loss (including attorneys’ fees, judgments, penalties, fines, amounts paid or to be paid in settlement, and excise taxes or penalties arising under the Employee Retirement Income Security Act of 1974) reasonably incurred or suffered by such person in connection therewith and such indemnification shall continue as to a person who has ceased to be a manager, director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that, except as provided in paragraph (b) hereof, the Company shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board of Directors. The right to indemnification conferred in this Section shall be a contract right and shall include the right to be paid by the Company the expenses incurred in defending any such proceeding in advance of its final disposition; provided, however, that, if the Act requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) in advance of the final disposition of a proceeding, shall be made only upon delivery to the Company of an undertaking, by or on behalf of such director or officer, to repay all amounts so advanced if it shall ultimately be determined that such director or officer is not entitled to be indemnified under this Section or otherwise. The Company may, by action of the Board of Directors, provide indemnification to other persons with the same scope and effect as the foregoing indemnification.
(b) Right of Claimant to Bring Suit . If a claim under paragraph (a) of this Section is not paid in full by the Company within thirty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled to be paid also the expense of prosecuting such claim. It shall be a defense to any such action (other than an action brought to enforce a claim for expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Company) that the claimant has not met the standards of conduct which make it permissible under the Act for the Company to indemnify the claimant for the amount claimed, but the burden of proving such defense shall be on the Company. Neither the failure of the Company (including its Board of Directors, independent legal counsel, or its Member(s)) to have made a determination prior to the commencement of such action that indemnification of the claimant is proper in the circumstances because he or she has met the applicable standard of conduct set forth in the Act, nor an actual determination by the
Company (including its Board of Directors, independent legal counsel, or its Member(s)) that the claimant has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the claimant has not met the applicable standard of conduct.
(c) Non Exclusivity of Rights . The right to indemnification and the payment of expenses incurred in defending a proceeding in advance of its final disposition conferred in this Section shall not be exclusive of any other right which any person may have or hereafter acquire under any statute, provision of this Agreement, other agreement, action of the Board of Directors or otherwise.
(d) Insurance . The Company may maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Company or another company, corporation, partnership, joint venture, trust or other enterprise against any such expense, liability or loss, whether or not the Company would have the power to indemnify such person against such expense, liability or loss under the Act.
(e) Reimbursement to witness . The Company shall reimburse expenses including attorneys’ fees and disbursements, incurred by a person in connection with an appearance as a witness in a proceeding at a time when the person has not been made or threatened to be made a party to a proceeding.
20. Expenses . To the fullest extent permitted by applicable law, expenses (including attorneys’ fees and disbursements) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding, subject to recapture by the Company following a later determination that such Covered Person was not entitled to be indemnified hereunder.
21. Tax Classification . The Company shall be classified as a disregarded entity for U.S. federal, and where applicable, state and local, income tax purposes, and (a) all items of income, gain, loss, deduction and credit of the Company shall be reported as appropriate on the Member’s income tax returns, and (b) all provisions of this Agreement are to be construed as to preserve the Company’s classification as a disregarded entity.
22. Amendment, Waiver, Etc. This Agreement may not be amended or supplemented, and no waiver of or consent to departures from the provisions hereof shall be effective, unless set forth in a writing signed by the Member.
23. Miscellaneous . This Agreement constitutes the entire agreement of the Member with respect to the subject matter hereof and supersedes all prior agreements and understandings pertaining thereto. This Agreement shall be binding upon and inure to the benefit of the Member and its successors and permitted assigns. The invalidity or unenforceability of any particular provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted. Except as provided in Sections 17 through 20 with respect to the exculpation and indemnification of Covered Persons, nothing in this
Agreement shall confer any rights upon any person or entity other than the Member and his successors and permitted assigns.
24. Governing Law . THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF DELAWARE (WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES), ALL RIGHTS AND REMEDIES BEING GOVERNED BY SUCH LAWS.
IN WITNESS WHEREOF, the undersigned Member of the Company, intending to be legally bound hereby, has duly executed this Agreement as of the date first above written.
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ABBOTT LABORATORIES |
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By: |
/s/ Karen M. Peterson |
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Name: |
Karen M. Peterson |
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Title: |
Vice President, Treasurer |
EXHIBIT 4.1
SIXTH SUPPLEMENTAL INDENTURE
This Sixth Supplemental Indenture, dated as of January 4, 2017 (this “ Supplemental Indenture ”), among St. Jude Medical, Inc., a Minnesota corporation (the “ Original Issuer ”) and wholly owned subsidiary of Abbott Laboratories, an Illinois corporation (“ Abbott ”), and St. Jude Medical, LLC (formerly known as Vault Merger Sub, LLC), a Delaware limited liability company (together with its successors and assigns, the “ Successor Company ”) and wholly owned subsidiary of Abbott, and U.S. Bank National Association, a national banking association, as trustee hereunder (the “ Trustee ”).
W I T N E S S E T H :
WHEREAS, the Original Issuer and the Trustee have heretofore executed and delivered an Indenture, dated as of July 28, 2009 (as amended, supplemented or otherwise modified prior to the date hereof, including by that certain (i) Fourth Supplemental Indenture, dated as of April 2, 2013, providing for the issuance of the Original Issuer’s 3.25% Senior Notes due 2023 (the “ 2023 Notes ”) and 4.75% Senior Notes due 2043 (the “ 2043 Notes ”) and (ii) Fifth Supplemental Indenture, dated as of September 23, 2015, providing for the issuance of the Original Issuer’s 2.000% Senior Notes due 2018 (the “ 2018 Notes ”), 2.800% Senior Notes due 2020 (the “ 2020 Notes ”) and 3.875% Senior Notes due 2025 (the “ 2025 Notes ,” and together with the 2023 Notes, the 2043 Notes, the 2018 Notes and the 2020 Notes, the “ Notes ”), the “ Indenture ”);
WHEREAS, the Notes are the only series of Securities outstanding under the Indenture;
WHEREAS, the Original Issuer and the Successor Company are parties to that certain Agreement and Plan of Merger, dated as of April 27, 2016, by and among Abbott, the Original Issuer, Vault Merger Sub, Inc., a Delaware corporation (“ Merger Sub 1 ”) and a wholly owned subsidiary of Abbott, and the Successor Company, pursuant to which on the date hereof (i) Merger Sub 1 has merged with and into the Original Issuer, with the Original Issuer surviving such merger (the “ First Merger ”) and (ii) the Original Issuer will merge with and into the Successor Company, with the Successor Company surviving such merger (the “ Second Merger ”);
WHEREAS, Article 6 of the Indenture provides, among other things, that under certain circumstances the Original Issuer may consolidate with another entity, accept a merger of another entity into it, or be merged into another entity;
WHEREAS, in connection with the Second Merger, the Original Issuer desires that the Successor Company assume the Original Issuer’s Obligations under the Notes and the Indenture, and the Successor Company desires to assume the Original Issuer’s Obligations under the Notes and the Indenture;
WHEREAS, pursuant to Section 12.1 of the Indenture, the Trustee and the Original Issuer are authorized to execute and deliver this Supplemental Indenture to evidence the succession of the Successor Company to the Original Issuer, and the assumption by the Successor Company of the covenants and obligations of the Original Issuer contained in the Notes and the Indenture;
WHEREAS, each of the Original Issuer, the Successor Company and the Trustee have duly authorized the execution and delivery of this Supplemental Indenture;
WHEREAS, the Original Issuer has furnished the Trustee with an Opinion of Counsel and Officers’ Certificates in accordance with the Indenture, stating that the First Merger, the Second Merger and the execution of this Supplemental Indenture comply with Article 6 of the Indenture and that upon delivery to the Trustee of such Officers’ Certificates, such Opinion of Counsel and this Supplemental Indenture as contemplated by Article 6 and Section 16.3 of the Indenture, all conditions precedent therein provided relating to the First Merger, the Second Merger and the execution of this Supplemental Indenture will have been complied with; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the Original Issuer, the Successor Company and the Trustee and a valid amendment of, and supplement to, the Indenture and the Notes have been done, and the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Indenture.
