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Exhibit 4.4
COLTEC INDUSTRIES INC,
THE X.X.XXXXXXXX COMPANY,
AND
THE BANK OF NEW YORK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of April , 1999
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FIRST SUPPLEMENTAL INDENTURE, dated
as of April __, 1999, among Coltec Industries Inc, a
Pennsylvania corporation (the "Company"), The
X.X.Xxxxxxxx Company, a New York corporation
("BFGoodrich"), and The Bank of New York, a New York
banking corporation, as trustee (herein called the
"Trustee"). Terms not defined herein shall have the
meanings assigned to them in the Indenture (as
defined below).
RECITALS OF THE COMPANY AND BFGOODRICH
WHEREAS, the Company and the Trustee are parties to an
Indenture, dated as of April 14, 1998 (the "Indenture"), relating to the
Company's 5 1/4% Convertible Junior Subordinated Deferrable Interest Debentures
due 2028 (the "Securities");
WHEREAS, on November 22, 1998, the Company, BFGoodrich, and a
wholly owned Pennsylvania subsidiary of BFGoodrich entered into an Agreement and
Plan of Merger (the "Merger Agreement"). Pursuant to the Merger Agreement,
BFGoodrich's subsidiary merged with and into the Company, with the Company being
the surviving corporation in the merger (the "Merger"), and each outstanding
share of common stock of the Company (other than shares held by the Company,
BFGoodrich or any of their direct or indirect subsidiaries) was converted into
the right to receive 0.56 of a fully paid and nonassessable share of common
stock, par value $5 per share, of BFGoodrich ("BFGoodrich Common Stock");
WHEREAS, BFGoodrich agrees to be bound by the conversion and
adjustment provisions set forth in the Indenture;
WHEREAS, Section 9.01 of the Indenture provides that the
Company, when authorized by a Board Resolution, and the Trustee may enter into a
supplemental indenture, without the consent of any Holder, to, among other
things, make provision with respect to the conversion rights of Holders pursuant
to the requirements of Article XIII of the Indenture; and
WHEREAS, the Company and the Trustee have determined that this
First Supplemental Indenture complies with Section 9.01 of the Indenture and
does not require the consent of any Holders and, on the basis of the foregoing,
the Trustee has determined that this First Supplemental Indenture is in form
satisfactory to it.
NOW, THEREFORE, for and in consideration of the premises, it
is mutually covenanted and agreed, for the equal and ratable benefit of the
Holders, as follows:
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ARTICLE I
CONVERSION RIGHTS OF HOLDERS
IN CONNECTION WITH THE MERGER
SECTION 1.1. CONVERSION RIGHTS. The Company, as the surviving
corporation of the Merger, and BFGoodrich hereby provide in accordance with
Section 13.04 of the Indenture that the Holder of each Security outstanding at
the effective time of the Merger shall have the right, during the period such
Security shall be convertible as specified in Section 13.01 of the Indenture, to
convert such Security only into that number of shares of BFGoodrich Common Stock
equal to the product of 0.955248 and the number of Securities the Holder owns.
ARTICLE II
ADJUSTMENT OF CONVERSION RATE
SECTION 2.1. ADJUSTMENT. BFGoodrich hereby unconditionally
agrees, as required by Section 13.04 of the Indenture, to make any adjustments
provided for in Article XIII of the Indenture. Notwithstanding anything herein
to the contrary, the Company shall remain obligated under the Indenture and the
Securities, in accordance with the terms of the Indenture, as supplemented
hereby. "Effective Date" shall mean , 1999.
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ARTICLE III
ACCEPTANCE OF SUPPLEMENTAL INDENTURE
SECTION 3.1. TRUSTEE'S ACCEPTANCE. The Trustee hereby accepts
this First Supplemental Indenture and agrees to perform the same under the terms
and conditions set forth in the Indenture.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.1. EFFECT OF SUPPLEMENTAL INDENTURE. On the date
hereof, the Indenture shall be supplemented in accordance herewith, and this
First Supplemental Indenture shall form a part of the Indenture for all
purposes, and every Holder heretofore or hereafter authenticated and delivered
under the Indenture shall be bound thereby.
SECTION 4.2. INDENTURE REMAINS IN FULL FORCE AND EFFECT.
Except as supplemented hereby, all provisions in the Indenture shall remain in
full force and effect.
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SECTION 4.3. INCORPORATION OF INDENTURE. All the provisions of
this First Supplemental Indenture shall be deemed to be incorporated in, and
made a part of, the Indenture; and the Indenture, as supplemented and amended by
this First Supplemental Indenture, shall be read, taken and construed as one and
the same instrument.
SECTION 4.4. HEADINGS. The headings of the Articles and
Sections of this First Supplemental Indenture are inserted for convenience of
reference and shall not be deemed to be a part thereof.
SECTION 4.5. COUNTERPARTS. This First Supplemental Indenture
maybe executed in any number of counterparts, each of which so executed shall be
deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
SECTION 4.6. CONFIRMATION AND PRESERVATION OF INDENTURE. The
Indenture as supplemented by this First Supplemental Indenture is in all
respects confirmed and preserved.
SECTION 4.7. CONFLICT WITH TRUST INDENTURE ACT. If any
provision of this First Supplemental Indenture limits, qualifies or conflicts
with any provision of the Trust Indenture Act that is required under the Trust
Indenture Act to be part of and govern any provision of this First Supplemental
Indenture, the provision of the Trust Indenture Act shall control. If any
provision of this First Supplemental Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
provision of the Trust Indenture Act shall be deemed to apply to the Indenture
as so modified or to be excluded by this First Supplemental Indenture, as the
case may be.
SECTION 4.8. SUCCESSORS. All covenants and agreements in this
First Supplemental Indenture by the Company and BFGoodrich shall be binding upon
and accrue to benefit of their respective successors. All covenants and
agreements in this First Supplemental Indenture by the Trustee shall be binding
upon and accrue to the benefit of its successors.
SECTION 4.9. SEPARABILITY CLAUSE. In case any provision in
this First 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 4.10. BENEFITS OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First Supplemental Indenture or the Securities, express or
implied, shall give to any Person, other than the parties hereto and thereto and
their successors hereunder and thereunder and the Holders, any benefit of any
legal or equitable right, remedy or claim under the Indenture, this First
Supplemental Indenture or the Securities.
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SECTION 4.11. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The
recitals contained herein shall be taken as the statements of the Company and
BFGoodrich, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to, and shall not be responsible for, the
validity or sufficiency of this First Supplemental Indenture.
SECTION 4.12. CERTAIN DUTIES AND RESPONSIBILITIES OF THE
TRUSTEES. In entering into this First Supplemental Indenture, the Trustee shall
be entitled to the benefit of every provision of the Indenture relating to the
conduct or affecting the liability or affording protection to the Trustee,
whether or not elsewhere herein so provided.
SECTION 4.13. GOVERNING LAW. THIS FIRST SUPPLEMENTAL INDENTURE
SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
[Remainder of page intentionally blank.]
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
COLTEC INDUSTRIES INC
By:
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Name:
Title:
THE X.X.XXXXXXXX COMPANY
By: --------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Trustee
By: --------------------------------------
Name:
Title:
