Exhibit 4.1
MARSH & McLENNAN COMPANIES
INC.,
Issuer,
and
The Bank of New York
Mellon,
Trustee
FIRST SUPPLEMENTAL
INDENTURE
Dated as of March 23,
2009
$400,000,000 aggregate principal
amount of 9.25% Senior Notes Due 2019
FIRST SUPPLEMENTAL INDENTURE, dated
as of March 23, 2009, between MARSH & McLENNAN
COMPANIES, INC., a Delaware corporation (the “ Issuer
”), and THE BANK OF NEW YORK MELLON, a New York banking
corporation, as Trustee (the “ Trustee
”)
WITNESSETH:
WHEREAS, the Issuer and the Trustee
executed and delivered an Indenture, dated as of March 23,
2009 (the “ Base Indenture ” and as supplemented
hereby, the “ Indenture ”), to provide for the
issuance by the Issuer from time to time of senior debt securities
evidencing its unsecured indebtedness, to be issued in one or more
series as provided in the Indenture;
WHEREAS, pursuant to a Board
Resolution, the Issuer has authorized the issuance of a series of
securities evidencing its senior indebtedness, consisting initially
of $400,000,000 aggregate principal amount of 9.25% Senior Notes
due 2019 (the “ Original Notes ” and, together
with all the Additional Notes (as defined herein), if any,
hereinafter referred to, the “ Notes
”);
WHEREAS, the entry into this First
Supplemental Indenture by the parties hereto is in all respects
authorized by the provisions of the Indenture;
WHEREAS, the Issuer desires to
establish the terms of the Notes in accordance with
Section 2.01 of the Indenture and to establish the form of the
Notes in accordance with Section 2.02 of the Indenture;
and
WHEREAS, all things necessary to
make this First Supplemental Indenture a valid indenture and
agreement according to its terms have been done.
NOW, THEREFORE, for and in
consideration of the premises, the Issuer and the Trustee mutually
covenant and agree for the equal and proportionate benefit of the
respective holders from time to time of the Notes as
follows:
ARTICLE 1
Section 1.01 . Terms of
Notes. The following terms relating to the Notes are hereby
established:
(a) The Notes shall constitute a
series of securities having the title “ 9.25% Senior Notes
due 2019 ”.
(b) The aggregate principal amount
of the Original Notes that may be authenticated and delivered under
the Indenture (except for Notes authenticated and delivered upon
registration of, transfer of, or in exchange for, or in lieu of,
other Notes pursuant to Sections 2.05, 2.06, 2.07 or 9.04 of the
Base Indenture) shall be up to $400,000,000.
(c) The entire outstanding principal
of the Notes shall be payable on April 15, 2019 plus any
unpaid interest accrued to such date.
(d) The rate at which the Notes
shall bear interest shall be 9.25% per annum; the date from which
interest shall accrue on the Notes shall be March 23, 2009 or
from the most recent Interest Payment Date to which interest has
been paid; the Interest Payment Dates for the Notes on which
interest will be payable shall be April 15 and October 15
in each year, beginning October 15, 2009; the regular record
dates for the interest payable on the Notes on any Interest Payment
Date shall be the April 1 and October 1 preceding the
applicable Interest Payment Date; and the basis upon which interest
on the Notes shall be calculated shall be that of a 360-day year
consisting of twelve 30-day months.
(e) (i) The Notes may be redeemed in
whole at any time or in part from time to time, at the option of
the Issuer, at a redemption price equal to the greater of
(1) 100% of the principal amount of the Notes to be redeemed
and (2) the sum of the present values of the remaining
scheduled payments of principal and interest on the Notes to be
redeemed (exclusive of interest accrued to the date of redemption)
discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at
then current Treasury Rate plus 50 basis points (the “
Redemption Price ”), plus accrued and unpaid interest
on the principal amount being redeemed to the redemption
date.
(ii) (A) In case the Issuer shall
desire to exercise such right to redeem all or, as the case may be,
a portion of the Notes in accordance with Section 1.01(e)(i)
above, the Issuer shall, or shall cause the Trustee to, give notice
of such redemption to holders of the Notes to be redeemed by
mailing, first class postage prepaid, a notice of such redemption
not less than 30 days and not more than 60 days before the date
fixed for redemption to such holders at their last addresses as
they shall appear upon the Security Register. Any notice that is
mailed in the manner herein provided shall be conclusively presumed
to have been duly given, whether or not the registered holder
received the notice. In any case, failure duly to give such notice
to the holder of any Note designated for redemption in whole or in
part, or any defect in the notice, shall not affect the validity of
the proceedings for the redemption of any other Note.