NOW, THEREFORE, in consideration of the premises set forth herein and for other good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto covenant and agree for the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Defined Terms . As used in this Supplemental Indenture, terms defined in the Indenture are used herein as therein defined. The words “herein,” “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof. All references in the Indenture and the Notes to “St. Jude Medical, Inc.” are hereby amended and replaced with “St. Jude Medical, LLC.”
ARTICLE II
AGREEMENT TO ASSUME OBLIGATIONS
SECTION 2.1 Assumption of Obligations . Immediately upon the effectiveness of the Second Merger pursuant to Article 6 of the Indenture, the Successor Company (i) hereby assumes the due and punctual payment of the principal of and any premium and interest on all the Notes, according to their tenor, and the due and punctual performance and observance of all other obligations to the Holders and the Trustee under the Indenture or under the Notes to be performed or observed by the Original Issuer and (ii) hereby succeeds to, and is substituted for, and may exercise every right and power of, the Original Issuer under the Indenture and the Notes with the same effect as if the Successor Company had been named as the Original Issuer in the Indenture and the Notes.
ARTICLE III
MISCELLANEOUS
SECTION 3.1 Notices . All notices or other communications to the Successor Company shall be given as provided in the Indenture addressed as follows:
St. Jude Medical, LLC
c/o Abbott Laboratories
100 Abbott Park Road
Abbott Park, IL 60064
Attention: Treasurer
SECTION 3.2 Concerning the Trustee . The Trustee assumes no duties, responsibilities, or liabilities by reason of this Supplemental Indenture other than as set forth in the Indenture. The Trustee shall not be responsible in any manner whatsoever for or in respect of (i) the validity or sufficiency of this Supplemental Indenture, (ii) the correctness of any of the provisions contained herein, or (iii) the recitals contained herein, all of which recitals are made solely by the Original Issuer and the Successor Company.
SECTION 3.3 Supplemental Indenture Controls . In the event of a conflict or inconsistency between the Indenture and this Supplemental Indenture, the provisions of this Supplemental Indenture shall control.
SECTION 3.4 Governing Law . This Supplemental Indenture shall be deemed to be a contract made under the law of the State of New York, and for all purposes shall be governed by and construed in accordance with the law of said State.
SECTION 3.5 Execution in Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument. Delivery of an executed counterpart by facsimile or PDF shall be effective as delivery of a manually executed counterpart thereof.
SECTION 3.6 Confirmation of Indenture . Except as amended and supplemented hereby, the Indenture is hereby ratified, confirmed and reaffirmed in all respects. The Indenture and this Supplemental Indenture shall be read, taken and construed as one and the same instrument.
SECTION 3.7 Headings . The titles and headings of the articles and sections of this Supplemental Indenture have been inserted for convenience of reference only, are not to be considered a part hereof, and shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 3.8 Severability . In case any provision in 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 3.9 No Adverse Interpretation of Other Agreements . This Supplemental Indenture may not be used to interpret another indenture, loan, or debt agreement other than the Indenture for purposes of the Notes. Any such indenture, loan, or debt agreement may not be used to interpret this Supplemental Indenture.
SECTION 3.10 Successors and Assigns . All covenants and agreements made by the Original Issuer and the Successor Company in this Supplemental Indenture shall be binding upon their respective successors and assigns, whether expressed or not.
[ Signature Pages Follow ]
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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ST. JUDE MEDICAL, LLC |
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By: |
/s/ Karen Peterson |
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Name: |
Karen Peterson |
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Title: |
Vice President and Treasurer |
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ST. JUDE MEDICAL, INC. |
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By: |
/s/ Karen Peterson |
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Name: |
Karen Peterson |
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Title: |
Vice President and Treasurer |
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the date first above written.
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U.S. BANK NATIONAL ASSOCIATION,
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By: |
/s/ Raymond S. Haverstock |
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Name: |
Raymond S. Haverstock |
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Title: |
Vice President |