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EXHIBIT 4.2
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XXXXXX INDUSTRIES, INC.
TO
TEXAS COMMERCE BANK NATIONAL ASSOCIATION
Trustee
____________________
FIRST SUPPLEMENTAL INDENTURE
Dated as of [ ], 1995
____________________
DEBT SECURITIES
Supplemental to Indenture dated as of [ ], 1995
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FIRST SUPPLEMENTAL INDENTURE
dated as of [ ], 1995 (this "Supplemental Indenture"),
made and entered into by and between XXXXXX INDUSTRIES, INC.,
a corporation organized and existing under the laws of the
State of Ohio having its principal office at 0000 Xxxxxx,
Xxxxxxx, Xxxxx 00000 (the "Company"), and TEXAS COMMERCE BANK
National Association, a national banking association duly
organized and existing under the laws of the United States,
as trustee (the "Trustee").
WHEREAS the Company entered into an Indenture dated as of [ ],
1995 (the "Basic Indenture") with the Trustee, for the purposes of issuing
its unsecured debentures, notes or other evidences of indebtedness to be issued
in one or more series (the "Debt Securities"), in such principal amount or
amounts as may from time to time be authorized by or pursuant to the authority
granted in one or more resolutions of the Board of Directors of the Company;
WHEREAS the Company proposes to issue a series of Debt Securities
denominated its "[ ]% Exchangeable Notes Due [ ], 1998" representing
up to 16,500,000 of its "Debt Exchangeable for Common Stock[SM]" (such Debt
Securities being referred to herein as the "DECS[SM]"), the principal amount at
Maturity of which is mandatorily exchangeable into shares of Common Stock, par
value $1.00 per share ("WGC Common Stock"), of Xxxxx-Xxxxxx Company ("WGC"),
or, at the option of the Company, cash, in either case at the Exchange Rate as
described herein;
WHEREAS Section 11.01(c) and (f) of the Basic Indenture provide that
without the consent of the Holders of Debt Securities, the Company, when
authorized by Board Resolution, and the Trustee may enter into one or more
indentures supplemental to the Basic Indenture, in form satisfactory to the
Trustee, (a) to cure any ambiguity or to correct or supplement any provision
contained therein or in any supplemental indenture or to make such other
provisions in regard to matters or questions arising under the Basic Indenture
or any supplemental indenture and (b) to set forth some or all of the terms of
Debt Securities of a particular series; provided that any action taken pursuant
to clause (a) above shall not adversely affect the interests of the Holders of
Debt Securities of any series;
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affect the interests of the Holders of Debt Securities of any series in
any material respect;
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, and in consideration of the premises and purchase of
the Debt 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 Debt 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:
SECTION 1. The Basic Indenture is hereby amended by amending Section
2.02 of the Basic Indenture by (i) adding as a new subparagraph (A)(i)(q) the
following: "(q) the obligation, if any, of the Company to permit the conversion
or exchange of the Debt Securities of such series into other securities
(whether or not issued by, or the obligation of, the Company), and the terms
and conditions upon which such conversion or exchange shall be effected
(including, without limitation, the initial conversion or exchange price or
rate, the conversion or exchange period and any other provision in addition to
or in lieu of those set forth in this Indenture relative to such obligation;
and"; and by (ii) renumbering current subparagraphs (A)(i)(q) and (A)(i)(r)
of Section 2.02 to new subparagraphs (A)(i)(r) and (A)(i)(s), respectively.
SECTION 2. The Basic Indenture is hereby amended, solely with respect
to a series of securities that consists of DECS, as follows:
(a) By amending Section 1.01 to add new definitions thereto, in the
appropriate alphabetical sequence, as follows:
"Business Day" for purposes of the DECS has the meaning specified in
Section 16.01.
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"Closing Price" has the meaning specified in
Section 16.01.
"Extraordinary Cash Dividend" has the meaning
specified in Section 16.03.
"Initial Price" has the meaning specified in
Section 16.01.
"Maturity" or "Maturity Date" means [ ].
"Maturity Price" has the meaning specified in
Section 16.01.
"NASDAQ" has the meaning specified in
Section 16.01.
"Reorganization Event" has the meaning specified
in Section 16.03.
"Threshold Appreciation Price" has the meaning
specified in Section 16.01.
"Trading Day" has the meaning specified in
Section 16.01.
"Transaction Value" has the meaning specified in
Section 16.03.
"WGC" has the meaning specified in Section 16.01.
"WGC Common Stock" has the meaning specified in
Section 16.01.
"WGC Successor" has the meaning specified in
Section 16.03.
(b) By amending Section 11.02 of the Basic
Indenture by adding to the end thereof the following:
"or change the terms under which the DECS are
exchangeable as set forth in Article Sixteen".
