EXHIBIT 4.9
================================================================================
SECOND SUPPLEMENTAL INDENTURE
AMONG
XXXXXXXXXXX INTERNATIONAL, INC.
XXXXXXXXXXX INTERNATIONAL LTD.
AND
JPMORGAN CHASE BANK
AS TRUSTEE
----------
DATED AS OF
JUNE 26, 2002
TO INDENTURE DATED AS OF OCTOBER 15, 1997
----------
================================================================================
TABLE OF CONTENTS
ARTICLE ONE CONVERSION RIGHTS.....................................................................................2
SECTION 101 Conversion Rights..................................................................................2
ARTICLE TWO ADDITIONAL EVENTS OF DEFAULT..........................................................................3
SECTION 201 Additional Events of Default.......................................................................3
SECTION 202 Additional Definitions.............................................................................4
ARTICLE THREE MISCELLANEOUS PROVISIONS............................................................................4
SECTION 301 Integral Part......................................................................................4
SECTION 302 General Definitions................................................................................4
SECTION 303 Adoption, Ratification and Confirmation............................................................4
SECTION 304 Trust Indenture Act Controls.......................................................................5
SECTION 305 Governing Law......................................................................................5
SECTION 306 Severability.......................................................................................5
SECTION 307 Counterpart Originals..............................................................................5
SECTION 308 Successors.........................................................................................5
SECTION 309 Table of Contents, Headings, etc...................................................................5
SECTION 310 Benefit of Second Supplemental Indenture...........................................................5
SECTION 311 Acceptance by Trustee..............................................................................6
-i-
THIS
SECOND SUPPLEMENTAL INDENTURE, dated as of June 26, 2002, among
Xxxxxxxxxxx International, Inc., a Delaware corporation (the "Company"),
Xxxxxxxxxxx International Ltd., a Bermuda exempted company ("Parent"), and
JPMorgan Chase Bank (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company, formerly known as EVI, Inc., has heretofore
executed and delivered to the Trustee an Indenture (the "Base Indenture"), dated
as of October 15, 1997, as supplemented by the First Supplemental Indenture
thereto (the "First Supplemental Indenture"), dated as of October 28, 1997 (the
Base Indenture, as so supplemented, is referred to herein as the "Indenture"),
providing for the issuance from time to time of one or more series of the
Company's Debentures (as said term is defined therein); and
WHEREAS, the Company has, in accordance with the First Supplemental
Indenture, previously issued $402,500,000 aggregate original principal amount of
its 5% Convertible Subordinated Preferred Equivalent Debentures due 2027 (the
"Convertible Debentures"); and
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of May
8, 2002 (the "Merger Agreement") among Parent, Xxxxxxxxxxx U.S. Holdings,
L.L.C., a Delaware limited liability company and an indirect, wholly owned
subsidiary of Parent, Xxxxxxxxxxx Merger Inc., a Delaware corporation and an
indirect, wholly owned subsidiary of Parent ("Sub"), and the Company, Sub has
agreed to merge with and into the Company (the "Merger"), with the Company being
the surviving corporation in the Merger, following which the Company will be an
indirect, wholly owned subsidiary of Parent;
WHEREAS, pursuant to the Merger Agreement, as of the effective time of
the Merger (the "Effective Time"), each outstanding share of common stock of the
Company ("Company Common Stock") shall be converted into the right to receive
one validly issued, fully paid and nonassessable common share of Parent ("Parent
Common Shares");
WHEREAS, pursuant to Section 14.9 of the Base Indenture and Section 6.4
of the First Supplemental Indenture, as a result of the Merger, the Company is
required to execute and deliver to the Trustee a supplemental indenture
providing (i) that the Convertible Debentures shall be convertible into Parent
Common Shares and (ii) for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in the Indenture and the
Convertible Debentures;
WHEREAS, in connection with such Merger, the Parent has determined that
it will be in the best interests of and beneficial to the Parent to enter into,
and is effective as of the date hereof entering into, that certain Convertible
Debenture Guarantee Agreement for the purpose of providing a guarantee of the
Convertible Debentures; and
WHEREAS, Section 9.1(h) of the Base Indenture permits the execution of
supplemental indentures without the consent of any Holders to make provision
with respect to the conversion rights of Holders pursuant to the requirements of
Article XIV of the Base Indenture, including providing for the conversion of the
Debentures into any security or property other than Company Common Stock; and
WHEREAS, Sections 9.1(b) and 9.1(c) of the Base Indenture permit the
execution of supplemental indentures without the consent of any Holders to add
any additional Events of Default with respect to, and to add to the covenants of
the Company for the benefit of, all or any series of Debentures; and
WHEREAS, the Company, pursuant to the foregoing authority, proposes in
and by this
Second Supplemental Indenture to supplement and amend the Indenture
in certain respects; and
WHEREAS, all things necessary have been done to make this
Second
Supplemental Indenture a valid agreement of the Company and the Parent, in
accordance with its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the Company, the
Parent and the Trustee mutually covenant and agree as follows:
ARTICLE ONE
CONVERSION RIGHTS
SECTION 101 Conversion Rights.
