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Exhibit 4.2
EXECUTION VERSION
NYSE
EURONEXT
to
WILMINGTON TRUST
COMPANY,
as Trustee
and
CITIBANK,
N.A.,
as Authenticating Agent,
Calculation Agent, Paying Agent,
Security Registrar and
Transfer Agent
First Supplemental
Indenture
Dated as of May 29,
2008
to Senior
Indenture
Dated as of May 29,
2008
Establishing a series of
Securities designated
4.80% Notes due June 28,
2013
EXECUTION VERSION
FIRST SUPPLEMENTAL INDENTURE,
dated as of May 29, 2008 (herein called the “ First
Supplemental Indenture ”), between NYSE Euronext, a
corporation duly organized and existing under the laws of the State
of Delaware (hereinafter called the “ Company
”), and Wilmington Trust Company, as Trustee under the
Original Indenture referred to below (hereinafter called the
“ Trustee ”).
WITNESSETH:
WHEREAS, the Company has
heretofore executed and delivered to the Trustee an indenture dated
as of May 29, 2008 (herein called the “ Original
Indenture ”), to provide for the issuance from time to
time in one or more series of its debentures, notes, bonds or other
evidences of indebtedness (herein called the “
Securities ”), the form and terms of which are to be
established as set forth in Sections 201 and 301 of the Original
Indenture;
WHEREAS, Section 901 of
the Original Indenture provides, among other things, that the
Company and the Trustee may enter into indentures supplemental to
the Original Indenture to, among other things, establish the form
and terms of the Securities of any series as permitted in Sections
201 and 301 of the Original Indenture;
WHEREAS, the Company desires
to create a series of the Securities in an aggregate principal
amount of $750,000,000 to be designated the “ 4.80% Notes
due 2013 ” (herein called the “ Senior Notes
”) and all action on the part of the Company necessary to
authorize the issuance of the Senior Notes under the Original
Indenture and this First Supplemental Indenture has been duly
taken; and
WHEREAS, the Company desires
to issue the Senior Notes in accordance with Section 2.3 of
this First Supplemental Indenture and treat the Senior Notes as a
single series of Securities for all purposes, as amended or
supplemented from time to time in accordance with the terms of this
First Supplemental Indenture and the Original Indenture;
WHEREAS the Company has
appointed Citibank, N.A., a national banking association duly
organized and existing under the laws of the United States, as
Authenticating Agent (the “ Authenticating Agent
”), Calculation Agent (the “ Calculation Agent
”), Paying Agent (the “ Paying Agent ”),
Security Registrar (the “ Security Registrar ”),
and Transfer Agent (the “ Transfer Agent ”)
pursuant to the Paying Agency Agreement, dated as of May 29,
2008 (as supplemented, modified and amended from time to time),
between the Company, the Authenticating Agent and the Trustee;
and
WHEREAS, all acts and things
necessary to make the Senior Notes, when executed by the Company
and completed, authenticated and delivered by the Trustee as
provided in the Original Indenture and this First Supplemental
Indenture, the valid and binding obligations of the Company and to
constitute a valid and binding supplemental indenture and agreement
according to its terms, have been done and performed.
NOW, THEREFORE, THIS FIRST
SUPPLEMENTAL INDENTURE WITNESSETH:
That in consideration of the
premises and of the acceptance and purchase of the Senior Notes by
the Holders thereof and of the acceptance of this trust by the
Trustee, the Company covenants and agrees with the Trustee, for the
equal benefit of Holders of the Senior Notes, as
follows:
EXECUTION VERSION
ARTICLE ONE
DEFINITIONS
Except to the extent such
terms are otherwise defined in this First Supplemental Indenture or
the context clearly requires otherwise, all terms used in this
First Supplemental Indenture which are defined in the Original
Indenture or the form of Senior Note attached hereto as Exhibit
A , have the meanings assigned to them therein.
In addition, as used in this
First Supplemental Indenture, the following terms have the
following meanings:
“ Attributable
Debt ” with regard to a Sale and Lease-Back Transaction
with respect to any Principal Property means, at the time of
determination, the present value of the total net amount of rent
required to be paid under such lease during the remaining term
thereof (including any period for which such lease has been
extended), discounted at the rate of interest set forth or implicit
in the terms of such lease (or, if not practicable to determine
such rate, the weighted average interest rate per annum borne by
the securities of all series then Outstanding under the Original
Indenture and this First Supplemental Indenture) compounded
semi-annually. In the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall be the
lesser of (x) the net amount determined assuming termination
upon the first date such lease may be terminated (in which case the
net amount shall also include the amount of the penalty, but shall
not include any rent that would be required to be paid under such
lease subsequent to the first date upon which it may be so
terminated) or (y) the net amount determined assuming no such
termination.
