<PAGE> 1
As filed with the Securities and Exchange Commission on August 3, 1995
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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RPM, INC.
(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Ohio 2851 34-6550857
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
fincorporation or organization) Classification Code Number) Identification No.)
</TABLE>
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<TABLE>
<S> <C>
2628 Pearl Road Thomas C. Sullivan
P.O. Box 777 Chairman and Chief Executive Officer
Medina, Ohio 44258 RPM, Inc.
(216) 273-5090 2628 Pearl Road
(Address, including zip code, and P.O. Box 777
telephone number, including area code, of Medina, Ohio 44258
registrant's principal executive offices) (216) 273-5090
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
</TABLE>
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Copies of communications to:
William A. Papenbrock, Esq.
Calfee, Halter & Griswold
1400 McDonald Investment Center
800 Superior Avenue
Cleveland, Ohio 44114
(216) 622-8200
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Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box: / /
<TABLE>
<CAPTION>
=================================================================================================================
Proposed Maximum Proposed Maximum Amount of
Title of Securities Amount to Offering Aggregate Offering Registration
to be Registered be Registered Price Per Note Price(1) Fee
- -----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
7.0% Senior Notes due 2005...... $150,000,000 100% $150,000,000 $51,725
=================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration
fee.
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The Registrant hereby amends this Registration Statement on such
date or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to
Section 8(a), may determine.
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<PAGE> 2
RPM, INC.
CROSS REFERENCE SHEET
Furnished Pursuant to Item 501(b) of Regulation S-K
<TABLE>
<CAPTION>
Form S-4 Item Number and Caption Location in Prospectus
-------------------------------- ----------------------
<S> <C>
1. Forepart of Registration Statement and Outside
Front Page of Prospectus......................... Forepart of the Registration Statement and Outside Front
Cover Page of Prospectus
2. Inside Front and Outside Back Cover Pages of
Prospectus....................................... Inside Front Cover Page and Outside Back Cover Pages of
Prospectus
3. Risk Factors and Ratio of Earnings to Fixed
Charges, and Other Information................... Prospectus Summary; The Company; Risk
Factors
4. Terms of the Transaction............................. Prospectus Summary; The Exchange Offer; Certain Federal
Income Tax Consequences; Description of Notes
5. Pro Forma Financial Information...................... Prospectus Summary; Selected Financial Data
6. Material Contracts with the Company Being Acquired... *
7. Additional Information Required for Reoffering by
Persons and Parties Deemed to be Underwriters.... *
8. Interests of Named Expert and Counsel................ Legal Matters; Independent Public Accountants
9. Disclosure of Commission Position on
Indemnification for Securities Act Liabilities... *
10. Information with Respect to S-3 Registrants.......... *
11. Incorporation of Certain Information by Reference.... Incorporation of Certain Documents by Reference
12. Information with Respect to S-2 or S-3 Registrants... *
13. Incorporation of Certain Information by Reference.... *
14. Information with Respect to Registrants Other than
S-3 or S-2 Registrants........................... *
15. Information with Respect to S-3 Companies............ *
16. Information with Respect to S-2 or S-3 Companies..... *
17. Information with Respect to Companies Other than
S-2 or S-3 Companies............................. *
18. Information if Proxies, Consents or Authorizations
are to be Solicited.............................. *
19. Information if Proxies, Consents or Authorizations
are not to be Solicited or in an Exchange
Offer............................................ Incorporated by reference to the Registrant's Annual Report
on Form 10-K for the fiscal year ended May 31, 1994
</TABLE>
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*Not applicable or answer thereto is negative.
<PAGE> 3
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This Prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any State in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such State.
<PAGE> 4
Subject to Completion, Dated August 3, 1995
OFFER TO EXCHANGE -- PROSPECTUS
RPM, INC. LOGO
Offer to Exchange
its
7.0% Senior Notes Due 2005
($150,000,000 principal amount outstanding)
for 7.0% Senior Exchange Notes Due 2005
($150,000,000 principal amount)
The Exchange Offer and withdrawal rights will expire at 5:00 P.M., New
York City time, on ______________, 1995, unless extended.
RPM, Inc., an Ohio corporation (the "Company" or "RPM"), hereby offers,
upon the terms and subject to the conditions set forth in this Offer to
Exchange -- Prospectus (the "Prospectus") and the accompanying Letter of
Transmittal (which together constitute the "Exchange Offer"), to exchange its
7.0% Senior Exchange Notes Due 2005 (the "New Notes") for an equal principal
amount of its outstanding 7.0% Senior Notes Due 2005 (the "Old Notes"), of
which $150,000,000 principal amount is outstanding as of the date hereof. The
Old Notes and New Notes are collectively referred to herein as the "Notes."
The form and terms of the New Notes are the same as the form and terms of the
Old Notes except that (i) the Company's offer and exchange of the New Notes
will have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), and, therefore, the New Notes will not bear legends
restricting their transfer and (ii) holders of New Notes will not be entitled to
certain rights under the Registration Rights Agreement (as hereinafter defined),
which rights will terminate when the Exchange Offer is consummated. The New
Notes will evidence the same debt as the Old Notes (which they replace) and will
be issued under and be entitled to the benefits of the indenture governing the
Old Notes, dated as of June 1, 1995 (the "Indenture"). See "The Exchange Offer"
and "Description of Notes."
The Company will accept for exchange any and all validly tendered Old
Notes on or prior to 5:00 p.m. New York City time, on ______________, 1995 (if
and as extended, the "Expiration Date"). Tenders of Old Notes may be withdrawn
at any time prior to 5:00 p.m., New York City time, on the Expiration Date. The
Exchange Offer is not conditioned upon any minimum principal amount of Old Notes
being tendered for exchange. Old Notes may be tendered only in integral
multiples of $1,000.
SEE "RISK FACTORS" ON PAGE 18 FOR A DISCUSSION OF CERTAIN FACTORS WHICH
INVESTORS SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE OFFER AND AN
INVESTMENT IN THE NEW NOTES.
(continued on following page)
<PAGE> 5
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
----------
The date of this Offer to Exchange -- Prospectus is ______________, 1995.
2
<PAGE> 6
The Old Notes were sold by the Company on June 20, 1995 to Chase
Securities, Inc. and Bear, Stearns & Co. Inc. (the "Initial Purchasers") in a
transaction exempt from registration under the Securities Act. The Initial
Purchasers subsequently placed the Old Notes with qualified institutional buyers
in reliance upon Rule 144A under the Securities Act or with institutional
accredited buyers within the meaning of subparagraph (a)(1), (2), (3) or (7) of
Rule 501 under the Securities Act. Accordingly, the Old Notes may not be
reoffered, resold or otherwise transferred in the United States unless so
registered or unless an applicable exemption from the registration requirements
of the Securities Act is available. The New Notes are being offered hereunder in
order to satisfy the obligations of the Company under the Registration Rights
Agreement. See "The Exchange Offer--Purpose and Effect of the Exchange Offer."
Based on certain interpretive letters issued by the Staff of the
Division of Corporation Finance of the Securities and Exchange Commission (the
"Commission") to third parties, the Company believes that the New Notes issued
pursuant to the Exchange Offer may be offered for resale, resold and otherwise
transferred by any holder thereof (other than (i) a broker-dealer who acquired
Old Notes directly from the Company for resale pursuant to Rule 144A or any
other available exemption under the Securities Act or (ii) a person who is an
"affiliate" of the Company within the meaning of Rule 405 under the Securities
Act) without further compliance with the registration and prospectus delivery
provisions of the Securities Act, provided that such New Notes are acquired in
the ordinary course of such holder's business and such holder has no arrangement
or understanding with any person to participate in the distribution of such New
Notes. Holders of Old Notes wishing to accept the Exchange Offer must represent
to the Company that such conditions have been met.
Each broker-dealer that receives New Notes for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. The Letter of Transmittal states
that by so acknowledging and by delivering a prospectus, a broker-dealer will
not be deemed to admit that it is an "underwriter" within the meaning of the
Securities Act. This Prospectus, as it may be amended or supplemented from time
to time, may be used by a broker-dealer in connection with resales of New Notes
received in exchange for Old Notes where such Old Notes were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that it will make this Prospectus available
to any broker-dealer for use in connection with any such resale. See "Plan of
Distribution."
As of the Record Date (as hereinafter defined), there were two
registered holders of the Old Notes and Cede & Co., as nominee for The
Depository Trust Company, New York, New York ("DTC"). DTC held Old Notes for
certain of its participants. The Company believes that no such holder is an
affiliate (as such term is defined in Rule 405 under the Securities Act) of the
Company. There previously has been only a limited secondary market and no public
market for the Old Notes. The Old Notes are eligible for trading in the Private
Offering, Resales and Trading through Automatic Linkages ("PORTAL") market. The
Company does not intend to list the New Notes on any securities exchange or to
seek approval for quotation through any automated quotation system. Therefore,
there can be no assurance that an active market for the
3
<PAGE> 7
New Notes will develop. If such a trading market develops for the New Notes,
future trading prices will depend on many factors, including, among other
things, prevailing interest rates, the Company's results of operations and the
market for similar securities. Depending on such factors, the New Notes may
trade at a discount from their face value. See "Risk Factors--Lack of Public
Market for New Notes."
The Company will not receive any proceeds from this offering, but,
pursuant to the Registration Rights Agreement, the Company will bear certain
offering expenses. No underwriter is being utilized in connection with the
Exchange Offer.
THE EXCHANGE OFFER IS NOT BEING MADE TO, NOR WILL THE COMPANY ACCEPT
SURRENDERS FOR EXCHANGE FROM, HOLDERS OF OLD NOTES IN ANY JURISDICTION IN WHICH
THE EXCHANGE OFFER OR THE ACCEPTANCE THEREOF WOULD NOT BE IN COMPLIANCE WITH THE
SECURITIES OR BLUE SKY LAWS OF SUCH JURISDICTION.
Holders of Old Notes whose Old Notes are not tendered and accepted in
the Exchange Offer will continue to hold such Old Notes and will be entitled to
all the rights and preferences and will be subject to the limitations applicable
thereto under the Indenture, and with respect to transfer, under the Securities
Act. To the extent that Old Notes are tendered and accepted in the Exchange
Offer, the trading market for untendered and tendered but unaccepted Old Notes
could be adversely affected.
The New Notes will be available initially only in book-entry form. The
Company expects that the New Notes issued pursuant to this Exchange Offer will
be issued in the form of one or more fully registered global notes, which will
be deposited with, or on behalf of, DTC and registered in the its name or in the
name of Cede & Co., its nominee. Beneficial interests in the global notes
representing the New Notes will be shown on, and transfers thereof will be
effected only through, records maintained by DTC and its participants. After the
initial issuance of each global note, New Notes in certificated form will be
issued in exchange for the global note only as set forth in the Indenture. See
"Description of Notes--Book-Entry, Delivery and Form."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements and other information with
the Commission. Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission at Judiciary Plaza, 450 Fifth Street N.W., Washington D.C. 20549;
Seven World Trade Center, 13th Floor, New York, New York 10007; and 500 West
Madison Street, Chicago, Illinois 60661. Copies of such material can be obtained
at prescribed rates from the Public Reference Section of the Commission, 450
Fifth Street N.W., Washington, D.C. 20549.
4
<PAGE> 8
The Company has filed with the Commission a Registration Statement on
Form S-4 (herein, together with all amendments thereto, referred to as the
"Registration Statement") under the Securities Act. This Prospectus does not
contain all of the information set forth in the Registration Statement, certain
parts of which are omitted in accordance with the rules and regulations of the
Commission. For further information, reference is hereby made to the
Registration Statement.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission and are incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1994, (ii) the Company's
Quarterly Reports on Form 10-Q for the fiscal quarters ended August 31, 1994,
November 30, 1994 and February 28, 1995, (iii) the Company's Current Report on
Form 8-K dated June 28, 1994 (as amended by the Company's Current Report on Form
8-K/A dated September 9, 1994), and (iv) the Company's Current Report on Form
8-K dated July 24, 1995.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the Exchange Offer shall be deemed to be incorporated in this
Prospectus by reference and to be a part hereof from the date of filing of such
documents. Any statement contained herein or in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
Statements contained herein as to the contents of any contract or other
document referred to herein do not purport to be complete, and where reference
is made to the particular provisions of such contract or other document, such
provisions are qualified in all respects by reference to all of the provisions
of such contract or other document.
The Company will provide without charge to each person to whom a copy
of this Prospectus has been delivered, on the written or oral request of such
person, a copy of any or all of the documents which have been or may be
incorporated in this Prospectus by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference in any
such documents) and a copy of any or all other contracts or documents which are
referred to herein. Requests for such copies should be directed to RPM, Inc.,
P.O. Box 777, 2628 Pearl Road, Medina, Ohio 44258, Attn: Paul A. Granzier, Vice
President, General Counsel and Secretary, telephone (216) 273-5090.
5
<PAGE> 9
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by the more detailed
information and financial statements, including the notes thereto, appearing
elsewhere in this Prospectus. Unless the context otherwise requires, the terms
"Company" and "RPM" as used in this Prospectus refer to RPM, Inc. and its
subsidiaries. Investors should carefully consider the information set forth
under the heading "Risk Factors."
THE COMPANY
General. RPM operates principally in one business segment, the
manufacture and marketing of protective coatings. These protective coatings
products are used for both industrial and consumer applications. For industrial
applications, RPM manufactures and markets coatings for waterproofing and
general maintenance, corrosion control and other specialty chemical
applications. For consumer applications, RPM manufactures do-it-yourself
products for the home maintenance, automotive repair, and consumer hobby and
leisure markets. RPM's consumer brands, such as Testors, Rust-Oleum, Bondo,
Wolman, Bondex and Zinsser are long-established household names.
RPM, through its operating companies, serves niche markets within these
broader categories, thus providing a foundation for its strategy of growth
through product line extensions. RPM markets its products in approximately 110
countries and operates manufacturing facilities in 45 locations in the United
States, Belgium, Canada, Luxembourg and The Netherlands.
The Company's executive offices are located at 2628 Pearl Road, P.O.
Box 777, Medina, Ohio 44258 and its telephone number is (216) 273-5090.
Acquisition of Narragansett/DSI Acquisition Co., Inc. On July 24, 1995,
the Company entered into a Plan and Agreement of Merger (the "Merger Agreement")
with Narragansett/DSI Acquisition Co., Inc., a Delaware corporation ("NDSI"),
and NDSI's securityholders. Pursuant to the Merger Agreement the Company agreed
to acquire NDSI through the merger (the "Merger") of the Company's wholly owned
subsidiary, RPM of Delaware, Inc., a Delaware corporation, with and into NDSI,
whereby NDSI would become a wholly owned subsidiary of the Company. The
completion of the Merger is subject to customary conditions, including
applicable governmental approvals, and the concurrent Commission registration
for resale of the 3,200,000 Common Shares to be issued at the closing of the
Merger.