The Company and Parent hereby agree in accordance with Section 14.9 of
the Base Indenture and Section 6.4 of the First Supplemental Indenture that the
holder of each Convertible Debenture outstanding at the effective time of the
Merger shall have the right to convert such Convertible Debenture into the
number of Parent Common Shares equal to the number of shares of Company Common
Stock which would have been deliverable upon conversion of such Convertible
Debenture immediately prior to the effective time of the Merger. Parent hereby
agrees in accordance with Section 14.9 of the Base Indenture and Section 6.4 of
the First Supplemental Indenture to issue and deliver certificates evidencing
such shares and make any subsequent adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in the
Debentures and, to the extent relevant thereto, Article XIV of the Base
Indenture and Article VI of the First Supplemental Indenture, and for such
purpose (a) from and after the effective time of the Merger all references in
Article XIV of the Base Indenture and Article VI of the First Supplemental
Indenture to "Common Stock of the Company" or "Common Stock", or to actions
taken by or in respect of the Company (in respect of the Common Stock or
otherwise) that require adjustment of the number of shares of such Common Stock
issuable upon conversion of Convertible Debentures and/or the Conversion Price,
or change of the securities or other property into which Convertible Debentures
shall be convertible shall, insofar as the same relate to or affect the
convertibility, or conversion, of Convertible Debentures, or the terms thereof,
or the securities or other property into which Convertible Debentures shall be
convertible, be deemed to mean and refer to Parent Common Shares or actions
taken by or in respect of the Parent (in respect of the Parent Common Shares or
otherwise), as the case may be, mutatis mutandis, (b) the Parent shall assume
the obligations of the Company under Section 14.6, and its covenant in Section
14.8, of the Base Indenture, and (c) the references to the Company in the
penultimate sentence of Section 14.10 of the Base
-2-
Indenture, and Section 6.2(b) and the last sentence of Section 6.8, of the First
Supplemental Indenture, shall be deemed to mean and include the Parent as well
as the Company.
ARTICLE TWO
ADDITIONAL EVENTS OF DEFAULT
SECTION 201 Additional Events of Default.
Section 5.1 of the Indenture is hereby amended by adding the following
subsections (g), (h), (i) and (j) after existing subsection (f), and
redesignating existing subsection (g) as subsection (k):
"(g) with respect to the Debentures guaranteed under the Convertible
Debenture Guaranty Agreement, any default in the performance, or breach, of any
covenant or warranty of the Guarantor in the Convertible Debenture Guaranty
Agreement, and continuation of such default or breach for a period of 90 days
after there has been given, by registered or certified mail, to the Company, the
Guarantor and the Trustee by the Convertible Debenture Guarantee Trustee or to
the Company, the Guarantor, the Trustee and the Convertible Debenture Guarantee
Trustee by the Holders of at least 25% in principal amount of the Outstanding
Debentures of that series a written notice specifying such default or breach and
requiring it to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(h) with respect to the Debentures guaranteed under the Convertible
Debenture Guaranty Agreement, the entry by a court having jurisdiction in the
premises of a decree or order for relief in respect of the Guarantor in an
involuntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law, whether domestic or foreign, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Guarantor or of any substantial part of the property of
the Guarantor, or ordering the winding up or liquidation of its affairs, and the
continuation of any such decree or order for relief or any such other decree or
order unstayed and in effect for a period of 60 consecutive days; or
(i) with respect to the Debentures guaranteed under the Convertible
Debenture Guaranty Agreement, the commencement by the Guarantor of a voluntary
case or proceeding under any applicable bankruptcy, insolvency, reorganization
or other similar law, whether domestic or foreign, or of any other case or
proceeding to be adjudicated as bankrupt or insolvent, or the consent by it to
the entry of a decree or order for relief in respect of the Guarantor in an
involuntary case or proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law, whether domestic or foreign, or the
commencement of any bankruptcy or insolvency case or proceeding against the
Guarantor, or the filing by the Guarantor of a petition or answer or consent
seeking reorganization, arrangement, adjustment or composition of or in respect
of the Guarantor under any applicable law, whether domestic or foreign, or the
consent by the Guarantor to the filing of such petition or to the appointment of
or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Guarantor or of any substantial part of
the property of the Guarantor, or the making by the Guarantor of an assignment
for the benefit of creditors; or
-3-
(j) with respect to the Debentures guaranteed under the Convertible
Debenture Guaranty Agreement, the Guarantee in respect of the Debentures of that
series ceases to be in full force and effect or becomes unenforceable or invalid
or is declared null and void (other than in accordance with the terms of such
Guarantee) or the Guarantor denies or disaffirms its obligations under such
Guarantee; or"
SECTION 202 Additional Definitions.
