EXHIBIT 4.1
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HALTER MARINE GROUP, INC.
AND
XXXXXX XXXXXXX INTERNATIONAL INC.
TO
U.S. TRUST COMPANY OF TEXAS, N.A.
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 2, 1999
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Supplementing and Amending Indenture dated as of September 15, 1997
between Halter Marine Group, Inc. and U.S. Trust Company of Texas, N.A.,
relating to 4 1/2% Convertible Subordinated Notes due 2004
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THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 2, 1999 and
effective and conditioned upon the consummation of the Merger (as defined below)
(this "Supplemental Indenture"), is by and among Halter Marine Group, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
("Halter Marine"), having its principal executive office at 00000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxxx 00000; Xxxxxx Xxxxxxx International Inc., a
corporation duly organized and existing under the laws of the State of
Mississippi and the surviving corporation of the Merger (as defined below)
("Xxxxxx Xxxxxxx"), having its principal executive office at 000 Xxxx Xxxxxxx
Xxxxxx, 0xx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000; and U.S. Trust Company of Texas,
N.A., a national banking association duly organized and existing under the laws
of the United States of America, as trustee (the "Trustee").
RECITALS
1. Halter Marine has executed and delivered to the Trustee an Indenture,
dated as of September 15, 1997 (the "Indenture"), providing for the issuance of
4 1/2% Convertible Subordinated Notes due 2004 in an original principal amount
of $185,000,000 (the "Securities").
2. Halter Marine will be merged with and into Xxxxxx Xxxxxxx in
accordance with the provisions of the Agreement and Plan of Merger dated as of
June 1, 1999, as amended by Amendment No. 1 to Agreement and Plan of Merger
dated as of September 14, 1999, between Xxxxxx Xxxxxxx and Halter Marine (the
"Merger Agreement"), with Xxxxxx Xxxxxxx surviving the merger (the "Merger").
3. At the Effective Time (as defined herein in Section 5.2), each share
of common stock of Halter Marine issued and outstanding immediately prior to the
Merger will be converted into the right to receive the number of shares of the
common stock, par value $0.01 per share, of Xxxxxx Xxxxxxx (the "Xxxxxx Xxxxxxx
Shares") as determined by the Merger Agreement.
4. The Merger is permitted pursuant to Section 5.1 and Section 13.6 of
the Indenture.
5. In connection with the Merger, Xxxxxx Xxxxxxx and Halter Marine have
duly determined to make, execute and deliver to the Trustee this Supplemental
Indenture in order to reflect the consummation of the Merger as required by
Section 5.1 and Section 13.6 of the Indenture and to provide for Xxxxxx Xxxxxxx,
as successor to Halter Marine, to assume all of the obligations of Halter Marine
arising under the Indenture and the Securities.
6. In accordance with Section 9.1 of the Indenture, without the consent
of any Holder, Halter Marine and the Trustee may enter into a supplemental
indenture to evidence the succession of another corporation to Halter Marine and
the assumption by any such successor of the obligations of Halter Marine in the
Indenture and the Securities.
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7. Halter Marine and Xxxxxx Xxxxxxx have duly authorized the execution
and delivery of this Supplemental Indenture and all things necessary have been
done to make this Supplemental Indenture a valid agreement of Halter Marine and
Xxxxxx Xxxxxxx, in accordance with its terms.
NOW, THEREFORE, THIS SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises, it is mutually agreed, for the
equal and proportionate benefit of the respective Holders from time to time of
the Securities, as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.1 INDENTURE TERMS.
Capitalized terms used but not defined in this Supplemental Indenture have
the respective meanings assigned to them in the Indenture.
ARTICLE TWO
SUCCESSOR CORPORATION
SECTION 2.1 XXXXXX XXXXXXX AS A SUCCESSOR.
As of the Effective Time, Xxxxxx Xxxxxxx shall become a successor to and
shall be substituted for Halter Marine under the Indenture, as modified by this
Supplemental Indenture, and shall assume by this Supplemental Indenture all of
the obligations of Halter Marine in connection with the Securities and the
Indenture. As of the Effective Time, Xxxxxx Xxxxxxx may exercise every right
and power of Halter Marine under the Indenture with the same effect as if Xxxxxx
Xxxxxxx had been named in the Indenture as Halter Marine.
ARTICLE THREE
CONCERNING THE SECURITIES
SECTION 3.1 CONVERSION PRIVILEGE.
The Holder of each Security outstanding on the Effective Time shall have
the right from and after the Effective Time, during the period such Security
shall be convertible as specified in Article 13 of the Indenture, to convert
such Security only into the number of Xxxxxx Xxxxxxx Shares, and cash in lieu of
fractional Xxxxxx Xxxxxxx Shares, receivable upon the effectiveness of the
Merger by a holder of the number of shares of Common Stock of Halter Marine
issuable upon conversion
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of such Security immediately prior to the Merger, at the Conversion Price and
subject to adjustment as provided in Section 3.2 herein.