NDSI is a non-operating holding company with one direct wholly owned
operating subsidiary, Dryvit Systems, Inc., a Rhode Island corporation
("Dryvit"). Dryvit manufactures, distributes and markets insulated, exterior
wall materials which are used in both new and retrofit construction.
6
<PAGE> 10
TERMS OF THE EXCHANGE OFFER
7.0% Senior Notes Due 2005 ............ The Old Notes were sold by the
Company on June 20, 1995 (the
"Issue Date" or "Closing Date"),
pursuant to a Purchase Agreement,
dated as of June 15, 1995 (the
"Purchase Agreement"), by and
among the Company, and Chase
Securities, Inc. and Bear,
Stearns & Co. Inc., the initial
purchasers of the Old Notes (the
"Initial Purchasers").
Registration Rights ................... Pursuant to the Purchase
Agreement, the Company and the
Initial Purchasers entered into a
Registration Rights Agreement,
dated as of June 20, 1995 (the
"Registration Rights Agreement"),
which grants the holders of the
Old Notes certain exchange and
registration rights. This
Exchange Offer is intended to
satisfy such exchange rights
which terminate upon consummation
of the Exchange Offer.
The Exchange Offer .................... The Company is offering to
exchange $1,000 principal amount
of its New Notes for each $1,000
principal amount of its
outstanding Old Notes that are
properly tendered and accepted.
As of the date of this Prospectus
$150,000,000 in aggregate
principal amount of the Old Notes
are outstanding. As of the Record
Date, there were two registered
holders of Old Notes.
Based on the position of the
Staff of the Division of
Corporation Finance of the
Commission set forth in certain
interpretive letters addressed to
third parties, the Company
believes that New Notes issued
pursuant to the Exchange Offer in
exchange for Old Notes may be
offered for resale, resold and
otherwise transferred by any
holder thereof (other than (i) a
broker-dealer who acquired Old
Notes directly from the Company
for resale pursuant to Rule 144A
or any other available exemption
under the Securities Act or (ii)
any person who is an
7
<PAGE> 11
"affiliate" of the Company within
the meaning of Rule 405 under the
Securities Act) without further
compliance with the registration
and prospectus delivery
provisions of the Securities Act,
provided that such New Notes are
acquired in the ordinary course
of such holder's business and
that such holder does not intend
to participate and has no
arrangement or understanding with
any person to participate in the
distribution of such New Notes.
Each broker-dealer that receives
New Notes for its own account
pursuant to the Exchange Offer
must acknowledge that it will
deliver a prospectus in
connection with any resale of
such New Notes. The Letter of
Transmittal that accompanies this
Prospectus (the "Letter of
Transmittal") states that by so
acknowledging and by delivering a
prospectus, a broker-dealer will
not be deemed to admit that it is
an "underwriter" within the
meaning of the Securities Act.
This Prospectus, as it may be
amended or supplemented from time
to time, may be used by a
broker-dealer in connection with
resales of New Notes received in
exchange for Old Notes where such
Old Notes were acquired by such
broker-dealer as a result of
market-making activities or other
trading activities. The Company
has agreed that it will make this
Prospectus available to any
broker-dealer for use in
connection with any such resale.
See "Plan of Distribution."
Any holder of Old Notes who
tenders in the Exchange Offer
with the intention to
participate, or for the purpose
of participating, in a
distribution of the New Notes
could not rely on the position of
the Staff of the Division of
Corporation Finance of the
Commission enunciated in
interpretive letters addressed to
third parties and, in the absence
of an exemption therefrom, must
comply with the registration and
prospectus
8
<PAGE> 12
delivery requirements of the
Securities Act in connection with
any resale transaction. Failure
to comply with such requirements
in such instance may result in
such holder incurring liability
under the Securities Act for
which the holder is not
indemnified by the Company.
Expiration Date ....................... 5:00 p.m., New York City time, on
_____ 1995. See "The Exchange
Offer--Terms of the Exchange
Offer, Expiration Date;
Termination."
Accrued Interest on the
New Notes and Old Notes ............... The New Notes will bear interest
from their respective issuance
dates at the same rate and upon
the same terms as the Old Notes.
Holders whose Old Notes are
accepted for exchange will
receive accrued and unpaid
interest thereon to, but not
including, the issuance date of
the New Notes and will be deemed
to have waived the right to
receive any payment in respect of
interest on the Old Notes accrued
from and after the date of
issuance of the New Notes.
Accrued but unpaid interest on
the Old Notes will be payable
with the first interest payment
on the New Notes.
Procedures for Tendering
Old Notes ............................. Each holder of Old Notes desiring
to accept the Exchange Offer must
complete and sign the Letter of
Transmittal or a facsimile
thereof, in accordance with the
instructions contained herein and
therein, and mail or deliver the
Letter of Transmittal, together
with the Old Note and any other
required documents to the
Exchange Agent (as hereinafter
defined) at the address set forth
herein and in the Letter of
Transmittal on or prior to the
Expiration Date. By executing the
Letter of Transmittal, each
holder will represent to the
Company that, among other things,
the New Notes acquired pursuant
to the Exchange Offer are being
obtained in the
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<PAGE> 13
ordinary course of business of
the person receiving such New
Notes, whether or not such person
is the holder, that neither the
holder nor any such other person
has any arrangement or
understanding with any person to
participate in the distribution
of such New Notes and that
neither the holder nor any such
other person is an "affiliate,"
as defined under Rule 405 of the
Securities Act.
Untendered Old Notes .................. Following the consummation of the
Exchange Offer, holders of Old
Notes eligible to participate but
who do not tender their Old Notes
will not have any further
registration rights and such Old
Notes will continue to be subject
to certain restrictions on
transfer. Accordingly, the
liquidity of the market for such
Old Notes could be adversely
affected.
Shelf Registration Statement .......... (i) If, because of any change in
law or applicable interpretations
thereof by the Division of
Corporation Finance of the
Staff of the Commission, the
Company is not permitted to
effect the Exchange Offer,
(ii) if the Exchange Offer
Registration Statement (as
hereinafter defined) is not
declared effective by October 19,
1995, or (iii) upon the request
of either Initial Purchaser
following the consummation of the
Exchange Offer (with respect to
any Old Notes which were acquired
directly from the Company), to
the extent such Initial Purchaser
is not eligible under applicable
securities laws to participate in
the Exchange Offer and in each
such case such holder has
satisfied certain conditions
relating to the provision of
information to the Company for
use therein, the Company has
agreed to register resales of the
Old Notes on a shelf registration
statement (the "Shelf
Registration Statement") and use
its best efforts to cause it to
be declared effective by the
Commission as promptly as
practicable. The Company has
agreed to maintain the
effectiveness of
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<PAGE> 14
the Shelf Registration Statement
for a period of three (3) years
to cover resales of the Old Notes
held by any such holders.
Special Procedures for
Beneficial Owners ..................... Any beneficial owner whose Old
Notes are registered in the name
of a broker, dealer, commercial
bank, trust company or other
nominee and who wishes to tender
should contact such registered
holder promptly and instruct such
registered holder to tender on
such beneficial owner's behalf.
If such beneficial owner wishes
to tender on such owner's own
behalf, such owner must, prior to
completing and executing the
Letter of Transmittal and
delivering its Old Notes, either
make appropriate arrangements to
register ownership of the Old
Notes in such owner's name or
obtain a properly completed bond
power from the registered holder.
The transfer of registered
ownership may take considerable
time.
Guaranteed Delivery Procedures ........ Holders of Old Notes who wish to
tender their Old Notes and (i)
whose Old Notes are not
immediately available or (ii) who
cannot deliver their Old Notes,
the Letter of Transmittal and any
other documents required by the
Letter of Transmittal to the
Exchange Agent (or comply with
the procedures for book-entry
transfers) prior to the
Expiration Date, must tender
their Old Notes according to the
guaranteed delivery procedures
set forth in "The Exchange
Offer--Guaranteed Delivery
Procedures."
Withdrawal of Tenders ................. Tenders of Old Notes may be
withdrawn at any time prior to
5:00 p.m., New York City time, on
the Expiration Date.
Acceptance of Old Notes and
Delivery of New Notes ................. Subject to the satisfaction or
waiver of all conditions of the
Exchange Offer, the Company will
accept for exchange any and all
Old Notes that are properly
tendered in
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<PAGE> 15
the Exchange Offer prior to 5:00
p.m., New York City time, on the
Expiration Date. The New Notes
issued pursuant to the Exchange
Offer will be delivered in
exchange for the applicable Old
Notes accepted in the Exchange
Offer promptly following the
Expiration Date. See "The
Exchange Offer--Acceptance of Old
Notes for Exchange; Delivery of
New Notes."
Certain Federal Income Tax
Consequences .......................... For a discussion of certain
federal income tax consequences
of the exchange of the Old Notes,
see "Certain Federal Income Tax
Consequences."
Exchange Agent ........................ The First National Bank of
Chicago is the exchange agent
(the "Exchange Agent"). The
address and telephone number of
the Exchange Agent are set forth
in "The Exchange Offer--Exchange
Agent."
DESCRIPTION OF THE NEW NOTES
The Exchange Offer applies to $150,000,000 aggregate principal amount
of the Old Notes. The form and terms of the New Notes are the same as the form
and terms of the Old Notes except that (i) the offer and exchange of the New
Notes will have been registered under the Securities Act and, therefore, the New
Notes will not bear legends restricting the transfer thereof and (ii) holders of
the New Notes will not be entitled to certain rights of holders of Old Notes
under the Registration Rights Agreement which will terminate upon consummation
of the Exchange Offer. New Notes will evidence the same indebtedness as the Old
Notes (which they replace) and will be issued under, and be entitled to the
benefits of, the Indenture governing the Old Notes. See "Description of Notes."
Securities Offered .................... $150,000,000 aggregate principal
amount of 7.0% Senior Exchange
Notes due 2005.
Maturity .............................. June 15, 2005
Payment of Interest ................... June 15 and December 15,
commencing December 15, 1995.
Denominations.......................... The New Notes will be issued in
minimum denominations of $1,000
and integral multiples of
$1,000 in excess thereof.
Redemption ............................ The Notes are not redeemable
prior to maturity.
12
<PAGE> 16
Ranking ............................... The Notes will be general
unsecured obligations of the
Company. The Notes will rank on a
parity in right of payment with
all existing and future
unsubordinated unsecured
indebtedness of the Company for
borrowed money (approximately
$414 million at June 20, 1995).
Covenants ............................. The Indenture contains certain
covenants that, among other
things, limit the ability of the
Company and its subsidiaries to
create certain liens upon its
Principal Properties (as
hereinafter defined) or upon any
Equity Interests (as hereinafter
defined) of any subsidiary or
engage in certain sale and
leaseback transactions. See
"Description of Notes."
RISK FACTORS
Investors in the Notes should carefully consider the specific factors
set forth under "Risk Factors" as well as the other information and data
included elsewhere in this Prospectus.
SUMMARY FINANCIAL DATA (1) (4)
The summary historical consolidated financial data for the five years
in the period ended May 31, 1994 set forth below are principally derived from
and should be read in conjunction with, the related audited consolidated
financial statements and accompanying notes included in the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1994. The selected
historical consolidated financial data for the nine months ended February 28,
1995 are derived from the Company's unaudited financial statements, which in the
opinion of management include all adjustments, consisting of only normal,
recurring adjustments, necessary for a fair presentation of the financial
position and results of operations.
13
<PAGE> 17
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEAR ENDED MAY 31, FEBRUARY 28,
------------------------------------------------------------------- -----------------------
1994 1994 1995 1995
1990 1991 1992 1993 ACTUAL PRO FORMA(2) UNAUDITED PRO FORMA(2)
-------- -------- -------- -------- -------- ------------ --------- ------------
(IN THOUSANDS EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales .................... $571,673 $619,613 $680,091 $768,372 $815,598 $955,845 $736,509 $753,598
Net income ................... 31,853 37,435 38,481 39,498 52,640 50,661 40,966 42,204
Primary earnings per
share ...................... 0.65 0.72 0.73 0.74 0.93 0.89 0.72 0.74
Fully diluted earnings
per share .................. 0.63 0.71 0.72 0.72 0.89 0.86 0.69 0.70
Other Data:
Cash dividends per
share ..................... 0.355 0.399 0.442 0.473 0.510 0.510 0.410 0.410
Ratio of earnings to
fixed charges (3) ........ 4.78 4.54 4.12 4.08 6.21 4.20 4.59 4.54
Balance Sheet Data:
Working capital ............ $152,576 $142,581 $205,419 $191,872 $226,994 $257,854 $257,244 $257,244
Total assets ............... 433,361 457,779 623,346 648,524 660,838 913,780 951,712 951,712
Short-term debt ............ 6,673 21,441 7,763 21,262 1,196 1,196 608 608
Long-term debt ............. 176,601 130,800 273,871 258,712 233,039 429,539 412,939 412,939
Shareholders' equity 171,235 215,471 233,360 243,899 314,476 314,476 333,486 333,486
</TABLE>
- -------------------
(1) All information presented includes the fiscal 1994 acquisitions of
Dynatron/Bondo Corporation and Stonhard, Inc. accounted for on a
pooling-of-interests basis.
(2) On June 28, 1994, the Company acquired Rust-Oleum Corporation
("Rust-Oleum"). The pro forma data reflect the combined results of
operations of the Company and Rust Oleum for the fiscal year ended May
31, 1994 and the nine months ended February 28, 1995, respectively. The
1994 pro forma balance sheet data are shown as if the acquisition of
Rust-Oleum had occurred on May 31, 1994 and the pro forma income
statement data are shown as if the acquisition had occurred on June 1,
1993. The pro forma amounts give effect to appropriate adjustments
resulting from the combination, but are not necessarily indicative of
future results of operations or of what results would have been for the
combined companies.
(3) For purposes of the ratio of earnings to fixed charges, earnings
consist of income from operations before income taxes and fixed
charges. Fixed charges include interest and debt expense and one-third
of rents which is deemed representative of an interest factor.
(4) As described under the caption "Acquisition of Narragansett/DSI
Acquisition Co., Inc. and its Wholly Owned Subsidiary, Dryvit Systems,
Inc.," on July 24, 1995 the Company entered into the Merger Agreement
with NDSI and its securityholders pursuant to which the Company will
acquire NDSI. The pro forma data set forth in this footnote reflect
the combined results of operations of the Company and NDSI for the
fiscal year ended May 31, 1994 and for the nine months ended
February 28, 1995. The pro forma amounts give effect to appropriate
adjustments resulting from the combination, but are not
necessarily indicative of future results of operations or of what
results would have been for the combined companies.