“ Bankruptcy Law
” means Title 11, U.S. Code or any similar Federal or state
law for the relief of debtors (or any law involving equivalent
concepts applicable outside the United States).
“ Below Investment
Grade Rating Event ” means the Senior Notes are rated
below an Investment Grade Rating by each of the Rating Agencies on
any date during the period commencing 60 days prior to the date of
the first public notice of an arrangement that could result in a
Change of Control and ending at the end of the 60-day period
following public notice of the occurrence of the Change of Control
(which 60-day period shall be extended so long as the rating of the
Senior Notes is under publicly announced consideration for possible
downgrade by any of the Rating Agencies); provided that a Below
Investment Grade Rating Event otherwise arising by virtue of a
particular reduction in rating shall not be deemed to have occurred
in respect of a particular Change of Control (and thus shall not be
deemed a Below Investment Grade Rating Event for purposes of the
definition of Change of Control Triggering Event hereunder) if the
Rating Agencies making the reduction in rating to which this
definition would otherwise apply do not announce or publicly
confirm or inform the Holders of the Senior Notes in writing at
their request that the reduction was the result, in whole or in
part, of any event or circumstance comprising or arising as a
result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control shall have
occurred at the time of the Below Investment Grade Rating
Event).
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EXECUTION VERSION
“ Capital Stock
” means (i) in the case of a corporation or a company,
corporate stock or shares; (ii) in the case of an association
or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate
stock; (iii) in the case of a partnership or limited liability
company, partnership or membership interests (whether general or
limited); and (iv) any other interest or participation that
confers on a person the right to receive a share of the profits and
losses of, or distributions of assets of, the issuing
person.
“ Change of
Control ” means the occurrence of any of the following:
(1) the direct or indirect sale, 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 properties or assets of the Company and its Subsidiaries taken
as a whole to any Person or group of related persons for purposes
of Section 13(d) of the Exchange Act (a “ Group
”) other than the Company or one of its Subsidiaries;
(2) the approval by the holders of the Company’s common
stock of any plan or proposal for the liquidation or dissolution of
the Company; (3) the consummation of any transaction
(including, without limitation, any merger or consolidation) the
result of which is that any Person or Group becomes the beneficial
owner, directly or indirectly, of more than 50% of the then
outstanding number of shares of the Company’s voting stock;
or (4) the first day on which a majority of the members of the
Company’s Board of Directors are not Continuing
Directors.
“ Change of Control
Triggering Event ” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event occurring in
respect of that Change of Control.
“ Continuing
Directors ” means, as of any date of determination, any
member of the Company’s Board of Directors who (1) was a
member of such Board of Directors on the date of the issuance of
the Senior Notes; or (2) was nominated for election or elected
to such Board of Directors with the approval of a majority of the
Continuing Directors who were members of such Board of Directors at
the time of such nomination or election (either by a specific vote
or by approval of the Company’s proxy statement in which such
member was named as a nominee for election as a director, without
objection to such nomination).
“ Definitive
Securities ” means certificated Securities registered in
the name of the Holder thereof and issued in accordance with
Section 2.2(b) hereof, substantially in the form of Exhibit
A hereto, except that such Security shall not bear the Global
Security Legend.
“ Depositary
” means DTC, together with any Person succeeding thereto by
merger, consolidation or acquisition of all or substantially all of
its assets, including substantially all of its securities payment
and transfer operations.
“ DTC ”
means The Depository Trust Company, a New York corporation, having
a principal office at 55 Water Street, New York, New York
10041-0099.
“ Global Security
Legend ” means the legend set forth in Section 204
of the Original Indenture.
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EXECUTION VERSION
“ Indebtedness
” means any indebtedness (whether being principal, premium,
interest or other amounts) for or in respect of any notes, bonds,
debentures, debenture stock, loan stock or other securities or any
borrowed money or any liability under or in respect of any
acceptance or acceptance credit.
