SUPPLEMENTAL INDENTURE
Exhibit 4.4
EIGHTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of September 24, 2008, among Attenex Corporation, a Washington corporation (“Attenex”), and FD Kinesis, LLC, a New Jersey limited liability company (“Kinesis,” and together with Attenex, the “Guaranteeing Subsidiaries”), each of which are direct or indirect subsidiaries of FTI Consulting, Inc. (or its permitted successor), a Maryland corporation (the “Company”), the Company, the other Guarantors (as defined in the Indenture referred to herein) and Wilmington Trust Company, as trustee under the Indenture referred to below (the “Trustee”).
WITNESSETH
WHEREAS, the Company has heretofore executed and delivered to the Trustee an indenture dated as of August 2, 2005 (as supplemented by the First Supplemental Indenture dated as of December 16, 2005, the Second Supplemental Indenture dated as of February 22, 2006, the Third Supplemental Indenture dated as of September 15, 2006, the Fourth Supplemental Indenture dated as of November 7, 2006, the Fifth Supplemental Indenture dated as of December 7, 2006, the Sixth Supplemental Indenture dated as of December 27, 2007 and the Seventh Supplemental Indenture dated as of May 23, 2008, the “Indenture”), providing for the issuance of 3 3/4% Convertible Senior Subordinated Notes due July 15, 2012 (the “Notes”);
WHEREAS, the Indenture provides that under certain circumstances each Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental indenture pursuant to which each Guaranteeing Subsidiary shall unconditionally guarantee all of the Company’s Obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “Note Guarantee”); and
WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.
NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, each Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:
1. CAPITALIZED TERMS. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. AGREEMENT TO GUARANTEE. Each Guaranteeing Subsidiary hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.
3. NO RECOURSE AGAINST OTHERS. No past, present or future director, officer, employee, incorporator, stockholder or agent of any Guaranteeing Subsidiary, as such, shall have any liability for any obligations of the Company or any other Guaranteeing Subsidiary under the Notes, any Note Guarantees, the Indenture or this Supplemental Indenture or for any
1
claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of the Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. Such waiver may not be effective to waive liabilities under the federal securities laws and it is the view of the SEC that such a waiver is against public policy.
4. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
5. COUNTERPARTS. The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.
6. EFFECT OF HEADINGS. The Section headings herein are for convenience only and shall not affect the construction hereof.
7. THE TRUSTEE. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by each Guaranteeing Subsidiary and the Company.
2
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.
| ATTENEX CORPORATION | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
| FD KINESIS, LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Vice President | |
| FTI CONSULTING, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Executive Vice President and General Counsel | |
| FTI, LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| FTI TECHNOLOGY LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| COMPASS LEXECON LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
[SIGNATURE PAGES CONTINUE]
3
| FTI CAMBIO LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| FTI INVESTIGATIONS, LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager, Vice President, Treasurer and Secretary | |
| COMPETITION POLICY ASSOCIATES, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Director and Senior Vice President | |
| FTI INTERNATIONAL LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| FTI GENERAL PARTNER, LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| STRATCOM HISPANIC, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Director and Senior Vice President | |
| FTI CONSULTING LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
[SIGNATURE PAGES CONTINUE]
4
| FTI HOSTING LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| ASHTON PARTNERS, LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| FTI US LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| FD MWA HOLDINGS, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
| FD US COMMUNICATIONS, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
| XXXXXX COMMUNICATIONS INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
| FTI RMCG ACQUISITION LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
[SIGNATURE PAGES CONTINUE]
5
| FTI SMC ACQUISITION LLC | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Manager and Senior Vice President | |
| RMCG CONSULTING, INC. | ||
| By: | /S/ XXXX X. XXXXXX | |
| Name: | Xxxx X. Xxxxxx | |
| Title: | Senior Vice President | |
[SIGNATURE PAGES CONTINUE]
6
| WILMINGTON TRUST COMPANY, as TRUSTEE | ||
| By: | /S/ XXXXXXX X. XXXXX, XX. | |
| Authorized Signatory | ||
| Eighth Supp Indenture 2005 Convertible Notes |
7 |