SECTION 3.2 CONVERSION PRICE.
The Conversion Price shall be as specified in Section 13.4 of the
Indenture, as adjusted in accordance with the provisions of Section 13.5 of the
Indenture prior to the Merger. For events occurring from and after the
Effective Time, the Conversion Price shall be adjusted in a manner as nearly
equivalent as may be practicable to the adjustments provided for in Article XIII
of the Indenture.
ARTICLE FOUR
CONCERNING THE TRUSTEE
SECTION 4.1 TERMS AND CONDITIONS.
The Trustee accepts this Supplemental Indenture and agrees to perform the
duties of the Trustee upon the terms and conditions set forth herein and in the
Indenture.
SECTION 4.2 NO RESPONSIBILITY.
The Trustee shall not be responsible for or in respect of the validity or
sufficiency of any provision of this Supplemental Indenture relating either to
the kind or amount of stock or securities or property (including cash)
receivable by Holders of Securities upon the conversion of their Securities
after the Merger or to any adjustment to be made with respect thereto.
ARTICLE FIVE
EFFECT OF EXECUTION AND DELIVERY HEREOF
SECTION 5.1 EFFECT OF EXECUTION AND DELIVERY.
As of the Effective Time and from and after the execution and delivery of
this Supplemental Indenture, (i) the Indenture shall be deemed to be amended and
modified as provided herein, (ii) this Supplemental Indenture shall form a part
of the Indenture, (iii) except as modified and amended by this Supplemental
Indenture, the Indenture shall continue in full force and effect, (iv) the
Securities shall continue to be governed by the Indenture, as modified and
amended by this Supplemental Indenture, and (v) every Holder of Securities
heretofore and hereafter authenticated and delivered under the Indenture shall
be bound by this Supplemental Indenture.
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SECTION 5.2 EFFECTIVE TIME.
This Supplemental Indenture shall become effective upon the Effective Time
as defined in the Merger Agreement. The Effective Time is defined in the Merger
Agreement as the date and time of the filing of (i) a certificate of merger with
the Secretary of State of the State of Delaware, in such form as required by,
and executed in accordance with the relevant provisions of the General
Corporation Law of the State of Delaware and (ii) the articles of merger with
the Secretary of State of the State of Mississippi, in such form as required by,
and executed in accordance with the relevant provisions of, the Mississippi
Business Corporation Act, or if another date and time is specified in such
filings, such specified date and time.
SECTION 5.3 THE COMPANY.
Pursuant to the Merger Agreement, as of the Effective Time, Xxxxxx Xxxxxxx
International Inc. will be renamed "Xxxxxx Xxxxxxx Halter, Inc." As of the
Effective Time, all references to the "Company," as defined in the Indenture,
shall be deemed to refer to Xxxxxx Xxxxxxx Halter, Inc., until a successor
replaces Xxxxxx Xxxxxxx Halter, Inc. pursuant to the Indenture, and shall
thereafter mean such successor.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
SECTION 6.1 HEADINGS DESCRIPTIVE.
The headings of the several Articles and Sections of this Supplemental
Indenture are inserted for convenience only and shall not in any way affect the
meaning or construction of any provision of this Supplemental Indenture.
SECTION 6.2 RIGHTS AND OBLIGATIONS OF THE TRUSTEE.
All of the provisions of the Indenture, including but not limited to the
compensation and indemnity obligations pursuant to Section 7.7 of the Indenture,
with respect to the rights, privileges, immunities, powers and duties of the
Trustee shall be applicable in respect of this Supplemental Indenture as fully
and with the same effect as if set forth herein in full.
SECTION 6.3 SUCCESSORS AND ASSIGNS.
This Supplemental Indenture shall be binding upon and inure to the benefit
of and be enforceable by the respective successors and assigns of the parties
hereto.
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SECTION 6.4 COUNTERPARTS.
This Supplemental Indenture may be executed in several counterparts, each
of which shall be an original and all of which shall constitute but one and the
same instrument.
SECTION 6.5 SEPARABILITY.
In case any provision in this Supplemental Indenture shall be invalid,
illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
SECTION 6.6 GOVERNING LAW.
THIS SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
[Signatures on following page]
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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 XXXXXXX INTERNATIONAL INC.
By: /s/ Xxxxx X. Xxxx, III
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Xxxxx X. Xxxx, III
Secretary and General Counsel
HALTER MARINE GROUP, INC.
By: /s/ Xxxx X. Xxxx
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Xxxx X. Xxxx
Vice President and Chief Financial Officer
U.S. TRUST COMPANY OF TEXAS, N.A.,
as Trustee
By: /s/ Xxxx Xxxxxx
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Xxxx Xxxxxx
Vice President
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