THIRD SUPPLEMENTAL INDENTURE dated as of January
30, 1997 (this "Supplemental Indenture"), between X.
X. XXXXXX & CO. INCORPORATED, a corporation duly
organized and existing under the laws of the State of
Delaware (the "Company") and FIRST TRUST OF NEW YORK,
NATIONAL ASSOCIATION, successor to Chemical Bank
(formerly Manufacturers Hanover Trust Company), a
national banking association, as Trustee (hereinafter
called the "Trustee", which term shall include any
successor trustee appointed pursuant to Article Six
of the Basic Indenture hereinafter referred to).
WHEREAS the Company and the Trustee have entered into an
Indenture, dated as of August 15, 1982, as amended by supplemental
indentures, including a First Supplemental Indenture, dated as of
May 5, 1986, and a Second Supplemental Indenture, dated as of
February 27, 1996 (as so amended, the "Basic Indenture"), providing
for the issuance from time to time of one or more series of
Securities (as such term is defined in the Basic Indenture)
evidencing unsecured indebtedness of the Company;
WHEREAS the Company proposes to issue one or more series
of MEDS, as described in the Indenture, but the principal amount at
Maturity with respect to which is mandatorily exchangeable into
Exchange Issuer Securities or, at the option of the Company, payable
in cash, in either case at an Exchange Rate as described herein;
WHEREAS Sections 8.1(f) and (d) of the Basic Indenture
provide that without the consent of the Holders of Securities, the
Company, when authorized by a resolution of its Board of Directors,
and the Trustee may enter into one or more indentures supplemental
to the Basic Indenture (a) to establish the form or terms of
Securities of any series as permitted by Sections 2.1 and 2.3
thereof and (b) to cure any ambiguity or to correct or supplement
any provision contained in the Basic Indenture or any supplemental
indenture which may be defective or inconsistent with any other
provision of the Basic Indenture or any supplemental indenture or to
make such other provisions in regard to matters or questions arising
under the Basic Indenture or any supplemental indenture as the Board
of Directors may deem necessary or desirable and which shall not
materially and adversely affect the interests of the Holders of the
Securities;
WHEREAS the entry into this Supplemental Indenture by the
parties hereto is in all respects authorized by the provisions of
the Basic Indenture; and
WHEREAS all things necessary to make this Supplemental
Indenture a valid agreement of the Company in accordance with its
terms have been done.
NOW, THEREFORE, for and in consideration of the premises
and purchase of the Securities by the Holders thereof, it is
mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders, without preference, priority or distinction
of any of the Securities over any of the others by reason of
difference in series or priority in time of issuance, negotiation or
maturity thereof, or otherwise except as otherwise provided in the
Basic Indenture or this Supplemental Indenture, as follows:
ARTICLE I
Amendments to the Basic Indenture
The Basic Indenture is amended as set forth below:
SECTION 1.01. Amendments to Authorize Additional Exchange
Rate Option. The Basic Indenture is hereby amended, solely with
respect to one or more series of Securities that consist of MEDS, as
follows:
(a) By amending Section 1.1 to add new definitions
thereto, in the appropriate alphabetical sequence, as follows:
"Capped Participation Percentage", with respect to any
issuance of MEDS, shall have the meaning set forth in the
applicable Prospectus Supplement.
(b) By amending the second sentence of Section 13.1 to
read as follows:
"The 'Exchange Rate' with respect to each series of MEDS shall
be equal to, as set forth in the applicable Prospectus
Supplement and subject to adjustment as a result of certain
dilution events relating to the Issuer Exchange Securities as
provided for in Section 13.3, either (I) (a) if the Maturity
Price (as defined below) is greater than or equal to the
'Threshold Appreciation Price' (as set forth in the applicable
Prospectus Supplement), a number of Exchange Issuer Securities
equal to a fraction, the numerator of which is one and the
denominator of which is the sum of one and the Conversion
Premium, (b) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than the Initial Price, a
fractional Exchange Issuer Security per MEDS so that the value
of such fractional Exchange Issuer Security (determined at the
Maturity Price) is equal to the Initial Price (such fractional
share being calculated to the nearest 1/10,000th of a share or,
if there is not a nearest 1/10,000th of a share, to the next
highest 1/10,000th of a share) and (c) if the Maturity Price is
less than or equal to the Initial Price, one Exchange Issuer
Security per MEDS, (II) (a) if the Maturity Price is less than
or equal to the 'Capped Appreciation Price' (as set forth in
the applicable Prospectus Supplement), one Exchange Issuer
Security per MEDS, and (b) if the Maturity Price is greater
than the Capped Appreciation Price, a fractional Exchange
Issuer Security per MEDS so that the value of such fractional
Exchange Issuer Security (determined at the Maturity Price) is
equal to the Capped Appreciation Price (calculated as above) or
(III) the Exchange Rate, as otherwise defined in any Prospectus
Supplement relating to an issuance of MEDS."