Each such notice of redemption shall
specify the date fixed for redemption and the Redemption Price at
which the Notes to be redeemed are to be redeemed, and shall state
that payment of the Redemption Price of such Notes to be redeemed
will be made at the office or agency of the Issuer in the Borough
of Manhattan, the City and State of
2
New York, upon presentation and
surrender of such Notes, that interest accrued to the date fixed
for redemption will be paid as specified in said notice and, that
from and after said date interest will cease to accrue; except that
interest shall continue to accrue on any Note or portion thereof
with respect to which the Issuer defaults in the payment of such
Redemption Price and accrued interest. If less than all the Notes
are to be redeemed, the notice to the holders of the Notes to be
redeemed in whole or in part shall specify the particular Notes to
be redeemed. In case the Notes are to be redeemed in part only, the
notice shall state the portion of the principal amount thereof to
be redeemed, and shall state that on and after the redemption date,
upon surrender of such security, a new Note in principal amount
equal to the unredeemed portion thereof will be issued.
(B) If less than all the Notes are
to be redeemed, the Issuer shall give the Trustee at least 45
days’ notice in advance of the date fixed for redemption as
to the aggregate principal amount of Notes to be redeemed, and
thereupon the Trustee shall select, by lot or in such other manner
as it shall deem appropriate and fair in its discretion and that
may provide for the selection of a portion or portions (equal to
two thousand U.S. dollars ($2,000) or integral multiples of $1,000
in excess thereof) of the principal amount of such series of Notes
of a denomination larger than $2,000, the Notes to be redeemed and
shall thereafter promptly notify the Issuer in writing of the
numbers of the Notes to be redeemed, in whole or in
part.
The Issuer may, if and whenever it
shall so elect, by delivery of instructions signed on its behalf by
its President or any Vice President, instruct the Trustee or any
paying agent to call all or any part of the Notes for redemption
and to give notice of redemption in the manner set forth in this
Section, such notice to be in the name of the Issuer or its own
name as the Trustee or such paying agent may deem advisable. In any
case in which notice of redemption is to be given by the Trustee or
any such paying agent, the Issuer shall deliver or cause to be
delivered to, or permit to remain with, the Trustee or such paying
agent, as the case may be, such Security Register, transfer books
or other records, or suitable copies or extracts therefrom,
sufficient to enable the Trustee or such paying agent to give any
notice by mail that may be required under the provisions of this
Section.
Subject to Section 2.11 of the
Base Indenture, the Issuer shall not be required (i) to issue,
register the transfer of or exchange any Notes during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of the Notes selected for
redemption and ending at the close of business on the day
of
3
such mailing, or (ii) to
register the transfer of or exchange any Notes so selected for
redemption in whole or in part, except the unredeemed portion of
any such Notes being redeemed in part.
If the giving of notice of
redemption shall have been completed as above provided, the Notes
or portions of the Notes to be redeemed specified in such notice
shall become due and payable on the date and at the place stated in
such notice at the applicable Redemption Price, and interest on
such Notes shall cease to accrue on and after the date fixed for
redemption, unless the Issuer shall default in the payment of such
Redemption Price and accrued interest.
(iii) As used herein:
“ Business Day ”
means any calendar day that is not a Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or
required by law to remain closed.
“ Comparable Treasury
Issue ” means the United States Treasury security
selected by the Independent Investment Banker as having an actual
or interpolated maturity comparable to the remaining term of the
Notes to be redeemed that would be utilized, at the time of
selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such Notes.
“ Comparable Treasury
Price ” means, with respect to any redemption date,
(1) the average of the Reference Treasury Dealer Quotations
for such redemption date, after excluding the highest and lowest
Reference Treasury Dealer Quotations, or (2) if the Trustee
obtains fewer than four such Reference Treasury Dealer Quotations,
the average of all such quotations.
“ Independent Investment
Banker ” means one of the Reference Treasury Dealers
appointed by the Trustee after consultation with the
Issuer.
“ Reference Treasury
Dealer ” means (i) Banc of America Securities LLC
and its successors, (ii) Citigroup Global Markets Inc. and its
successors, (iii) J.P. Morgan Securities Inc. and its
successors, and (iv) one or more Reference Treasury Dealers as
the Issuer may specify from time to time; provided, however, that
if any of them ceases to be a primary U.S. Government securities
dealer for The City of New York (each a “Primary Treasury
Dealer”), the Issuer will substitute another Primary Treasury
Dealer.
“ Reference Treasury Dealer
Quotations ” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined
by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue
4
(expressed as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 5:00 p.m., New York City time, on the third Business Day
preceding such redemption date.