<TABLE>
<CAPTION>
Fiscal Year Ended Nine Months Ended
May 31, 1994 February 28, 1995
----------------- -----------------
(In thousands, except per share data)
<S> <C> <C>
Net sales $877,739 $785,643
Net income 52,360 41,235
Primary earnings per share $0.87 $0.68
Fully diluted earnings per share $0.84 $0.66
</TABLE>
14
<PAGE> 18
ACQUISITION OF NARRAGANSETT/DSI ACQUISITION CO., INC.
AND ITS WHOLLY OWNED SUBSIDIARY DRYVIT SYSTEMS, INC.
On July 24, 1995, the Company entered into the Merger Agreement with
NDSI and NDSI's securityholders pursuant to which the Company agreed to acquire
all of the issued and outstanding securities of NDSI and its wholly owned
operating subsidiary, Dryvit, for $47 million in cash, of which approximately
$14.5 million will be used to repay indebtedness of NDSI, and the issuance of
3,200,000 Common Shares. The closing of the Merger is subject to customary
conditions, including applicable governmental approvals, and the concurrent
Commission registration for resale of the 3,200,000 Common Shares to be issued
at the closing of the Merger.
NDSI is a non-operating holding company with one wholly owned
subsidiary, Dryvit. Dryvit manufactures, distributes and markets insulated,
exterior wall materials which are used in both new and retrofit construction.
For further information regarding NDSI and Dryvit, see the Company's Current
Report on Form 8-K dated July 24, 1995 which is incorporated herein by
reference.
THE COMPANY
RPM was organized in 1947 as an Ohio corporation under the name
Republic Powdered Metals, Inc. On November 9, 1971, the Company's name was
changed to RPM, Inc. As used herein, the terms "RPM" and the "Company" refer to
RPM, Inc. and its subsidiaries, unless the context indicates otherwise. The
Company has its principal executive offices at 2628 Pearl Road, P.O. Box 777,
Medina, Ohio 44258, and its telephone number is (216) 273-5090.
BUSINESS
RPM operates principally in one business segment, the manufacture and
marketing of protective coatings. These protective coatings products are used
for both industrial and consumer applications. For industrial applications, RPM
manufactures and markets coatings for waterproofing and general maintenance,
corrosion control and other specialty chemical applications. For consumer
applications, RPM manufactures do-it-yourself products for the home maintenance,
automotive repair, and consumer hobby and leisure markets. RPM's consumer
brands, such as Testors, Rust-Oleum, Bondo, Wolman, Bondex and Zinsser are long-
established household names.
RPM, through its operating companies, serves niche markets within these
broader categories, thus providing a foundation for its strategy of growth
through product line extensions. RPM markets its products in approximately 110
countries and operates manufacturing facilities in 45 locations in the United
States, Belgium, Canada, Luxembourg and The Netherlands.
15
<PAGE> 19
INDUSTRIAL MARKETS AND PRODUCTS
WATERPROOFING AND GENERAL MAINTENANCE. Waterproofing and general
maintenance constitute RPM's original marketplace, having been served by
Republic Powdered Metals, Inc. since the Company's founding. Operating companies
and products include: REPUBLIC POWDERED METALS - heavy-duty protective coatings
and single-ply roofing systems; RUST-OLEUM NETHERLANDS B.V. - coatings for
industrial routine maintenance; MAMECO INTERNATIONAL - sealants, deck coatings
and membranes; MARTIN MATHYS - water-based coatings for commercial and
industrial maintenance; and STONHARD - high-performance polymer floors, linings
and wall systems.
CORROSION CONTROL. RPM's CARBOLINE manufactures high-performance
corrosion-resistant protective coatings, fireproofing, tank linings and floor
coatings, and markets these products to industrial, architectural and applicator
companies throughout the world. WISCONSIN PROTECTIVE COATINGS manufactures a
complete line of liquid-applied, corrosion-resistant coatings used for extremely
harsh environments, such as rail cars, tank linings and smoke stacks.
SPECIALTY CHEMICALS. RPM's specialty chemicals businesses address
selected niche markets within this broad industry category. Specialty chemical
companies and products include: DAY-GLO COLOR - fluorescent colorants and
pigments; MOHAWK FINISHING PRODUCTS - furniture repair, cleaning and polishing
products; ALOX - chemical additives used as rust preventatives, corrosion
inhibitors, special lubricants and metal working compounds; CHEMICAL SPECIALTIES
- - chemicals used for cleaning carpet, upholstery and fabric wall covering, and
chemicals used in smoke and fire restoration clean-up; and AMERICAN EMULSIONS -
dye additives for textile dyeing and finishing, and water treatment products for
the paper industry.
CONSUMER MARKETS AND PRODUCTS
CONSUMER HOBBY AND LEISURE. The hobby and leisure marketplace is served
by TESTOR, America's largest producer and marketer of model paints and accessory
items to the hobby and model market, CRAFT HOUSE, producer of paint-by-numbers
sets, basic preschool activity sets, crafts and hobby products, and FLOQUIL/POLY
S COLOR, manufacturer of hobby, art and craft coatings. RPM's consumer hobby and
leisure products are marketed through thousands of mass merchandise, toy and
hobby stores throughout North America.
CONSUMER DO-IT-YOURSELF. RPM's six primary consumer do-it-yourself
businesses are RUST-OLEUM, WM. ZINSSER, KOP-COAT, BONDEX INTERNATIONAL,
DYNATRON/BONDO and TALSOL. RUST-OLEUM manufactures high-quality corrosion-
resistant coatings for the household maintenance and light industrial markets.
WM. ZINSSER is the nation's leading producer of shellac items used as
pharmaceutical glazes, confectioner's glazes, citrus fruit coatings and wood
coatings, including a broad line of specialty primers and
16
<PAGE> 20
sealers. KOP-COAT manufactures pleasure marine coatings and compounds and
manufactures wood treatment products. BONDEX INTERNATIONAL produces a nationwide
line of household patch and repair products, in addition to basement
waterproofing products. DYNATRON/BONDO manufactures auto and marine body filler
and related products. TALSOL manufactures automotive paints and coatings. Other
consumer do-it-yourself products include fabrics, window treatments and wall
coverings sold by DESIGN/CRAFT FABRIC and RICHARD E. THIBAUT. RPM's consumer
do-it-yourself products are marketed through thousands of mass merchandise, home
center and hardware stores throughout North America.
PATENTS, TRADEMARKS AND LICENSES
No single patent, trademark (other than the registered trademarks
Day-Glo(R), Rust- Oleum(R) and Carboline(R), which are material), name or
license, or group of these rights, is material to the Company's business.
Day-Glo Color Corp., a subsidiary of the Company, is the owner of over
50 trademark registrations of the mark and name "DAY-GLO" in numerous countries
and the United States for a variety of fluorescent products. There are also many
other foreign and domestic registrations for other trademarks of the Day-Glo
Color Corp., for a total of over 100 registrations. These registrations are
valid for a variety of terms ranging from one year to twenty years, which terms
are renewable as long as the marks continue to be used. Many of these
registrations are renewed on a regular basis.
Rust-Oleum Corporation, a subsidiary of the Company, is the owner of
over 50 United States trademark registrations for the mark and name "RUST-OLEUM"
and other trademarks covering a variety of rust-preventative coatings sold by
Rust-Oleum Corporation. There are also many foreign registrations for
"RUST-OLEUM" and the other trademarks of Rust-Oleum Corporation, for a total of
nearly 400 registrations. These registrations are valid for a variety of terms
ranging from one year to twenty years, which terms are renewable for as long as
the marks continue to be used. Many of these registrations are renewed on a
regular basis.
ACQUISITION STRATEGY
Since RPM's offering of Common Shares to the public in September 1969,
the Company has made a number of significant acquisitions that have been
described in previous reports on file with the Commission. For a description of
RPM's currently pending acquisition of NDSI see "Acquisition of
Narragansett/DSI Acquisition Co., Inc. and its Wholly Owned Subsidiary Dryvit
Systems, Inc." RPM's acquisition strategy focuses on companies with high
performance and quality products which are leaders in their respective
markets. RPM expects to continue its acquisition program, although there is no
assurance that any additional acquisitions will be made.
17
<PAGE> 21
RISK FACTORS
Investors in the Notes should carefully consider the following risk
factors in addition to the other information contained in this Prospectus.
CONSEQUENCES OF FAILURE TO EXCHANGE
The untendered Old Notes of holders who do not exchange such Old Notes
pursuant to the Exchange Offer will remain restricted securities. Such Old Notes
will continue to be subject to the restrictions on transfer, as set forth in the
Confidential Offering Memorandum, dated June 15, 1995, pursuant to which the Old
Notes were originally purchased; if in the future a holder of Old Notes decides
to resell, pledge or otherwise transfer the Old Notes, such Old Notes may be
resold, pledged or transferred only (i) to the Company (upon redemption or
otherwise), (ii) so long as such security is eligible for resale pursuant to
Rule 144A, to a person whom the seller reasonably believes is a qualified
institutional buyer that purchases for its own account or for the account of a
qualified institutional buyer to whom notice is given that the resale, pledge or
transfer is being made in reliance on Rule 144A, (iii) in an offshore
transaction in accordance with Regulation S, but only in the case of a transfer
that is effected by the delivery of the transferee of securities registered in
its name (or its nominee's name) in the books maintained by the registrar for
the Notes, (iv) pursuant to an exemption from registration under the Securities
Act provided by Rule 144 (if available) or Rule 145 under the Securities Act,
(v) in reliance on another exemption from the registration requirements of the
Securities Act but only in the case of a transfer that is effected by the
delivery to the transferee of securities registered in its name (or its
nominee's name) in the books maintained by the registrar for the Old Notes and
subject to the receipt by the registrar or co-registrar of a certification of
the transferor and an opinion satisfactory to counsel to the Company to the
effect that such transfer is in compliance with the Securities Act or (vi)
pursuant to an effective registration statement under the Securities Act, in
each case in accordance with any applicable securities laws of any state of the
United States.
The Old Notes provide that, if the Exchange Offer is not consummated by
November 17, 1995, the interest rate borne by the Old Notes will increase by
.50% per annum following November 17, 1995 until the Exchange Offer is
consummated. See "Description of Old Notes". Following consummation of the
Exchange Offer, the Old Notes will not be entitled to any increase in the
interest rate thereon. The New Notes will not be entitled to any such increase
in the interest rate theron.
ABSENCE OF PUBLIC MARKET
The Old Notes are currently owned by a relatively small number of
beneficial owners. The Company believes that none of such holders is an
affiliate (as defined in Rule 405 under the Securities Act) of the Company.
Prior to the Exchange Offer, there has not been any public market for the Notes,
although the Old Notes are eligible for trading in the PORTAL Market. Certain
holders of Old Notes who are not eligible to participate in the Exchange Offer
are entitled to certain registration rights and the Company is required to file
the Shelf Registration Statement with respect to resales of any such Notes. The
Old Notes have not been registered under the Securities Act and will be subject
to restrictions on transferability to the extent that they are not exchanged for
New Notes by holders who are entitled to participate in this Exchange Offer. See
"--Consequences of Failure to Exchange." The Company does not intend to list the
New Notes on any national securities exchange or to seek the admission thereof
to trading in the National Association of Securities Dealers Automated Quotation
System. Accordingly, no assurance can be given that an active public or other
market will develop for
18
<PAGE> 22
the Notes or as to liquidity of or the trading market for the Notes. If a
trading market does not develop or is not maintained, holders of the Notes may
experience difficulty in reselling the Notes or may be unable to sell them at
all. If a market for the Notes develops, any such market may be discontinued at
any time. If a public trading market develops for the Notes, future trading
prices of the Notes will depend on many factors, including, among other things,
prevailing interest rates, the Company's results of operations and the market
for similar securities. Depending on prevailing interest rates, the market for
similar securities and other factors, including the financial condition of the
Company, the Notes may trade at a discount from their principal amount.
EXCHANGE OFFER PROCEDURES
Issuance of the New Notes in exchange for the Old Notes pursuant to the
Exchange Offer will be made only after a timely receipt by the Company of such
Old Notes, a properly completed and duly executed Letter of Transmittal and all
other required documents. Therefore, holders of the Old Notes desiring to tender
such Old Notes in exchange for New Notes should allow sufficient time to ensure
timely delivery. The Company is under no duty to give notification of defects or
irregularities with respect to the tenders of Old Notes for exchange. Old Notes
that are not tendered or are tendered but not accepted will, following the
consummation of the Exchange Offer, continue to be subject to the existing
restrictions upon transfer thereof and, upon consummation of the Exchange Offer
certain registration rights under the Registration Rights Agreement will
terminate. In addition, any holder of Old Notes who tenders in the Exchange
Offer for the purpose of participating in a distribution of the New Notes may be
deemed to have received restricted securities and, if so, will be required to
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale transaction. Each broker-dealer
that receives New Notes for its own account in exchange for Old Notes, where
such Old Notes were acquired by such broker-dealer as a result of market-making
activities or other trading activities, must acknowledge that it will deliver a
prospectus in connection with any resale of such New Notes. See "Plan of
Distribution." To the extent that Old Notes are tendered and accepted in the
Exchange Offer, the trading market for untendered and tendered but unaccepted
Old Notes could be adversely affected. See "The Exchange Offer."
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
The Old Notes were sold by the Company on June 20, 1995 to the Initial
Purchasers pursuant to the Purchase Agreement. The Initial Purchasers
subsequently placed the Old Notes with "qualified institutional buyers" in
reliance on Rule 144A under the Securities Act or to institutional "accredited"
buyers within the meaning of subparagraph (a)(1), (2), (3) or (7) of Rule 501
under the Securities Act. Pursuant to the Registration Rights Agreement executed
in connection with the Company's sale of the Old Notes to the Initial
Purchasers, the Company agreed (i) to file with the Commission a registration
statement under the Securities Act with
19
<PAGE> 23
respect to the Exchange Offer within 45 days of the Closing Date, (ii) use its
best efforts to cause such Exchange Offer Registration Statement (the "Exchange
Offer Registration Statement") to become effective under the Securities Act on
or prior to 120 days after the Closing Date (the "Exchange Offer Effectiveness
Target Date"), and (iii) unless the Exchange Offer would not be permitted by law
or a policy of the Commission, to commence the Exchange Offer promptly following
the effectiveness of the Exchange Offer Registration Statement and use its best
efforts to issue within 150 days of the Closing Date New Notes in exchange for
all Old Notes tendered prior thereto in the Exchange Offer. This Prospectus is
intended to satisfy such Company obligations under the Registration Rights
Agreement. A copy of the Registration Rights Agreement has been filed as an
exhibit to the Registration Statement of which this Prospectus is a part. The
term "Holder" with respect to the Exchange Offer means any person in whose name
Old Notes are registered on the books of the Company or any other person who has
obtained a properly completed bond power from the registered holder.
