8-K

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):  October 14, 2009

SEPRACOR INC.

(Exact name of Registrant as specified in its charter)

Delaware
(State or other jurisdiction of
incorporation or organization) 0-19410
(Commission File Number) 22-2536587
(I.R.S. Employer
Identification No.)

84 Waterford Drive, Marlborough, MA	01752
(Address of principal executive offices)	(Zip code)

(508) 481-6700
(Registrant’s telephone number including area code)

N/A
(Former name and 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 (see General Instruction A.2. below):

oWritten communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

oSoliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

oPre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

oPre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 2.04.  Triggering Events That Accelerate or Increase a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement.

As previously announced, on September 3, 2009, Sepracor Inc., a Delaware corporation (“Sepracor” or the “Company”), entered into an Agreement and Plan of Merger (the “Merger Agreement”) with Dainippon Sumitomo Pharma Co., Ltd., a company formed under the laws of Japan (“Parent”), and Aptiom, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Parent (“Purchaser”).  As more fully described below, on October 20, 2009, Purchaser was merged with and into the Company (the “Merger”) pursuant to the terms and conditions of the Merger Agreement.  The Merger became effective at 4:01 p.m., New York City time, on October 20, 2009, in accordance with Section 253 of the General Corporation Law of the State of Delaware, as amended (the “DGCL”), and pursuant to the Certificate of Ownership and Merger that was filed on October 20, 2009 with the Secretary of State of the State of Delaware.  Pursuant to the Merger Agreement, at the effective time of the Merger (the “Effective Time”), Purchaser was merged with and into the Company with the Company continuing as the surviving corporation (the “Surviving Corporation”) and as an indirect wholly-owned subsidiary of Parent.

In connection with the Merger, the Surviving Corporation and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as trustee (the “Trustee”), executed a First Supplemental Indenture, dated as of October 20, 2009 (the “2010 Supplemental Indenture”), to the Indenture, dated as of December 12, 2003, between the Company and the Trustee (the “2010 Indenture”), in respect of the Company’s 0% Series B Senior Subordinated Notes Due 2010 (the “2010 Notes”).  Pursuant to the terms of the 2010 Supplemental Indenture, among other things, the Surviving Corporation agreed to assume the due and punctual payment of the principal of and premium, if any, on all of the 2010 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the 2010 Indenture to be performed by the Company.

In connection with the Merger, the Surviving Corporation and the Trustee also executed a First Supplemental Indenture, dated as of October 20, 2009 (the “2024 Supplemental Indenture”), to the Indenture, dated as of September 22, 2004, between the Company and the Trustee (the “2024 Indenture”), in respect of the Company’s 0% Convertible Senior Subordinated Notes Due 2024 (the “2024 Notes”).  Pursuant to the terms of the 2024 Supplemental Indenture, among other things, the Surviving Corporation agreed to assume the due and punctual payment of the principal of and premium, if any, on all of the 2024 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the 2024 Indenture to be performed by the Company.

The foregoing descriptions of the 2010 Supplemental Indenture and the 2024 Supplemental Indenture do not purport to be complete and are qualified in their entirety by reference to the full text of the 2010 Supplemental Indenture and the 2024 Supplemental Indenture, copies of which are attached as Exhibit 4.1 and 4.2 to this Current Report on Form 8-K, respectively, and incorporated in this report by reference.

Pursuant to the terms of the 2010 Indenture, a “Designated Event,” as defined in the 2010 Indenture, may be deemed to have occurred upon the purchase by Purchaser of Shares (as defined in Item 5.01 below) validly tendered and not withdrawn as of the expiration of the initial offering period of the Offer (as defined in Item 5.01 below).  Pursuant to the terms of the 2010 Indenture, the Company is required to send to holders of the 2010 Notes (the “2010 Holders”), within ten days of a Designated Event, notice of the occurrence of the Designated Event and of the right of the 2010 Holders to require the Company to repurchase their 2010 Notes at a price of $1,000.00 per $1,000.00 principal amount of the 2010 Notes, plus any accrued and unpaid liquidated damages on such 2010 Notes to, but excluding, the date of repurchase.  As of the date hereof, approximately $99,844,000 aggregate principal amount of 2010 Notes remains outstanding.  The Company believes that no amount is or will be due in respect of accrued and unpaid liquidated damages on the 2010 Notes.

In addition, pursuant to the terms of the 2024 Indenture, a “Designated Event,” as defined in the 2024 Indenture, may be deemed to have occurred upon the purchase by Purchaser of Shares validly tendered and not withdrawn as of the expiration of the initial offering period of the Offer.  Pursuant to the terms of the 2024 Indenture, the Company is required to send to holders of the 2024 Notes (the “2024 Holders”), within ten days of a Designated Event, notice of the occurrence of the Designated Event and of the right of the 2024 Holders to require the Company to repurchase their 2024 Notes at a price of $1,000.00 per $1,000.00 principal amount of the 2024 Notes, plus any accrued and unpaid liquidated damages on such 2024 Notes to, but excluding, the date of repurchase.  As of the date hereof, approximately $279,000 aggregate principal amount of 2024 Notes remains outstanding.  The Company believes that no amount is or will be due in respect of accrued and unpaid liquidated damages on the 2024 Notes.

The information set forth under Item 5.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 2.04.

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Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

The disclosure contained in Item 5.01 below is incorporated herein by reference.  On October 20, 2009, the Company notified the NASDAQ Global Select Market (“NASDAQ”) of the effectiveness of the Merger.  As a result of the Merger, the Company no longer meets the numerical listing requirements of NASDAQ.  The Company also notified NASDAQ that each share of Company common stock (as defined in Item 5.01 below) issued and outstanding immediately prior to the Effective Time (other than any shares of Company common stock held in the treasury of the Company or owned by Parent or Purchaser or any direct or indirect subsidiary of Parent, Purchaser or the Company) was, at the Effective Time, canceled and, subject to the exercise of appraisal rights under the DGCL, converted into the right to receive an amount equal to the Offer Price (as defined below), and requested that NASDAQ file with the Securities and Exchange Commission (the “SEC”) an application on Form 25 to report that shares of Company common stock are no longer listed on NASDAQ.  Trading of shares of Company common stock on NASDAQ has ceased effective as of the close of trading on October 20, 2009.

Item 3.02. Unregistered Sale of Equity Securities.

The disclosure contained in Item 5.01 below is incorporated herein by reference.  The Top-Up Option Shares (as defined in Item 5.01 below) issued to Purchaser pursuant to the Top-Up Option (as defined in Item 5.01 below) were issued in reliance upon an exemption from registration pursuant to Section 4(2) under the Securities Act of 1933, as amended, as a transaction by an issuer not involving a public offering.

Item 3.03. Material Modification to Rights of Security Holders.

The information set forth under Items 2.04 and 5.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 3.03.

Item 5.01. Change in Control of the Registrant.

As previously announced, on September 15, 2009, Purchaser commenced a tender offer (the “Offer”) in accordance with the terms of the Merger Agreement to acquire all of the outstanding shares of common stock, par value $0.10 per share, of the Company (“Company common stock”), including the associated preferred stock purchase rights (collectively with the Company common stock, the “Shares”), at a purchase price of $23.00 per Share, net to the holder in cash, without interest (the “Offer Price”), subject to any required withholding of taxes, upon the terms and subject to the conditions set forth in the Offer to Purchase dated September 15, 2009 (the “Offer to Purchase”) and in the related Letter of Transmittal, each as amended or supplemented from time to time.

The initial offering period expired at 12:00 midnight, New York City time, at the end of the day on October 13, 2009.  Shares (excluding Shares tendered by notice of guaranteed delivery) representing approximately 78% of the outstanding shares of Company common stock were validly tendered and not properly withdrawn as of the expiration time of the initial offering period.  All such Shares were accepted for payment on October 14, 2009 and thereafter paid for by Purchaser on October 15, 2009.  Accordingly, as a result of the purchase of the Shares validly tendered and not withdrawn in the initial offering period, on October 15, 2009 a change in control of the Company occurred.

Immediately following the expiration of the initial offering period, Purchaser commenced a subsequent offering period in accordance with the terms of the Merger Agreement which expired at 5:00 p.m., New York City time, on October 19, 2009.  According to Computershare Trust Company, N.A., the depositary for the Offer, a total of approximately 96,590,423 Shares were validly tendered in the Offer, representing approximately 86.9% of the outstanding shares of Company common stock.

Subsequent to the expiration of the Offer, on October 19, 2009, Purchaser exercised the option (the “Top-Up Option”) to purchase shares of Company common stock directly from the Company, in accordance with the terms of the Merger Agreement.  On October 20, 2009, Purchaser purchased from the Company 37,000,000 shares of Company common stock (the “Top-Up Option Shares”) at a price per share equal to the Offer Price and paid for such shares by delivery of cash in an amount equal to $0.10 per Top-Up Option Share and a promissory note in an amount equal to the balance of the purchase price.  The Top-Up Option Shares, when combined with the number of Shares owned by Parent and Purchaser immediately prior to the purchase of the Top-Up Option Shares, constitute aggregate ownership in excess of 90% of the outstanding Shares.

Pursuant to the Merger Agreement, on October 20, 2009, the Merger was effected.  The Merger became effective at 4:01 p.m., New York City time, on October 20, 2009 following the filing by Purchaser of a Certificate of Ownership and Merger with the Secretary of State of the State of Delaware.  Each share of Company common stock that remained outstanding immediately prior to the Effective Time (other than any shares of Company common stock held in the treasury of the Company or owned by Parent or Purchaser or any

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direct or indirect subsidiary of Parent, Purchaser or the Company) were, at the Effective Time, canceled and, subject to the exercise of appraisal rights under the DGCL, converted into the right to receive cash in an amount equal to the Offer Price.

Pursuant to the terms of the Merger Agreement, following Purchaser’s acceptance of and payment for the Shares validly tendered and not properly withdrawn as of the expiration of the initial offering period (the “Initial Acceptance Time”), Purchaser became entitled to designate such number of directors to the Board of Directors of the Company (the “Board”) to give Purchaser representation on the Board equal to that number of directors, rounded up to the next whole number, equal to the product of (i) the total number of directors on the Board (giving effect to the directors elected pursuant to this sentence) multiplied by (ii) the percentage that (A) the number of Shares owned by Parent, Purchaser or any other subsidiary of Parent bears to (B) the total number of Shares that are issued and outstanding.  Accordingly, on October 15, 2009, each of Adrian Adams, Timothy Barberich, Digby W. Barrios, James F. Mrazek, and Alan A. Steigrod (the “Resigning Directors”) resigned from the Board.  Messrs. Mrazek and Steigrod were members of the Audit Committee.  Messrs. Barrios and Mrazek were members of the Compensation Committee.  Messrs. Barrios and Steigrod were members of the Nominating and Corporate Governance Committee.  Following the effectiveness of such resignations, Robert J. Cresci, Lisa Ricciardi and Timothy J. Rink (the “Continuing Directors”) remained as members of the Board, but all such Continuing Directors resigned from the Board at or prior to the Effective Time, which occurred at 4:01 p.m., New York City time, on October 20, 2009.  In accordance with the terms of the Merger Agreement, immediately following the Initial Acceptance Time and prior to the Effective Time, the Continuing Directors appointed the following Parent designees as members of the Board:  Koichi Tamura, Hiroshi Nomura, Yoshiharu Ikeda, Noriaki Okuda, Nobuhiko Tamura and Hitoshi Odagiri.  In accordance with the terms of the Merger Agreement and the Certificate of Ownership and Merger, the directors of Purchaser immediately prior to the Effective Time became the directors of the Surviving Corporation at the Effective Time.

