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EXHIBIT 4.1(a)
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XXXXXXXXX GROUP, INC.,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
DATED AS OF MARCH 15, 1999
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$100,000,000
7 1/2% SENIOR NOTES DUE 2007
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SUPPLEMENTING THE INDENTURE DATED AS OF AUGUST 18, 1997
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FIRST SUPPLEMENTAL INDENTURE, dated as of March 15, 1999, between
Xxxxxxxxx Group, Inc., a Delaware corporation (the "Company"), and The Bank of
New York, a New York banking corporation, as trustee (the "Trustee").
WHEREAS, the Company and the Trustee executed and delivered that certain
indenture, dated as of August 18, 1997 (the "Indenture"), providing for the
issuance thereunder by the Company, and the authentication and delivery by the
Trustee, of the Company's 7 1/2% Senior Notes due 2007 (the "Securities"). Any
capitalized terms used herein and not otherwise defined shall have the meanings
given thereto in the Indenture.
WHEREAS, Section 9.02 of the Indenture authorizes the Company and the
Trustee, with the consent of the holders of not less than a majority in the
aggregate principal amount of then outstanding securities excluding Securities
held by the Company and its affiliates (the "Requisite Consent"), to enter into
a supplemental indenture for the purpose of adding provisions to, or changing or
eliminating any of the provisions of the Indenture or the Securities or
modifying the rights of holders of the Securities under the Indenture.
WHEREAS, the Company has solicited all registered holders of record of
the Securities as of the close of business on February 5, 1999 and obtained at
least the Requisite Consent of such holders.
WHEREAS, the Company and the Trustee, by appropriate corporate action,
have determined to supplement the Indenture in the manner described below and
all acts and proceedings required by law, by the Indenture, and by the
Certificate of Incorporation and the Bylaws of the Company necessary to
authorize and constitute this First Supplemental Indenture a valid and binding
agreement in accordance with the terms hereof, have been done and taken.
NOW, THEREFORE, in consideration of the foregoing, the Company covenants
and agrees with the Trustee, for the equal and proportionate benefit of the
respective holders from time to time of the Securities, as follows:
1. Modification or Addition of Certain Definitions in Section 1.01 of
the Indenture. The following definitions are hereby added to or modified in
Section 1.01 of the Indenture to read as follows:
"Assumption" means JEF Holding Company, Inc., a Delaware Corporation and
a wholly-owned subsidiary of Xxxxxxxxx Group, Inc. ("New JEF") prior to
the Spin-Off, succeeding to every right, power, obligation and covenant
of Xxxxxxxxx Group, Inc. under this Indenture and the Securities in
connection with the Transfers and pursuant to Section 5.01 and 5.03 of
this Indenture, as amended.
"Change of Control" means any "person" or "group" (as such terms are
used for purposes of Sections 13(d) and 14(d) of the Exchange Act,
whether or not applicable) becomes the
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"beneficial owner" (as the term is used in Rules 13d-3 and 13d-5 under
the Exchange Act, whether or not applicable, except that a person shall
be deemed to have "beneficial ownership" of all shares that any such
person has the right to acquire, whether such right is exercisable
immediately or only after the passage of time), directly or indirectly,
of more than 50% of the total voting power entitled to vote in the
election of directors of the Company; provided, however, that a Change
of Control shall not be deemed to have occurred (i) as a result of the
formation of such a "group" or the acquisition of shares of Capital
Stock of the Company by such group if such group includes existing
Affiliates and/or persons who beneficially own in the aggregate, as of
the date of the Indenture, 20% or more of the outstanding shares of
Capital Stock of the Company on the date of the Indenture, or (ii) by
virtue of the Company, any Subsidiary, any employee stock ownership plan
or any other employee benefit plan of the Company or any Subsidiary, or
any other person holding Capital Stock of the Company for or pursuant to
the terms of any such employee benefit plan, becoming a beneficial
owner, directly or indirectly, of more than 50% of the total voting
power entitled to vote in the election of directors of the Company or
(iii) as a result of the Transfers, the Assumption, the Spin-Off and the
ITGI Merger, individually or in the aggregate.