“ Indirect
Participant ” means a Person who holds a beneficial
interest in a Global Security through a Participant.
“ Investment Grade
Rating ” means a rating equal to or higher than Baa3 (or
the equivalent) by Moody’s and BBB- (or the equivalent) by
S&P.
“ Issue Date
” means May 29, 2008, the date on which the Senior Notes
are originally issued under this First Supplemental
Indenture.
“ Lien ”
means any lien, mortgage, deed of trust, hypothecation, pledge,
security interest, charge or encumbrance of any kind.
“ Moody’s
” means Moody’s Investors Service, Inc.
“ Non-U.S.
Person ” means any corporation, partnership, individual
or fiduciary that is, as to the United States of America, a foreign
corporation, a non-resident alien individual who has not made a
valid election to be treated as a United States resident, a
non-resident fiduciary of a foreign estate or trust, or a foreign
partnership, one or more of the members of which is, as to the
United States of America, a foreign corporation, a non-resident
alien individual or a non-resident fiduciary of a foreign estate or
trust.
“ Participant
” means, with respect to the Depositary, a Person who has an
account with the Depositary.
“ Person ”
means any individual, firm, corporation, partnership, association,
joint venture, tribunal, trust, government or political subdivision
or agency or instrumentality thereof, or any other entity or
organization and includes a “person” as used in
Section 13(d)(3) of the Exchange Act.
“ Principal
Property ” means the land, improvements, buildings,
fixtures and equipment (including any leasehold interest therein)
constituting a corporate office, facility or other asset which is
owned or leased by the Company or any of its Significant
Subsidiaries unless the Company’s Board of Directors has
determined in good faith that such office or facility is not of
material importance to the total business conducted by the Company
and its Significant Subsidiaries taken as a whole. With respect to
any Sale and Lease-Back Transaction or series of related Sale and
Lease-Back Transactions, the determination of whether any property
is a Principal Property shall be determined by reference to all
properties affected by such transaction or series of
transactions.
“ Rating
Agencies ” means (1) each of Moody’s and
S&P; and (2) if any of Moody’s or S&P ceases to
rate the Senior Notes or fails to make a rating of the Senior Notes
publicly available for reasons outside of the Company’s
control, a “nationally recognized statistical rating
organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F)
under the Exchange Act, selected by the Company (as certified by an
executive officer of the Company) as a replacement agency for
Moody’s or S&P, or both of them, as the case may
be.
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EXECUTION VERSION
“ Regular Record
Date ” means the June 13 and December 13,
whether or not a Business Day, immediately preceding the applicable
Interest Payment Date.
“ S&P
” means Standard & Poor’s Rating Services, a
division of The McGraw-Hill Companies, Inc.
“ Sale and
Lease-Back Transaction ” means any arrangement with any
person providing for the leasing by the Company or any of its
Significant Subsidiaries of any Principal Property, whether now
owned or hereafter acquired, which Principal Property has been or
is to be sold or transferred by the Company or such Significant
Subsidiary to such person.
“ Senior Notes
” has the meaning given to such term in the preamble
hereof.
“ Significant
Subsidiary ” with respect to any person, means any
Subsidiary of such person that satisfies the criteria for a
“significant subsidiary” set forth in Rule l-02(w) of
Regulation S-X under the Exchange Act.
“ Subsidiary
” means any corporation, limited liability company or other
similar type of business entity in which the Company and/or one or
more of its subsidiaries together own more than 50% of the total
voting power of shares of Capital Stock entitled (without regard to
the occurrence of any contingency) to vote in the election of the
board of directors or similar governing body of such corporation,
limited liability company or other similar type of business entity,
directly or indirectly.
ARTICLE TWO
TERMS AND ISSUANCE OF THE
4.80% NOTES DUE 2013
Section 2.1. Issue of
Senior Notes . A series of Securities which shall be designated
the “4.80% Notes due 2013” shall be executed,
authenticated and delivered in accordance with the provisions of,
and shall in all respects be subject to, the terms, conditions and
covenants of, the Original Indenture and this First Supplemental
Indenture (including the form of Senior Notes set forth hereto as
Exhibit A ). The aggregate principal amount of Senior
Notes which may be authenticated and delivered under this First
Supplemental Indenture shall not, except as permitted by the
provisions of the Original Indenture, initially exceed
$750,000,000; provided that the Company may from time to time or at
any time, without the consent of the Holders of the Senior Notes,
issue additional Senior Notes, which additional Senior Notes shall
increase the aggregate principal amount of, and shall be
consolidated and form a single series with, the Senior
Notes.