Item 5.02. Departure of Directors or Principal Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

The information set forth under Item 5.01 of this Current Report on Form 8-K is hereby incorporated by reference into this Item 5.02.  None of the members of the Board that resigned therefrom in connection with the closing of the transactions contemplated by the Merger Agreement resigned from the Board because of any disagreements relating to the Company’s operations, policies or practices.

Item 5.03.  Amendments to Articles of Incorporation or Bylaws; Changes in Fiscal Year.

In accordance with the Merger Agreement, at the Effective Time, the certificate of incorporation of the Company was amended and restated in its entirety.  Also, pursuant to the Merger Agreement, at the Effective Time, the bylaws of Purchaser, as in effect immediately prior to the Effective Time, became the bylaws of the Surviving Corporation except that the name of the corporation set forth therein was changed to “Sepracor Inc.”  Copies of the amended and restated certificate of incorporation and bylaws of the Surviving Corporation are filed as Exhibits 3.1 and 3.2 to this Current Report on Form 8-K and are incorporated by reference in this Item 5.03.

Item 8.01. Other Events.

On October 14, 2009, Parent and the Company issued a press release announcing, among other things, Purchaser’s acceptance of and payment for all Shares validly tendered and not properly withdrawn in the initial offering period and the commencement of a subsequent offering period, in each case in connection with the Offer.  On October 20, 2009, Parent and the Company issued a press release announcing, among other things, Purchaser’s acceptance of and payment for all Shares validly tendered in the subsequent offering period and the intention to effect the Merger.  On October 20, 2009, Parent and the Company issued a subsequent press release announcing, among other things, the completion of the Merger.  Copies of these press releases are filed as Exhibits 99.1, 99.2 and 99.3 respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

On September 16, 2009, the Company notified the holders of its 2024 Notes of their right, pursuant to the provisions of the 2024 Indenture, to require the Company to repurchase the 2024 Notes for cash, at a purchase price equal to 100% of the principal amount, on October 15, 2009.  The notice of right of repurchase was delivered to the 2024 Holders pursuant to a provision of the 2024 Indenture that is unrelated to the Offer and the Merger.  The right to surrender the 2024 Notes for repurchase terminated at 5:00 p.m. New York City time, on October 14, 2009, at which time $187,976,000 aggregate principal amount of 2024 Notes had been validly surrendered for repurchase and not withdrawn.  On October 15, 2009, the Company repurchased the  $187,976,000 aggregate principal amount of 2024 Notes that had been surrendered and, following such repurchase, $279,000 aggregate principal amount of 2024 Notes remain outstanding.

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Item 9.01.  Financial Statements and Exhibits.

(d)	Exhibits.
	The following exhibits are being filed with this Current Report on Form 8-K:
	3.1	Amended and Restated Certificate of Incorporation of Sepracor Inc.
	3.2	Amended and Restated Bylaws of Sepracor Inc.
	4.1	First Supplemental Indenture, dated as of October 20, 2009, to the Indenture, dated as of December 12, 2003, between Sepracor Inc. and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as trustee.
	4.2	First Supplemental Indenture, dated as of October 20, 2009, to the Indenture, dated as of September 22, 2004, between and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as trustee.
	99.1	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 14, 2009.
	99.2	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20, 2009.
	99.3	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20, 2009.

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SIGNATURES

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, thereunto duly authorized.

	SEPRACOR INC.
	By:	/s/ Andrew I. Koven
		Name: Andrew I. Koven
		Title Executive Vice President, General Counsel and Corporate Secretary
Date: October 20, 2009

EXHIBIT INDEX

3.1	Amended and Restated Certificate of Incorporation of Sepracor Inc.
3.2	Amended and Restated Bylaws of Sepracor Inc.
4.1	First Supplemental Indenture, dated as of October 20, 2009, to the Indenture, dated as of December 12, 2003, between Sepracor Inc. and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as trustee.
4.2	First Supplemental Indenture, dated as of October 20, 2009, to the Indenture, dated as of September 22, 2004, between and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as trustee.
99.1	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 14, 2009.
99.2	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20, 2009.
99.3	Press Release issued by Sepracor Inc. and Dainippon Sumitomo Pharma Co., Ltd. on October 20, 2009.

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EX-3.1

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION OF SEPRACOR INC.

1.             The name of the corporation is Sepracor Inc. (the “Corporation”).

2.             The address of its registered office in the State of Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle, Delaware, 19801.  The name of its registered agent at such address is The Corporation Trust Company.

3.             The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware (the “DGCL”).

4.             The total number of shares of stock which the Corporation shall have authority to issue is 1,000, all of which shall be shares of Common Stock with the par value of $0.01 per share.

5.             The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation.

6.             Unless and except to the extent that the By-laws of the Corporation (the “By-laws”) shall so require, the election of directors of the Corporation need not be by written ballot.

7.             The Corporation expressly elects not to be governed by Section 203 of the DGCL.

8.             To the fullest extent permitted under the DGCL, as amended from time to time, no director of the Corporation shall be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director.  Any amendment or repeal of the foregoing provision shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment or repeal.

9.             (a)  Actions, Suits and Proceedings Other than by or in the Right of the Corporation.  The Corporation shall indemnify each person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation), by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) (all such persons being referred to hereafter as an “Indemnitee”), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees), judgments, fines and amounts

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paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe his conduct was unlawful.  The termination of any action, suit or proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which he reasonably believed to be in, or not opposed to, the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that his conduct was unlawful.  Notwithstanding anything to the contrary in this Section 9, except as set forth in Section 9(f) below, the Corporation shall not indemnify an Indemnitee seeking indemnification in connection with a proceeding (or part thereof) initiated by the Indemnitee unless the initiation thereof was approved by the Board of Directors of the Corporation.

(b)           Actions or Suits by or in the Right of the Corporation.  The Corporation shall indemnify any Indemnitee who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that he is or was, or has agreed to become, a director or officer of the Corporation, or is or was serving, or has agreed to serve, at the request of the Corporation, as a director, officer or trustee of, or in a similar capacity with, another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan), or by reason of any action alleged to have been taken or omitted in such capacity, against all expenses (including attorneys’ fees) and amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with such action, suit or proceeding and any appeal therefrom, if he acted in good faith and in a manner he reasonably believed to be in, or not opposed to, the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of such liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses (including attorneys’ fees) which the Court of Chancery of Delaware or such other court shall deem proper.

(c)           Indemnification for Expenses of Successful Party.  Notwithstanding the other provisions of this Section 9, to the extent that an Indemnitee has been successful, on the merits or otherwise, in defense of any action, suit or proceeding referred to in Sections 9(a) and 9(b), or in defense of any claim, issue or matter therein, or on appeal from any such action, suit or proceeding, he shall be indemnified against all expenses (including attorneys’ fees) actually and reasonably incurred by him or on his behalf in connection therewith.  Without limiting the foregoing, if any action, suit or proceeding is disposed of, on the merits or otherwise (including a disposition without prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an adjudication that the Indemnitee was liable to the Corporation, (iii) a

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plea of guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the Indemnitee did not act in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, and (v) with respect to any criminal proceeding, an adjudication that the Indemnitee had reasonable cause to believe his conduct was unlawful, the Indemnitee shall be considered for the purposes hereof to have been wholly successful with respect thereto.

(d)           Notification and Defense of Claim.  As a condition precedent to his right to be indemnified, the Indemnitee must notify the Corporation in writing as soon as practicable of any action, suit, proceeding or investigation involving him for which indemnity will or could be sought.  With respect to any action, suit, proceeding or investigation of which the Corporation is so notified, the Corporation will be entitled to participate therein at its own expense and/or to assume the defense thereof at its own expense, with legal counsel reasonably acceptable to the Indemnitee.  After notice from the Corporation to the Indemnitee of its election so to assume such defense, the Corporation shall not be liable to the Indemnitee for any legal or other expenses subsequently incurred by the Indemnitee in connection with such claim, other than as provided below in this Section 9(d).  The Indemnitee shall have the right to employ his own counsel in connection with such claim, but the fees and expenses of such counsel incurred after notice from the Corporation of its assumption of the defense thereof shall be at the expense of the Indemnitee unless (i) the employment of counsel by the Indemnitee has been authorized by the Corporation, (ii) counsel to the Indemnitee shall have reasonably concluded that there may be a conflict of interest or position on any significant issue between the Corporation and the Indemnitee in the conduct of the defense of such action or (iii) the Corporation shall not in fact have employed counsel to assume the defense of such action, in each of which cases the fees and expenses of counsel for the Indemnitee shall be at the expense of the Corporation, except as otherwise expressly provided by this Section 9.  The Corporation shall not be entitled, without the consent of the Indemnitee, to assume the defense of any claim brought by or in the right of the Corporation or as to which counsel for the Indemnitee shall have reasonably made the conclusion provided for in clause (ii) above.

(e)           Advance of Expenses.  Subject to the provisions of Section 9(f) below, in the event that the Corporation does not assume the defense pursuant to Section 9(d) of any action, suit, proceeding or investigation of which the Corporation receives notice under this Section 9, any expenses (including attorneys’ fees) incurred by an Indemnitee in defending a civil or criminal action, suit, proceeding or investigation or any appeal therefrom shall be paid by the Corporation in advance of the final disposition of such matter, provided, however, that the payment of such expenses incurred by an Indemnitee in advance of the final disposition of such matter shall be made only upon receipt of an undertaking by or on behalf of the Indemnitee to repay all amounts so advanced in the event that it shall ultimately be determined that the Indemnitee is not entitled to be indemnified by the Corporation as authorized in this Section 9.  Such undertaking may be accepted without reference to the financial ability of such person to make such repayment.