(c) By adding the following Article Sixteen:
"ARTICLE SIXTEEN
Exchange of Decs
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SECTION 16.01. EXCHANGE AT MATURITY. At
Maturity, the principal amount payable with respect to each
DECS shall be automatically and mandatorily exchanged into a
number of
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shares of Common Stock, par value $1.00 ("WGC Common Stock"),
of Xxxxx-Xxxxxx Company ("WGC") at the Exchange Rate (as defined
below). As a result, Holders of the DECS may not receive a payment
representing the principal amount of such DECS. The
"Exchange Rate" is equal to, subject to adjustment as a
result of certain dilution events relating to the WGC Common
Stock as provided for in Section 16.03, (a) if the Maturity
Price (as defined below) is greater than or equal to $[ ]
per share of WGC Common Stock (the "Threshold Appreciation
Price"), [ ] shares of WGC Common Stock per DECS, (b) if
the Maturity Price is less than the Threshold Appreciation
Price but is greater than [ ] per share of WGC Common
Stock (the "Initial Price"), a fractional share of WGC
Common Stock per DECS so that the value thereof (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 share of WGC Common Stock per DECS. No
fractional shares of WGC Common Stock will be issued at
Maturity as provided in Section 16.02. Notwithstanding the
foregoing, the Company may, at its option in lieu of
delivering shares of WGC Common Stock, deliver cash in an
amount (calculated to the nearest 1/100th of a dollar per
DECS or, if there is not a nearest 1/100th of a dollar, then
to the next higher 1/100th of a dollar) equal to the value
of such number of shares of WGC Common Stock at the Maturity
Price. In determining the amount of cash deliverable in
exchange for the DECS in lieu of shares of WGC Common Stock
pursuant to the prior sentence hereof, if more than one DECS
shall be surrendered for exchange at one time by the same
Holder, the amount of cash which shall be delivered upon
exchange shall be computed on the basis of the aggregate
number of DECS so surrendered at Maturity.
The "Maturity Price" is defined as the average
Closing Price per share of WGC Common Stock on the
20 Trading Days immediately prior to, but not including, the
Maturity Date. The "Closing Price" of any security on any
date of determination means the closing sale price (or, if
no closing price is reported, the last reported sale price)
of such security on The Nasdaq Stock Market's National
Market ("Nasdaq") on such date or, if such security is not
listed for trading on the Nasdaq on any such date, as
reported in the composite transactions for the principal
United States securities exchange on which such security is
so listed, or if such
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security is not so listed on a United States national or
regional securities exchange, as reported by the National
Association of Debt Securities Dealers, Inc. Automated
Quotation System, or, if such security is not so reported,
the last quoted bid price for such security in the
over-the-counter market as reported by the National
Quotation Bureau or similar organization, or, if such bid
price is not available, the market value of such security on
such date as determined by a nationally recognized
independent investment banking firm retained for this
purpose by the Company. A "Trading Day" is defined as a day
on which the security the Closing Price of which is being
determined (A) is not suspended from trading on any national
or regional securities exchange or association or over-the-
counter market at the closing of business and (B) has traded
at least once on the national or regional securities
exchange or association or over-the-counter market that is
the primary market for the trading of such security.
"Business Day" means any day that is not a Saturday, a
Sunday or a day on which the Nasdaq, banking institutions or
trust companies in The City of New York are authorized or
obligated by law or executive order to close.
SECTION 16.02. NO FRACTIONAL SHARES. No
fractional shares or scrip representing fractional shares of
WGC Common Stock shall be issued or delivered upon the
exchange at Maturity of any DECS. If more than one DECS
shall be surrendered for exchange at one time by the same
Holder, the number of full shares of WGC Common Stock which
shall be delivered upon exchange, in whole or in part, as
the case may be, shall be computed on the basis of the
aggregate number of DECS so surrendered at Maturity.
Instead of any fractional share of WGC Common Stock which
would otherwise be deliverable upon exchange of any DECS at
Maturity, the Company, through any applicable Paying Agent,
shall make a cash payment in respect of such fractional
interest in an amount equal to the value of such fractional
shares at the Maturity Price. The Company shall, upon
exchange of any DECS, provide cash to any applicable paying
agent in an amount equal to the cash payable with respect to
any fractional shares of WGC Common Stock deliverable upon
exchange of such DECS, and the Company shall retain such
fractional shares of WGC Common Stock.
SECTION 16.03. ADJUSTMENT OF EXCHANGE RATE.
(a) ADJUSTMENT FOR DISTRIBUTIONS, RECLASSIFICATIONS, ETC.
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The Exchange Rate shall be subject to adjustment from time
to time as follows:
(i) If WGC shall:
(A) pay a dividend or make a
distribution with respect to the WGC Common Stock
in shares of such stock;
(B) subdivide or split the outstanding
shares of WGC Common Stock into a greater number
of shares;
(C) combine the outstanding shares of
WGC Common Stock into a smaller number of shares;
or
(D) issue by reclassification of shares
of WGC Common Stock any shares of common stock of
WGC;
then, in any such event, the Exchange Rate in effect
immediately prior to such event shall be adjusted so
that the holder of any DECS shall thereafter be entitled to
receive, upon mandatory exchange of the principal amount of
such DECS at Maturity, as set forth in Section 16.01, the
number of shares of WGC Common Stock which such holder would
have owned or been entitled to receive immediately following
any event described above had such DECS been exchanged
immediately prior to such event or any record date with
respect thereto. Each such adjustment shall become
effective at the opening of business on the Business Day
next following the record date for determination of holders
of WGC Common Stock entitled to receive such dividend or
distribution in the case of a dividend or distribution and
shall become effective immediately after the effective date
in the case of a subdivision, split, combination or
reclassification. Each such adjustment shall be made
successively.
