EXHIBIT 4.8
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YOUNG & RUBICAM INC.
and
WPP GROUP plc,
as Guarantor
to
THE BANK OF NEW YORK,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of _______, 2000
To the Indenture dated
as of January 20, 2000
3% Convertible Subordinated Notes due 2005
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SECOND SUPPLEMENTAL INDENTURE
SECOND SUPPLEMENTAL INDENTURE, dated as of _________, 2000 (the "Second
Supplemental Indenture") among YOUNG & RUBICAM INC., a Delaware corporation (the
"Company"), WPP GROUP plc, an English public limited company ("WPP") and THE
BANK OF NEW YORK, a New York banking corporation as trustee (the "Trustee").
WITNESSETH:
WHEREAS, the Company and the Trustee executed and delivered an Indenture,
dated as of January 20, 2000 (the "Indenture"), to provide for the issuance by
the Company of its 3% Convertible Subordinated Notes, due 2005 (the
"Securities");
WHEREAS, pursuant to that certain Amended and Restated Agreement and Plan
of Merger, dated as of May 11, 2000 (the "Merger Agreement"), among the Company,
WPP, York II Merger Corp. ("Merger Sub") and York Merger Corp., Merger Sub
merged with and into the Company and the Company has become a wholly owned
indirect subsidiary of WPP (the "Merger") and each share of Common Stock of the
Company outstanding immediately prior to the Effective Time was converted into,
and cancelled in exchange for, the right to receive .835 American depositary
shares of WPP ("WPP ADSs"), each WPP ADS representing five ordinary shares of
nominal value 10p each, of WPP ("WPP Ordinary Shares");
WHEREAS, pursuant to Section 5.13 of the Indenture, prior to the Merger,
the Company and WPP executed and delivered to the Trustee a First Supplemental
Indenture in form reasonably satisfactory to the Trustee, providing (i) that the
holder of each outstanding Security shall have the right to convert such
Security into WPP ADSs, and (ii) for adjustments to the Conversion Price of the
Securities that are as nearly equivalent as may be practicable to the
adjustments to the Conversion Price provided for in Article V of the Indenture
prior to the effectiveness of the First Supplemental Indenture;
WHEREAS, Section 11.02 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture or the Securities with the written
consent of the Noteholders of at least a majority in aggregate principal amount
of the outstanding Securities, subject to certain exceptions specified in
Section 11.02 of the Indenture;
WHEREAS, Section 11.01 of the Indenture provides that the Company and the
Trustee may amend or supplement the Indenture or the Securities without the
consent of any Noteholder to make any change that does not adversely affect the
legal rights thereunder of any Noteholders or to make any change that provides
additional rights or benefits to the Noteholders;
WHEREAS, the Company, WPP and the Trustee desire to enter into this Second
Supplemental Indenture to (i) amend certain provisions of the Indenture (the
"Amendments") and (ii) provide for the guarantee by WPP of the Company's payment
obligations under the Indenture (the "Guarantee") as provided in Article IV of
this Second Supplemental Indenture;
WHEREAS, the Noteholders of a majority in aggregate principal amount of
the outstanding Securities have duly consented to the Amendments;
WHEREAS, the Guarantee does not adversely affect the legal rights of the
Noteholders under the Indenture or the Securities and provides additional rights
and benefits to the Noteholders;
WHEREAS, pursuant to resolutions adopted by the board of directors of WPP,
WPP has duly authorized the execution and delivery of this Second Supplemental
Indenture;
WHEREAS, the Company has delivered to the Trustee (i) Board Resolutions
authorizing the execution of this Second Supplemental Indenture, (ii) evidence
satisfactory to the Trustee of the consent of the Noteholders described above,
(iii) Officer's Certificates and (iv) an Opinion of Counsel, as contemplated by
Sections 11.01, 11.02, 11.07 and 12.04 of the Indenture; and
WHEREAS, all other acts necessary to make this Second Supplemental
Indenture a valid, binding and enforceable instrument and all of the conditions
and requirements set forth in the Indenture have been performed and fulfilled
and the execution and delivery of this Second Supplemental Indenture have been
in all respects duly authorized.
NOW THEREFORE, the parties have executed and delivered this Second
Supplemental Indenture, and the Company, WPP and the Trustee hereby covenant and
agree for the other parties' benefit, and for the equal and ratable benefit of
the Noteholders, as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. RULES OF CONSTRUCTION. (a) All capitalized terms used herein
without definition shall have the meanings specified in the Indenture as amended
by the First Supplemental Indenture.
(b) Any defined terms and any references thereto which are used solely
in the sections deleted by operation of Article II of this Second Supplemental
Indenture are hereby deleted in their entirety from Section 1.01 of the
Indenture.
ARTICLE II
ELIMINATION AND AMENDMENT OF CERTAIN
PROVISIONS OF THE INDENTURE AND THE SECURITIES
Section 2.01. AMENDMENTS TO SECTION 2.06.
Section 2.06(a)(ii) of the Indenture is hereby amended to (x) delete in
their entirety clauses (2) and (3) from the second sentence thereof, and (y)
renumber clause (4) of such sentence as clause (2).
Section 2.06(a)(iii) of the Indenture is hereby amended to (x) delete in
their entirety clauses (3) and (4) from the second sentence thereof, and (y)
renumber clause (5) of such sentence as clause (3) thereof.
Section 2.06(a)(iv) of the Indenture is hereby amended to delete clause
(3) in its entirety from the second sentence thereof and renumber clause (4) of
such sentence as clause (3).
Section 2.06(a)(v) of the Indenture is hereby deleted in its entirety.
Section 2.06(b) of the Indenture is hereby deleted in its entirety.
Section 2.02. AMENDMENT TO SECTION 4.02. Section 4.02 of the Indenture is
hereby amended to read in its entirety as follows:
"Section 4.02 SEC REPORTS. The Company will comply with the
requirements of TIA Section 314(a). In addition, whether or not required by the
rules and regulations of the SEC, so long as any Securities are outstanding, the
Company will file with the SEC and furnish (without exhibits) to the Trustee and
to the holders of Securities all quarterly and annual financial information
required to be contained in a filing with the
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SEC on Forms 10-Q and 10-K, including a "Management's Discussion and Analysis of
Financial Conditions and Results of Operations" and, with respect to annual
consolidated financial statements only, a report on the annual consolidated
financial statements by the Company's independent accountants. The Company shall
not be required to file any report or other information with the SEC if the SEC
does not permit such filing. Delivery of such reports, information and documents
to the Trustee is for informational purposes only and the Trustee's receipt
thereof shall not constitute constructive notice of any information contained
therein or determinable from information contained therein, including the
Company's compliance with any of its covenants hereunder. The foregoing
requirements shall be deemed satisfied so long as the Company is a wholly owned
Subsidiary of WPP, if WPP prepares and files with the SEC all reports and other
documents required to be filed by WPP pursuant to Section 13(a) or Section 15(d)
of the Exchange Act and WPP furnishes or causes to be furnished to the Trustee
and each holder of Securities, on the same basis and in the same manner as
furnished to holders of WPP ADSs, all financial information furnished by WPP or
the ADS Depositary to holders of WPP ADSs."
Section 2.03 AMENDMENT TO SECTION 5.16. Section 5.16 of the Indenture (as
amended by the First Supplemental Indenture) is hereby deleted in its entirety.
Section 2.04 AMENDMENT TO EXHIBIT A. Exhibit A to the Indenture and all
outstanding Securities are hereby amended to delete therefrom the "Restricted
Global Securities Legend" and/or the "Restricted Definitive Securities Legend,"
as applicable, and Section 11 thereof.
Section 2.05 DELETION OF EXHIBITS C, D & E. Exhibits C, D & E to the
Indenture are hereby deleted in their entirety.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.01. AUTHORITY OF THE COMPANY. Each of the Company and WPP
represents and warrants that it is duly authorized under applicable law to
execute, deliver and perform this Second Supplemental Indenture, and all
corporate action on its part required for the execution, delivery and
performance of this Second Supplemental Indenture by it has been duly and
effectively taken.