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(f)            Procedure for Indemnification.  In order to obtain indemnification or advancement of expenses pursuant to Sections 9(a), 9(b), 9(c) or 9(e), the Indemnitee shall submit to the Corporation a written request, including in such request such documentation and information as is reasonably available to the Indemnitee and is reasonably necessary to determine whether and to what extent the Indemnitee is entitled to indemnification or advancement of expenses.  Any such indemnification or advancement of expenses shall be made promptly, and in any event within 60 days after receipt by the Corporation of the written request of the Indemnitee, unless with respect to requests under Sections 9(a), 9(b) or 9(e) the Corporation determines, by clear and convincing evidence, within such 60-day period that the Indemnitee did not meet the applicable standard of conduct set forth in Sections 9(a) or 9(b), as the case may be.  Such determination shall be made in each instance by (a) a majority vote of a quorum of the directors of the Corporation consisting of persons who are not at that time parties to the action, suit or proceeding in question (“disinterested directors”), (b) if no such quorum is obtainable, a majority vote of a committee of two or more disinterested directors, (c) a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote for directors, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (d) independent legal counsel (who may be regular legal counsel to the Corporation), or (e) a court of competent jurisdiction.

(g)           Remedies.  The right to indemnification or advances as granted by this Section 9 shall be enforceable by the Indemnitee in any court of competent jurisdiction if the Corporation denies such request, in whole or in part, or if no disposition thereof is made within the 60-day period referred to above in Section 9(f).  Unless otherwise provided by law, the burden of proving that the Indemnitee is not entitled to indemnification or advancement of expenses under this Section 9 shall be on the Corporation.  Neither the failure of the Corporation to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because the Indemnitee has met the applicable standard of conduct, nor an actual determination by the Corporation pursuant to Section 9(f) that the Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that the Indemnitee has not met the applicable standard of conduct.  The Indemnitee’s expenses (including attorneys’ fees) incurred in connection with successfully establishing his right to indemnification, in whole or in part, in any such proceeding shall also be indemnified by the Corporation.

(h)           Subsequent Amendment.  No amendment, termination or repeal of this Section 9 or of the relevant provisions of the DGCL or any other applicable laws shall affect or diminish in any way the rights of any Indemnitee to indemnification under the provisions hereof with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the final adoption of such amendment, termination or repeal.

(i)            Other Rights.  The indemnification and advancement of expenses provided by this Section 9 shall not be deemed exclusive of any other rights to

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which an Indemnitee seeking indemnification or advancement of expenses may be entitled under any law (common or statutory), agreement or vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in any other capacity while holding office for the Corporation, and shall continue as to an Indemnitee who has ceased to be a director or officer, and shall inure to the benefit of the estate, heirs, executors and administrators of the Indemnitee.  Nothing contained in this Section 9 shall be deemed to prohibit, and the Corporation is specifically authorized to enter into, agreements with officers and directors providing indemnification rights and procedures different from those set forth in this Section 9.  In addition, the Corporation may, to the extent authorized from time to time by its Board of Directors, grant indemnification rights to other employees or agents of the Corporation or other persons serving the Corporation and such rights may be equivalent to, or greater or less than, those set forth in this Section 9.

(j)            Partial Indemnification.  If an Indemnitee is entitled under any provision of this Section 9 to indemnification by the Corporation for some or a portion of the expenses (including attorneys’ fees), judgments, fines or amounts paid in settlement actually and reasonably incurred by him or on his behalf in connection with any action, suit, proceeding or investigation and any appeal therefrom but not, however, for the total amount thereof, the Corporation shall nevertheless indemnify the Indemnitee for the portion of such expenses (including attorneys’ fees), judgments, fines or amounts paid in settlement to which the Indemnitee is entitled.

(k)           Insurance.  The Corporation may purchase and maintain insurance, at its expense, to protect itself and any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise (including any employee benefit plan) against any expense, liability or loss incurred by him in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.

(l)            Merger or Consolidation.  If the Corporation is merged into or consolidated with another corporation and the Corporation is not the surviving corporation, the surviving corporation shall assume the obligations of the Corporation under this Section 9 with respect to any action, suit, proceeding or investigation arising out of or relating to any actions, transactions or facts occurring prior to the date of such merger or consolidation.

(m)          Savings Clause.  If this Section 9 or any portion hereof shall be invalidated on any ground by any court of competent jurisdiction, then the Corporation shall nevertheless indemnify each Indemnitee as to any expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement in connection with an action, suit, proceeding or investigation, whether civil, criminal or administrative, including any action by or in the right of the Corporation, to the fullest extent permitted by any applicable portion of this Section 9 that shall not have been invalidated and to the fullest extent permitted by applicable law.

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(n)           Definitions.  Terms used herein and defined in Section 145(h) and Section 145(i) of the DGCL shall have the respective meanings assigned to such terms in such Section 145(h) and Section 145(i).

(o)           Subsequent Legislation.  If the DGCL is amended after adoption of this Section 9 to expand further the indemnification permitted to Indemnitees, then the Corporation shall indemnify such persons to the fullest extent permitted by the DGCL, as so amended.

10.           The Corporation reserves the right at any time, and from time to time, to amend or repeal any provision contained in this Certificate of Incorporation, and add other provisions authorized by the laws of the State of Delaware at the time in force, in the manner now or hereafter prescribed by applicable law; and all rights, preferences and privileges of whatsoever nature conferred upon stockholders, directors or any other persons whomsoever by and pursuant to this Certificate of Incorporation (as amended) are granted subject to the rights reserved in this Section.

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EX-3.2

Exhibit 3.2

BYLAWS

OF

SEPRACOR INC.

(A DELAWARE CORPORATION)

BYLAWS

OF

SEPRACOR INC.

SECTION 1.
OFFICES

SECTION 1.1Registered Office

The registered office of Sepracor Inc. (the “Corporation”) shall be located in the City of Wilmington, County of New Castle, State of Delaware.  The Board of Directors (the “Board”) may change the registered office of the Corporation from time to time in its discretion.

SECTION 1.2Other Offices

The Corporation may have offices at such other places, either within or outside the State of Delaware, as the Board may from time to time determine or the business of the Corporation may require.

SECTION 2.
MEETINGS OF STOCKHOLDERS

SECTION 2.1Place of Meetings

All meetings of stockholders of the Corporation shall be held at such place, within or outside the State of Delaware, as the Board may, from time to time, fix.  Whenever the Board shall fail to fix such place, the meeting shall be held at the principal place of business of the Corporation.

SECTION 2.2Annual Meetings

The annual meeting of the stockholders will be held at such time and on such date (other than a legal holiday) fixed by the Board from time to time for the purpose of electing directors of the Corporation and for the transaction of such other business as may be properly brought before the meeting; or if no date and time are so fixed, at 10:00 a.m. on the third Monday in April, in each and every year, unless such day shall fall on a legal holiday, in which case such meeting shall be held on the next succeeding business day, at such time as may be fixed by the Board.  At such annual meeting, the President or the Chairman will make a detailed report of the business of the Corporation for the preceding year.

SECTION 2.3Substitute Annual Meeting

If the annual meeting is not held on the day designated by these Bylaws, a substitute annual meeting may be called in accordance with the provisions of Section 2.4 relating to special meetings.  A meeting so called will be designated and regarded for all purposes as the annual meeting.

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SECTION 2.4Special Meetings

Special meetings of the stockholders may be called at any time by the Board, the President, the Chairman, the Secretary, or by any stockholder or stockholders pursuant to the written request of the holders of at least ten percent (10%) of all the shares of the Corporation entitled to vote at such meeting.  At any special meeting only such business may be transacted as is related to the purpose or purposes for which the meeting is convened.

SECTION 2.5Notice of Meetings; Adjourned Meetings

If notice of meeting is not waived as provided in Section 8.8, written or printed notice stating the time and place of all meetings must be delivered not less than ten (10) nor more than sixty (60) days before the date of the meeting, either personally or by mail, to each stockholder of record entitled to vote at such meeting.  If mailed, such notice will be deemed delivered when deposited in the United States mail, with postage prepaid, addressed to the stockholder at his address as it appears on the record of stockholders of the Corporation.  In the case of a special meeting, the notice of meeting will specifically state the purpose(s) for which the meeting is called.  The notice of any meeting of stockholders shall also include, or be accompanied by, any additional statements, information, or documents prescribed by the General Corporation Law of the State of Delaware (the “General Corporation Law”).  If a meeting is adjourned to another time, not more than thirty (30) days hence, and/or to another place, and if an announcement of the adjourned time and/or place is made at the meeting, it shall not be necessary to give notice of the adjourned meeting unless the directors, after adjournment, fix a new record date for the adjourned meeting.

SECTION 2.6Specific Proposals

If not less than seven (7) days prior to the date of any meeting of stockholders, a stockholder mails to the other stockholders entitled to vote at that meeting (or if not less than three (3) days prior to the date he delivers to them personally) a written notice of his intention to bring before the meeting any specific proposal, that proposal will be considered and acted upon at the meeting.  The officer or agent of the Corporation having charge of the record of stockholders will upon request make the record immediately available to a stockholder seeking to avail himself of the foregoing provision.

SECTION 2.7Action Without Meeting

Any action required by the General Corporation Law to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted.  Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing.  Action taken pursuant to this paragraph shall be subject to the provisions of Section 228 of the General Corporation Law.

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SECTION 2.8Voting List

The Secretary or the officer who has charge of the stock ledger of the Corporation shall prepare and make, at least ten (10) days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order, and showing the address of each stockholder and the number of shares registered in the name of each stockholder.  Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for a period of at least ten (10) days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation.  In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation.  The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present.  If the meeting is to be held solely by means of remote communication, then the list shall also be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of the meeting.  The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the stock ledger, the list required by this Section or the books of the Corporation, or to vote at any meeting of stockholders.

SECTION 2.9Quorum

The holders of a majority of the outstanding shares entitled to vote on a matter, represented in person or by proxy, will constitute a quorum as to that matter at any meeting of stockholders.  Shares will not be counted to make up a quorum for a meeting if the voting of them at the meeting has been enjoined or for any reason they may not lawfully be voted.  Shares of the Corporation owned by the Corporation, directly or indirectly, through a subsidiary corporation or otherwise, or held directly or indirectly in a fiduciary capacity by it or by a subsidiary corporation, will not be counted in determining a quorum or in determining the total number of outstanding shares at any given time.  When a quorum is once present to organize a meeting, it is not broken by the subsequent withdrawal of any stockholders. The stockholders present may adjourn the meeting despite the absence of a quorum.  In the absence of a quorum at the opening of any meeting, the meeting may be adjourned from time to time by the vote of a majority of the shares voting on the motion to adjourn, but no other business may be transacted until and unless a quorum is present.

SECTION 2.10Voting of Shares

Each outstanding share having voting rights is entitled to one (1) vote on each matter submitted to a vote at a meeting of stockholders, except that (i) shares of the Corporation owned by it directly or indirectly, through a subsidiary corporation or otherwise, or held directly or indirectly in a fiduciary capacity by it or by a subsidiary corporation may not be voted, and (ii) no share may be voted upon which an installment of the purchase price due the Corporation is past due and unpaid.