Section 2.2. Form of
Senior Notes; Incorporation of Terms . (a) The Senior
Notes shall be issued initially in the form of one or more Global
Securities and, together with the Authenticating Agent’s
certificate of authentication thereon, shall be in substantially
the form set forth in Exhibit A attached hereto. The
Senior Notes may have such notations, legends or endorsements
approved as to form by the Company and required, as applicable, by
law, stock
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EXECUTION VERSION
exchange or depository rules and
agreements to which the Company is subject and/or usage. The terms
of the Senior Notes set forth in Exhibit A are herein
incorporated by reference and are part of the terms of this First
Supplemental Indenture. The Senior Notes shall be issuable in
definitive, fully registered form without coupons only in minimum
denominations of $2,000 and any integral multiples of $1,000 in
excess thereof.
(b) Senior Notes issued in
global form shall be substantially in the form of Exhibit A
attached hereto (including the Global Security Legend thereon).
Senior Notes issued in definitive certificated form in accordance
with the terms of the Original Indenture and the Supplemental
Indenture, if any, shall be substantially in the form of Exhibit
A attached hereto (but without the Global Security Legend
thereon). Each Global Security shall represent such of the
outstanding Senior Notes as shall be specified therein and each
shall provide that it shall represent the aggregate principal
amount of Outstanding Senior Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding
Senior Notes represented thereby may from time to time be reduced
or increased, as appropriate, to reflect exchanges and redemptions.
Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the aggregate principal amount of
Outstanding Senior Notes represented thereby shall be made by the
Transfer Agent in accordance with instructions given by the Holder
thereof as required by Section 2.7 hereof.
Section 2.3.
Execution and Authentication . The Authenticating Agent,
upon a Company Order and pursuant to the terms of the Original
Indenture and this First Supplemental Indenture, shall authenticate
and deliver Senior Notes for original issue in an initial aggregate
principal amount of $750,000,000. Such Company Order shall specify
the amount of the Senior Notes to be authenticated, the date on
which the original issue of Senior Notes is to be authenticated and
the aggregate principal amount of Senior Notes outstanding on the
date of authentication. All of the Senior Notes issued under this
First Supplemental Indenture shall be treated as a single series
for all purposes under the Original Indenture and this First
Supplemental Indenture, including, without limitation, waivers,
amendments and offers to purchase.
Section 2.4.
Depositary for Global Securities . The Depositary for the
Senior Notes issued under this First Supplemental Indenture shall
be DTC in the City of New York.
Section 2.5. Place of
Payment . The Place of Payment in respect of the Senior Notes
will be at the principal office or agency of the Company in The
City of New York, State of New York or at the office or agency of
the Paying Agent in The City of New York, State of New York, which,
at the date hereof, is located at c/o Citibank, N.A., 111 Wall
Street, 15 th Floor Window, New York, NY 10005.
Section 2.6. Transfer
and Exchange .
(a) The transfer and exchange
of beneficial interests in the Global Securities shall be effected
through the Depositary, in accordance with the provisions of the
Original Indenture, this First Supplemental Indenture and the then
applicable procedures of the Depositary (the “ Applicable
Procedures ”). In connection with all transfers and
exchanges of beneficial interests, the transferor of such
beneficial interest must deliver to the Transfer Agent either
(A)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in
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EXECUTION VERSION
accordance with the Applicable
Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Security in an
amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the
Applicable Procedures containing information regarding the
Participant account to be credited with such increase or, if
Definitive Securities are at such time permitted to be issued
pursuant to this First Supplemental Indenture and the Original
Indenture, (B)(1) a written order from a Participant or an Indirect
Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to cause to be
issued a Definitive Security in an amount equal to the beneficial
interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Security Registrar containing
information regarding the Person in whose name such Definitive
Security shall be registered to effect the transfer or exchange
referred to in (1) above. Upon satisfaction of all of the
requirements for transfer or exchange of beneficial interests in
Global Securities contained in the Original Indenture, this First
Supplemental Indenture and the Senior Notes or otherwise applicable
under the Securities Act, the Security Registrar shall adjust the
principal amount of the relevant Global Securities pursuant to
Section 2.7 hereof.