Section 3.02. TRUTH OF RECITALS AND STATEMENTS OF THE COMPANY. Each of the
Company and WPP represents and warrants that the recitals of fact and statements
contained in this Second Supplemental Indenture with respect to it are true and
correct in all material respects, and that the recitals of fact and statements
contained in all
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certificates and other documents furnished by it in connection herewith will be
true and correct in all material respects.
ARTICLE IV
GUARANTEE
Section 4.01. GUARANTEE. WPP hereby unconditionally and irrevocably
guarantees, to the fullest extent permitted by law, to each Noteholder the due
and punctual payment of the principal of and interest on such Security when and
as the same shall become due and payable, whether at the final maturity date, as
a result of redemption, upon exercise by the Noteholder of the repurchase option
upon the occurrence of the Designated Event, by acceleration or otherwise. In
all respects, WPP hereby agrees that its obligations hereunder shall be absolute
and unconditional, irrespective of, and shall be unaffected by, any failure to
enforce or exercise, or delay in enforcing or exercising, any right, power or
privilege or any of the other provisions of such Security or the Indenture.
WPP shall be subrogated to all rights of the Noteholders against the
Company in respect to any amounts paid to the Noteholders by WPP pursuant to the
Guarantee.
In the event that the Company fails to make any scheduled payment
required by the Indenture or the Securities, any Noteholder may immediately
bring suit directly against WPP for all amounts due and payable pursuant to the
Guarantee.
Section 4.02. EXECUTION OF GUARANTEE. To evidence the Guarantee, WPP
hereby agrees to execute a notation relating to the Guarantee on each Security
authenticated and made available for delivery by the Trustee. WPP hereby agrees
that its Guarantee shall remain in full force and effect notwithstanding any
failure to endorse on each Security a notation of the Guarantee.
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ARTICLE V
CONCERNING THE TRUSTEE
Section 5.01. ACCEPTANCE OF TRUSTS. The Trustee accepts the trusts
hereunder and agrees to perform the same, but only upon the terms and conditions
set forth in the Indenture and in this Second Supplemental Indenture, to all of
which the Company and WPP agree and the Noteholders at any time outstanding by
their acceptance of any Security agree.
Section 5.02. NO RESPONSIBILITY OF THE TRUSTEE FOR RECITALS, ETC. The
recitals and statements contained in this Second Supplemental Indenture shall be
taken as the recitals and statements of the Company and WPP, and the Trustee
assumes no responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Second Supplemental
Indenture.
ARTICLE VI
MISCELLANEOUS
Section 6.01. BINDING AGREEMENT; ASSIGNMENTS.Whenever in this Second
Supplemental Indenture any of the parties hereto is referred to, such reference
shall be deemed to include the successors and assigns of such party; and all
covenants, promises and agreements by or on behalf of WPP that are contained in
this Second Supplemental Indenture shall bind and inure to the benefit of each
party hereto and their respective successors and assigns.
Section 6.02. RELATION TO INDENTURE. The provisions of this Second
Supplemental Indenture shall become effective immediately upon the execution and
delivery hereof. This Second Supplemental Indenture and all the terms and
provisions herein contained shall form a part of the Indenture as fully and with
the same effect as if all such terms and provisions had been set forth in the
Indenture and each and every term and condition contained in the Indenture shall
apply to this Second Supplemental Indenture with the same force and effect as if
the same were set forth in full in this Second Supplemental Indenture, with such
omissions, variations and modifications thereof as may be appropriate to make
each such term and condition consistent with this Second Supplemental Indenture.
The Indenture is hereby ratified and confirmed and shall remain and continue in
full force and effect in accordance with its terms and provisions, as
supplemented and amended by this Second Supplemental Indenture and the Indenture
and this Second Supplemental Indenture shall be read, taken and construed
together as one instrument.
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Section 6.03. COUNTERPARTS. This Second Supplemental Indenture may be
executed in several counterparts, each of which shall be deemed an original, but
all of which together shall constitute one instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Second
Supplemental Indenture to be duly executed as of the day and year first above
written.
YOUNG & RUBICAM INC.
By:
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Name:
Title:
WPP GROUP plc
By:
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Name:
Title:
THE BANK OF NEW YORK, as Trustee
By:
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Name:
Title:
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