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SECTION 2.11Proxies

Shares may be voted in person or by one or more agents authorized by a written proxy executed by the stockholder or by his duly authorized attorney in fact.  A facsimile, electronic mail message or other form of message appearing to have been transmitted by a stockholder, or a photostatic or equivalent reproduction of a written proxy will be deemed a written proxy.  No proxy shall be voted or acted upon after three (3) years from its date, unless a longer period is specified in the proxy.  A duly executed proxy will continue in full force and effect subject to the prescribed time limitations until a written revocation or a duly executed proxy bearing a later date is filed with the Secretary of the Corporation.  A duly executed proxy shall be irrevocable if it states that it is irrevocable and, if, and only as long as, it is coupled with an interest sufficient in law to support an irrevocable power.  A proxy may be made irrevocable regardless of whether the interest with which it is coupled is an interest in the stock itself or an interest in the Corporation generally.

SECTION 2.12Votes Required

Except in the election of directors (see Section 3.2), if a quorum is present, action on a matter by the stockholders is approved if the votes cast by shares entitled to vote favoring the action exceed the votes cast by shares opposing the action, unless the General Corporation Law prescribes a different percentage of votes and/or a different exercise of voting power, and except as may be otherwise prescribed by the provisions of the certificate of incorporation or these Bylaws.  Voting on all matters will be by voice vote or by a show of hands unless the Chairman rules otherwise or unless the holders of at least ten percent (10%) of the shares represented at the meeting that are entitled to vote on a matter (prior to the voting on such matter) demand a vote by ballot on that particular matter.

SECTION 2.13Fixing Record Date

In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than sixty (60) nor less than ten (10) days before the date of such meeting.  If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of or to vote at a meeting of stockholders shall be at the close of business on the day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the day next preceding the day on which the meeting is held.  A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting.

In order that the Corporation may determine the stockholders entitled to consent to corporate action in writing without a meeting, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which date shall not be more than ten (10) days after the date upon which the resolution fixing the record date is adopted by the Board.  If no record date has been fixed by the Board, the record date for determining the stockholders entitled to consent to corporate action in

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writing without a meeting, when no prior action by the Board is required by the General Corporation Law, shall be the first date on which a signed written consent setting forth the action taken or proposed to be taken is delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the books in which proceedings of meetings of stockholders are recorded.  Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.  If no record date has been fixed by the Board and prior action by the Board is required by the General Corporation Law, the record date for determining stockholders entitled to consent to corporate action in writing without a meeting shall be at the close of business on the day on which the Board adopts the resolution taking such prior action.

In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than sixty (60) days prior to such action.  If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.

SECTION 2.14Voting Inspectors

A voting inspector or three (3) such inspectors may be appointed by the President at any meeting of stockholders in his discretion or upon the request made prior to voting of the holders of at least ten percent (10%) of the shares represented at the meeting, but such inspectors will not be required or appointed otherwise.

SECTION 3.
DIRECTORS

SECTION 3.1Number, Term and Qualification

The number of directors must be not less than one (1) nor more than fifteen (15), as may be fixed or may be changed from time by time, within the minimum and maximum, by the stockholders or by the Board.  The minimum or maximum range of number of directors may be increased or decreased or the size of the Board changed from a variable range to a fixed number (or vice versa) from time to time by amendment to the certificate of incorporation or amendment to these Bylaws adapted by the stockholders.

Each director will hold office until his successor is elected and qualified or until his earlier death, resignation, retirement, removal or disqualification.

SECTION 3.2Election of Directors

The first Board, unless the members thereof shall have been named in the certificate of incorporation, shall be elected by the incorporator or incorporators and shall hold office until the first annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.  Directors shall be elected by a plurality of the votes cast at a

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meeting of stockholders by the holders of shares entitled to vote in the election.  Any director may resign at any time upon written notice to the Corporation.  Thereafter, directors who are elected at an annual meeting of stockholders, and directors who are elected in the interim to fill vacancies and newly created directorships, shall hold office until the next annual meeting of stockholders and until their successors are elected and qualified or until their earlier resignation or removal.  Except as the General Corporation Law may otherwise require and except for as required in the Corporation’s certificate of incorporation or any certificate of designation, in the interim between annual meetings of stockholders or of special meetings of stockholders called for the election of directors and/or for the removal of one or more directors and for the filling of any vacancy in that connection, newly created directorships and any vacancies resulting from the removal of directors for cause or without cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum, or by the sole remaining director; provided, however, that if the vacant office was held by a director elected by a voting group of stockholders, only the remaining director(s) elected by that voting group or the holder(s) of shares of that voting group are entitled to fill the vacancy.  The stockholders may elect a director at any time to fill a vacancy not filled by the directors.

SECTION 3.3Removal

Directors may be removed from office with or without cause by the affirmative vote of stockholders holding a majority of the shares entitled to vote at an election of directors; provided, however, that a director may not be removed by the stockholders at a meeting unless the notice of meeting states as a purpose the removal of a director.  If any directors are removed, new directors maybe elected by the stockholders at the same meeting.

SECTION 3.4Compensation

The Board may compensate directors for their services as such and may provide for the payment of all expenses incurred by directors in attending regular and special meetings of the Board or otherwise on behalf of the Corporation.

SECTION 3.5General Powers

SECTION 3.5.1Management of Business.  The Board directs the general management and has control of the business, property and affairs of the Corporation, and exercises all of the powers of the Corporation, except such as are by law or the certificate of incorporation expressly reserved to the stockholders.

SECTION 3.5.2Sale, Transfer, Mortgage of Assets.  The Board may, by resolution duly adapted, authorize the sale, transfer, exchange, conveyance, mortgage, pledge or lease of any of the property of the Corporation.  The Board may authorize the sale, conveyance, or release of all property belonging to the Corporation, if such sale and conveyance is approved by at least a majority vote of the stock entitled to vote at any stockholders’ meeting, notice of which contains notice of the proposed sale.

SECTION 3.5.3Borrowing Money.  The Board may empower the officers of the Corporation, or any one or more of them, to borrow money for and in the name of the Corporation and issue obligations for such borrowed money.

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SECTION 3.5.4Authorizing Contracts.  The Board may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instruments on behalf of the Corporation, and such authority may be general or confined to specific instances.

SECTION 3.6Executive and Other Committees of Directors

The Board, by resolution adopted by a majority of the whole Board, may designate from among its members an executive committee and other committees to serve at the pleasure of the Board, each consisting of one or more directors, and each of which, to the extent provided in the resolution, shall have all the authority of the Board to the fullest extent authorized by law, including the power or authority to declare a dividend or to authorize the issuance of stock. The Board may designate one or more directors as alternate members of any such committee, who may replace any absent or disqualified member or members at any meeting of such committee.

SECTION 3.7Powers Denied to Committees

Committees of the Board shall not, in any event, have any power or authority to amend the Certificate of Incorporation (except that a committee may, to the extent authorized in the resolution or resolutions providing for the issuance of shares adopted by the Board as provided in Section 151 (a) of the General Corporation Law, as it may be amended from time to time, fix the designations and any of the preferences or rights of such shares relating to dividends, redemption, dissolution, any distribution of assets of the Corporation or the conversion into, or the exchange of such shares for, shares of any other class or classes or any other series of the same or any other class or classes of stock of the Corporation or fix the number of shares of any series of stock or authorize the increase or decrease of the shares of any series), amend the by laws of the Corporation, adopt an agreement of merger or consolidation, recommend to the stockholders the sale, lease or exchange of all or substantially all of the Corporation’s property and assets, or recommend to the stockholders a dissolution of the Corporation or a revocation of a dissolution.  Further, no committee of the Board shall have the power or authority to declare a dividend, to authorize the issuance of stock or to adopt a certificate of ownership and merger pursuant to Section 253 of the General Corporation Law, unless the resolution or resolutions designating such committee expressly so provides.

SECTION 4.
MEETINGS OF DIRECTORS

SECTION 4.1Regular Meetings

The annual meeting of the Board will be held immediately after, and at the same place as, the annual meeting of stockholders.  In addition, the Board may provide, by resolution, the time and place (either within or outside the State of Delaware) for the holding of additional regular meetings.

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SECTION 4.2       Special Meetings

Special meetings of the Board may be called by or at the request of the Chairman, President, or any one (1) director.  Such meetings may be held either within or outside the State of Delaware.

SECTION 4.3       Notice of Meetings

Annual and regular meetings of the Board may be held without notice.  The person(s) calling a special meeting of the Board will, at least five (5) days before the meeting, give notice of meeting by any usual means of communication.  Such notice need not specify the purpose of such special meeting.  Notice of meeting may be waived as provided in Section 8.8.  Attendance by a director at a meeting will constitute a waiver of notice of such meeting, except where a director attends the meeting for the express purpose of objecting to the transaction of any business because the meeting is not called in accordance with law or the provisions of these Bylaws.

SECTION 4.4       Quorum; Action by the Board; Adjournment

A majority of the whole Board shall constitute a quorum except when a vacancy or vacancies prevents such majority, whereupon a majority of the directors in office shall constitute a quorum, provided, that such majority shall constitute at least one-third of the whole Board.  A majority of the directors present, whether or not a quorum is present, may adjourn a meeting to another time and place.

SECTION 4.5       Voting

At all meetings each director will be entitled to one (1) vote and no voting by proxy will be allowed, unless a different voting structure is provided in an agreement among the stockholders.  A majority vote of the directors present at any meeting at which a quorum is present is required for any decision or action of the Board, except as otherwise required by these Bylaws, by the General Corporation Law, by the certificate of incorporation of the Corporation or by any agreement among the stockholders.

SECTION 4.6       Dissent

A director who is present at a directors’ meeting at which action on any corporate matter is taken will be presumed to have assented to such action unless (i) he objects at the beginning of the meeting or promptly upon his arrival to holding the meeting or transacting business at such meeting and his contrary vote is recorded or his dissent or abstention is otherwise entered in the minutes of the meeting; (ii) he files his written dissent or abstention to such action with the presiding officer of the meeting before the adjournment of the meeting; or (iii) he forwards such dissent by registered mail to the Secretary of the Corporation immediately after the adjournment of the meeting.  Such right to dissent does not apply to a director who voted in favor of such action.  If a meeting of directors is held without proper call or notice, otherwise valid action taken at such meeting is deemed ratified by an absent director unless promptly after having knowledge of the action taken and of the impropriety in question he files with the Secretary of the Corporation his objection to the holding of the meeting or the specific action so taken.

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SECTION 4.7       Action Without a Meeting

Action taken by the directors without a meeting is nevertheless legal action of the Board if written consent to the action in question is signed by all the directors and filed with the minutes of the proceedings of the Board, whether done before or after the action so taken.