Based on the position of the Staff of the Division of Corporation
Finance of the Commission set forth in certain interpretive letters addressed to
third parties, the Company believes that New Notes issued pursuant to the
Exchange Offer in exchange for Old Notes may be offered for resale, resold and
otherwise transferred by any holder of such New Notes (other than (i) a
broker-dealer who acquired Old Notes directly from the Company for resale
pursuant to Rule 144A or any other available exemption under the Securities Act
or (ii) any person who is an "affiliate" of the Company within the meaning of
Rule 405 under the Securities Act) without further compliance with the
registration and prospectus delivery provisions of the Securities Act, provided
that such New Notes are acquired in the ordinary course of such holder's
business and such holder does not intend to participate and has no arrangement
or understanding with any person to participate in the distribution of such New
Notes. Any Holder who tenders in the Exchange Offer with the intention to
participate, or for the purpose of participating, in a distribution of the New
Notes could not rely on the position of the Staff of the Division of Corporation
Finance of the Commission enumerated in interpretive letters addressed to third
parties and, in the absence of an exemption therefrom, must comply with the
registration and prospectus delivery requirements of the Securities Act in
connection with any resale transaction. In addition, any such resale transaction
should be covered by an effective registration statement containing the selling
securityholders information required by Item 507 of Regulation S-K. See
"Description of Notes--Registration Rights." Each broker-dealer that receives
New Notes for its own account in exchange for Old Notes, where such Old Notes
were acquired by such broker-dealer as a result of market-making activities or
other trading activities, must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. See "Plan of Distribution."
By tendering in the Exchange Offer, each Holder will represent to the
Company that, among other things, (i) the New Notes acquired pursuant to the
Exchange Offer are being obtained in the ordinary course of business of the
person receiving such New Notes, whether or not such person is the Holder, (ii)
neither the Holder nor any such other person has an arrangement or understanding
with any person to participate in the distribution of such New Notes, (iii)
neither the Holder nor any such other person is an "affiliate," as defined under
Rule 405 of the Securities Act, of the Company, and (iv) the Holder and such
other person
20
<PAGE> 24
acknowledge that (a) any person participating in the Exchange Offer for the
purpose of distributing the New Notes must, in the absence of an exemption
therefrom, comply with the registration and prospectus delivery requirements of
the Securities Act in connection with any resale of the New Notes and cannot
rely on the interpretive letters referenced above and (b) failure to comply with
such requirements in such instance could result in such Holder incurring
liability under the Securities Act for which such Holder is not indemnified by
the Company.
As a result of the filing and the effectiveness of the Exchange Offer
Registration Statement of which this Prospectus is a part, certain prospective
increases in the interest rate on the Old Notes provided for in the Registration
Rights Agreement will not occur. Following the consummation of the Exchange
Offer, Holders of Old Notes not tendered will generally not have any further
registration rights and the Old Notes will continue to be subject to certain
restrictions on transfer. Accordingly, the liquidity of the market for the Old
Notes could be adversely affected. See "Description of the Notes--Registration
Rights."
TERMS OF THE EXCHANGE OFFER
The Company hereby offers, upon the terms and subject to the conditions
set forth herein and in the accompanying Letter of Transmittal, to exchange
$1,000 in principal amount of New Notes for each $1,000 in principal amount of
its outstanding Old Notes. New Notes will be issued only in integral multiples
of $1,000 to each tendering Holder whose Old Notes are accepted in the Exchange
Offer. The Company will accept any Old Notes validly tendered and not withdrawn
prior to 5:00 p.m., New York City time, on _________________, 1995, the
Expiration Date of the Exchange Offer. Old Notes that are not accepted for
exchange will be returned as promptly as practicable after the Expiration Date.
Holders may tender all or a portion of their Old Notes pursuant to the Exchange
Offer.
The form and terms of the New Notes under the Indenture will be
identical in all material respects to the form and terms of the Old Notes,
except that (i) the offering of the New Notes will have been registered under
the Securities Act and hence the New Notes will not bear legends restricting the
transfer thereof and (ii) holders of New Notes will not be entitled to certain
rights intended for holders of unregistered securities under the Registration
Rights Agreement which will terminate upon the consummation of the Exchange
Offer. The New Notes evidence the same debt as the Old Notes (which they
replace) and will be issued under, and be entitled to the benefits of, the
Indenture governing the Old Notes. The New Notes will bear interest from their
date of issuance at the same rate and upon the same terms as the Old Notes. See
"Description of Notes." Accrued and unpaid interest on the Old Notes accepted
for exchange for the period to but not including the date of issuance of the New
Notes (the "Exchange Date") will be paid to the holders of New Notes on the
first Interest Payment Date (as defined in "Description of Notes"). Holders
whose Old Notes are accepted for exchange will be deemed to have waived the
right to receive any payment in respect of interest on the Old Notes accrued on
and after the Exchange Date.
21
<PAGE> 25
As of the date of this Prospectus, $150,000,000 aggregate principal
amount of the Old Notes was outstanding and of such amount, $148,000,000
aggregate principal amount was registered in the name of Cede & Co., as nominee
for DTC. Solely for reasons of administration (and for no other purpose) the
Company has fixed the close of business on _________, 1995, as the record date
(the "Record Date") for the Exchange Offer for purposes of determining the
persons to whom this Prospectus and the Letter of Transmittal will be mailed
initially. Only a registered holder of the Old Notes (or such holder's legal
representative or attorney-in-fact) as reflected on the records of the Trustee
under the Indenture may participate in the Exchange Offer.
Holders of Old Notes do not have any appraisal or dissenters' rights in
connection with the Exchange Offer.
The Company shall be deemed to have accepted validly tendered Old Notes
when, as and if the Company has given oral or written notice thereof to the
Exchange Agent. The Exchange Agent will act as agent for tendering Holders of
Old Notes for the purposes of receiving the New Notes from the Company.
If any tendered Old Notes are not accepted for exchange because of an
invalid tender, the occurrence of certain other events set forth herein or
otherwise, certificates for any such unaccepted Old Notes will be returned,
without expense, to the tendering Holder thereof as promptly as practicable
after the Expiration Date.
Tendering Holders will not be required to pay brokerage commissions or
fees or, subject to the instructions of the Letter of Transmittal, transfer
taxes with respect to the exchange of Old Notes for New Notes pursuant to the
Exchange Offer. The Company will pay all charges and expenses, other than
certain taxes which may be levied in the event of any transfer of ownership, in
connection with the Exchange Offer. See "The Exchange Offer--Fees and Expenses."
Neither the Board of Directors of the Company nor the Company makes any
recommendation to holders of Old Notes as to whether to tender or refrain from
tendering all or any portion of their Old Notes pursuant to the Exchange Offer.
In addition, no one has been authorized to make any such recommendation.
Holders of Old Notes must make their own decision whether to tender pursuant to
the Exchange Offer and, if so, the aggregate amount of Old Notes to tender
after reading this Prospectus and the Letter of Transmittal and consulting with
their advisers, if any, based on their own financial position and requirements.
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The term "Expiration Date" shall mean 5:00 p.m. New York City time, on
____________, 1995, unless the Company, in its sole discretion, extends the
Exchange Offer, in which case the term "Expiration Date" shall mean the latest
date and time to which the Exchange Offer is extended.
In order to extend the Exchange Offer, the Company will notify the
Exchange Agent of any extension by oral or written notice and will make a public
announcement thereof, each prior to 9:00 a.m., New York City time on the next
business day after the previously scheduled Expiration Date.
The Company reserves the right, in its sole discretion, (i) to delay
accepting any Old Notes, (ii) to extend the Exchange Offer, or (iii) to amend
the terms of the Exchange Offer in
22
<PAGE> 26
any manner. Any such delay in acceptance, extension, or amendment will be
followed as promptly as practicable by a public announcement thereof. If the
Exchange Offer is amended in a manner determined by the Company to constitute a
material change, the Company will promptly disclose such amendments by means of
a prospectus supplement that will be distributed to the registered holders of
Old Notes, and the Company will extend the Exchange Offer for a period of five
to 10 business days, depending upon the significance of the amendment and the
manner of disclosure to the registered holders, if the Exchange Offer would
otherwise expire during such five to 10 business day period.
Without limiting the manner in which the Company may choose to make
public announcement of any delay, extension, or amendment of the Exchange Offer,
the Company shall not have an obligation to publish, advertise or otherwise
communicate any such public announcement, other than by making a timely release
to the Dow Jones News Service.
INTEREST ON THE NEW NOTES
The New Notes will bear interest from their date of issuance. Holders
of Old Notes that are accepted for exchange will receive, in cash, accrued
interest thereon to, but not including, the date of issuance of the New Notes.
Such interest will be paid with the first interest payment of the New Notes.
Interest of the Old Notes accepted for exchange will cease to accrue on the day
prior to the issuance of the New Notes.
The New Notes bear interest (as do the Old Notes) at a rate equal to
7.0% per annum. Interest on the New Notes is payable on each June 15 and
December 15 beginning on December 15, 1995.
PROCEDURES FOR TENDERING OLD NOTES
The tender by a Holder as set forth below and the acceptance thereof by
the Company will constitute a binding agreement between the tendering Holder and
the Company upon the terms and subject to the conditions set forth in this
Prospectus and in the accompanying Letter of Transmittal. Except as set forth
below, a Holder who wishes to tender Old Notes for exchange pursuant to the
Exchange Offer must transmit such Old Notes, together with a properly completed
and duly executed Letter of Transmittal, including all other documents required
by such Letter of Transmittal, to the Exchange Agent at the address set forth
below under "-- Exchange Agent" on or prior to 5:00 p.m. New York City time,
on the Expiration Date.
By executing the Letter of Transmittal, each Holder will make to the
Company the representations set forth above in the third paragraph under the
heading "--Purpose and Effect of the Exchange Offer."
THE METHOD OF DELIVERY OF OLD NOTES, LETTERS OF TRANSMITTAL
AND ALL OTHER REQUIRED DOCUMENTS IS AT THE ELECTION AND RISK OF THE
23
<PAGE> 27
ELIGIBLE HOLDER. IF SUCH DELIVERY IS BY MAIL, IT IS RECOMMENDED THAT REGISTERED
MAIL, PROPERLY INSURED, WITH RETURN RECEIPT REQUESTED BE USED. INSTEAD OF
DELIVERY BY MAIL, IT IS RECOMMENDED THAT THE ELIGIBLE HOLDER USE AN OVERNIGHT OR
HAND DELIVERY SERVICE. IN ALL CASES, SUFFICIENT TIME SHOULD BE ALLOWED TO
ASSURE TIMELY DELIVERY.
Each signature on a Letter of Transmittal or a notice of withdrawal, as
the case may be, must be guaranteed unless the Old Notes surrendered for
exchange pursuant thereto are tendered (i) by a registered holder of the Old
Notes who has not completed either the box entitled "Special Exchange
Instructions" or the box entitled "Special Delivery Instructions" on the Letter
of Transmittal or (ii) by an Eligible Institution (as defined below). In the
event that a signature on a Letter of Transmittal or a notice of withdrawal, as
the case may be, is required to be guaranteed, such guarantee must be by a firm
which is a member of a registered national securities exchange or a member of
the National Association of Securities Dealers, Inc., a commercial bank or trust
company having an office or correspondent in the United States or is otherwise
an "eligible institution" within the meaning of Rule 17AD-15 under the Exchange
Act (collectively, "Eligible Institutions").
If Old Notes are registered in the name of a person other than a signer
of the Letter of Transmittal, the Old Notes surrendered for exchange must either
(i) be endorsed by the registered holder, with the signature thereon guaranteed
by an Eligible Institution or (ii) be accompanied by a bond power, in
satisfactory form as determined by the Company in its sole discretion, duly
executed by the registered holder, with the signature thereon guaranteed by an
Eligible Institution along with the other documents required upon transfer by
the Purchase Agreement. The term "registered holders" as used herein with
respect to the Old Notes means any person in whose name the Old Notes are
registered on the books of the Registrar for the Old Notes.
Tenders may be made only in principal amounts of $1,000 and integral
multiples thereof. Subject to the foregoing, Holders may tender less than the
aggregate principal amounts represented by the Old Notes deposited with the
Exchange Agent provided they appropriately indicate this fact in the Letter of
Transmittal accompanying the tendered Old Notes.
The Company understands that the Exchange Agent will make a request
promptly after the date of this Prospectus to establish accounts with respect to
the Old Notes at the book-entry transfer facility. DTC (the "Book-Entry Transfer
Facility"), for the purpose of facilitating the Exchange Offer, and subject to
the establishment thereof, any financial institution that is a participant in
the Book-Entry Transfer Facility's system may make book entry delivery of Old
Notes by causing such book entry transfer facility to transfer such Old Notes
into the Exchange Agent's account with respect to the Old Notes in accordance
with the Book-Entry Transfer Facility's procedures for such transfer. Although
delivery of the Old Notes may be effected through book-entry transfer into the
Exchange Agent's account at the Book-Entry Transfer Facility, an appropriate
Letter of Transmittal properly completed and duly executed with any required
signature guarantee and all other required documents must in each case be
transmitted to and received or confirmed by the Exchange Agent at its address
set forth below on or prior
24
<PAGE> 28
to the Expiration Date, or, if the guaranteed delivery procedures described
below are complied with, within the time period provided under such procedures.
Delivery of documents to the Book-Entry Transfer Facility does not constitute
delivery to the Exchange Agent.
All questions as to validity, form, eligibility (including time of
receipt), acceptance and withdrawal of Old Notes tendered for exchange will be
determined by the Company in its sole, reasonable discretion, which
determination shall be final and binding. The Company reserves the absolute
right to reject any or all tenders of any particular Old Notes not properly
tendered or to reject any particular Old Notes which acceptance might, in the
judgment of the Company or its counsel, be unlawful. The Company also reserves
the absolute right to waive any defects or irregularities or conditions of the
Exchange Offer as to any particular Old Notes either before or after the
Expiration Date (including the right to waive the ineligibility of any Holder
who seeks to tender Old Notes in the Exchange Offer). The interpretation of the
terms and conditions of the Exchange Offer (including the Letter of Transmittal
and the instructions thereto) by the Company shall be final and binding on all
parties. Unless waived, any defects or irregularities in connection with tenders
of Old Notes for exchange must be cured within such reasonable period of time as
the Company shall determine. The Company will use reasonable efforts to give
notification of defects or irregularities with respect to tenders of Old Notes
for exchange but shall not incur any liability for failure to give such
notification. Tenders of the Old Notes will not be deemed to have been made
until such irregularities have been cured or waived.
If any Letter of Transmittal, endorsement, bond power, power of
attorney or any other document required by the Letter of Transmittal is signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and, unless waived by the Company,
proper evidence satisfactory to the Company of such person's authority to so act
must be submitted.