Section 1.1 of the Indenture is hereby amended to include certain definitions of
terms used in the additional Events of Default described in Section 201 of this
Second Supplemental Indenture by inserting in their appropriate alphabetical
positions, the following additional definitions:
"'Convertible Debenture Guarantee Agreement' shall mean that certain
Convertible Debenture Guarantee Agreement between the Guarantor and the
Convertible Debenture Guarantee Trustee dated as of June 26, 2002, as amended
from time to time."
"'Convertible Debenture Guarantee Trustee' shall mean JPMorgan Chase
Bank, as trustee under the Convertible Debenture Guarantee Agreement, until a
successor Person shall have become such pursuant to the applicable provisions of
the Convertible Debenture Guarantee Agreement, and thereafter 'Convertible
Debenture Guarantee Trustee' shall mean such successor Person."
"'Guarantee' shall mean the unconditional guarantee of the Convertible
Debentures under the Convertible Debenture Guarantee Agreement by the
Guarantor."
"'Guarantor' shall mean Xxxxxxxxxxx International Ltd., a Bermuda
exempted company, until a successor Person shall have become such pursuant to
the applicable provisions of the Convertible Debenture Guarantee Agreement, and
thereafter 'Guarantor' shall mean such successor Person."
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301 Integral Part.
This
Second Supplemental Indenture constitutes an integral part of the
Indenture.
SECTION 302 General Definitions.
For all purposes of this
Second Supplemental Indenture, capitalized
terms used herein without definition shall have the meanings specified in the
Indenture.
SECTION 303 Adoption, Ratification and Confirmation.
The Indenture, as supplemented and amended by this
Second Supplemental
Indenture, is in all respects hereby adopted, ratified and confirmed, and this
Second Supplemental Indenture shall be deemed part of the Indenture in the
manner and to the extent herein and therein
-4-
provided. The provisions of this Second Supplemental Indenture shall, subject to
the terms hereof, supersede the provisions of the Indenture to the extent the
Indenture is inconsistent herewith.
SECTION 304 Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies or conflicts with
the duties imposed by operation of TIA Section 318(c), the imposed duties shall
control.
SECTION 305 Governing Law.
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO
CONFLICTS OF LAWS PRINCIPLES THEREOF.
SECTION 306 Severability.
In case any provision in this Second Supplemental Indenture shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall, to the fullest extent permitted by applicable
law, not in any way be affected or impaired thereby.
SECTION 307 Counterpart Originals.
The parties may sign any number of copies of this Second Supplemental
Indenture. Each signed copy shall be an original, but all of them together
represent the same agreement.
SECTION 308 Successors.
All agreements of the Company or the Parent in this Second Supplemental
Indenture shall bind its respective successors. All agreements of the Trustee in
this Second Supplemental Indenture shall bind its successors.
SECTION 309 Table of Contents, Headings, etc.
The table of contents, cross-reference table and headings of the
Articles and Sections of this Second Supplemental Indenture have been inserted
for convenience of reference only, are not to be considered a part hereof and
shall in no way modify or restrict any of the terms or provisions hereof.
SECTION 310 Benefit of Second Supplemental Indenture.
Nothing in this Second Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Security Registrar,
any Paying Agent and their successors hereunder, and the Holders of the
Securities, any benefit or any legal or equitable right, remedy or claim under
this Second Supplemental Indenture.
-5-
SECTION 311 Acceptance by Trustee.
The Trustee accepts the amendments to the Indenture effected by this
Second Supplemental Indenture and agrees to execute the trusts created by the
Indenture as hereby amended, but only upon the terms and conditions set forth in
this Second Supplemental Indenture and the Indenture. Without limiting the
generality of the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals contained herein, which shall be taken as the
statements of the Company and except as provided in the Indenture the Trustee
shall not be responsible or accountable in any way whatsoever for or with
respect to the validity or execution or sufficiency of this Second Supplemental
Indenture and the Trustee makes no representation with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first written
above.
XXXXXXXXXXX INTERNATIONAL, INC.
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXXXX INTERNATIONAL LTD.
By: /s/ XXXX X. XXXXXX
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Director
JPMORGAN CHASE BANK
By: /s/ X.X. XXXXX
-----------------------------------------
Name: X.X. Xxxxx
Title: Vice President
-6-