SECTION 4.8       Action Taken by Conference Telephone

Unless otherwise provided in the Certificate of Incorporation or these By Laws, members of the Board of the Corporation or any committee thereof may participate in a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other. Participation in a meeting pursuant to this Section shall constitute presence in person at the meeting.

SECTION 5.
OFFICERS

SECTION 5.1       Number

The officers of the Corporation consist of a President, a Chairman, and a Secretary, and such other officers as the Board may from time to time elect.  Any two (2) or more offices may be held by the same person.

SECTION 5.2       Compensation

The directors have the power to fix the salaries of all officers, agents or employees of the Corporation, but in the absence of action by the directors, such power is vested in the President, except as to his own salary.

SECTION 5.3       Election and Term

The officers of the Corporation will be elected by the Board at its annual meeting, or at any regular or special meeting of the Board held as soon as convenient thereafter.  Each officer will hold office until his successor is elected and qualified or until his earlier death, resignation, retirement, removal or disqualification.

SECTION 5.4       Removal

Any offer or agent elected or appointed by the Board may be removed by the Board with or without cause, but such removal will be without prejudice to the contract rights, if any, of the person so removed.

SECTION 5.5       President

The President is the principal executive officer of the Corporation and, subject to the control of the Board, supervises and controls the management of the Corporation in accordance with these Bylaws.  He will, when present, preside at meetings of the directors and stockholders. The President may sign, with any other proper officer, certificates for shares of the Corporation

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and any deeds, mortgages, bonds, contracts, or other instruments which may be lawfully executed on behalf of the Corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution is delegated by the Board to some other officer or agent; and, in general, he performs all duties incident to the office of President and such other duties as may be prescribed by the Board from time to time.

SECTION 5.6       Chairman of the Board

In the event the President is unavailable, the Chairman of the Board of Directors shall be the one to preside at all meetings of the stockholders and directors, and shall have such other duties as may be assigned to that position from time to time by the Board of Directors.

SECTION 5.7       Secretary

The Secretary must keep accurate records of the acts and proceedings of all meetings of stockholders and directors.  The Secretary must give all notices required by law and by these Bylaws.  The Secretary has general charge of the corporate books and records and of the corporate seal; will affix the corporate seal to any lawfully executed instrument requiring it; and will authenticate such corporate records as may be required from time to time.  The Secretary has general charge of the stock transfer books of the Corporation and will keep, at the registered or principal office of the Corporation, a record of stockholders showing the name and address of each stockholder and the number and class of the shares held by each.  The Secretary will keep such record of stockholders in alphabetical order according to the names and voting groups (and within each voting group by class or series of shares) or in an appended alphabetical index.  The Secretary will sign such instruments as may require his signature, and, in general, perform all duties incident to the office of Secretary and such other duties as may be assigned to him from time to time by the President or by the Board.

SECTION 5.8       Assistant Secretary

The Board may elect an Assistant Secretary.  In the absence or disability of the Secretary, such assistant will perform the duties and exercise the powers of those offices, and, in general, perform such other duties as are assigned to them from time to time by the President, Chairman, or the Board.

SECTION 6.
CAPITAL

SECTION 6.1       Issuance of Shares

Shares may be issued in an amount not exceeding the total authorized capital of the Corporation, as specified in the certificate of incorporation of the Corporation.  The directors may authorize the issuance of stock for consideration consisting of cash, any tangible or intangible property or any benefit to the Corporation, or any combination thereof.  In the absence of actual fraud in the transaction, the judgment of the directors as to the value of such consideration shall be conclusive.

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SECTION 6.2       Certificates for Shares

Certificates representing shares of the Corporation will be issued, in such form as the Board determines, to every stockholder for the shares owned by him.  These certificates will be signed by either the President, Chairman, the Secretary, or the Assistant Secretary.  They will be consecutively numbered or otherwise identified, and the name and address of the persons to whom they are issued, together with the number and class of shares and the dates of issue, will be entered in the stock transfer books of the Corporation.

SECTION 6.3       Ownership of Shares

The person in whose name the shares of stock stand on the stock transfer books of the Corporation is deemed the owner of such shares so far as the Corporation is concerned.  Every person holding stock as executor, administrator, guardian, trustee or agent, or in any other representative or fiduciary capacity, may represent such stock at all meetings of the Corporation and may vote it as a stockholder with the same effect as if the absolute owner of the shares, unless the instrument creating the fiduciary relationship provides to the contrary and a copy of such instrument is furnished to the Secretary of the Corporation.  Every person who has pledged his stock as collateral security may represent it at all such meetings and may vote it as a stockholder unless in the transfer to the pledgee on the books of the Corporation he has expressly empowered the pledgee to vote it.  No assessment will be made on any stock at any time except for the stock’s remaining unpaid purchase price.

SECTION 6.4       Transfer of Shares

Title to a certificate of shares and to the shares represented thereby may be transferred only (i) by delivery of the certificate endorsed, either in blank or to a specified person, by the person appearing by the certificate to be the owner of the shares represented thereby; or (ii) by delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby.  Such assignment or power of attorney may be either in blank or to a specified person.  No transfer is effective so far as the Corporation is concerned until the shares of stock have been transferred on the books of the Corporation, and the Corporation will recognize the exclusive right of the person registered on its books as the owner of shares of stock to receive dividends and to vote as such owner.  No lien will exist in favor of the Corporation upon the shares of stock represented by a certificate issued by the Corporation, and there will be no restriction upon the transfer of shares so represented by virtue of these Bylaws or otherwise, unless the right of the Corporation to such lien or the restriction upon such transfer is stated on the certificate.

SECTION 6.5       Lost Certificates

The Board may authorize the issuance of a new share certificate in place of a certificate claimed to have been lost or destroyed upon receipt of an affidavit of such fact from the person claiming the loss or destruction.  On authorizing issuance of a new certificate, the Board may require the claimant to give the Corporation a bond in such sum as it may direct to indemnify the

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Corporation against loss from any claim with respect to the certificate claimed to have been lost or destroyed, or the Board may, by resolution reciting that the circumstances justify such action, authorize the issuance of the new certificate without requiring such a bond.

SECTION 7.
DIVIDENDS

SECTION 7.1       Payment

In addition to the provisions in these Bylaws with respect to dividends payable in the stock of the Corporation, the Board has power to declare and pay dividends.  No dividend payable in cash or in property may be declared or paid if upon payment (i) the Corporation would be unable to meet its obligations as they become due in the usual course of business, (ii) the Corporation’s total assets would be less than the sum of its total liabilities plus the amount that would be needed, if the Corporation were to be dissolved at the time of the dividend, to satisfy the preferential rights upon dissolution of stockholders whose preferential rights are superior to those receiving the dividend, or (iii) the Corporation would otherwise be in violation of applicable law.

SECTION 8
GENERAL PROVISIONS

SECTION 8.1       Examination of Books and Records

Any stockholder, in person or by attorney or by other agent, shall, upon written demand under oath stating the purpose thereof, have the right during the usual hours for business to inspect for any proper purpose, and to make copies and extracts from, (i) the Corporation’s stock ledger, a list of its stockholders, and its other books and records, and (ii) a subsidiary’s books and records in accordance with Section 220 of the General Corporation Law.  Any director shall have the right to examine the Corporation’s stock ledger, a list of its stockholders and its other books and records for a purpose reasonably related to the director’s position as a director.

SECTION 8.2       Checks and Drafts

All checks, drafts and other orders for the payment of money issued in the name of the Corporation will be signed by such officer(s) or agent(s) of the Corporation and in such manner as from time to time determined by resolution of the Board.

SECTION 8.3       Deposits

All funds of the Corporation not otherwise employed will be deposited from time to time to the credit of the Corporation in such depositories as the Board directs.

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SECTION 8.4       Right to Indemnification

The Corporation shall indemnify, to the fullest extent from time to time permitted by law, any person made, or threatened to be made, a party to, or a witness or other participant in, any threatened, pending, or completed action, suit or proceeding, whether civil, criminal, administrative, arbitrative, legislative, investigative, or of any other kind, by reason of the fact that such person is or was a director or officer of the Corporation or any subsidiary of the Corporation or serves or served any other enterprise at the request of the Corporation against expenses (including attorneys’ fees), judgments, fines, penalties, excise taxes, and amounts paid in settlement (including amounts paid pursuant to judgments or settlements in derivative actions), actually and reasonably incurred by such person in connection with such action, suit, or proceeding, or any appeal therein.  The rights provided by this Section 8.4 to any person shall inure to the benefit of such person’s legal representative.  Neither amendment or repeal of this Section 8.4, nor the adoption of any provision of these Bylaws inconsistent with this Section 8.4, shall deprive any person of rights hereunder arising out of any matter which occurred prior to such amendment, repeal or adoption.  No indemnification pursuant to this Section 8.4 shall be required with respect to any settlement or other nonadjudicated disposition of any threatened or pending action or proceeding unless the Corporation has given its prior consent to such settlement or other disposition.  To the full extent from time to time permitted by law, expenses incurred by a person in defending a civil or criminal action, suit or proceeding shall be paid by the Corporation in advance of the final disposition of such action upon receipt of an undertaking by or on behalf of such person to repay such amount to the extent the expenses so advanced exceed the indemnification to which it is ultimately determined that he is entitled.

SECTION 8.5       Non Exclusivity of Rights

If the Corporation provides indemnification under Section 8.4, such indemnification shall not be deemed exclusive of any other rights to which a person seeking indemnification may be entitled under any statute, bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in his official capacity and as to action in another capacity while holding such office, and shall continue as to a person who has ceased to be a director, officer, member, employee or agent and shall inure to the benefit of the heirs, executors or administrators of such person.

SECTION 8.6       Insurance

The Corporation shall have the authority to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, member, employee or agent of another corporation, partnership, joint venture, limited liability company, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of his status as such, whether or not the Corporation would have the power to indemnify such person against such liability under the provisions of Section 8.4 or the General Corporation Law.

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SECTION 8.7       Seal

The corporate seal shall be in such form as the Board shall prescribe.

SECTION 8.8       Waiver of Notice

Whenever any notice is required to be given to any stockholder or director under the provisions of the General Corporation Law, the certificate of incorporation of the Corporation or these Bylaws, a waiver of notice in writing signed by the person(s) entitled to such notice, whether before or after the time stated in such notice, is equivalent to the giving of such notice.  Any such waiver will be filed with the Corporation’s minutes.

SECTION 8.9       Fiscal Year

The fiscal year of the Corporation shall be the twelve months ending December 31 or such other twelve month period as may be prescribed by the Board of Directors.

