FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE (this Supplemental Indenture), dated as of December 16, 2019, among VALOR ACQUISITION, LLC, a Delaware limited liability company (Merger Sub) and WILMINGTON TRUST, NATIONAL ASSOCIATION, a national banking association, as trustee (the Trustee).
W I T N E S S E T H
WHEREAS, Vitamin Shoppe, Inc., a Delaware corporation (the Company)and the Trustee are parties to that certain Indenture, dated as of December 9, 2015, between the Company and the Trustee (the Indenture), pursuant to which the Company issued its 2.25% Convertible Senior Notes due 2020 (the Notes);
WHEREAS, the Company is a party to that certain Agreement and Plan of Merger, dated as of August 7, 2019 (as amended by that certain First Amendment to Agreement and Plan of Merger, dated as of November 11, 2019, and as may be further amended, amended and restated, supplemented, or otherwise modified from time to time, the Merger Agreement), by and among the Company, Liberty Tax, Inc., a Delaware corporation (now known as Franchise Group, Inc.) (Parent) and Merger Sub, a wholly-owned subsidiary of Parent, pursuant to which the Company will merge with and into Merger Sub (such transaction, the Merger), with Merger Sub continuing as the surviving company of the Merger and as a wholly-owned Subsidiary of Parent, and, subject to the terms and conditions contained in the Merger Agreement, each share of common stock of the Company, par value $0.01 per share (the Company Common Stock), issued and outstanding prior to the effective time of the Merger (other than Owned Company Shares or Dissenting Company Shares, as such terms are defined in the Merger Agreement) will be cancelled and automatically converted into the right to receive $6.50 in cash (the Merger Consideration);
WHEREAS, Article 11 of the Indenture permits the Company to merge with and into another person so long as certain conditions have been met;
WHEREAS, pursuant to the Merger Agreement, Merger Sub agreed to assume all rights and obligations of the Company under the Notes and the Indenture (the Assumption) by executing this Supplemental Indenture;
WHEREAS, pursuant to Sections 10.01(b) and 11.01(a) of the Indenture, Merger Sub and the Company are authorized to consummate the Assumption, and Merger Sub and the Trustee are authorized to execute and deliver this Supplemental Indenture;
WHEREAS, the Merger Consideration is to be paid to each holder of Shares without interest and less any applicable withholding taxes;
WHEREAS, in connection with the foregoing, Section 14.07(a) of the Indenture provides that Merger Sub shall execute a supplemental indenture providing that each Note shall, without the consent of any holders of Notes as permitted by Section 10.01(g) of the Indenture, become convertible solely into Reference Property (as defined below); and
WHEREAS, all conditions for the execution and delivery of this Supplemental Indenture have been complied with or have been done or performed.