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EXHIBIT 4.5
The Federated Group, Inc.
and
Security Pacific National Bank
As Trustee
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FIRST SUPPLEMENTAL INDENTURE
Dated as of September 24, 1987
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Supplementing the Indenture, Dated as of April 15, 1985
between The Federated Group, Inc., and
Security Pacific National Bank
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7-1/2% Convertible Subordinated Debentures
Due April 15, 2010
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FIRST SUPPLEMENTAL INDENTURE, dated as of September 24, 1987, between
The Federated Group, Inc., a corporation duly organized and existing under the
laws of the State of Delaware (hereinafter called the "Company"), and Security
Pacific National Bank, a national banking association existing under the laws
of the United States (hereinafter called the "Trustee"), as Trustee under the
Indenture hereinafter referred to.
WHEREAS, the Company has duly issued its 7-1/2% Convertible
Subordinated Debentures Due April 15, 2010 (hereinafter called the
"Debentures"), in the aggregate principal amount of $40,000,000 pursuant to an
Indenture between the Company and the Trustee dated as of April 15, 1985
(herein called the "Indenture"); and
WHEREAS, Atari Corporation, a corporation duly organized and existing
under the laws of the State of Nevada (hereinafter called "Atari"), its wholly
owned subsidiary, FAC Delaware Corporation, a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called "FAC"),
and the Company have entered into an Agreement and Plan of Merger dated as of
August 23, 1987 (hereinafter called the "Merger Agreement") pursuant to which,
at the effective date of the Merger (as defined in the Merger Agreement), FAC
will be merged with and into the Company (hereinafter called the "Merger")
which shall be the Surviving Corporation (as so defined in the Agreement) as a
wholly-owned subsidiary of Atari and each share of the Company's
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outstanding Common Stock par value $.10 per share (hereinafter called "Company
Common Stock") shall be converted into the right to receive $6.25 in cash; and
WHEREAS, Section 1311 of the Indenture provides that in case of any
merger of another corporation into the Company (other than a merger which does
not result in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock of the Company), the Company shall execute
with the Trustee a supplemental indenture providing that the holder of each
Debenture then outstanding shall have the right to convert such Debenture into
the kind and amount of property receivable upon such merger by a holder of the
number of shares of Company Common Stock into which such Debenture might have
been converted immediately prior to such merger; and
WHEREAS, pursuant to Section 1311 of the Indenture, the Company agrees
to pay all holders of Debentures duly surrendering Debentures to the Company
for conversion after the effective date of the merger (as defined in the Merger
Agreement) $6.25 in cash for every share of Company Common Stock for which such
Debenture could have been converted into immediately prior to the effective
date of the Merger, for all Debentures so surrendered; and
WHEREAS, all acts and things prescribed by law and by the Certificate
of Incorporation and the By-Laws (each as now in effect) of the Company
necessary to make this First Supplemental Indenture a valid instrument legally
binding the Company for the
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purposes herein expressed, in accordance with its terms, have been duly done
and performed.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH THAT THE
PARTIES HERETO HAVE AGREED AS FOLLOWS;
ARTICLE ONE
Amendments To Indenture
On the effective date of the Merger, the Indenture shall be amended as
follows:
Article Thirteen of the Indenture shall be amended to add the
following Section 1313:
SECTION 1313. Cash In Lieu of Common Stock.
Notwithstanding any provision of this Indenture to the contrary, in
the event holders of Debentures duly surrender Debentures to the Company for
conversion after the effective date of the merger between FAC Delaware
Corporation ("FAC") and the Company (as described in that certain Agreement and
Plan of Merger between the Company, FAC and Atari Corporation dated August 23,
1987), in lieu of the shares of Common Stock issuable in connection with the
conversion of any Debenture or portion thereof described above, such holders
shall receive $6.25 in cash for every share of Common Stock which such
Debenture could have been converted into immediately prior to the effective
date of the merger.