Any beneficial owner whose Old Notes are registered in the name of a
broker, dealer, commercial bank, trust company or other nominee and who wishes
to tender Old Notes in the Exchange Offer should contact such registered holder
promptly and instruct such registered holder to tender on such beneficial
owner's behalf. If such beneficial owner wishes to tender directly, such
beneficial owner must, prior to completing and executing the Letter of
Transmittal and tendering Old Notes, make appropriate arrangements to register
ownership of the Old Notes in such beneficial owner's name. Beneficial owners
should be aware that the transfer of registered ownership may take considerable
time.
GUARANTEED DELIVERY PROCEDURES
Holders who wish to tender their Old Notes and (i) whose Old Notes are
not immediately available, (ii) who cannot deliver their Old Notes and Letter of
Transmittal or any other documents required by the Letter of Transmittal to the
Exchange Agent prior to the Expiration Date, or (iii) who cannot complete the
procedures for book-entry transfer on a timely basis must
25
<PAGE> 29
tender their Old Notes according to the guaranteed delivered procedures set
forth in the Letter of Transmittal. Pursuant to such procedures:
a. such tender must be made by or through an Eligible Institution and a
Notice of Guaranteed Delivery (as defined in the Letter of Transmittal) must be
signed by such Holder;
b. prior to the Expiration Date, the Exchange Agent must have received
from the Holder and the Eligible Institution a properly completed and duly
executed Letter of Transmittal and a Notice of Guaranteed Delivery (by facsimile
transmission, mail or hand delivery) setting forth the name and address of the
Holder, the certificate number or numbers of the tendered Old Notes, and the
principal amount of tendered Old Notes, stating that the tender is being made
thereby and guaranteeing that, within five business days after the date of
delivery of the Notice of Guaranteed Delivery, the tendered Old Notes and any
other required documents will be deposited by the Eligible Institution with the
Exchange Agent; and
c. such properly completed and executed documents required by the
Letter of Transmittal and the tendered Old Notes in proper form for transfer
must be received by the Exchange Agent within three business days after the
Expiration Date.
Any Holder who wishes to tender Old Notes pursuant to the guaranteed
delivery procedures described above must ensure that the Exchange Agent received
the Notice of guaranteed Delivery and Letter of Transmittal relating to such Old
Notes prior to 5:00 p.m. New York City time, on the Expiration Date. Failure to
complete the guaranteed delivery procedures outlined above will not, of itself,
affect the validity or effect a revocation of any Letter of Transmittal form
properly completed and executed by a Holder who attempted to use the guaranteed
delivery process.
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
The Company will accept, promptly after the Expiration Date, all Old
Notes properly tendered and will issue the New Notes promptly after the
acceptance of the Old Notes. For purposes of the Exchange Offer, the Company
shall be deemed to have accepted properly tendered Old Notes for exchange when,
as, and if the company has given oral or written notice thereof to all Holders
of properly tendered Old Notes.
In all cases, issuances of New Notes for Old Notes that are accepted
for exchange pursuant to the Exchange Offer will be made only after timely
receipt by the Exchange Agent of such Old Notes, a properly completed and duly
executed Letter of Transmittal, and all other required documents; provided,
however, that the Company reserves the absolute right to waive any defects or
irregularities in the tender or conditions of the Exchange Offer. If any
tendered Old Notes are not accepted for any reason set forth in the terms and
conditions of the Exchange Offer or if Old Notes are submitted for a greater
principal amount than the Holder desires to exchange, such unaccepted or
non-exchanged Old Notes or substitute Old Notes evidencing the
26
<PAGE> 30
unaccepted portion, as appropriate, will be returned without expense to the
tendering Holder thereof as promptly as practicable after the expiration or
termination of the Exchange Offer.
WITHDRAWAL RIGHTS
Tenders of the Old Notes may be withdrawn at any time prior to 5:00
p.m. New York City time on the Expiration Date. For a withdrawal to be
effective, a written notice of withdrawal must be received by the Exchange Agent
at its address set forth on the back cover page of this Prospectus. Any such
notice of withdrawal must (i) specify the name of the person having deposited
the Old Notes to be withdrawn (the "Depositor"), (ii) identify the Old Notes to
be withdrawn (including the certificate number or numbers and principal amount
of such Old Notes), (iii) be signed by the Holder in the same manner as the
original signature on the Letter of Transmittal by which such Old Notes were
tendered (including any required signature guarantees) or be accompanied by a
bond power in the name of the person withdrawing the tender, in satisfactory
form as determined by the Company in its sole discretion, duly executed by the
registered holder, with the signature thereon guaranteed by an Eligible
Institution along with the other documents required upon transfer by the
Registration Rights Agreement or Purchase Agreement, and (iv) specify the name
in which such Old Notes are to be re-registered, if different from the
Depositor, pursuant to such documents of transfer. All questions as to the
validity, form and eligibility (including time of receipt) of such notices will
be determined by the Company, whose determination shall be final and binding on
all parties. The Old Notes so withdrawn, if any, will be deemed not to have been
validly tendered for exchange for purposes of the Exchange Offer. Any Old Notes
which have been tendered for exchange but which are withdrawn will be returned
to the Holder thereof without cost to such Holder as soon as practicable after
withdrawal. Properly withdrawn Old Notes may be retendered by following one of
the procedures described under "Procedures for Tendering Old Notes" above at any
time on or prior to the Expiration Date.
TERMINATION OF CERTAIN RIGHTS
Holders of the Old Notes to whom this Exchange Offer is made have
special rights under the Registration Rights Agreement that will terminate upon
the consummation of the Exchange Offer. The Registration Rights Agreement
provides that certain rights under such agreement (including the right to
receive a prospective increase in the interest rate on the Old Notes) shall
terminate upon the occurrence of (i) the filing with the Commission of the
Exchange Offer Registration Statement, (ii) the effectiveness under the
Securities Act of the Exchange Offer Registration Statement, (iii) the
consummation of the Exchange Offer, and (iv) the maintenance of the Exchange
Offer Registration Statement continuously effective for a period of not less
than the minimum period required under applicable federal and state securities
laws (provided that in no event shall such Exchange Offer remain open and the
registration statement relating hereto remain continuously effective, in each
case, for less than 20 business days), and (v) the delivery by the Company to
the registrar under the Indenture of New Notes in the same aggregate principal
amount of Old Notes tendered by Holders thereof pursuant to the Exchange Offer.
27
<PAGE> 31
EXCHANGE AGENT
The First National Bank of Chicago has been appointed as Exchange Agent
for the Exchange Offer. Questions and requests for assistance and requests for
additional copies of the Prospectus, the Letter of Transmittal, and other
related documents should be addressed to the Exchange Agent as follows:
By Registered or Certified
Mail, Overnight Courier or Hand:
The First National Bank of Chicago,
c/o First Chicago Trust Company of New York
14 Wall Street
8th Floor, Window 2
New York, New York 10005
Attention: Corporate Trust Administration
FEES AND EXPENSES
The expenses of soliciting tenders will be borne by the Company. The
principal solicitation is being made by mail; however, additional solicitation
may be made by telegraph, telephone or in person by officers and regular
employees of the Company and its affiliates.
The Company has not retained any dealer-manager in connection with the
Exchange Offer and will not make any payments to brokers, dealers or others
soliciting acceptance of the Exchange Offer. The Company, however, will pay the
Exchange Agent reasonable and customary fees for its services and will reimburse
it for its reasonable out-of-pocket expenses in connection therewith.
The cash expenses to be incurred in connection with the Exchange Offer
will be paid by the Company and are estimated in the aggregate to be
approximately $80,000. Such expenses include fees and expenses of the Exchange
Agent and Trustee, accounting and legal fees, filing fees and printing costs,
among others.
The Company will pay all transfer taxes, if any, applicable to the
exchange of Old Notes pursuant to the Exchange Offer. If, however, a transfer
tax is imposed for any reason other than the exchange of Old Notes pursuant to
the Exchange Offer, then the amount of any transfer taxes (whether imposed on
the registered holder or any other persons) will be payable by the tendering
Holder. If satisfactory evidence of payment of such taxes or exemption therefrom
is not submitted with the Letter of Transmittal, the amount of such transfer
taxes will be billed directly to such tendering Holder.
28
<PAGE> 32
CONSEQUENCES OF FAILURE TO EXCHANGE
The Old Notes which are not exchanged for New Notes pursuant to the
Exchange Offer will remain restricted securities. Accordingly, such Old Notes
may be resold only (i) to the Company (upon redemption thereof or otherwise),
(ii) so long as the Old Notes are eligible for resale pursuant to Rule 144A, to
a person whom the seller reasonably believes is a qualified institutional buyer
within the meaning of Rule 144A under the Securities Act, purchasing for its own
account or for the account of a qualified institutional buyer to whom notice is
given that the resale, pledge or other transfer is being made in reliance on
Rule 144A, (iii) in an offshore transaction in accordance with Regulation S
under the Securities Act, but only in the case of a transfer that is effected by
the delivery to the transferee of Old Notes registered in its name (or its
nominee's name) on the books maintained by the registrar of the Old Notes, (iv)
pursuant to an exemption from registration in accordance with Rule 144 (if
available) or Rule 145 under the Securities Act, (v) in reliance on another
exemption from the registration requirements of the Securities Act, but only in
the case of a transfer that is effected by the delivery to the transferee of Old
Notes registered in its name (or its nominee's name) on the books maintained by
the registrar of the Old Notes, and subject to the receipt by the registrar or
co-registrar of a certification of the transferor and an opinion of counsel
(satisfactory to the Company) to the effect that such transfer is in compliance
with the Securities Act, or (vi) pursuant to an effective registration statement
under the Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States. Following the consummation of
the Exchange Offer, holders of Old Notes will have limited rights under the
Registration Rights Agreement. See "--The Shelf Registration Statement."
ACCOUNTING TREATMENT
The New Notes will be recorded at the same carrying value as the Old
Notes, as reflected in the Company's accounting records on the date of the
exchange. Accordingly, no gain or loss for accounting purposes will be
recognized. The expenses of the Exchange Offer will be amortized over the term
of the New Notes.
RESALES OF THE NEW NOTES
With respect to resales of New Notes, based on the position of the
Staff of the Division of Corporation Finance of the Commission set forth in
certain interpretive letters addressed to third parties, the Company believes
that a Holder (other than (i) a broker-dealer who purchases such New Notes
directly from the Company to resell pursuant to Rule 144A or any other available
exemption under the Securities Act or (ii) a person that is an affiliate of the
Company within the meaning of Rule 405 under the Securities Act) who exchanges
Old Notes for New Notes in the ordinary course of business and who is not
participating, does not intend to participate, and has no arrangement or
understanding with any person to participate, in the distribution of the New
Notes, will be allowed to resell the New Notes to the public without further
registration under the Securities Act and without delivering to the purchasers
of the New
29
<PAGE> 33
Notes a prospectus that satisfies the requirements of Section 10 thereof.
However, if any Holder acquires New Notes in the Exchange Offer for the purpose
of distributing or participating in a distribution of the New Notes, such Holder
cannot rely on the position of the Staff of the Division of Corporation Finance
of the Commission enunciated in interpretive letters addressed to third
parties and must comply with the registration and prospectus delivery
requirements of the Securities Act in connection with a secondary resale
transaction, unless an exemption from registration is otherwise available.
Further, each broker-dealer that receives New Notes for its own account in
exchange for Old Notes, where such Old Notes were acquired by such broker-dealer
as a result of market-making activities or other trading activities, must
acknowledge that it will deliver a prospectus in connection with any resale of
such New Notes.
As contemplated by the position of the Staff of the Division of
Corporation Finance of the Commission in the interpretive letters noted above
and the Registration Rights Agreement, each Holder accepting the Exchange
Offer is required to represent to the Company in the Letter of Transmittal
that (i) the New Notes are to be acquired by the Holder or the person
receiving such New Notes, whether or not such person is the Holder, in the
ordinary course of business, (ii) the Holder or any such other person (other
than a broker-dealer referred to in the next sentence) is not engaging and
does not intend to engage in the distribution of the New Notes, (iii) the
Holder or any such other person has no arrangement or understanding with any
person to participate in the distribution of the New Notes, (iv) neither the
Holder nor any such other person is an "affiliate" of the Company within the
meaning of Rule 405 under the Securities Act, and (v) the Holder or any such
other person acknowledges that if such Holder or other person participates in
the Exchange Offer for the purpose of distributing the New Notes it must
comply with the registration and prospectus delivery requirements of the
Securities Act in connection with any resale of the New Notes and cannot rely on
such interpretive letters. As indicated above, each broker-dealer that receives
New Notes for its own account in exchange for Old Notes must also acknowledge
that it will deliver a prospectus in connection with any resale of such New
Notes. For a description of the procedures for such resales by broker-dealers,
see "Plan of Distribution."
THE SHELF REGISTRATION STATEMENT
The Registration Rights Agreement provides that if, (i) because of any
change in law or applicable interpretations thereof by the staff of the
Commission, the Company is not permitted to effect the Exchange Offer, (ii) the
Exchange Offer Registration Statement is not declared effective by October 19,
1995, or (iii) upon the request of either Initial Purchaser (with respect to any
Old Notes which were acquired directly from the Company), to the extent such
Initial Purchaser is not eligible under applicable securities laws, to
participate in the Exchange Offer, the Company will file with the Commission a
Shelf Registration Statement to cover resales of the Notes by the holders
thereof who satisfy certain conditions relating to the provision of information
in connection with the Shelf Registration Statement. The Company will use its
best efforts to cause the applicable registration statement to be declared
effective as promptly as possible by the Commission.
30
<PAGE> 34
The Registration Rights Agreement further provides that, if obligated
to file the Shelf Registration Statement, the Company will file such with the
Commission, as promptly as practicable, after such obligation arises and use its
best efforts to cause such Shelf Registration Statement to be declared effective
by the Commission, in the case of an obligation to file a Shelf Registration
Statement as a result of a change in applicable law or Commission
interpretation, or in all other cases, on or prior to 180 days after the Closing
Date, and to use its best efforts to cause such Shelf Registration Statement to
remain effective and usable for a period of three years following the initial
effectiveness thereof. If the Company is obligated to file the Shelf
Registration Statement and such Shelf Registration Statement is not declared
effective in the time periods described above the interest rate on the effected
Notes shall be increased one-half of one percentage point (.5%) per annum of the
principal amount of effected Notes held by such holder. Following the
effectiveness of the Shelf Registration Statement, the interest rate shall
revert back to 7.0% with respect to the effected Notes.
Holders of Notes will be required to deliver information to be used in
connection with the Shelf Registration Statement and to provide comments on the
Shelf Registration Statement within the time periods set forth in the
Registration Rights Agreement in order to have their Notes included in the Shelf
Registration Statement and benefit from the provisions regarding increased
interest rates set forth above. In addition, for so long as any effected Notes
are outstanding during any period when the Company is not subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will continue to provide to Holders of Notes and to prospective purchasers of
such Notes the information required by Rule 144A(d)(4).