(ii) If WGC shall, after the date hereof, issue
rights or warrants to all holders of WGC Common Stock
entitling them to subscribe for or purchase shares of
WGC Common Stock (other than rights to purchase WGC
Common Stock pursuant to a plan for the reinvestment of
dividends or interest) at a price per share less than
the current market price of WGC Common Stock
(determined for purposes of this clause (ii) as the
average Closing Price per share of WGC Common Stock on
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the 20 Trading Days immediately prior to the date such
rights or warrants are issued), then in each case the
Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect immediately prior to the date
of issuance of such rights or warrants, by a fraction,
of which the numerator shall be the number of shares of
WGC Common Stock outstanding on the date of issuance of
such rights or warrants, immediately prior to such
issuance, plus the number of additional shares of WGC
Common Stock offered for subscription or purchase
pursuant to such rights or warrants, and of which the
denominator shall be the number of shares of WGC Common
Stock outstanding on the date of issuance of such
rights or warrants, immediately prior to such issuance,
plus the number of additional shares of WGC Common
Stock which the aggregate offering price of the total
number of shares of WGC Common Stock so offered for
subscription or purchase pursuant to such rights or
warrants, would purchase at such current market price
(calculated as the average Closing Price per share of
WGC Common Stock on the 20 Trading Days immediately
prior to the date such rights or warrants are issued),
which shall be determined by multiplying such total
number of shares by the exercise price of such rights
or warrants and dividing the product so obtained by
such current market price. Such adjustment shall
become effective at the opening of business on the
Business Day next following the record date for the
determination of stockholders entitled to receive such
rights or warrants. To the extent that shares of WGC
Common Stock are not delivered after the expiration of
such rights or warrants, the Exchange Rate shall be
readjusted to the Exchange Rate which would then be in
effect had such adjustments for the issuance of such
rights or warrants been made upon the basis of delivery
of only the number of shares of WGC Common Stock
actually delivered. Each such adjustment shall be made
successively.
(iii) If WGC shall pay a dividend or make a
distribution to all holders of WGC Common Stock of
evidences of its indebtedness or other assets
(excluding any dividends or distributions referred to
in subparagraph (i) above or any ordinary periodic cash
dividends that do not constitute Extraordinary Cash
Dividends (as defined in clause (vi) below)) or shall
issue to all holders of WGC Common Stock rights or
warrants to subscribe for or purchase any of its
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securities (other than those referred to in
subparagraph (ii) above), then in each such case, the
Exchange Rate shall be adjusted by multiplying the
Exchange Rate in effect on the record date mentioned
below, by a fraction of which the numerator shall be
the current market price per share of the WGC Common
Stock on the record date for the determination of
stockholders entitled to receive such dividend or
distribution (such current market price being
determined for purposes of this clause (iii) as the
average Closing Price per share of WGC Common Stock on
the 20 Trading Days immediately prior to such record
date), and of which the denominator shall be such
current market price per share of WGC Common Stock less
the fair market value (as determined by the Board of
Directors of the Company, whose determination shall be
conclusive, and described in a resolution adopted with
respect thereto) as of such record date of the portion
of the assets or evidences of indebtedness so
distributed or of such subscription rights or warrants
applicable to one share of WGC Common Stock. Each such
adjustment shall become effective on the opening of
business on the Business Day next following the record
date for the determination of stockholders entitled to
receive such dividend or distribution. Each such
adjustment shall be made successively.
(iv) Any shares of WGC Common Stock issuable in
payment of a dividend shall be deemed to have been
issued immediately prior to the close of business on
the record date for such dividend for purposes of
calculating the number of outstanding shares of WGC
Common Stock under subparagraph (ii) above.
(v) All adjustments to the Exchange Rate shall be
calculated to the nearest 1/10,000th of a share of WGC
Common Stock (or if there is not a nearest 1/10,000th
of a share to the next lower 1/10,000th of a share).
No adjustment in the Exchange Rate shall be required
unless such adjustment would require an increase or
decrease of at least one percent therein; PROVIDED,
HOWEVER, that any adjustments which by reason of this
subparagraph are not required to be made shall be
carried forward and taken into account in any
subsequent adjustment. If an adjustment is made to the
Exchange Rate pursuant to subparagraph (i), (ii) or
(iii) of this Section 16.03(a), an adjustment shall
also be made to the Maturity Price solely to determine
which
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of paragraphs (a), (b) or (c) of the definition
of Exchange Rate in Section 16.01 will apply at
Maturity. The required adjustment shall be determined
by multiplying the Maturity Price by the number
determined under subparagraph (i), (ii) or (iii) by
which the then existing Exchange Rate was multiplied to
adjust such rate. This subparagraph (v) shall be so
used to adjust the definition of Maturity Price only as
such term is used for the first time in each of
subparagraphs (a), (b) and (c) of the definition of
Exchange Rate.