SECTION 9.
AMENDMENTS

The Board of Directors shall have power, without the assent or vote of the stockholders, to make, alter, amend, change, add to, or repeal these Bylaws.  These Bylaws may also be amended, altered, or repealed, or new bylaws may be adopted, by the stockholders at any annual meeting, or at any special meeting where in the notice of the meeting or in the waiver of said notice the nature of the proposed amendment to these Bylaws or the proposal to adopt new bylaws has been stated.  At any meeting of the stockholders at which all stockholders are present either personally or by proxy, these Bylaws may be amended, altered or repealed without any notice.  (Such action may also be taken by informal action of the stockholders in writing as provided under Section 2.7.).  The affirmative vote of the stockholders entitled to exercise a majority of the voting power of the Corporation is necessary to amend, alter or repeal these Bylaws or to adopt new bylaws.

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EX-4.1

Exhibit 4.1

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) executed as of October 20, 2009 by and among Sepracor Inc., a Delaware corporation (the “Company”) and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as Trustee (the “Trustee”).

RECITALS

WHEREAS, the Company and the Trustee have heretofore executed and delivered that certain Indenture, dated as of December 12, 2003 (the “Indenture”), providing for the issuance of an initial principal amount of up to $500,000,000 of 0% Series B Senior Subordinated Notes Due 2010 (the “2010 Notes”);

WHEREAS, the Company has entered into an Agreement and Plan of Merger dated as of September 3, 2009 (the “Merger Agreement”), by and among the Company, Dainippon Sumitomo Pharma Co., Ltd., a company formed under the laws of Japan (“Parent”) and Aptiom, Inc., a Delaware corporation and indirect wholly-owned subsidiary of Parent (“Aptiom”), providing for the merger (the “Merger”) of Aptiom with and into the Company, whereupon the separate existence of Aptiom shall cease, and the Company shall be the surviving corporation;

WHEREAS, the Merger is a permitted transaction pursuant to Section 12.1 of the Indenture, provided that the surviving entity expressly assumes, by a supplemental indenture, the due and punctual payment of the principal of and premium, if any, and Liquidated Damages, if any, on all of the 2010 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company;

WHEREAS, upon the terms and subject to the conditions of the Merger Agreement, each share of common stock, par value $0.10 per share, of the Company (the “Common Stock”) outstanding immediately prior to the effective time of the Merger (the “Effective Time”) will be converted into the right to receive $23.00 in cash (the “Merger Consideration”);

WHEREAS, Section 15.6 of the Indenture provides that, in connection with the Merger, the Company shall execute and deliver to the Trustee a supplemental indenture providing that the 2010 Notes then outstanding shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon the Merger by a holder of the number of shares of Common Stock issuable upon conversion of such 2010 Notes immediately prior to the Merger;

WHEREAS, Section 16.1 of the Indenture provides that, in the event of a Designated Event, each Noteholder may, at its option, require the Company to repurchase all of such holder’s 2010 Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date (the “Designated Event Repurchase Date”) specified by the Company that is not less than twenty (20) Business Days and not more than thirty (30) Business Days after the date of the Designated Event Notice of such Designated Event at a purchase price equal to 100% of the principal amount thereof, together with accrued and unpaid Liquidated Damages to, but excluding, the Designated Event Repurchase Date (the “Repurchase Option”);

WHEREAS, Section 11.1 of the Indenture provides that the Company, when authorized by a resolution of its board of directors, and the Trustee may enter into indentures supplemental to the Indenture without the consent of the Noteholders;

WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized by the parties hereto, and all other acts necessary to make this Supplemental Indenture a valid and binding supplement to the Indenture, effectively supplementing the Indenture as set forth herein, have been duly taken.

NOW, THEREFORE, in consideration of the above premises and for other good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually agreed, for the equal and proportionate benefit of all Noteholders, as follows:

ARTICLE ONE

1.1           The Company, as the surviving entity of the Merger, agrees to assume the due and punctual payment of the principal of and premium, if any, and Liquidated Damages, if any, on all of the 2010 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company.

1.2           From the Effective Time of the Merger until the close of business on December 15, 2010, each $1,000 principal amount of the 2010 Notes outstanding, and for which a Repurchase Option has not been exercised, shall be convertible into the Merger Consideration at the Conversion Rate, pursuant to the terms of the Indenture.

ARTICLE TWO

2.1           All terms used in this Supplemental Indenture which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.

2.2           All of the provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made part of, the Indenture, and the Indenture, as amended and supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument and shall be binding upon all the Noteholders.

2.3           This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

2.4           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.

2.5           Nothing in this Supplemental Indenture, express or implied, shall give any person, other than the parties hereto and their successors hereunder and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.  Except as expressly supplemented or amended as set forth in this Supplemental Indenture, the Indenture is hereby ratified and confirmed, and all the terms, provisions and conditions thereof shall be and continue in

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full force and effect.  The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions in the Indenture as amended and supplemented by this Supplemental Indenture.

2.6           The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture, except with respect to the execution hereof by the Trustee, or for or in respect of the recitals contained herein, all of which are made solely by the Company.

* * * * * * *

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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 written above.

SEPRACOR INC.

/s/ Robert F. Scumaci

Name: Robert F. Scumaci

Title: Executive Vice President, Chief Financial Officer

THE BANK OF NEW YORK MELLON

Trustee

/s/ Francine Kincaid

Name: Francine Kincaid

Title: Vice President

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EX-4.2

Exhibit 4.2

FIRST SUPPLEMENTAL INDENTURE

FIRST SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”) executed as of October 20, 2009 by and among Sepracor Inc., a Delaware corporation (the “Company”) and the Bank of New York Mellon (formerly JPMorgan Chase Bank), as Trustee (the “Trustee”).

RECITALS

WHEREAS, the Company and the Trustee have heretofore executed and delivered that certain Indenture, dated as of September 22, 2004 (the “Indenture”), providing for the issuance of an initial principal amount of up to $500,000,000 of 0% Convertible Senior Subordinated Notes Due 2024 (the “2024 Notes”);

WHEREAS, the Company has entered into an Agreement and Plan of Merger dated as of September 3, 2009 (the “Merger Agreement”), by and among the Company, Dainippon Sumitomo Pharma Co., Ltd., a company formed under the laws of Japan (“Parent”) and Aptiom, Inc., a Delaware corporation and indirect wholly-owned subsidiary of Parent (“Aptiom”), providing for the merger (the “Merger”) of Aptiom with and into the Company, whereupon the separate existence of Aptiom shall cease, and the Company shall be the surviving corporation;

WHEREAS, the Merger is a permitted transaction pursuant to Section 12.01 of the Indenture, provided that the surviving entity expressly assumes, by a supplemental indenture, the due and punctual payment of the principal of and premium, if any, and Liquidated Damages, if any, on all of the 2024 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company;

WHEREAS, upon the terms and subject to the conditions of the Merger Agreement, each share of common stock, par value $0.10 per share, of the Company (the “Common Stock”) outstanding immediately prior to the effective time of the Merger (the “Effective Time”) will be converted into the right to receive $23.00 in cash (the “Merger Consideration”);

WHEREAS, Section 15.05 of the Indenture provides that, in connection with the Merger, the Company shall execute and deliver to the Trustee a supplemental indenture providing that the 2024 Notes then outstanding shall be convertible into the kind and amount of shares of stock and other securities or property or assets (including cash) receivable upon the Merger by a holder of the number of shares of Common Stock issuable upon conversion of such 2024 Notes at the Conversion Rate immediately prior to the Merger;

WHEREAS, Section 16.01 of the Indenture provides that each Noteholder may, at its option, require the Company to repurchase all of such holder’s 2024 Notes, or any portion thereof that is a multiple of $1,000 principal amount, on October 15, 2014 and October 15, 2019 (each, a “Repurchase Date”) at a purchase price equal to 100% of the principal amount thereof, together with accrued and unpaid Liquidated Damages thereon, if any, to, but excluding the Repurchase Date (the “October Repurchases”);

WHEREAS, Section 16.02 of the Indenture provides that, in the event of a Designated Event, each Noteholder may, at its option, require the Company to repurchase all of such holder’s

2024 Notes, or any portion thereof that is a multiple of $1,000 principal amount, on the date (the “Designated Event Repurchase Date”) specified by the Company that is not less than twenty (20) Business Days and not more than thirty (30) Business Days after the date of the Designated Event Notice of such Designated Event at a repurchase price equal to 100% of the principal amount thereof, together with accrued and unpaid Liquidated Damages thereon, if any, to, but excluding, the Designated Event Repurchase Date (together, with the October Repurchases, the “Repurchase Options”);

WHEREAS, Section 11.01 of the Indenture provides that the Company, when authorized by a resolution of its board of directors, and the Trustee may enter into indentures supplemental to the Indenture without the consent of the Noteholders;

WHEREAS, the execution and delivery of this Supplemental Indenture has been duly authorized by the parties hereto, and all other acts necessary to make this Supplemental Indenture a valid and binding supplement to the Indenture, effectively supplementing the Indenture as set forth herein, have been duly taken.

NOW, THEREFORE, in consideration of the above premises and for other good and valuable consideration, the receipt of which is hereby acknowledged, it is mutually agreed, for the equal and proportionate benefit of all Noteholders, as follows:

ARTICLE ONE

1.1           The Company, as the surviving entity of the Merger, agrees to assume the due and punctual payment of the principal of and premium, if any, and Liquidated Damages, if any, on all of the 2024 Notes, according to their terms, and the due and punctual performance and observance of all of the covenants and conditions of the Indenture to be performed by the Company.

1.2           From the Effective Time of the Merger until the date of maturity of the 2024 Notes, each $1,000 principal amount of 2024 Notes outstanding, and for which a Repurchase Option has not been exercised, shall be convertible into the Merger Consideration at the Conversion Rate, pursuant to the terms of the Indenture.

ARTICLE TWO

2.1           All terms used in this Supplemental Indenture which are defined in the Indenture and not otherwise defined herein shall have the meanings assigned to such terms in the Indenture.

2.2           All of the provisions of this Supplemental Indenture shall be deemed to be incorporated in, and made part of, the Indenture, and the Indenture, as amended and supplemented by this Supplemental Indenture, shall be read, taken and construed as one and the same instrument and shall be binding upon all the Noteholders.

2.3           This Supplemental Indenture may be executed in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument.

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2.4           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.

2.5           Nothing in this Supplemental Indenture, express or implied, shall give any person, other than the parties hereto and their successors hereunder and the Noteholders, any benefit or any legal or equitable right, remedy or claim under this Supplemental Indenture.  Except as expressly supplemented or amended as set forth in this Supplemental Indenture, the Indenture is hereby ratified and confirmed, and all the terms, provisions and conditions thereof shall be and continue in full force and effect.  The Trustee accepts the trusts created by the Indenture, as amended and supplemented by this Supplemental Indenture, and agrees to perform the same upon the terms and conditions in the Indenture as amended and supplemented by this Supplemental Indenture.