"Distribution Agreement" is defined within the definition of "Transfers"
set forth herein.
"ITGI" is defined within the definition of "Transfers" set forth herein.
"ITGI Merger" means the merger of ITGI with and into Xxxxxxxxx Group,
Inc., as contemplated by the Merger Agreement dated March 17, 1999,
between Xxxxxxxxx Group, Inc. and ITGI.
"New JEF" is defined within the definition of "Assumption" set forth
herein.
"Spin-Off" means the pro rata distribution of all outstanding shares of
common stock of New JEF by Xxxxxxxxx Group, Inc. to the holders of
common stock of Xxxxxxxxx Group, Inc., as contemplated by the
Distribution Agreement.
"Transfers" means Xxxxxxxxx Group, Inc.'s transfer of its assets
(excluding the capital stock and assets of Investment Technology Group,
Inc., a Delaware corporation ("ITGI"), and ITGI's subsidiaries) and
liabilities (excluding the liabilities of or related to ITGI and ITGI's
subsidiaries) to New JEF and a subsidiary of Xxxxxxxxx Group, Inc. that
will become a subsidiary of New JEF in connection with the
aforementioned transfers to New JEF, as contemplated by a Distribution
Agreement dated March 17, 1999, between Xxxxxxxxx Group, Inc. and New
JEF (the "Distribution Agreement").
2. Modification of Section 4.03 of the Indenture. Section 4.03 of the
Indenture is hereby amended to read as follows:
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SECTION 4.03 Corporate Existence.
Subject to Article Five, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its
corporate existence and the corporate or other existence of each of its
Subsidiaries in accordance with the respective organizational documents
of each of them and the rights (charter and statutory) and corporate
franchises of the Company and each of its Subsidiaries; provided,
however, that the Company shall not be required to preserve, with
respect to itself, any right or franchise, and with respect to any of
its Subsidiaries, any such existence, right or franchise, if (a) the
Board of Directors of the Company shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the
Company and (b) the loss thereof is not disadvantageous in any material
respect to the Holders. Notwithstanding the foregoing provisions of this
Section 4.03, the Transfers, the Assumption, the Spin-Off and the ITGI
Merger, individually or in the aggregate, shall not be impaired or
affected by the provisions of this Section 4.03 and in all events shall
be exclusively governed by and subject to Article Five hereof.
3. Addition of Section 5.03 of the Indenture. Section 5.03 of the
Indenture is added to read as follows:
Section 5.03. Transactions Expressly Subject to Section 5.01.
The Transfers and the Assumption are expressly permitted pursuant
to this Article Five and Section 5.01 of this Indenture, as amended,
and, in connection with the Assumption, Xxxxxxxxx Group, Inc. shall be
relieved of the performance and observance of all obligations under the
Indenture and the Securities.
4. Full Force and Effect; Operative Effect of Amendments. The Indenture,
as amended by this First Supplemental Indenture shall be in full force and
effect as of the date hereof; provided, however, in the event the Transfers do
not occur prior to May 1, 1999, the amendments set forth in Sections 1, 2 and 3
of this First Supplemental Indenture shall cease to have effect and shall be
void and this First Supplemental Indenture shall thereupon have no effect on the
Indenture.
5. Governing Law. This First Supplemental Indenture shall be governed by
and construed in accordance with the laws of the State of New York.
6. Duplicate Originals. This First Supplemental Indenture may be
executed in any number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this First Supplemental
Indenture to be duly executed as of the date first written above.
XXXXXXXXX GROUP, INC.
By: /s/ Xxxxxxxx X. Xxxxxxx
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Name: Xxxxxxxx X. Xxxxxxx
Title: Exec. V.P. and CFO
THE BANK OF NEW YORK,
as Trustee
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Assistant Vice President
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