(vi) For purposes of the foregoing, the term
"Extraordinary Cash Dividend" shall mean, with respect
to any consecutive 365-day period, any cash dividend
with respect to WGC Common Stock the amount of which,
together with the aggregate amount of all other such
cash dividends on the WGC Common Stock occurring in
such 365-day period, exceeds on a per share basis 10%
of the average of the Closing Prices per share of the
WGC Common Stock over such 365-day period, and for
purposes of applying the formula set forth in
clause (iii) above, the fair market value of such
dividends being calculated pursuant to such
clause (iii) shall be equal to (x) the aggregate amount
of such cash dividend together with the amounts of such
other cash dividends occurring in such period minus
(y) the aggregate amount of such other cash dividends
occurring in such period for which a prior adjustment
in the Exchange Rate was previously made under this
Section 16.03(a). In making the determinations
required by the foregoing sentence, the amount of cash
dividends paid on a per share basis shall be
appropriately adjusted to reflect the occurrence during
such period of any event described in Section 16.03(a).
(b) ADJUSTMENT FOR CONSOLIDATION, MERGER OR OTHER
REORGANIZATION EVENT. In the event of (i) any consolidation
or merger of WGC, or any surviving entity or subsequent
surviving entity of WGC (a "WGC Successor"), with or into
another entity (other than a merger or consolidation in
which WGC is the continuing corporation and in which the WGC
Common Stock outstanding immediately prior to the merger or
consolidation is not exchanged for cash, securities or other
property of WGC or another corporation), (ii) any sale,
transfer, lease or conveyance to another corporation of the
property of WGC, or any WGC Successor as an entirety or
substantially as an entirety, (iii) any statutory exchange
of securities of WGC or any
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WGC successor with another corporation (other than in
connection with a merger or acquisition) or (iv) any
liquidation, dissolution or winding up of WGC or any WGC
Successor (any such event, a "Reorganization Event"), the
Exchange Rate used to determine the amount payable upon
exchange at Maturity for each DECS will be adjusted
to provide that each holder of DECS will receive at
Maturity cash in an amount equal to (a) if the
Transaction Value (as defined below) is greater than or
equal to the Threshold Appreciation Price, [ ]
multiplied by the Transaction Value, (b) if the Transaction
Value is less than the Threshold Appreciation Price but
greater than the Initial Price, the Initial Price and (c) if
the Transaction Value is less than or equal to the Initial
Price, the Transaction Value. "Transaction Value" means
(x) for any cash received in any such Reorganization Event,
the amount of cash received per share of WGC Common Stock,
(y) for any property other than cash or securities received
in any such Reorganization Event, an amount equal to the
market value at Maturity of such property received per share
of WGC Common Stock as determined by a nationally recognized
independent investment banking firm retained for this
purpose by the Company and (z) for any securities received
in any such Reorganization Event, an amount equal to the
average Closing Price per share of such securities on the 20
Trading Days immediately prior to Maturity, multiplied by
the number of such securities received for each share of WGC
Common Stock. Notwithstanding the foregoing, in lieu of
delivering cash as provided above, the Company may at its
option deliver an equivalent value of securities or other
property received in such Reorganization Event, determined
in accordance with clause (y) or (z) above, as applicable.
The kind and amount of securities into which the DECS shall
be exchangeable after consummation of such transaction shall
be subject to adjustment as described in paragraph (a) above
following the date of consummation of such transaction.
SECTION 16.04. NOTICE OF ADJUSTMENT AND CERTAIN
OTHER EVENTS. (a) Whenever the Exchange Rate is adjusted
as herein provided, the Company shall:
(i) forthwith compute the adjusted Exchange Rate
in accordance with Section 16.03 and prepare a
certificate signed by an officer of the Company setting
forth the adjusted Exchange Rate, the method of
calculation thereof in reasonable detail, and the facts
requiring such adjustment and upon which such
adjustment is based, which certificate shall be
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conclusive, final and binding evidence of the
correctness of the adjustment, and file such
certificate forthwith with the Trustee for the DECS;
and
(ii) within 10 Business Days following the
occurrence of an event that permits or requires an
adjustment to the Exchange Rate pursuant to
Section 16.03 (or if the Company is not aware of such
occurrence, as soon as practicable after becoming so
aware), provide written notice to the Trustee and to
the Holders of the Outstanding DECS of the occurrence
of such event and a statement in reasonable detail
setting forth the method by which the adjustment to the
Exchange Rate was determined and setting forth the
revised Exchange Rate per DECS, provided, that such
notice need only disclose the factor by which the
Maturity Price is to be multiplied pursuant to
Section 16.03(a)(v) in order to determine the Exchange
Rate at Maturity, it being understood that, until
Maturity, the Exchange Rate itself cannot be
determined.