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ARTICLE TWO
Assumption of Covenants
The Company, as the Surviving Corporation (as that term is described
in the aforementioned merger Agreement), hereby confirms that it remains liable
for the due and punctual payment of the principal of (and premium if any) on
all the Debentures and the performance of every covenant of the Indenture on
the part of the Company to be performed or observed, except as modified hereby.
ARTICLE THREE
Miscellaneous
SECTION 3.01. All of the provisions of the Indenture with respect to
the rights, privileges, immunities, powers and duties of the Trustee shall be
applicable in respect hereof as fully and with like effect as if set forth
herein in full.
SECTION 3.02. All recitations or recitals contained in this First
Supplemental Indenture are only made by and on behalf of the Company, and the
Trustee is in no way responsible therefor. The Trustee makes no
representations, as to the validity or sufficiency of this First Supplemental
Indenture, except the due and valid execution hereof by the Trustee.
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SECTION 3.03. This First Supplemental Indenture and each and every
provision hereof shall be deemed to be a contract made under the laws of the
State of California and for all purposes shall be construed in accordance with
the laws of such State.
SECTION 3.04. This First Supplemental Indenture may be executed in any
number of counterparts, each of which shall be an original; but such
counterparts shall constitute but one and the same instrument.
IN WITNESS WHEREOF, The Federated Group, Inc. has caused this First
Supplemental Indenture to be signed and acknowledged by its Chairman of the
Board, its President or one of its Vice Presidents, and its corporate seal to
be affixed hereunto and the same to be attested by its Secretary or an
Assistant Secretary; and Security Pacific National Bank has caused this First
Supplemental Indenture to be signed and acknowledged by one of its duly
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authorized officers, and its corporate seal to be affixed hereunto, and the
same to be attested by one of its Assistant Secretaries.
Executed as of the day and year first above written.
THE FEDERATED GROUP, INC.
By /s/ KEITH L. POWELL
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Keith L. Powell, President
ATTEST:
/s/ MERRILL LYONS
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Merrill Lyons, Secretary
SECURITY PACIFIC NATIONAL BANK
By [SIG]
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Title: Assistant Vice President
ATTEST:
By [SIG]
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Title:
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OFFICERS' CERTIFICATE
The undersigned, Keith L. Powell, President and Chief Operating
officer, and Merrill Lyons, Senior Vice President, Treasurer and Secretary of
The Federated Group, Inc. (the "Company"), do hereby certify that, in
connection with the Indenture, dated as of April 15, 1985, between the Company
and Security Pacific National Bank, as Trustee, relating to the Company's 7 1/2%
Convertible Subordinated Debentures due April 15, 2010 (the "Indenture"), and
the First Supplemental Indenture, dated as of September 24, 1987, between the
Company and the Trustee (the "Supplemental Indenture"), supplementing the
Indenture, all conditions precedent provided for in the Indenture relating to
the execution and delivery of the Supplemental Indenture by the Company have
been complied with, and such execution and delivery complies with the
requirements and conditions contained in Article Nine of the Indenture. The
undersigned further certify that there is not now existing an Event of Default
(as that term is defined in the Indenture) under the Indenture. As a basis for
rendering this certificate, the undersigned have read the Indenture, including,
without limitation, Article Nine therein and the definitions relating to terms
contained in such Article Nine, and the Supplemental Indenture, and have
examined such other documents and records of the Company as we have deemed
necessary to enable us to express an informed opinion as to whether the
conditions contained in Article Nine of the Indenture have been complied with
in connection with the execution and delivery of the Supplemental Indenture.
IN WITNESS WHEREOF, we have hereunto set our hands this 24th day of
September 1987.
/s/ KEITH L. POWELL
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Keith L. Powell, President
and Chief Operating Officer
/s/ MERRILL LYONS
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Merrill Lyons, Senior Vice
President, Treasurer and Secretary