2.6           The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture, except with respect to the execution hereof by the Trustee, or for or in respect of the recitals contained herein, all of which are made solely by the Company.

* * * * * * *

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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 written above.

SEPRACOR INC.

/s/ Robert F. Scumaci

Name: Robert F. Scumaci

Title: Executive Vice President, Chief Financial Officer

THE BANK OF NEW YORK MELLON

Trustee

/s/ Francine Kincaid

Name: Francine Kincaid

Title: Vice President

4

EX-99.1

Exhibit 99.1

Joint Press Release

For Immediate Release

Company Name:  Dainippon Sumitomo Pharma Co., Ltd.

Representative:  Masayo Tada, President

(Securities Code: 4506, 1st Section of TSE and OSE)

Contact:  Atsuko Higuchi, Director, Public Relations

Phone: 06-6203-1407

Company Name:  Sepracor Inc.

Representative:  Adrian Adams, President and Chief Executive Officer

Contact:  Jonaé R. Barnes,

Sr. Vice President, Investor Relations and Corporate Communications

Phone:   (508) 481-6700

DAINIPPON SUMITOMO PHARMA CO., LTD. AND SEPRACOR INC.

ANNOUNCE SUCCESSFUL TENDER OFFER AND
COMMENCEMENT OF SUBSEQUENT OFFERING PERIOD

OSAKA, Japan and MARLBOROUGH, Mass. — Oct. 14, 2009 - Dainippon Sumitomo Pharma Co., Ltd. (“DSP”) and Sepracor Inc. (“Sepracor”) (NASDAQ: SEPR) today announce the successful completion of the tender offer by DSP’s indirect wholly-owned subsidiary, Aptiom, Inc. (“Offeror”), to acquire all outstanding shares of common stock of Sepracor for $23.00 per share in cash.  The initial offering period expired, as scheduled, at 12:00 midnight, New York City time, at the end of the day on Tuesday, October 13, 2009.  The depositary for the tender offer has advised DSP that, as of the expiration of the initial offering period, a total of approximately 86,913,744 shares (excluding shares tendered through notices of guaranteed delivery) were validly tendered to Offeror and not properly withdrawn, representing approximately 78.2% of the shares outstanding.  13,881,625 additional shares were tendered through notices of guaranteed delivery.  Offeror has accepted all shares that were validly tendered and not properly withdrawn during the initial offering period.  Payment for such shares will be made promptly, in accordance with the terms of the offer.

DSP also announced that Offeror will provide a subsequent offering period for all remaining shares of Sepracor common stock to permit stockholders who have not yet tendered their shares to do so.  This subsequent offering period will expire at 5:00 p.m., New York City time, on Monday, October 19, 2009.  The same $23.00 per share cash consideration offered during the initial offering period will be paid to holders of Sepracor’s common stock who tender their shares during the subsequent offering period.  The procedures for tendering shares during the subsequent offering period are the same as during the initial offering period, except that (i) the guaranteed delivery procedures may not be used during the subsequent offering period and (ii) shares tendered during the subsequent offering period may not be withdrawn.

Additional Information and Where to Find It

THIS ANNOUNCEMENT IS FOR INFORMATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE AN OFFER TO PURCHASE OR A SOLICITATION OF AN OFFER TO SELL SEPRACOR’S COMMON STOCK.  THE TENDER OFFER IS BEING MADE PURSUANT TO A TENDER OFFER STATEMENT ON SCHEDULE TO (INCLUDING THE OFFER TO PURCHASE, LETTER OF TRANSMITTAL AND OTHER RELATED TENDER OFFER MATERIALS) THAT WAS FILED BY OFFEROR WITH THE SECURITIES AND EXCHANGE COMMISSION (SEC) ON SEPTEMBER 15, 2009.  THESE  

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MATERIALS AND THE SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 FILED WITH THE SEC BY SEPRACOR ON SEPTEMBER 15, 2009, AS THEY  HAVE BEEN AMENDED AND SUPPLEMENTED AND MAY FURTHER BE AMENDED AND SUPPLEMENTED FROM TIME TO TIME, CONTAIN IMPORTANT INFORMATION, INCLUDING THE TERMS AND CONDITIONS OF THE OFFER, THAT SHOULD BE READ CAREFULLY BEFORE ANY DECISION IS MADE WITH RESPECT TO THE TENDER OFFER.  INVESTORS AND STOCKHOLDERS CAN OBTAIN A FREE COPY OF THESE MATERIALS AND OTHER DOCUMENTS FILED BY OFFEROR WITH THE SEC AT THE WEBSITE MAINTAINED BY THE SEC AT WWW.SEC.GOV.  THE TENDER OFFER MATERIALS MAY ALSO BE OBTAINED FOR FREE BY CONTACTING THE INFORMATION AGENT FOR THE TENDER OFFER, GEORGESON INC., AT 1-212-440-9800 FOR BANKS AND BROKERS AND TOLL FREE AT 1-888-877-5330 FOR STOCKHOLDERS AND ALL OTHERS, OR BY WRITING TO 199 WATER STREET, 26TH FLOOR, NEW YORK, NY 10038.  INVESTORS AND SECURITY HOLDERS MAY ALSO OBTAIN FREE COPIES OF THESE DOCUMENTS THAT ARE FILED WITH THE SEC FROM SEPRACOR AT HTTP://WWW.SEPRACOR.COM.

About DSP

DSP is a multi-billion dollar, top-ten listed pharmaceutical company in Japan with a diverse portfolio of pharmaceutical, animal health and food and specialty products. DSP’s strong research and development presence in the areas of central nervous system, diabetes, cardiovascular disease, and inflammation/allergy, is based on the merger in 2005 between Sumitomo Pharmaceuticals Co., Ltd., and Dainippon Pharmaceutical Co., Ltd. Today, DSP has approximately 5,000 employees worldwide. Additional information about DSP is available through its corporate web site at http://www.ds-pharma.co.jp.

About Sepracor

Sepracor is a fully integrated specialty pharmaceutical company dedicated to treating and preventing human disease by discovering, developing and commercializing innovative pharmaceutical products that are directed toward serving large and growing markets and unmet medical needs. Sepracor’s drug development, corporate development, and licensing efforts have yielded a portfolio of pharmaceutical products and candidates with a focus on respiratory and central nervous system disorders. Sepracor’s currently marketed products in the U.S. include LUNESTA® brand eszopiclone, XOPENEX® brand levalbuterol HCl Inhalation Solution, XOPENEX HFA® brand levalbuterol tartrate Inhalation Aerosol, BROVANA® brand arformoterol tartrate Inhalation Solution, OMNARIS® brand ciclesonide Nasal Spray and ALVESCO® brand ciclesonide HFA Inhalation Aerosol. Sepracor’s wholly owned subsidiary, Sepracor Pharmaceuticals, Inc., markets several additional products in Canada that are focused in the cardiovascular, central nervous system, pain and infectious disease therapeutic areas. Sepracor has approximately 2,100 employees worldwide. Additional information about Sepracor is available through its corporate web site at http://www.sepracor.com.

Forward-Looking Statements

This announcement contains forward-looking statements that involve significant risks and uncertainties. All statements that are not historical facts are forward-looking statements, including: statements that are preceded by, followed by, or that include the words “believes,” “anticipates,” “plans,” “expects”, “could”, “should” or similar expressions; statements regarding the anticipated timing of filings and approvals relating to the transaction; statements regarding the expected timing of the completion of the transaction; statements regarding the ability to complete the transaction considering the various closing conditions; statements regarding the anticipated timing of payment for shares validly tendered and not properly withdrawn in the offer; and any statements of assumptions underlying any of the foregoing. All estimated or anticipated future results, product performance or other non-historical facts are forward-looking and reflect DSP’s or Sepracor’s (as applicable) current perspective on existing trends and information. Investors and security holders are cautioned not to place undue reliance on these forward-looking statements. Actual results could differ materially from those currently anticipated due to a number of risks and uncertainties that are subject to change based on factors that are, in many instances, beyond Sepracor’s or DSP’s control. Risks and uncertainties that could cause results to differ from expectations include:

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uncertainties as to the timing of the tender offer and merger; uncertainties as to how many Sepracor stockholders will tender their shares in the offer; the risk that competing offers will be made; the possibility that various closing conditions for the transaction may not be satisfied or waived, including that a governmental entity may prohibit, delay or refuse to grant approval for the consummation of the transaction; the effects of disruption from the transaction making it more difficult to maintain relationships with employees, licensees, other business partners or governmental entities, other business effects, including the effects of industry, economic or political conditions outside of Sepracor’s or DSP’s control; transaction costs; actual or contingent liabilities; or other risks and uncertainties discussed in documents filed with the U.S. Securities and Exchange Commission by Sepracor, as well as the tender offer documents filed by Offeror and the Solicitation/Recommendation Statement filed by Sepracor. Accordingly, no assurances can be given that any of the events anticipated by the forward-looking statements will occur or, if any of them do, what impact they will have on either Sepracor’s or DSP’s results of operations or financial condition. Neither Sepracor nor DSP undertakes any obligation to update or revise any forward-looking statements as a result of new information, future developments or otherwise.

Lunesta, Xopenex, Xopenex HFA and Brovana are registered trademarks of Sepracor Inc.  Omnaris and Alvesco are registered trademarks of Nycomed GmbH.

For a copy of this release or any recent release, visit Sepracor’s web site at http://www.sepracor.com.

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EX-99.2

Exhibit 99.2

Joint Press Release

For Immediate Release

Company Name:  Dainippon Sumitomo Pharma Co., Ltd.

Representative:  Masayo Tada, President

(Securities Code: 4506, 1st Section of TSE and OSE)

Contact:  Atsuko Higuchi, Director, Public Relations

Phone: 06-6203-1407

Company Name:  Sepracor Inc.

Representative:  Adrian Adams, President and Chief Executive Officer

Contact:  Jonaé R. Barnes,

Sr. Vice President, Investor Relations and Corporate Communications

Phone:  (508) 481-6700

DAINIPPON SUMITOMO PHARMA CO., LTD. AND SEPRACOR INC.

ANNOUNCE COMPLETION OF SUBSEQUENT OFFERING PERIOD

AND EXERCISE OF TOP-UP OPTION

OSAKA, Japan and MARLBOROUGH, Mass. — Oct. 20, 2009 - Dainippon Sumitomo Pharma Co., Ltd. (“DSP”) and Sepracor Inc. (“Sepracor”) (NASDAQ: SEPR) today announce the successful completion of the cash tender offer by DSP’s indirect wholly-owned subsidiary, Aptiom, Inc. (“Offeror”), to acquire all of the outstanding shares of common stock of Sepracor for $23.00 per share.  The subsequent offering period for the tender offer expired, as scheduled, at 5:00 p.m., New York City time, on Monday, October 19, 2009.  The depositary for the tender offer has advised DSP that, as of the expiration of the subsequent offering period, a total of approximately 96,590,423 shares were validly tendered in the tender offer (including during the subsequent offering period), representing approximately 86.9% of all outstanding shares of Sepracor.  Offeror has accepted for payment all shares that were validly tendered in the tender offer and not properly withdrawn during the initial offering period, and payment for such shares has or will be made promptly, in accordance with the terms of the tender offer.