(b) In case at any time while any of the DECS are
outstanding the Company receives notice that:
(i) WGC shall declare a dividend (or any other
distribution) on or in respect of the WGC Common Stock
to which Section 16.03(a)(i) or (ii) shall apply (other
than any cash dividends and distributions, if any, paid
from time to time by WGC that do not constitute
Extraordinary Cash Dividends);
(ii) WGC shall authorize the issuance to all
holders of WGC Common Stock of rights or warrants to
subscribe for or purchase shares of WGC Common Stock or
any other subscription rights or warrants;
(iii) there shall occur any conversion or
reclassification of WGC Common Stock (other than a
subdivision or combination of outstanding shares of
such WGC Common Stock) or any consolidation, merger or
reorganization to which WGC is a party and for which
approval of any stockholders of WGC is required, or the
sale or transfer of all or substantially all of the
assets of WGC; or
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(iv) there shall occur the voluntary or
involuntary dissolution, liquidation or winding up of
WGC;
then the Company shall promptly cause to be delivered to the
Trustee and any applicable Paying Agent and filed at the
office or agency maintained for the purpose of exchange of
DECS at Maturity in the Borough of Manhattan, in The City of
New York by the Trustee (or any applicable Paying Agent),
and shall promptly cause to be mailed to the Holders of DECS
at their last addresses as they shall appear upon the
registration books of the Debt Security Registrar, at least
10 days before the date hereinafter specified (or the
earlier of the dates hereinafter specified, in the event
that more than one is specified), a notice stating (x) the
date on which a record is to be taken for the purpose of
such dividend, distribution or grant of rights or warrants,
or, if a record is not to be taken, the date as of which the
holders of WGC Common Stock of record to be entitled to such
dividend, distribution or grant of rights or warrants are to
be determined, or (y) the date, if known by the Company, on
which such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up is expected
to become effective.
(c) On or prior to seven Business Days preceding
the Maturity Date of the DECS, the Company will provide
notice to the Holders of record of the DECS and to the
Trustee and will publish a notice in a daily newspaper of
national circulation stating whether the Company has
irrevocably elected to deliver WGC Common Stock or cash (or
any other property or securities that may be delivered
pursuant to Section 16.03(b)) upon the mandatory exchange of
the principal amount of the DECS in accordance with
Section 16.01.
SECTION 16.05. TAXES. (a) The Company will pay
any and all documentary, stamp, transfer or similar taxes
that may be payable in respect of the transfer and delivery
of WGC Common Stock pursuant hereto; PROVIDED, HOWEVER, that
the Company shall not be required to pay any such tax which
may be payable in respect of any transfer involved in the
delivery of WGC Common Stock in a name other than that in
which the DECS so exchanged were registered, and no such
transfer or delivery shall be made unless and until the
Person requesting such transfer has paid to the Company the
amount of any such tax, or has established, to the
satisfaction of the Company, that such tax has been paid.
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(b) The parties hereto hereby agree, and each
Holder of a DECS by its purchase of a DECS hereby agrees:
(i) to treat, for U.S. federal income tax
purposes, each DECS as a unit (the "unit
characterization") consisting of (A) a debt obligation
(the "Exchange Note") with a fixed principal amount
equal to the principal amount of the DECS, bearing
interest at the stated interest rate, and with the
principal amount unconditionally payable at Maturity,
and (B) a forward purchase contract (the "Purchase
Contract") pursuant to which the Holder agrees to use
the principal payment due on the Exchange Note to
purchase, at Maturity, the WGC Common Stock which
the Holder is entitled to receive at that time (subject
to the Company's right to deliver cash in lieu of such
WGC Common Stock;
(ii) to include in income as interest, in accordance
with its method of accounting, all payments made with respect
to the DECS that are denominated as interest and to include
any original issue discount in income on the basis of the
allocation described in paragraph (iii) below (in the case of
an initial purchaser) or on the basis of a similar method
(in the case of a subsequent purchaser);
(iii) in the case of an initial purchaser, to
allocate the entire purchase price of a DECS to the
Exchange Note and to allocate no part thereof to the
Purchase Contract, unless the stated interest on the DECS represents
a yield that is lower than the Company's normal cost of issuing
debt with a similar term to the DECS (the "Company's Mid-Term Borrowing
Rate"), in which case each Holder agrees to allocate to the Exchange Note
an amount, less than the principal amount of the Exchange Note, calculated
by discounting the cash flows relating to the Exchange Note at a rate
equal to the Company's Mid-Term Borrowing Rate, and to allocate to the
Purchase Contract the remainder of the purchase price of the DECS; and
(iv) to file all U.S. federal, state and local
income and franchise tax returns consistent with the
unit characterization and the foregoing methods (unless
required otherwise by an applicable taxing authority).
SECTION 16.06. SHARES FREE AND CLEAR. The
Company hereby warrants that upon any exchange of a DECS
for WGC Common Stock at Maturity pursuant to this Indenture,
the Holder of a DECS shall receive all rights held by the
Company in the WGC Common Stock for which such DECS is at
such time exchangeable pursuant to this Indenture, free and
clear of any and all liens, claims, charges and encumbrances
other than any liens, claims, charges and encumbrances which
may have been placed on any WGC Common Stock by Xxxxx-Xxxxxx
or the prior owner thereof, prior to the time such WGC Common
Stock was acquired by the Company. Except as provided in
Section 16.05(a), the Company will pay all taxes and charges
with respect to the delivery of WGC Common Stock delivered
in exchange for DECS hereunder. In addition, the Company
further warrants that any WGC Common Stock so delivered in
exchange for DECS hereunder shall be free of any transfer
restrictions (other
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than such as are solely attributable to any Holder's status
as an affiliate of WGC).
SECTION 16.07. CANCELLATION OF DEBT SECURITY.
Upon receipt by the Trustee of DECS delivered to it for
exchange under this Article Fourteen, the Trustee shall
cancel and dispose of the same as provided in Section 2.08.
SECTION 16.08. LIMITATIONS ON TRADING DURING
CERTAIN DAYS. The Company hereby agrees that it will not,
and it will cause each of its Majority-Owned Subsidiaries
(as defined below) not to, buy or sell shares of WGC Common
Stock for their own account during the 20 Trading Days prior
to the Maturity Date of the DECS. For purposes hereof,
"Majority-Owned Subsidiary" with respect to the Company
means a subsidiary more than 50% of whose outstanding
securities representing the right, other than as affected by
events of default, to vote for the election of directors, is
owned by the Company and/or one or more of the Company's
other Majority-Owned Subsidiaries.
SECTION 16.09. RULES GOVERNING EXCHANGE AT MATURITY.
The parties hereto hereby agree, and each Holder of a DECS by
its purchase of a DECS hereby agrees, that upon the exchange at
Maturity of a DECS for shares of WGC Common Stock, the delivery
of such shares shall, to the extent applicable, occur (i) on the floor
of, or (ii) pursuant to any applicable rules and regulations promulgated
by, The Nasdaq Stock Market's National Market ("Nasdaq") or, if
WGC Common Stock is not listed for trading on Nasdaq on the date
of any such exchange, the exchange, board of trade or similar
institution on which public market quotations or prices of WGC
Common Stock are made at the time of such exchange.
SECTION 16.10. RULES GOVERNING TRADING OF DECS. The parties
hereto agree, and each Holder of a DECS by its purchase of a DECS hereby
agrees, that DECS shall be traded only pursuant to rules and regulations
of any self-regulatory organization (as defined in Section 3(a) of
the Exchange Act) which are filed with the SEC pursuant to Section
19(b) of the Exchange Act.
(d) By amending the table of contents of the
Basic Indenture to reflect the additions described in sub
sections (a) and (c) of this Section 2.
SECTION 3. The form of DECS attached hereto as
Exhibit A is hereby adopted, pursuant to Section 11.01(f) of
the Indenture, as a form of Debt Securities of a series that
consists of DECS.
SECTION 4. The Basic Indenture, as supplemented
and amended by this Supplemental Indenture and all other
indentures 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 5. 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 6. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its
successors and assigns, whether so expressed or not.
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SECTION 7. In case any provision in this
Supplemental Indenture or in the Debt 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 Debt Securities) shall
not in any way be affected or impaired thereby. In the event
that the Company elects to deliver cash in lieu of WGC
Common Stock at Maturity, the Company shall not deliver cash
to any Holder if delivery of cash to such Holder would
violate applicable law. If the Company elects to deliver
cash in lieu of WGC Common Stock at Maturity, the Company
will be obligated to deliver cash with respect to all,
but not less than all, of the shares of WGC Common Stock
that would otherwise be deliverable; provided, however,
that the Company will deliver WGC Common Stock to any Holder
if in the Company's determination the delivery of cash to
such Holder may violate applicable law.
SECTION 8. 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 Debt Securities
any benefit or any legal or equitable right, remedy or claim
under this Supplemental Indenture.
SECTION 9. This Supplemental Indenture and each
Debt 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 Debt Security shall be
governed by and construed in accordance with the laws of the
State of New York without regard to conflicts of laws principles
(other than Section 5-1401 of the New York General Obligation Law).
SECTION 10. All capitalized 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 11. 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 12. The recitals contained herein and in
the Debt 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
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Supplemental Indenture or of the Debt Securities and shall
not be accountable for the use or application by the
Company of the Debt Securities or the proceeds thereof.
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.
XXXXXX INDUSTRIES, INC.
by__________________________
[ ]
Attest:
__________________
TEXAS COMMERCE BANK NATIONAL
ASSOCIATION, as Trustee
by__________________________
Name:
Title:
Attest:
__________________
18
EXHIBIT A
NO.
CUSIP NO. [ ]
[Form of Face of DECS]
XXXXXX INDUSTRIES, INC.