USE OF PROCEEDS
The Company will not receive any cash proceeds from the issuance of the
New Notes offered hereby. In consideration for issuing the New Notes as
contemplated in this Prospectus, the Company will receive in exchange Old Notes
in like principal amount, the terms of which are identical in all material
respects to the New Notes. The Old Notes surrendered in exchange for the New
Notes will be retired and cancelled and cannot be reissued. Accordingly,
issuance of the New Notes will not result in any increase in the indebtedness of
the Company.
31
<PAGE> 35
CAPITALIZATION
The following table sets forth the short-term debt and the
capitalization of the Company as of February 28, 1995 and as adjusted to give
effect to the issuance of the Notes on June 20, 1995 and the repayment of
long-term debt with the net proceeds of the offering.
<TABLE>
<CAPTION>
February 28, 1995
--------------------------
Actual As Adjusted
------ -----------
<S> <C> <C>
Short-term debt:
Current portion of long-term debt ................. $ 608 $ 608
-------- --------
Total short-term debt .................... $ 608 $ 608
======== ========
Long-term debt, less current maturities:
Senior indebtedness ............................... $252,118 $103,093
Ten year notes .................................... -0- 150,000
Liquid Yield Option notes ......................... 160,821 160,821
-------- --------
Total long-term debt ..................... $412,939 $413,914
======== ========
Shareholders' equity:
Common shares - $.023 per share; authorized
100,000,000 shares, issued and outstanding
56,811,740 shares ........................ $ 1,292 $ 1,292
Paid-in capital ................................... 146,379 146,379
Retained earnings ................................. 187,046 187,046
Cumulative translation adjustment ................. (1,231) (1,231)
-------- --------
Total shareholders' equity ............... $333,486 $333,486
-------- --------
Total Capitalization ....................................... $746,425 $747,400
======== ========
</TABLE>
SELECTED FINANCIAL INFORMATION
The selected historical consolidated financial data for the five years
in the period ended May 31, 1994 set forth below are principally derived from,
and should be read in conjunction with, the related audited consolidated
financial statements and accompanying notes included in the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1994. The selected
historical consolidated financial data for the nine months ended February 28,
1995 are derived from the Company's unaudited financial statements, which in the
opinion of management include all adjustments, consisting of only normal,
recurring adjustments, necessary for a fair presentation of the financial
position and results of operations.
32
<PAGE> 36
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEAR ENDED MAY 31, FEBRUARY 28,
----------------------------------------------------------------------- -----------------------
1994 1994 1995 1995
1990 1991 1992 1993 ACTUAL PRO FORMA(2) UNAUDITED PRO FORMA(2)
--------- --------- --------- --------- --------- ------------ --------- ------------
(IN THOUSANDS EXCEPT PER SHARE AND RATIO DATA)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Net sales............ $ 571,673 $ 619,613 $ 680,091 $ 768,372 $ 815,598 $ 955,845 $ 736,509 $ 753,598
Cost of sales........ (333,320) (356,480) (393,677) (448,079) (476,146) (555,416) (427,114) (435,668)
--------- --------- --------- --------- --------- --------- --------- ---------
Gross profit......... 238,353 263,133 286,414 320,293 339,452 400,429 309,395 317,930
Selling, general and
administrative
expenses........... (174,835) (195,546) (208,822) (236,955) (237,931) (290,997) (221,694) (227,022)
Interest expense, net (11,447) (12,972) (16,491) (17,202) (13,427) (23,226) (16,456) (17,430)
--------- --------- --------- --------- --------- --------- --------- ---------
Income before income
taxes.............. 52,071 54,615 61,101 66,136 88,094 86,206 71,245 73,478
Provision for income
taxes.............. (20,218) (17,180) (22,620) (26,638) (35,454) (35,545) (30,279) (31,274)
--------- --------- --------- --------- --------- --------- --------- ---------
Net income........... $ 31,853 $ 37,435 $ 38,481 $ 39,498 $ 52,640 $ 50,661 $ 40,966 $ 42,204
========= ========= ========= ========= ========= ========= ========= =========
Primary earnings per
share............ $ 0.65 $ 0.72 $ 0.73 $ 0.74 $ 0.93 $ 0.89 $ 0.72 $ 0.74
Fully diluted earnings
per share........ 0.63 0.71 0.72 0.72 0.89 0.86 0.69 0.70
Other Data:
Cash dividends per
share............ 0.355 0.399 0.442 0.473 0.510 0.510 0.410 0.410
Average common shares
outstanding...... 49,070 52,219 52,790 53,267 56,717 56,717 57,109 57,109
Ratio of earnings to
fixed charges (3) 4.78 4.54 4.12 4.08 6.21 4.20 4.59 4.54
Balance Sheet Data:
Working capital.... $ 152,576 $ 142,581 $ 205,419 $ 191,872 $ 226,994 $ 257,854 $ 257,244 $ 257,244
Total assets....... 433,361 457,779 623,346 648,524 660,838 913,780 951,712 951,712
Short-term debt.... 6,673 21,441 7,763 21,262 1,196 1,196 608 608
Long-term debt..... 176,601 130,800 273,871 258,712 233,039 429,539 412,939 412,939
Shareholders' equity 171,235 215,471 233,360 243,899 314,476 314,476 333,486 333,486
</TABLE>
- -------------------
(1) All information presented includes the fiscal 1994 acquisitions of
Dynatron/Bondo Corporation and Stonhard, Inc. accounted for on a
pooling-of-interests basis.
(2) On June 28, 1994, the Company acquired Rust-Oleum. The pro forma data
reflect the combined results of operations of the Company and
Rust-Oleum for the fiscal year ended May 31, 1994 and the nine months
ended February 28, 1995, respectively. The 1994 pro forma balance sheet
data are shown as if the acquisition of Rust-Oleum had occurred on May
31, 1994 and the pro forma income statement data are shown as if the
acquisition had occurred on June 1, 1993. The pro forma amounts give
effect to appropriate adjustments resulting from the combination, but
are not necessarily indicative of future results of operations or of
what results would have been for the combined companies.
(3) For purposes of the ratio of earnings to fixed charges, earnings
consist of income from operations before income taxes and fixed
charges. Fixed charges include interest and debt expense and one-third
of rents which is deemed representative of an interest factor.
DESCRIPTION OF NOTES
The New Notes are to be issued as a separate series of notes under the
same Indenture under which the Old Notes have been issued, dated as of June 1,
1995, between the Company and The First National Bank of Chicago, as trustee
(the "Trustee"). No New Notes are
33
<PAGE> 37
currently outstanding. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (the "Trust Indenture Act"). The Notes are subject to all
such terms, and holders of Notes are referred to the Indenture and the Trust
Indenture Act for a statement thereof. The following summaries of certain
provisions of the Indenture and the Registration Rights Agreement do not purport
to be complete and are qualified in their entirety by reference to the
Indenture, including the definitions therein of certain terms used below, and
the Registration Rights Agreement, as applicable. The definitions of certain
terms used in the following summary are set forth below under "-- Certain
Definitions."
The Indenture does not limit the aggregate principal amount of debt
securities which may be issued thereunder and provides that debt securities may
be issued thereunder from time to time in one or more series (such other debt
securities issued under the Indenture, together with the Notes, are hereinafter
collectively referred to as the "Debt Securities"). The following summary of the
material provisions of the Indenture does not purport to be complete, and where
reference is made to particular provisions of the Indenture, such provisions,
including the definitions of certain terms, some of which are not otherwise
defined herein, are qualified in their entirety by reference to all of the
provisions of the Indenture and those terms made a part of the Indenture by the
Trust Indenture Act. There is no requirement that future issues of debt
securities of the Company be issued under the Indenture, and the Company is free
to employ other indentures or documentation containing provisions different from
those included in the Indenture in connection with future issues of such other
debt securities.
GENERAL
The Notes mature on June 15, 2005, are limited to $150,000,000
aggregate principal amount at any one time outstanding and are unsecured senior
obligations of the Company. Each Note bears interest at 7.0% from June 20, 1995
or from the most recent interest payment date to which interest has been paid,
payable semi-annually on June 15 and December 15 in each year, commencing
December 15, 1995, to the person in whose name the Note (or any predecessor
Note) is registered at the close of business on the June 1 or the December 1
next preceding such interest payment date.
The Old Notes and the New Notes will constitute a single series of
debt securities under the Indenture. If the Exchange Offer is consummated,
holders of the Old Notes who do not exchange their Old Notes for New Notes will
vote together with the holders of New Notes for all relevant purposes under the
Indenture. In that regard, the Indenture requires that certain actions by the
holders thereunder (including acceleration following an Event of Default) must
be taken, and certain rights must be exercised, by specified minimum
percentages of the aggregate principal amount of the outstanding debt
securities of the relevant series. In determining whether holders of the
requisite percentage in principal amount have given any notice, consent or
waiver or taken any other action permitted under the Indenture, any Old Notes
which remain outstanding after the Exchange Offer will be aggregated with the
New Notes and the holders of such Old Notes and New Notes will vote together as
a single series for all such purposes. Accordingly, all references herein to
specified percentages in aggregate principal amount of the outstanding Notes
shall be deemed to mean, at any time after the Exchange Offer is consummated,
such percentage in aggregate principal amount of the Old Notes and New Notes
then outstanding.
Principal of and interest on the Notes are exchangeable and
transferable, at the office or agency of the Company in the City of New York
maintained for such purposes (which initially will be the office of the Trustee
maintained at The First National Bank of Chicago, c/o First Chicago Trust
Company of New York, 14 Wall Street -- 8th Floor, Window 2, New York, New York
10005, Attention: Corporate Trust Administration); provided, however, that
payment of principal or interest may be made at the option of the Company by
check mailed to the person entitled thereto as shown on the security register.
The Old Notes are issued only in fully registered form without coupons, in
denominations of $250,000 and any integral multiple of $1,000 in excess thereof.
The New Notes will be issued only in fully registered form without coupons in
denominations of $1,000 and any integral multiple of $1,000 in excess thereof.
No service charge will be made for any registration of transfer, exchange or
redemption of Notes, except in certain circumstances for any tax or other
governmental charge that may be imposed in connection therewith.
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The Indenture does not contain provisions which would give holders of
the Notes the right to require the Company to repurchase their Notes in the
event of a decline in the credit rating to the Company's debt securities from a
takeover, recapitalization or similar restructuring.
OPTIONAL REDEMPTION
The Notes are not subject to redemption prior to maturity.
SINKING FUND
The Notes are not entitled to the benefit of any sinking fund or other
mandatory redemption obligation prior to maturity.
RANKING; HOLDING COMPANY STRUCTURE
The Notes are unsecured unsubordinated obligations of the Company and
rank on a parity in right of payment with all other unsecured and unsubordinated
indebtedness of the Company for borrowed money.
The Notes are obligations exclusively of the Company. The Company is a
holding company substantially all of whose consolidated assets are held by its
subsidiaries. Accordingly, the cash flow of the Company and the consequent
ability to service its debt, including the Notes, are largely dependent upon the
earnings of such subsidiaries.
Because the Company is a holding company, the Notes will be effectively
subordinated to all existing and future indebtedness, trade payables,
guarantees, lease obligations and letter of credit obligations of the Company's
subsidiaries. Therefore, the Company's rights and the rights of its creditors,
including the holders of the Notes, to participate in the assets of any
subsidiary upon the latter's liquidation or reorganization will be subject to
the prior claims of such subsidiary's creditors, except to the extent that the
Company may itself be a creditor with recognized claims against the subsidiary,
in which case the claims of the Company would still be effectively subordinate
to any security interest in, or mortgages or other liens on, the assets of such
subsidiary and would be subordinate to any indebtedness of such subsidiary
senior to that held by the Company.
LIMITATION ON LIENS
The Indenture generally provides that the Company may not, and may not
permit any Subsidiary of the Company to, incur or suffer to exist any Lien upon
any Principal Property, or upon any Equity Interests of any Subsidiary of the
Company (whether such Principal Property or Equity Interest were owned as of the
date of the Indenture or thereafter acquired), to secure any Indebtedness
without making, or causing such Subsidiary to make, effective provision for
securing the Debt Securities issued under the Indenture equally and ratably with
(or prior to) such Indebtedness, unless after giving effect thereto, the sum of
(A) the principal amount of Indebtedness secured by all Liens incurred after the
date of the Indenture and otherwise
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prohibited by the Indenture and (B) the Attributable Value of all Sale and
Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by the Indenture does not exceed the greater of $50,000,000
or 10% of the Consolidated Shareholders' Equity of the Company. The foregoing
restrictions will not apply to Liens or to, among other things, (i) Liens
securing only the Securities issued under the Indenture; (ii) Liens on property
of a Person existing at the time such Person is merged into or consolidated with
the Company or any Subsidiary of the Company (but only to the extent such Liens
cover such property); (iii) Liens on property existing immediately prior to the
time of acquisition thereof (and not in anticipation of the financing of such
acquisition); (iv) any Lien upon any Principal Property (including any property
that becomes a Principal Property after acquisition thereof) to secure
Indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction or improvement thereof, provided that
such Principal Property first becomes a Principal Property after, or
construction or development of such Principal Property is underway on and
completed after, June 1, 1995, and provided, further, that the principal amount
of any Indebtedness secured by such Lien (A) does not exceed 100% of such
purchase price or cost and (B) in incurred within 24 months after the later of
the purchase thereof and the completion of construction or improvements thereof;
(v) any Lien securing certain Indebtedness owing to the Company or to a wholly
owned subsidiary of the Company; (vi) certain Liens, as described in the
Indenture, arising in the ordinary course of business other that in connection
with Indebtedness for borrowed money; and (vii) Liens to secure Indebtedness
incurred to extend, render, refinance or refund Indebtedness secured by any Lien
referred to in the foregoing clauses (i) to (vi).
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the remaining
term thereof as determined in accordance with generally accepted accounting
principles, discounted from the respective due dated thereof to the date of
determination at a rate per annum equal to the discount rate that would be
applicable to a Capital Lease Obligation with like term in accordance with
generally accepted accounting principles. The net amount of rent required to be
paid under any such lease for any such period shall be the aggregate amount of
rent payable by the lessee with respect to such period after excluding, in
accordance with generally accepted accounting principles, amounts required to be
paid on account of insurance, taxes, assessments, utility, operating and labor
cost and similar charges and rents charged as a percentage of sales in excess of
a base amount. In the case of any lease which is terminable by the lessee upon
the payment of a penalty, such net amount shall also include the amount of such
penalty, but no rent shall be considered as required to be paid under such lease
subsequent to the first date upon which it may be so terminated. "Attributable
Value" means, as to Capital Lease Obligation under which any Person is at the
time liable and at any date as of which the amount thereof is to be determined,
the capitalizes amount thereof that would appear on the face of a balance sheet
of such Person in accordance with generally accepted accounting principles.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other indebtedness
arrangements conveying the right to
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use) real or personal property of such Person which is required to be classified
and accounted for as a capital lease or a liability on the face of a balance
sheet of such Person in accordance with generally accepted accounting
principles. The stated maturity of such obligation, as of any date (the
"measurement date"), shall be the date of the last payment of rent or any other
amount due under such lease after the measurement date upon or after which such
lease may be terminated by the lessee, at its sole option, without payment of a
penalty.