“ Treasury Rate ”
means, with respect to any redemption date, the rate per year equal
to the semiannual equivalent yield to maturity or interpolated (on
a day count basis) of the Comparable Treasury Issue, calculated
using a price for the Comparable Treasury Issue (expressed as a
percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
The Treasury Rate shall be
calculated on the third Business Day preceding the redemption
date.
With respect to
Section 1.01(e)(i)(2) above, the Trustee shall be entitled to
rely upon the calculations of the Independent Investment
Banker.
(f) (i) If a Change of Control
Triggering Event occurs, unless the Issuer has exercised its option
to redeem those Notes by notifying the holders thereof to that
effect as described in Section 1.01(e) above, the Issuer shall
make an offer (a “ Change of Control Offer ”) to
each holder of Notes to repurchase all or any part (equal to two
thousand U.S. dollars ($2,000) or integral multiples of $1,000 in
excess thereof) of that holder’s Notes on the terms set forth
in this Section 1.01(f). In a Change of Control Offer, the
Issuer shall offer payment in cash equal to 101% of the aggregate
principal amount of the Notes repurchased, plus accrued and unpaid
interest, if any, on the Notes repurchased to the date of
repurchase (a “ Change of Control Payment ”).
Within 30 days following any Change of Control Triggering Event or,
at the Issuer’s option, prior to any Change of Control, but
after public announcement of the transaction that constitutes or
may constitute the Change of Control, the Issuer shall mail a
notice to holders of the Notes, describing the transaction that
constitutes or may constitute the Change of Control Triggering
Event and offering to repurchase the Notes on the date specified in
the notice, which date will be no earlier than 30 days and no later
than 60 days from the date that notice is mailed, other than as may
be required by law (a “ Change of Control Payment Date
”). The notice shall, if mailed prior to the date of
consummation of the Change of Control, state that the Change of
Control Offer is conditioned on the Change of Control Triggering
Event occurring on or prior to the applicable Change of Control
Payment Date.
(ii) On each Change of Control
Payment Date, the Issuer shall, to the extent lawful:
(A) accept for payment all Notes or
portions of Notes properly tendered pursuant to the Change of
Control Offer;
5
(B) deposit with the paying agent an
amount equal to the Change of Control Payment in respect of all
Notes or portions of Notes properly tendered; and
(C) deliver or cause to be delivered
to the Trustee the Notes properly accepted together with an
Officer’s Certificate stating the aggregate principal amount
of Notes or portions of Notes being repurchased and that all
conditions precedent provided for in the Indenture to the Change of
Control Offer and to the repurchase by the Issuer of Notes pursuant
to the Change of Control Offer have been complied with.
(iii) The Issuer shall not be
required to make a Change of Control Offer upon the occurrence of a
Change of Control Triggering Event if a third party makes such an
offer in the manner, at the times and otherwise in compliance with
the requirements for an offer made by the Issuer and the third
party repurchases all Notes properly tendered and not withdrawn
under its offer.
The Issuer shall comply with the
requirements of Rule 14e-1 under the Exchange Act and any other
securities laws and regulations thereunder to the extent those laws
and regulations are applicable in connection with the repurchase of
the Notes as a result of a Change of Control Triggering Event. To
the extent that the provisions of any such securities laws or
regulations conflict with the Change of Control Offer provisions
herein, the Issuer will comply with those securities laws and
regulations and shall not be deemed to have breached its
obligations under the Change of Control Offer provisions herein by
virtue of any such conflict.
(iv) As used herein:
“ Change of Control
” means the occurrence of any of the following: (1) the
direct or indirect sale, lease, transfer, conveyance or other
disposition (other than by way of merger or consolidation), in one
or a series of related transactions, of all or substantially all of
the Issuer’s assets and the assets of its subsidiaries, taken
as a whole, to any person, other than the Issuer or one of its
subsidiaries; (2) the consummation of any transaction
(including, without limitation, any merger or consolidation) the
result of which is that any person becomes the beneficial owner (as
defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly
or indirectly, of more than 50% of the Issuer’s outstanding
Voting Stock or other Voting Stock into which the Issuer’s
Voting Stock is reclassified, consolidated, exchanged or changed,
measured by voting power rather than number of shares; (3) the
Issuer consolidates with, or merges with or into, any person, or
any person consolidates with, or merges with or into, the Issuer,
in any such event pursuant to a transaction in which any of the
Issuer’s outstanding Voting Stock or the Voting Stock of such
other person is converted into or exchanged for cash, securities
or
6
other property, other than any such transaction
where the shares of the Issuer’s Voting Stock outstanding
immediately prior to such transaction constitute, or are converted
into or exchanged for, a majority of the Voting Stock of the
surviving person or any direct or indirect parent company of the
surviving person immediately after giving effect to such
transaction; (4) the first day on which a majority of the
members of the Issuer’s board of directors are not Continuing
Directors; or (5) the adoption of a plan relating to the
Issuer’s liquidation or dissolution. Notwithstanding the
foregoing, a transaction will not be deemed to involve a Change of
Control under clause (2) above if (i) the Issuer becomes
a direct or indirect wholly owned subsidiary of a holding company
and (ii)(A) the direct or indirect holders of the Voting Stock of
such holding company immediately following that transaction are
substantially the same as the holders of the Issuer’s Voting
Stock immediately prior to that transaction or (B) the shares
of the Issuer’s Voting Stock outstanding immediately prior to
such transaction are converted into or exchanged for, a majority of
the Voting Stock of such holding company immediately after giving
effect to such transaction. The term “person,” as used
in this definition, has the meaning given thereto in
Section 13(d)(3) of the Exchange Act.