(b) Upon request by a Holder
of Definitive Securities and such Holder’s compliance with
the provisions of this Section 2.6(b), the Security Registrar
shall register the transfer or exchange of Definitive Securities.
Prior to such registration of transfer or exchange, the requesting
Holder shall present or surrender to the Transfer Agent the
Definitive Securities duly endorsed or accompanied by a written
instruction of transfer in form satisfactory to the Security
Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. The Authenticating Agent shall cancel any
such Definitive Securities so surrendered, and the Company shall
execute and, upon receipt of a Company Order pursuant to
Section 303 of the Original Indenture, the Authenticating
Agent shall authenticate and deliver to the Person designated in
the instructions a new Definitive Security in the appropriate
principal amount. Any Definitive Security issued pursuant to this
Section 2.6(b) shall be registered in such name or names and
in such authorized denomination or denominations as the Holder of
such beneficial interest shall instruct the Security Registrar
through instructions from the Depositary and the Participant or
Indirect Participant. The Paying Agent shall deliver such
Definitive Securities to the Persons in whose names such Definitive
Securities are so registered. In addition, the requesting Holder
shall provide any additional certifications, documents and
information, as applicable, required pursuant to Section 305
of the Original Indenture.
Section 2.7
Cancellation and/or Adjustment of Global Securities . At
such time as all beneficial interests in a particular Global
Security have been exchanged for Definitive Securities or a
particular Global Security has been redeemed, repurchased or
canceled in whole and not in part, each such Global Security shall
be returned to or retained and canceled by the Security Registrar
in accordance with Section 309 of the Original Indenture. At
any time prior to such cancellation, if any beneficial interest in
a Global Security is exchanged for or transferred to a Person who
will take delivery thereof in the form of a beneficial interest in
another Global Security or for Definitive Securities, the principal
amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be made on such Global
Security by the Security Registrar or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the
beneficial interest is being exchanged for or transferred to a
Person who will take delivery thereof in the form of a beneficial
interest in another Global Security,
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EXECUTION VERSION
such other Global Security shall be
increased accordingly and an endorsement shall be made on such
Global Security by the Security Registrar or by the Depositary at
the direction of the Security Registrar to reflect such
increase.
Section 2.8. Events
of Default . The provisions of Section 501 of the Original
Indenture shall be applicable to the Senior Notes; provided,
however, that clauses (1), (2), (3), (5), (6), (7) and
(8) of Section 501 shall now read as follows:
“(1) default in the
payment of any interest or Additional Amounts upon any Senior Note
when it becomes due and payable and the default continues for a
period of 30 days;
(2) default in the payment of
the principal of or premium, if any, on any Senior Note at its
Maturity, upon acceleration, upon redemption or otherwise
(including the failure to make a payment to purchase the Senior
Notes tendered pursuant to a Change of Control Offer);
(3) a default in the
performance, or breach, of the Company’s obligations under
Section 801 of the Original Indenture;
(4) a default on any
Indebtedness of the Company or any of its Significant Subsidiaries
having an aggregate amount of at least $50,000,000, constituting a
default either of payment of principal or which results in
acceleration of the Indebtedness, and after the Company has been
notified of the default by the Trustee or Holders of 25% in
principal amount of the Senior Notes the Company does not cure the
default within 10 days;
(5) one or more final
judgments for the payment of money in an aggregate amount in excess
of $100,000,000 above available insurance coverage shall be
rendered against the Company or any of its Significant Subsidiaries
and the same shall remain undischarged for a period of 30
consecutive days during which execution shall not be effectively
stayed, but only if such judgment is an event of default at that
time under any of the Company’s credit facilities in place on
the date hereof (the “ Existing Facilities ”) or
any credit facility that the Company enters into to replace an
Existing Facility at its maturity or otherwise;
(6) the entry by a court
having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any of its Significant
Subsidiaries in an involuntary case or proceeding under any
applicable Bankruptcy Law, insolvency, reorganization or other
similar law or (B) a decree or order adjudging the Company or
any of its Significant Subsidiaries as bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the
Company or any of its Significant Subsidiaries under any applicable
Bankruptcy Law, or appointing a custodian, receiver, liquidator,
assignee, trustee, sequestrator or other similar official of the
Company or any of its Significant Subsidiaries or of any
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