DECS[SM] (Debt Exchangeable for Common Stock[SM])
[ ]% Exchangeable Note due [ ], 1998
(Subject to Exchange at Maturity into Shares of
Common Stock, Par Value $1.00 Per Share, of
Xxxxx-Xxxxxx Company)
XXXXXX INDUSTRIES, INC., an Ohio corporation (hereinafter called the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
__________ or registered assigns, the principal sum of ____________ DOLLARS (or
$[ ] for each Debt Exchangeable for Common Stock (each, a "DECS")
represented by this note) on [ ], 1998 (subject to the mandatory
exchange provisions at Maturity described below), and to pay interest (computed
on the basis of a 360-day year of twelve 30-day months) thereon from
[ ], 1995, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for on [ ], [ ],
[ ] and [ ] in each year, commencing [ ], 1995, at
the rate per annum specified in the title of this note computed quarterly for
each Holder (a) in the case of the first quarterly interest payment payable on
[ ], 1995, $[ ] per DECS multiplied by the aggregate number of DECS
registered in such Holder's name and (b) in the case of each quarterly interest
payment thereafter, $[ ] per DECS multiplied by the aggregate number of
DECS registered in such Holder's name (in each of (a) and (b), calculated to
the nearest 1/100th of a dollar or, if there is not a nearest 1/100th of a
dollar, then to the next higher 1/100th of a dollar), until the principal
hereof is paid or made available for payment. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in said Indenture, be paid to the Person in whose name this DECS (or
one or more Predecessor Securities) is registered at the close of business on
the last day of the month next preceding such Interest Payment Date. In any
case where such Interest Payment Date shall not be a Business Day, then
(notwithstanding any other provision of said Indenture or
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2
this DECS) payment of such interest need not be made on such date, but may be
made on the next succeeding Business Day with the same force and effect as if
made on such date, and, if such payment is so made, no interest shall accrue
for the period from and after such date. Any such interest not so punctually
paid or duly provided for shall forthwith cease to be payable to the registered
Holder on [ ], [ ], [ ] or [ ], as the
case may be, and may be paid to the Person in whose name this DECS (or one or
more Predecessor Securities) is registered at the close of business on a record
date for the payment of such interest to be fixed by the Trustee for the DECS,
notice whereof shall be given to Holders of DECS not less than 10 days prior to
such record date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
the DECS may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in said Indenture.
At Maturity, the principal amount of this DECS will be mandatorily
exchanged into a number of shares of common stock, par value $1.00 per share
("WGC Common Stock"), of Xxxxx-Xxxxxx Company ("WGC") at the Exchange Rate (as
defined below) and, as a result, the Holder of this DECS will not necessarily
receive an amount equal to the principal amount hereof. The "Exchange Rate" is
equal to, subject to adjustment as a result of certain dilution events relating
to the WGC Common Stock as provided for in the Indenture, (a) if the Maturity
Price (as defined below) is greater than or equal to $[ ] per share of WGC
Common Stock (the "Threshold Appreciation Price"), [ ] shares of WGC
Common Stock per DECS, (b) if the Maturity Price is less than the Threshold
Appreciation Price but is greater than $[ ] per share of WGC Common Stock
(the "Initial Price"), a fractional share of WGC Common Stock per DECS so that
the value thereof (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 higher
1/10,000th of a share) and (c) if the Maturity Price is less than or equal to
the Initial Price, one share of WGC Common Stock per DECS. No fractional
shares of WGC Common Stock will be issued at Maturity as provided in the
Indenture. Notwithstanding the foregoing, the Company may, at its option in
lieu of delivering shares of WGC Common Stock, deliver cash in an amount equal
to the value of such number
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of shares of WGC Common Stock at the Maturity Price as provided in the
Indenture.
The "Maturity Price" is defined as the average Closing Price per share
of WGC Common Stock on the 20 Trading Days immediately prior to Maturity. The
"Closing Price" of any security on any date of determination means the closing
sale price (or, if no closing price is reported, the last reported sale price)
of such security on The Nasdaq Stock Market's National Market ("Nasdaq") on
such date or, if such security is not listed for trading on Nasdaq on any such
date, as reported in the composite transactions for the principal United States
securities exchange on which such security is so listed, or if such security is
not so listed on a United States national or regional securities exchange, as
reported by the National Association of Securities Dealers, Inc. Automated
Quotation System, or, if such security is not so reported, the last quoted bid
price for such security in the over-the-counter market as reported by the
National Quotation Bureau or similar organization, or, if such bid price is not
available, the market value of such security on such date as determined by a
nationally recognized independent investment banking firm retained for this
purpose by the Company. A "Trading Day" is defined as a Business Day on which
the security the Closing Price of which is being determined (A) is not
suspended from trading on a national or regional securities exchange or
association or over-the-counter market at the close of business and (B) has
traded at least once on the national or regional securities exchange or
association or the over-the-counter market that is the primary market for the
trading of such security. "Business Day" means any day that is not a Saturday,
a Sunday or a day on which the NYSE, banking institutions or trust companies in
The City of New York, New York are authorized or obligated by law or executive
order to close.
Interest on this DECS will be payable, and delivery of WGC Common Stock
(or, at the Company's option, cash in an amount equal to the value of such WGC
Common Stock) in exchange for the principal amount of this DECS at Maturity
will be made upon surrender of this DECS, at the office or agency of the
Company maintained for that purpose in The City of New York, New York, and
payment of interest on (and, if the Company elects not to deliver WGC Common
Stock upon exchange at Maturity, the cash equivalent thereof payable upon
exchange for the principal amount of) this DECS will be made by check in such
coin or currency of the United States
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of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear on the Securities Register.
ADDITIONAL PROVISIONS OF THIS DECS ARE CONTAINED ON THE REVERSE HEREOF
AND SUCH PROVISIONS SHALL HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN
THIS PLACE.
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Unless the certificate of authentication hereon has been executed by or
on behalf of the Trustee for this DECS by manual signature, this DECS shall not
be entitled to any benefit under the Indenture, or be valid or obligatory for
any purpose.
DECS and Debt Exchangeable for Common Stock are service marks of
Salomon Brothers Inc.