"Consolidated Shareholders' Equity" of any Person means the
consolidated shareholders' equity of such Person, determined on a consolidated
basis in accordance with generally accepted accounting principles.
"Equity Interest" in any Person is defined to mean any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of or other ownership interests in such Person, and any options or other
rights to acquire, and any securities or other interests convertible into or
exchangeable for, any of the foregoing.
"Indebtedness," with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property of,
or guaranteed by, such Person (other than trade accounts payable arising in the
ordinary course of business) and computed in accordance with generally accepted
accounting principles.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind of nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Principal Property" means any manufacturing, assembly or storage
facility owned or used by the Company or any Subsidiary which is located within
the United States (including its territories and possessions) or Canada, other
than any such facility the gross book value of which (including related land and
improvements thereon and all machinery and equipment included therein without
deduction of any depreciation reserves) does not exceed 4% of Consolidated
Shareholders' Equity of the Company.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any Principal Property that, within
12 months of the start of such lease and after the Reference Date, has been or
is being sold, conveyed, transferred to or otherwise disposed of by such Person
to such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor of the security of such property. The term
of such arrangement, as of any date (the "measurement date"), shall end on the
date of the last payment of rent or any other amount due under such arrangement
after the measurement date on or after which such arrangement may be terminated
by the lessee, at its sole option, without payment of a penalty. "Sale
Transaction" means any such sale, conveyance, transfer or other disposition. The
"Reference Date" means, for any property that becomes a Principal Property
after, or the
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construction or development of which is underway on and completed after June 1,
1995 the last day of the 24th month after the date of the acquisition,
completion of construction and commencement of operation of such property and,
for any other property, June 1, 1995.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Indenture generally provides that the Company may not, and may not
permit any Subsidiary of the Company to, enter into any Sale and Leaseback
Transaction (except for a period not exceeding 36 months), unless, (i) after
giving effect thereto, the sum of (A) the principal amount of Indebtedness
secured by all Liens incurred after the date of the Indenture and otherwise
prohibited by the Indenture and (B) the Attributable Value of all Sale and
Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by the Indenture does not exceed the greater of $50,000,000
or 10% of Consolidated Shareholders' Equity of the Company or (ii) the Company
or such Subsidiary applies or commits to apply, within 180 days before or after
the Sale Transaction pursuant to such Sale and Leaseback Transaction, an amount
equal to the Net Available Proceeds therefrom to the repayment of Indebtedness
of the Company (including any Debt Securities) which is pari passu with or prior
to the Debt Securities issued under the Indenture (or, if none, other
Indebtedness of the Company or, if non, Indebtedness of any Subsidiary of the
Company),
"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of indebtedness or obligations relating to the properties or assets
that are the subject of such Sale Transaction or received in any other noncash
form) therefrom by such Person, net of (i) al legal, title and recording taxes,
expenses, commissions and other fees and expenses incurred an all federal,
state, provincial, foreign and local taxes required to be accrued as a liability
as a consequence of such Sale Transaction, (ii) all payments made by such Person
or its Subsidiaries on any Indebtedness which is secured in whole or in part by
any such properties and assets in accordance with the terms of any Lien upon or
with respect to any such properties and assets of which must, by the terms of
such Lien, or in order to obtain a necessary consent to such Sale Transaction or
by applicable law, be repaid out of the proceeds from such Sale Transaction, and
(iii) all distributions and other payments made to minority interest holder in
subsidiaries of such persons or joint ventures as a result of such Sale
Transaction.
CONSOLIDATION, MERGER, SALE OF ASSETS
The Company may consolidate or merge with or into, or transfer it
assets substantially as an entirety to, any corporation organized under the laws
of any domestic jurisdiction, provided that the successor corporation assumes
the Company's obligations on the Debt
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Securities and under the Indenture, that after giving effect to the transaction
no Event of Default, and no event which, after notice or lapse of time or both,
would become an Event of Default, shall have occurred and be continuing, and
that certain other conditions are met.
EVENTS OF DEFAULT
The following will be "Events of Default" under the Indenture:
(i) failure to pay any interest on any Debt Security when it
becomes due and payable, and such failure shall continue for a period
of 30 days;
(ii) failure to pay the principal of (or premium, if any, on)
any Debt Security at its maturity (upon acceleration, optional or
mandatory redemption, required repurchase or otherwise);
(iii) failure to perform, or breach of, any covenant or
agreement of the Company under the Indenture (other than a default in
the performance of, or breach of, a covenant or agreement which is
specifically dealt with in clause (i) or (ii) and such default or
breach shall continue for a period of 60 days after written notice of
such failure has been given, by certified mail, (x) to the Company by
the Trustee or (y) to the Company and the Trustee by the holders of at
least 25% in aggregate principal amount of the outstanding Notes,
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" under the Indenture;
(iv) one or more defaults shall have occurred under any
agreements, indentures or instruments under which the Company (or any
subsidiary) then has outstanding Indebtedness in excess of a principal
amount equal to in the aggregate the greater of $50 million or 10% of
Consolidated Shareholders' Equity of the Company and, if not already
matured at its final maturity in accordance with its terms, such
Indebtedness shall have been accelerated;
(v) one or more judgments, orders or decrees for the payment
of money in excess of $50 million, either individually or in the
aggregate (net of amounts covered by insurance, bond, surety or similar
instrument), shall be entered against the Company or any Subsidiary, or
any of their respective properties, and shall not be discharged and
either (a) any creditor shall have commenced an enforcement proceeding
upon such judgment, order or decree or (b) there shall have been a
period of 60 consecutive days during which a stay of enforcement of
such judgment or order, by reason of an appeal or otherwise, shall not
be in effect;
(vi) there shall have been the entry by a court of competent
jurisdiction of (a) a decree or order for relief in respect of the
Company or any Material Subsidiary in an involuntary case or proceeding
under any applicable Bankruptcy Law of (b) a decree or order adjudging
the Company or any Material Subsidiary under any applicable federal or
state law, or appointing a custodian, receive, liquidator, assignee,
trustee, sequestrator
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(or other similar official) of the Company or any Material Subsidiary
or of any substantial part of their respective properties, or ordering
the signing up or liquidation of their affairs, and any such decree or
order for relief shall continue to be in effect, or any such other
decree or order shall be unstayed and in effect, for a period of 60
consecutive days; or
(vii) (a) the Company or any Material Subsidiary commences a
voluntary case or proceeding under any applicable Bankruptcy Law or any
other case or proceeding to be adjudicated bankrupt or insolvent, (b)
the Company or any Material Subsidiary consents to the entry or a
decree or order for relief in respect of the Company of any Material
Subsidiary in an involuntary case or proceeding under any applicable
Bankruptcy Law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, (c) the Company or any Material
Subsidiary files a petition or answer or consent seeking reorganization
or relief under any applicable federal or state law, (d) the Company or
any Material Subsidiary (x) consents to the filing of such petition or
the appointment of, or taking possession by, a custodian, receiver,
liquidator, assignee, trustee, sequestrator or similar official of the
Company of any Material Subsidiary or of any substantial part of their
respective properties or (y) makes an assignment for the benefit of
creditors or (e) the Company or any Material Subsidiary takes any
corporate action in furtherance of any such actions in this paragraph
(vii).
If an Event of Default (other than as specified in clauses (vi) and
(vii) of the prior paragraph) shall occur and be continuing, the
Trustee or the holders of not less than 25% in aggregate principal
amount of the Debt Securities then outstanding may, and the Trustee at
the request of such Holders shall, declare all unpaid principal of (and
premium, if any, on) and accrued interest on all the Debt Securities to
be due and payable immediately, by a notice in writing to the Company
(and to the Trustee if given by the Holders of the Debt Securities)
provided that so long as the Revolving Credit Facility is in effect,
such declaration shall not become effective until the earlier of (a)
five business days after receipt of such notice of acceleration from
the Holders or the Trustee by the agent under the Revolving Credit
Facility or (b) acceleration of the Indebtedness under the Revolving
Credit Facility. Thereupon such principal shall become immediately due
and payable, and the Trustee may, at its discretion, proceed to protect
and enforce the rights of the holders of Debt Securities by appropriate
judicial proceeding. If an Event of Default specified in clause (vi)
and (vii) of the prior paragraph occurs, then all the Debt Securities
shall ipso facto become and be immediately due and payable, in an
amount equal to the principal amount of the Debt Securities, together
with accrued and unpaid interest, if any, to the date the Debt
Securities become due and payable, without any declaration or other act
on the part of the Trustee or any Holder.
After a declaration of acceleration, but before a judgment or decree
for payment of the money due has been obtained by the Trustee, the holders of a
majority in aggregate principal mounts of Debt Securities outstanding, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if (a) the Company has paid or deposited
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with the Trustee a sum sufficient to pay (i) all sums paid or advanced by the
Trustee under the Indenture and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, (ii) all
overdue interest on all Debt Securities, and (iii) to the extent that payment of
such interest is lawful, interest upon overdue interest at the rate borne by the
Debt Securities; and (b) all Events of Default, other than the non-payment of
principal of the Debt Securities which has become due solely by such declaration
of acceleration, have been cured or waived; and (c) the rescission will not
conflict with any judgment or decree.
"Bankruptcy Law" means Title 11, United States Bankruptcy Code of 1978,
as amended, or any similar United States federal or state law relating to
bankruptcy, insolvency, receivership, winding-up, liquidation, reorganization or
relief of debtors or any amendment to, succession to or change in any such law.
"Material Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock and whose net sales
exceed 4% of the Company's consolidated net sales as determined in accordance
with generally accepted accounting principles consistently applied.
The holders of not less than a majority in aggregate principal amount
of the Debt Securities outstanding may on behalf of the holders of all the Debt
Securities waive any past defaults under the Indenture and its consequences,
except a default in the payment of the principal of (and premium, if any, on) or
interest on any Debt Security, or in respect of a covenant or provision which
under the Indenture cannot be modified or amended without the consent of the
holder of each Debt Security outstanding.
The Company is also required to notify the Trustee within five business
days of the occurrence of any default.
DISCHARGE, DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to holders of any series
of Debt Securities that have not already been delivered to the Trustee for
cancellation and that either have become due and payable or will become due and
payable within one year (or scheduled for redemption within one year) by
depositing with the Trustee, in trust, funds in U.S. Dollars or in such Foreign
Currency in which such Debt Securities are payable in an amount sufficient to
pay the entire indebtedness on such Debt Securities in respect of principal (and
premium, if any) and interest to the date of such deposit (if such Debt
Securities have become due and payable) or to the maturity thereof, as the case
may be.
The Indenture provides that, if the provisions of Section 402 thereof
are made applicable to the Debt Securities of or within any series pursuant to
Section 301 thereof, the Company may elect either (a) to defease and be
discharged from any and all obligations with respect to such Debt Securities
(except for, among other things, the obligation to pay Additional Amounts, if
any, upon the occurrence of certain events of taxation, assessment or
governmental charge with
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respect to payments on such Debt Securities and the obligations to register the
transfer or exchange of such Debt Securities, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of such Debt Securities and to hold moneys for payment in trust)
("defeasance") or (b) to be release from its obligations with respect to such
Debt Securities under the covenants described in "-- Limitation on Liens" and
"-- Limitation on Sale and Leaseback Transactions" above or, if provided
pursuant to Section 301 of the Indenture, its obligations with respect to any
other covenant, and any omission to comply with such obligations shall not
constitute a default or an Event of Default with respect to such Debt Securities
("covenant defeasance"), in either case upon the irrevocable deposit by the
Company with the Trustee, in trust, of an amount, in U.S. Dollars or in such
Foreign Currency in which such Debt Securities are payable at stated maturity,
or Government Obligations (as defined below), or both, applicable to such Debt
Securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest on such Debt Securities, and
any mandatory sinking fund or analogous payments thereon, on the scheduled due
dates therefor.
Such a trust may only be established if, among other things, (i) the
applicable defeasance or covenant defeasance does not result in a breach or
violation of, or constitute a default under, the Indenture or any other material
agreement or instrument to which the Company is a party or by which is bound,
(ii) no default or Event of Default with respect to the Debt Securities to be
defeased shall have occurred and be continuing on the date of the establishment
of such a trust and (iii) the Company has delivered to the Trustee an Opinion of
Counsel (as specified in the Indenture) to the effect that the holders of such
Debt Securities will not recognize income, gain or loss for U.S. federal income
tax purposes as a result of such defeasance or covenant defeasance and will be
subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred, and such Opinion of Counsel, in the case of
defeasance, must refer to and be based upon a letter ruling of the Internal
Revenue Service received by the Company, a Revenue ruling published by the
Internal Revenue Service or a change in applicable U.S. federal income tax law
occurring after the date of the Indenture.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the government or the governments
in the confederation which issued the Foreign Currency in which the Debt
Securities of a particular series are payable, for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America or such government or governments which issued the Foreign Currency in
which the Debt Securities of such series are payable, the timely payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government or governments, which, in the
case of clauses (i) and (ii), are not callable or redeemable at the option of
the
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issuer or issuers thereof, and shall also include a depository receipt issued by
a bank or trust company as custodian with respect to any such Government
Obligation or a specific payment of interest on or principal of or any other
amount with respect to any such Government Obligation held by such custodian for
the account of the holder of a depository receipt, provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of or any other amount with respect to the
Government Obligation evidenced by such depository receipt.
If after the Company has deposited funds and/or Government Obligations
to effect defeasance or covenant defeasance with respect to Debt Securities of
any series, (a) the holder of a Debt Security of such series is entitled to, and
does, elect pursuant to Section 301 of the Indenture or the terms of such Debt
Security to receive payment in a currency other than that in which such deposit
has been made in respect of such Debt Security, or (b) a Conversion Event (as
defined below) occurs in respect of the Foreign Currency in which such deposit
has been made, the indebtedness represented by such Debt Security shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any) and interest, if any, on such
Debt Security as such Debt Security becomes due out of the proceeds yielded by
converting the amount so deposited in respect of such Debt Security into the
currency in which such Debt Security becomes payable as a result of such
election or such Conversion Event based on (x) in the case of payments made
pursuant to clause (a) above, the applicable market exchange rate for such
currency in effect on the second business day prior to such payment date, or (y)
with respect to a Conversion Event, the applicable market exchange rate for such
Foreign Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Foreign Currency and for the settlement of transactions by a central bank or
other public institutions of or within the international banking community, (ii)
the ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established. All payments of principal of (and premium, if any) and
interest on any Debt Security that is payable in a Foreign Currency that ceases
to be used by its government or confederation of issuance shall be made in U.S.
dollars.