DSP also announced that Offeror is exercising its option (the “Top-Up Option”) to purchase the number of shares of Sepracor common stock (the “Top-Up Option Shares”) that, when added to the number of shares owned by DSP, Offeror and their respective subsidiaries immediately prior to the exercise of the Top-Up Option, including all shares validly tendered and not properly withdrawn in the tender offer, constitutes at least one share more than 90% of the number of shares of Sepracor common stock then outstanding (after giving effect to the issuance of the Top-Up Option Shares) for a purchase price per Top-Up Option Share equal to the price per share paid in the tender offer. The closing of the purchase by Offeror of the Top-Up Option Shares (the “Top-Up Option Closing”) is currently scheduled to occur on October 20, 2009.

Following the Top-Up Option Closing, DSP intends to complete the acquisition of Sepracor through a short-form merger currently intended to be effected on October 20, 2009, in accordance with the applicable provisions of the Delaware General Corporation Law (the “DGCL”), without prior notice to, or any action by, any Sepracor stockholder other than Offeror.  At the effective time of the merger, each outstanding share of Sepracor common stock (other than any shares held in the treasury of Sepracor or owned by DSP or Offeror or any direct or indirect subsidiary of DSP or Offeror or of Sepracor) will be automatically canceled and, subject to the exercise of appraisal rights under the DGCL, converted into the right to receive the same $23.00 per share, net to the holder in cash, without interest and subject to any required withholding of taxes, that was paid in the tender offer.  Following the effective time of the merger, Sepracor will continue as the surviving corporation and will be an indirect wholly-owned subsidiary of DSP.  In addition, following the effective time of the merger, Sepracor’s common stock will cease to be traded on the NASDAQ Global Select Market and Sepracor will no longer have reporting obligations under the Securities Exchange Act of 1934.

About DSP

DSP is a multi-billion dollar, top-ten listed pharmaceutical company in Japan with a diverse portfolio of pharmaceutical, animal health and food and specialty products. DSP’s strong research and development presence in the areas of central nervous system, diabetes, cardiovascular disease, and inflammation/allergy, is based on the merger in 2005 between Sumitomo Pharmaceuticals Co., Ltd., and

Dainippon Pharmaceutical Co., Ltd. Today, DSP has approximately 5,000 employees worldwide. Additional information about DSP is available through its corporate web site at http://www.ds-pharma.co.jp.

About Sepracor

Sepracor is a fully integrated specialty pharmaceutical company dedicated to treating and preventing human disease by discovering, developing and commercializing innovative pharmaceutical products that are directed toward serving large and growing markets and unmet medical needs. Sepracor’s drug development, corporate development, and licensing efforts have yielded a portfolio of pharmaceutical products and candidates with a focus on respiratory and central nervous system disorders. Sepracor’s currently marketed products in the U.S. include LUNESTA® brand eszopiclone, XOPENEX® brand levalbuterol HCl Inhalation Solution, XOPENEX HFA® brand levalbuterol tartrate Inhalation Aerosol, BROVANA® brand arformoterol tartrate Inhalation Solution, OMNARIS® brand ciclesonide Nasal Spray and ALVESCO® brand ciclesonide HFA Inhalation Aerosol. Sepracor’s wholly owned subsidiary, Sepracor Pharmaceuticals, Inc., markets several additional products in Canada that are focused in the cardiovascular, central nervous system, pain and infectious disease therapeutic areas. Sepracor has approximately 2,100 employees worldwide. Additional information about Sepracor is available through its corporate web site at http://www.sepracor.com.

Forward-Looking Statements

This announcement contains forward-looking statements that involve significant risks and uncertainties. All statements that are not historical facts are forward-looking statements, including: statements that are preceded by, followed by, or that include the words “will,” “believes,” “anticipates,” “plans,” “expects,” “could,” “should” or similar expressions; statements regarding the expected timing of the completion of the Top-Up Option and the merger; and any statements of assumptions underlying any of the foregoing. All estimated or anticipated future results, product performance or other non-historical facts are forward-looking and reflect DSP’s and Sepracor’s current perspective on existing trends and information. Investors and security holders are cautioned not to place undue reliance on these forward-looking statements. Actual results could differ materially from those currently anticipated due to a number of risks and uncertainties that are subject to change based on factors that are, in many instances, beyond DSP’s or Sepracor’s control. Risks and uncertainties that could cause results to differ from expectations include: uncertainties as to the timing of the merger; the effects of disruption from the transaction making it more difficult to maintain relationships with employees, licensees, other business partners or governmental entities; other business effects, including the effects of industry, economic or political conditions outside of DSP or Sepracor’s control; transaction costs; actual or contingent liabilities; or other risks and uncertainties discussed in documents filed with the U.S. Securities and Exchange Commission by Sepracor, as well as the tender offer documents filed by Offeror and the Solicitation/Recommendation Statement filed by Sepracor. Accordingly, no assurances can be given that any of the events anticipated by the forward-looking statements will occur or, if any of them do, what impact they will have on DSP’s or Sepracor’s results of operations or financial condition. Neither DSP nor Sepracor undertakes any obligation to update or revise any forward-looking statements as a result of new information, future developments or otherwise.

Lunesta, Xopenex, Xopenex HFA and Brovana are registered trademarks of Sepracor Inc.  Omnaris and Alvesco are registered trademarks of Nycomed GmbH.

For a copy of this release or any recent release, visit Sepracor’s web site at http://www.sepracor.com.

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EX-99.3

Exhibit 99.3

Joint Press Release

For Immediate Release

Company Name:  Dainippon Sumitomo Pharma Co., Ltd.

Representative:  Masayo Tada, President

(Securities Code: 4506, 1st Section of TSE and OSE)

Contact:  Atsuko Higuchi, Director, Public Relations

Phone: 06-6203-1407

Company Name:  Sepracor Inc.

Representative:  Adrian Adams, President and Chief Executive Officer

Contact:  Jonaé R. Barnes,

Sr. Vice President, Investor Relations and Corporate Communications

Phone:   (508) 481-6700

DAINIPPON SUMITOMO PHARMA CO., LTD. COMPLETES ACQUISITION OF SEPRACOR INC.

OSAKA, Japan and MARLBOROUGH, Mass. — October 20, 2009  — Dainippon Sumitomo Pharma Co., Ltd. (“DSP”) and Sepracor Inc. (“Sepracor”) (NASDAQ: SEPR) today announce the successful completion of DSP’s acquisition of Sepracor for US$23.00 per share in cash.  DSP completed the acquisition through a cash tender offer and by exercising an option to acquire additional shares directly from Sepracor followed by a short-form merger of an indirect wholly-owned subsidiary of DSP with and into Sepracor on October 20, 2009.  Sepracor is now an indirect wholly-owned subsidiary of DSP.

As a result of the merger, each outstanding share of Sepracor common stock not validly tendered and accepted for payment in the tender offer (other than shares held in the treasury of Sepracor and any shares owned by Sepracor, DSP or any of their subsidiaries) was, subject to the exercise of appraisal rights  under Delaware law, converted into the right to receive the same $23.00 in cash per share, without interest and subject to applicable withholding of taxes, that was paid in the tender offer.  Computershare Trust Company, N.A., as the paying agent for the merger, will mail to the remaining former stockholders of Sepracor materials necessary to exchange their former Sepracor shares for such payment.  As a result of the merger, trading of Sepracor common stock on The NASDAQ Global Select Market will cease and Sepracor will no longer have reporting obligations under the Securities Exchange Act of 1934.

Nomura Securities Co., Ltd. and Thomas Weisel Partners LLC acted as financial advisors and Paul, Weiss, Rifkind, Wharton & Garrison LLP acted as legal advisor to DSP.  J.P. Morgan Securities Inc. and Jefferies & Company, Inc. acted as financial advisors and Willkie Farr & Gallagher LLP and Wilmer Cutler Pickering Hale and Dorr LLP acted as legal advisors to Sepracor.

About DSP

DSP is a multi-billion dollar, top-ten listed pharmaceutical company in Japan with a diverse portfolio of pharmaceutical, animal health and food and specialty products. DSP’s strong research and development presence in the areas of central nervous system, diabetes, cardiovascular disease, and inflammation/allergy, is based on the merger in 2005 between Sumitomo Pharmaceuticals Co., Ltd., and Dainippon Pharmaceutical Co., Ltd. Today, DSP has approximately 5,000 employees worldwide. Additional information about DSP is available through its corporate web site at http://www.ds-pharma.co.jp.

About Sepracor

Sepracor is a fully integrated specialty pharmaceutical company dedicated to treating and preventing human disease by discovering, developing and commercializing innovative pharmaceutical products that are directed toward serving large and growing markets and unmet medical needs. Sepracor’s drug development, corporate development, and licensing efforts have yielded a portfolio of pharmaceutical products and candidates with a focus on respiratory and central nervous system disorders. Sepracor’s currently marketed products in the U.S. include LUNESTA® brand eszopiclone, XOPENEX® brand levalbuterol HCl Inhalation Solution, XOPENEX HFA® brand levalbuterol tartrate Inhalation Aerosol, BROVANA® brand arformoterol tartrate Inhalation Solution, OMNARIS® brand ciclesonide Nasal Spray and ALVESCO® brand ciclesonide HFA Inhalation Aerosol. Sepracor’s wholly owned subsidiary, Sepracor Pharmaceuticals, Inc., markets several additional products in Canada that are focused in the cardiovascular, central nervous system, pain and infectious disease therapeutic areas. Sepracor has approximately 2,100 employees worldwide. Additional information about Sepracor is available through its corporate web site at http://www.sepracor.com.

Forward-Looking Statements

This press release contains “forward-looking statements” that involve significant risks and uncertainties.  All statements other than statements of historical fact are statements that could be deemed forward-looking statements, including: any statements of expectation or belief; and any statements of assumptions underlying any of the foregoing. Investors and security holders are cautioned not to place undue reliance on these forward-looking statements.  Actual results could differ materially from those currently anticipated due to a number of risks and uncertainties.

Lunesta, Xopenex, Xopenex HFA and Brovana are registered trademarks of Sepracor Inc.  Omnaris and Alvesco are registered trademarks of Nycomed GmbH.

For a copy of this release or any recent release, visit Sepracor’s web site at http://www.sepracor.com

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