IN WITNESS WHEREOF, XXXXXX INDUSTRIES, INC., has caused this instrument
to be duly executed under its corporate seal.
Dated:
XXXXXX INDUSTRIES, INC.,
by:
_______________________
Name:
Title:
Attest: ____________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
TEXAS COMMERCE BANK
NATIONAL ASSOCIATION, as
Trustee,
by:
____________________
Authorized Signatory
23
[Form of Reverse of DECS]
XXXXXX INDUSTRIES, INC.
[ ]% Exchangeable Note due [ ], 1998
(Subject to Exchange at Maturity into Shares of
Common Stock, Par Value $1.00 Per Share,
of Xxxxx-Xxxxxx Company)
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES
REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE
ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY.
This DECS is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness (hereinafter called the "Securities") of the
Company of the series hereinafter specified, which series is limited to DECS,
all such Securities issued and to be issued under an indenture dated as of
[ ], 1995, between the Company and Texas Commerce Bank National
Association, as Trustee, as supplemented by a First Supplemental Indenture
dated as of [ ], 1995, between the Company and Texas Commerce
Bank National Association, as Trustee (herein collectively, the "Indenture"),
pursuant to which the Company has designated Texas Commerce Bank National
Association as Trustee for the DECS, to which Indenture and all other
indentures supplemental thereto reference is hereby made for a statement of the
rights and limitation of rights thereunder of the Holders of the Securities and
of the rights, obligations, duties and immunities of the Trustee for each
series of Securities and of the Company, and the terms upon which the
Securities are and are to be authenticated and delivered. As provided in the
Indenture, the Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may be denominated
in currencies other than U.S. Dollars, (including composite currencies), may
mature at different times, may bear interest, if any, at different rates, may
be subject to different redemption provisions, if any, may be subject to
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2
different sinking, purchase or analogous funds, if any, may be subject to
different covenants and Events of Default and may otherwise vary as in the
Indenture provided or permitted. The DECS is one of a series of the Securities
designated as [ ]% Exchangeable Notes Due [ ], 1998.
The DECS may not be redeemed prior to Maturity Date.
The provisions contained in the Indenture for legal defeasance and
discharge of the entire principal of all the Securities of any series (or of
certain covenants in the Indenture) upon compliance by the Company with certain
conditions set forth therein will not be applicable to the DECS.
If an Event of Default with respect to the DECS, as defined in the
Indenture, shall occur and be continuing, the principal of all DECS may be
declared due and payable and therefore will result in the mandatory exchange of
the principal amount thereof for WGC Common Stock (or, at the Company's option,
cash), all in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company with the consent of the Holders of not less than a
majority in aggregate principal amount of the Securities at the time
Outstanding of each series to be affected thereby. The Indenture also contains
provisions permitting the Holders of specified percentages in aggregate
principal amount of the Securities of any series at the time Outstanding, on
behalf of the Holders of all the Securities of such series, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences with respect to such
series. Any such consent or waiver by the Holder of this DECS shall be
conclusive and binding upon such Holder and upon all future Holders of this
DECS and of any DECS issued upon the transfer hereof or in exchange therefor or
in lieu hereof whether or not notation of such consent of waiver is made upon
this DECS.
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No reference herein to the Indenture and no provision of this DECS or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this DECS
at the times, place and rate, and in the manner, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, this DECS is transferable on the Security Register of the
Company, upon surrender of this DECS for registration of transfer at the office
or agency of the Company to be maintained for that purpose in The City of New
York, New York, or at any other office or agency of the Company maintained for
that purpose, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in writing and
thereupon one or more new DECS, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
No service charge shall be made for any such transfer or exchange,
but the Company may require payment of a sum sufficient to cover any tax or
other governmental charge payable in connection with the registration of such
transfer or exchange, other than certain exchanges not involving any transfer.
Certain terms used in this Security which are defined in the
Indenture have the meanings set forth therein.
This Security shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York without regard to conflicts
of laws principles (other than Section 5-1401 of the New York General
Obligation Law).
The Company, the Trustee for the DECS and any agent of the Company or
such Trustee may treat the Person in whose name this DECS is registered as the
owner hereof for the purpose of receiving payment as herein provided and for
all other purposes, whether or not this DECS be overdue, and neither the
Company, such Trustee nor any such agent shall be affected by notice to the
contrary.
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_________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT -- ______ Custodian _______
(Cust) (Minor)
TEN ENT - as tenants by the entireties Under Uniform Gifts to Minors Act
JT TEN - as joint tenants with right _________________
of survivorship and not as (State)
tenants in common
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR TAXPAYER I.D.
OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
________________________________________________________
__________________________________________________________________________________________________________________
__________________________________________________________________________________________________________________
(Please print or typewrite name and address including postal zip code of assignee)
__________________________________________________________________________________________________________________
the within DECS and all rights thereunder, hereby irrevocably constituting and appointing
__________________________________________________________________________________________________________________
attorney to transfer said DECS on the books of the Company, with full power of substitution in the premises.
Dated:_____________
______________________________________________________________________
NOTICE: The signature to this assignment must correspond with
the name as written up on the face of the within DECS in every
particular, without alteration or enlargement or any change whatever.