(c) By amending the first sentence of Section 13.3 to read
as follows:
"Unless otherwise specified in any Prospectus Supplement
relating to an issuance of MEDS, the Exchange Rate shall be
subject to adjustment from time to time as follows:"
(d) By adding the following Section 13.7:
"SECTION 13.7. Tax Matters. The parties hereto hereby
agree, and each Holder of a MEDS issued on or after January 30,
1997, by its purchase of a MEDS hereby agrees:
(i) to treat, for U.S. federal income tax purposes, each
MEDS as a forward purchase contract to purchase Exchange Issuer
Securities at Maturity (including as a result of acceleration
or otherwise) (the "forward purchase contract
characterization"), under the terms of which contract (a) at
the time of issuance of the MEDS the Holder deposits
irrevocably with the Company a fixed amount of cash equal to
the purchase price of the MEDS to assure the fulfillment of the
Holder's purchase obligation described in clause (c) below,
which deposit will unconditionally and irrevocably be applied
at Maturity to satisfy such obligation, (b) until Maturity the
Company will be obligated to pay interest on such deposit at a
rate equal to the stated rate of interest on the MEDS as
compensation to the Holder for the Company's use of such cash
deposit during the term of the MEDS, and (c) at Maturity such
cash deposit unconditionally and irrevocably will be applied by
the Company in full satisfaction of the Holder's obligation
under the forward purchase contract, and the Company will
deliver to the Holder the number of Exchange Issuer Securities
that the Holder is entitled to receive at that time pursuant to
the terms of the MEDS (subject to the Company's right to
deliver cash in lieu of the Exchange Issuer Securities);
(ii) to treat, consistent with the above characterization,
(x) amounts paid to the Company in respect of the original
issue of a MEDS as allocable in their entirety to the amount of
the cash deposit attributable to such MEDS, and (y) amounts
denominated as interest that are payable with respect to the
MEDS as interest payable on the amount of such deposit,
includible annually in the income of the Holder as interest
income in accordance with its method of accounting; and
(iii) to file all U.S. federal, state and local income and
franchise tax returns consistent with the forward purchase
contract characterization (unless required otherwise by an
applicable taxing authority or notified to such effect by the
Company)."
ARTICLE II
Miscellaneous
SECTION 2.01. Single Indenture. The Basic Indenture, as
supplemented and amended by this Supplemental Indenture and all
other indentures supplemental thereto, is in all respects ratified
and confirmed, and the Basic Indenture, this Supplemental Indenture
and all indentures supplemental thereto shall be read, taken and
construed as one and the same instrument.
SECTION 2.02. Trust Indenture Act. If any provision hereof
limits, qualifies or conflicts with another provision hereof which
is required to be included in this Supplemental Indenture by any of
the provisions of the Trust Indenture Act, such required provision
shall control.
SECTION 2.03. Successors and Assigns. All covenants and
agreements in this Supplemental Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
SECTION 2.04. Severability. In case any provision in this
Supplemental Indenture or in the Securities of any series shall be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions (or of the other series
of Securities) shall not in any way be affected or impaired thereby.
SECTION 2.05. Third Party Rights. Nothing in this
Supplemental Indenture, expressed or implied, shall give to any
Person, other than the parties hereto and their successors
hereunder, and the Holders of each series of Securities any benefit
or any legal or equitable right, remedy or claim under this
Supplemental Indenture.
SECTION 2.06. Applicable Law. This Supplemental Indenture
and each Security of any series shall be deemed to be a contract
made under the laws of the State of New York and this Supplemental
Indenture and each such Security shall be governed by and construed
in accordance with the laws of the State of New York.
SECTION 2.07. Defined Terms. All terms used in this
Supplemental Indenture not otherwise defined herein that are defined
in the Basic Indenture shall have the meanings set forth therein.
SECTION 2.08. Counterparts. This Supplemental Indenture
may be executed in any number of counterparts, each of which shall
be an original; but such counterparts shall together constitute but
one and the same instrument.
SECTION 2.09. Responsibility of Company. The recitals
contained herein and in the Securities, except the certificate of
authentication of the Trustee thereon, shall be
taken as statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of the Basic
Indenture, this Supplemental Indenture or of the Securities and
shall not be accountable for the use or application by the Company
of the Securities or the proceeds thereof.
SECTION 2.10. Headings. The headings used herein are for
convenience of reference only, are not part of this Supplemental
Indenture and are not to affect the construction of, or to be taken
into consideration in interpreting, this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Supplemental Indenture to be duly executed, and their respective
corporate seals to be hereunto affixed and attested, all as of the
day and year first above written.
X.X. XXXXXX & CO. INCORPORATED,
by /s/ Xxxx X. Xxxxxxx
--------------------------------
Name: Xxxx X. Xxxxxxx
Title: Vice President and
Assistant General Counsel
[Seal]
Attest:
/s/ Xxxxx Ceracciolo
-----------------------
Name: Iren Ceracciolo
Title:
FIRST TRUST OF NEW YORK, NATIONAL
ASSOCIATION, as Trustee,
by /s/ Xxxxx Xxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxx
Title: Assistant Vice
President
[Seal]
Attest:
/s/ Xxxxxxxx Xxxxxxx
-----------------------
Name: Xxxxxxxx Xxxxxxx
Title:
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On the 30th day of January 1997, before me personally came
Xxxx X. Xxxxxxx, to me known, who, being by me duly sworn, did depose
and say that he/she is a Vice President and Assistant General Counsel
of X. X. XXXXXX & CO. INCORPORATED, one of the corporations described
in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
/s/ Xxxxxx X. Xxxxxxx
----------------------------
Notary Public
STATE OF NEW YORK, )
) ss.:
COUNTY OF NEW YORK, )
On the 30th day of January 1997, before me personally came
Xxxxx Xxxxxxxx, to me known, who, being by me duly sworn, did depose
and say that he/she is an Assistant Vice President of FIRST TRUST OF
NEW YORK, NATIONAL ASSOCIATION, one of the corporations described in
and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board
of Directors of said corporation, and that he/she signed his/her name
thereto by like authority.
/s/ Xxxxxx Xxxx
----------------------------
Notary Public