“ Change of Control
Triggering Event ” means the occurrence of both a Change
of Control and a Rating Event.
“ Continuing Directors
” means, as of any date of determination, any member of the
Issuer’s board of directors who (1) was a member of the
Issuer’s board of directors on the date the Original Notes
were issued or (2) was nominated for election, elected or
appointed to the Issuer’s board of directors with the
approval of a majority of the Continuing Directors who were members
of the Issuer’s board of directors at the time of the
nomination, election or appointment (either by a specific vote or
by approval of the Issuer’s proxy statement in which that
member was named as a nominee for election as a director, without
objection to the nomination).
“ Fitch ” means
Fitch Inc. and its successors.
“ Investment Grade
Rating ” means a rating equal to or higher than Baa3 (or
the equivalent) by Moody’s, BBB- (or the equivalent) by
S&P and BBB- (or the equivalent) by Fitch, and the equivalent
investment grade credit rating from any replacement rating agency
or rating agencies selected by the Issuer.
“ Moody’s ”
means Moody’s Investors Service, Inc. and its
successors.
“ Rating Agencies
” means (1) each of Moody’s, S&P and Fitch;
and (2) if any of Moody’s, S&P or Fitch ceases to
rate the Notes or fails to make a rating of the Notes publicly
available for reasons beyond the Issuer’s control, a
“nationally recognized statistical rating organization”
within the meaning of Rule 15c 3-1(c)(2)(vi)(F) under the Exchange
Act selected by the Issuer (as certified by a resolution of the
Issuer’s board of directors) as a replacement agency for
Moody’s, S&P or Fitch, or all of them, as the case may
be.
7
“ Rating Event ”
means the rating on the Notes is lowered by at least two of the
three Rating Agencies and the Notes are rated below an Investment
Grade Rating by at least two of the three Rating Agencies, in any
case on any day during the period (which period will be extended so
long as the rating of the Notes is under publicly announced
consideration for a possible downgrade by any of the Rating
Agencies) commencing 60 days prior to the earlier of (i) the
first public notice of the occurrence of a Change of Control or
(ii) the first public notice of the Issuer’s intention
to effect a Change of Control and ending 60 days following
consummation of such Change of Control.
“ S&P ” means
Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc., and its successors.
“ Voting Stock ”
means, with respect to any specified “person” (as that
term is used in Section 13(d)(3) of the Exchange Act) as of
any date, the capital stock of that person that is at the time
entitled to vote generally in the election of the board of
directors of that person.
(g) The Notes shall be issuable in
denominations equal to two thousand U.S. dollars ($2,000) or
integral multiples of $1,000 in excess thereof.
(h) The Trustee shall also be the
security registrar and paying agent for the Notes.
(i) Payments of the principal of and
interest on the Notes shall be made in U.S. dollars, and the Notes
shall be denominated in U.S. dollars.
(j) The holders of the Notes shall
have no special rights in addition to those provided in the
Indenture upon the occurrence of any particular events.
(k) The Notes shall not be
subordinated to any other debt of the Issuer, and shall constitute
senior unsecured obligations of the Issuer.
(l) The Notes shall be issued as a
Global Security and The Depository Trust Company, New York, New
York shall be the initial Depository. The Notes are not convertible
into shares of common stock or other securities of the
Issuer.
Section 1.02 . Form of
Note. The form of the Notes is attached hereto as Exhibit
A.
8
Section 1.03 . Additional
Notes. Subject to the terms and conditions contained herein,
the Issuer may issue additional notes (the “ Additional
Notes ”) having the same ranking and the same interest
rate, maturity and other terms as the Original Notes, without the
consent of the holders of the Original Notes then Outstanding. Any
such Additional Notes will be a part of the series having the same
terms as the Original Notes. The aggre