In the event the Company effects covenant defeasance with respect to
any Debt Securities and such Debt Securities are declared due and payable
because of the occurrence of any Event of Default other than an Event of Default
with respect to Sections 1005 and 1006 of the Indenture (which Sections would no
longer be applicable to such Debt Securities after such covenant defeasance) or
with respect to any other covenant as to which there has been covenant
defeasance, the amount in such Foreign Currency in which such Debt Securities
are payable, and Government Obligations on deposit with the Trustee, will be
sufficient to pay amounts due on such Debt Securities at the time of their
stated maturity but may not be sufficient to pay amounts
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due on such Debt Securities at the time of the acceleration resulting from such
Event of Default. However, the Company would remain liable to make payment of
such amounts due at the time of acceleration.
Under the Indenture, the Company is required to furnish to the Trustee
annually a statement as to performance by the Company of certain of its
obligations under the Indenture and as to any default in such performance. The
Company is also required to delivery to the Trustee, within five days after the
occurrence thereof, written notice of any event which after notice or lapse of
time or both would constitute an Event of Default.
SATISFACTION AND DISCHARGE
The Indenture will be discharged and will cease to be of further effect
(except as to surviving rights of registration of transfer or exchange of Debt
Securities, as expressly provided for in the Indenture) as to all outstanding
Debt Securities when (a) either (i) all the Debt Securities theretofore
authenticated and delivered (other than lost, stolen or destroyed Debt
Securities which have been replaced or paid) have been delivered to the Trustee
for cancellation or (ii) all Debt Securities not theretofore delivered to the
Trustee for cancellation (x) have become due and payable, (y) will become due
and payable at their stated maturity within one year or (z) are to be called for
redemption within one year under arrangements satisfactory to the Trustee for
the giving of notice of redemption by the Trustee in the name, and at the
expense, of the Company, and the Company has irrevocably deposited or caused to
be deposited with the Trustee funds in an amount sufficient to pay and discharge
the entire Indebtedness on the Debt Securities not theretofore delivered to the
Trustee for cancellation, including principal of (and premium, if any, on) and
accrued interest at such stated maturity or redemption date; (b) the Company has
paid or caused to be paid all other sums payable under the Indenture by the
Company; and (c) the Company has delivered to the Trustee an Officers'
Certificate and an opinion of counsel each stating that (i) all conditions
precedent under the Indenture relating to the satisfaction and discharge of the
Indenture has been complied with and (ii) such satisfaction and discharge will
not result in a breach or violation of, or constitute a default under, the
Indenture or any other material agreement or instrument to which the Company is
a party or by which the Company is bound.
MODIFICATIONS AND AMENDMENTS
Without the consent of any holders, the Company and Trustee, at any
time and form time to time, may enter into one or more indentures supplemental
to the Indenture for any of the following purposes: (1) to evidence the
succession of another Person to the Company; (2) to add to the covenants of the
Company for the benefit of the holders, or to surrender any right or power
therein conferred upon the Company; (3) to add or change any provisions of the
Indenture to facilitate the issuance of bearer Debt Securities; (4) to establish
the form or terms of Debt Securities of any series and related coupons; (5) to
evidence and provide for the acceptance of the appointment under the Indenture
by a successor Trustee; (6) to cure any ambiguity, to
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<PAGE> 48
correct or supplement any provision in the Indenture which may be defective or
inconsistent with any other provision in the Indenture, provided that such
actions pursuant to this clause do not adversely affect the interests of the
holders of Debt Securities of any series or any related coupons in any material
respect; (7) to add to, or delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Debt Securities; (8) to add any additional Events
of Default; (9) to supplement any of the provisions of the Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Debt Securities, provided that such action pursuant
to this clause does not adversely affect the interests of holders of Debt
Securities of such series or any related coupons in any material respect; (10)
to secure the Debt Securities; (11) to make provision with respect to conversion
rights of holders of Debt Securities of any series; and (12) to amend or
supplement any provision contained in the Indenture or in any supplemental
indenture, provided that such amendment or supplement does not materially
adversely affect the interests of the holders of any Debt Securities then
outstanding; provided that certain legal opinions and Officers' Certificates are
delivered.
Modifications and amendments of the Indenture may be made by the
Company and the Trustee with the consent of the holders of not less than 66-2/3%
in aggregate outstanding principal amount of the Debt Securities; provided,
however, that no such modification or amendment may, without the consent of the
holder of each outstanding Debt Security affected thereby: (i) change the stated
maturity of the principal of, or any installment of interest on, andy Debt
Security or reduce the principal amount thereof or the rate of interest thereon
or any premium payable upon the redemption thereof, or change the coin or
currency in which the principal of any Debt Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the stated maturity thereof; (ii)
reduce the percentage in principal amount of outstanding Debt Securities, the
consent of whose holders is required for any such modifications and amendments
or the consent of whose holders is required for any waiver; (iii) modify any of
the provisions relating to supplemental indentures requiring the consent of
holders or relating to the waiver of past defaults or relating to the waiver of
certain covenants, except to increase the percentage of outstanding Debt
Securities required for such actions or to provide that certain other provisions
of the Indenture cannot be modified or waived without the consent of the holder
of each Debt Security affected thereby; or (iv) make any change that adversely
affects the right to convert or exchange any Debt Security.
GOVERNING LAW
The Indenture and the Notes will be governed by, and construed in
accordance with the laws of the State of New York, without giving effect to the
conflicts of law principles thereof.
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<PAGE> 49
BOOK-ENTRY; DELIVERY AND FORM
The certificates representing the New Notes will be issued in full
registered form, without coupons. Except as described under Certificated Notes
below, the New Notes will be deposited with, or on behalf of, The Depository
Trust Company ("DTC"), New York, New York, as depository (the "Depository"), and
registered in the name of Cede & Co., as DTC's nominee, in the form of a global
Note certificate (the "Global Certificate").
Global Certificates. Ownership of beneficial interests in a Global
Certificate will be limited to persons who have accounts with DTC
("participants") or persons who hold interests through participants. Ownership
of beneficial interests in the Global Certificates will be shown on, and the
transfer of these ownership interests will be effected only through, records
maintained by DTC or its nominee (with respect to interests of participants) and
the records of participants (with respect to interests of persons other than
participants).
So long as DTC, or its nominee, is the registered owner or holder of a
Global Certificate, DTC or such nominee, as the case may be, will be considered
the sole owner or holder of the Notes represented by such Global Certificate for
all purposes under the Indenture and the New Notes. In addition, no beneficial
owner of an interest in a Global Certificate will be able to transfer that
interest except in accordance with DTC's applicable procedures (in additional
to those under the Indenture referred to herein).
Payments on Global Certificates will be made to DTC, or its nominee, as
the registered owner thereof. Neither the Company, the Trustee nor any paying
agent will have any responsibility or liability for any aspect of the records
relating to or payment made on account of beneficial ownership interests in the
Global Certificates or for maintaining, supervising or reviewing any records
relating to such beneficial ownership interests.
The Company expects that DTC, or its nominee, upon receipt of any
payment in respect of a Global Certificate representing any New Notes held by
it or its nominee, will immediately credit participants' accounts with
payments in amounts proportionate to their respective beneficial interests in
the principal amount of such Global Certificate for such New Notes as shown on
the records of DTC or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Certificate held
through such participants will be governed by standing instructions and
customary practices, as is now the case with securities held for the accounts
of customers registered in the names of nominees for such customers. Such
payments will be the responsibility of such participants.
Transfers between participants in DTC will be effected in the ordinary
way in accordance with DTC rules. The laws of some states require that certain
persons take physical delivery of securities in definitive form. Consequently,
the ability to transfer beneficial interests in a Global Certificate to such
persons may be limited. Because DTC can only act on behalf of participants, who
in turn act on behalf of indirect participants (defined below) and certain
banks, the ability of a person having a beneficial interest in a Global
Certificate to pledge such interest to persons
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or entities that do not participate in the DTC system, or otherwise take actions
in respect of such interest, may be affected by the lack of a physical
certificate of such interest.
The Company believes that it is the policy of DTC that it will take any
action permitted to be taken by a holder of Notes (including the presentation of
Notes for exchange as described below under "Exchange Offer; Registration
Rights") only at the direction of one or more participants to whose account
interests in the Global Certificates are credited and only in respect of such
portion of the aggregate principal amount at maturity of the Notes as to which
such participant or participants has or have given such direction.
The Indenture provides that if (i) the Depository notifies the Company
that it is unwilling or unable to continue as Depository or if the Depository
ceases to be eligible under the Indenture and a successor depository is not
appointed by the Company within 90 days, (ii) the Company determines that the
Notes shall no longer be represented by Global Certificates and executes and
delivers to the Trustee a Company order to such effect or (iii) an Event of
Default or event which, with notice or lapse of time or both, would constitute
and Event of Default with respect to the Notes shall have occurred and be
continuing, the Global Certificates will be exchanged for Notes in definitive
form of like tenor and of an equal aggregate principal amount, in authorized
denominations. Such definitive Notes shall be registered in such name or names
as the Depository shall instruct the Trustee. It is expected that such
instructions may be based upon directions received by the Depository from
participants with respect to ownership of beneficial interests in Global
Certificates.
DTC has advised the Company as follows: DTC is a limited-purpose trust
company organized under the New York Banking Law, a "banking organization"
within the meaning of the New York Banking Law, a member of the Federal Reserve
System, a "clearing corporation" within the meaning of the New York Banking Law,
a member of the Federal Reserve System, a "clearing corporation" within the
meaning of the New York Uniform Commercial Code and a "clearing agency"
registered pursuant to the provisions of Section 17A of the Exchange Act. DTC
holds securities that its participants deposit with DTC and facilitates the
settlement among participants of securities transactions, such as transfers and
pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing corporations and certain
other organizations. Access to the DTC system is also available to others such
as securities brokers and dealers, banks and trust companies that clear through
or maintain a custodial relationship with a direct participant, either directly
or indirectly ("indirect participants"). The rules applicable to DTC and its
participants are on file with the Commission.
Although DTC has agreed to the foregoing procedures in order to
facilitate transfers of interests in the Global Certificates among participants
of DTC, it is under no obligation to perform or continue to perform such
procedures, and such procedures may be discontinued at any time. Neither the
Company nor the Trustee will have any responsibility for the performance by DTC
or its participants or indirect participants of their respective obligations
under the rules and procedures governing their operations.
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Certificated Notes. Notes originally purchased by or transferred to (i)
institutional "accredited investors" (as defined in Rule 501 (a)(1), (2), (3) or
(7) under the Securities Act) who are not "qualified institutional buyers" (as
defined in Rule 144A under the Securities Act) ("QIBs"), (ii) except as
described below, Persons outside the United States pursuant to sales in
accordance with Regulation S under the Securities Act or (iii) any other Persons
who are not QIBs (collectively, "Non-Global Purchasers") will be issued in
registered form (the "Certified Notes"). Upon the transfer to a QIB of
Certificated Notes initially issued to a Non-Global Purchaser, such Certificated
Notes will be exchanged for an interest in the Global Certificate representing
the principal amount of Notes being transferred.
Notes originally purchased by persons outside the United States of
America pursuant to sales in accordance with Regulation S under the Securities
Act will be represented upon issuance by a temporary global Note certificate
(the "Temporary Certificate") which will not be exchangeable for Certificated
Notes until the expiration of the "40-day restricted period" within the meaning
of Rule 903(c)(3) of Regulation S under the Securities Act. The Temporary
Certificate will be registered in the name of, and held by, a temporary
certificate holder until the expiration of such 40-day restricted period, at
which time the Temporary Certificate will be delivered to the Trustee in
exchange for Certificated Notes registered in the names requested by such
temporary certificate holder. In addition, until the expiration of such 40-day
restricted period, transfers of interest in the Temporary Certificate can be
effected only through such temporary certificate holder in accordance with the
requirements set forth in "Notice to Investors."
In case any Note shall become mutilated, defaced, destroyed, lost or
stolen, the Company will execute and, upon the Company's request, the Trustee
will authenticate and deliver a new Note, of like tenor and equal principal
amount in exchange and substitution for such Note (upon surrender and
cancellation thereof) or in lieu of and substitution for such Note. In case such
Note is destroyed, lost or stolen, the applicant for a substituted Note shall
furnish to the Company and the Trustee such security or indemnity as may be
required by them to hold each of them harmless, and, in every case of
destruction, loss or theft of such Note, the applicant shall also furnish to the
Company or the Trustee satisfactory evidence of the destruction, loss or theft
of such Note and of the ownership thereof. Upon the issuance of any substituted
Note, the Company may require the payment by the registered holder thereof of a
sum sufficient to cover fees and expenses connected therewith.
REGARDING THE TRUSTEE
The Trust Indenture Act contains limitations on the rights of the
Trustee, should it become a creditor of the Company, to obtain payment of claims
in certain cases or to realize on certain property received by it in respect of
any such claims, as security or otherwise. The Trustee is permitted to engage in
other transactions with the Company and its subsidiaries from time to time,
provided that if the Trustee acquires any conflicting interest it must eliminate
such conflict upon the occurrence of an Event of Default, or else resign. The
Trustee currently acts as trustee with respect to the Company's Liquid Yield
Option Notes and as a Co-Agent with
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respect to the Company's Revolving Credit Facility. The Company also has normal
banking relationships with the Trustee.
REGISTRATION RIGHTS
Pursuant to the Registration Rights Agreement, the Company agreed to
file with the Commission the Exchange Offer Registration Statement and, upon its
effectiveness, offer to the Holders of Transfer Restricted Securities pursuant
to the Exchange Offer who are able to make certain representations the
opportunity to exchange their Transfer Restricted Securities for New Notes. If
(i) the Company is not permitted to consummate the Exchange Offer because the
Exchange Offer is not permitted by applicable law or Commission policy or (ii)
any Holder of Transfer Restricted Securities notifies the Company that (A) it is
prohibited by law or Commission policy from participating in the Exchange Offer
or (B) that it may not resell the New Notes acquired by it in the Exchange Offer
to the public without delivering a prospectus and the prospectus contained int
he Exchange Offer Registration Statement is not appropriate or available for
such resales or (c) that it is a broker-dealer and holds Notes acquired directly
from the Company or an affiliate of the Company, the Company will file with the
Commission a Shelf Registration Statement to cover resales of the Notes by the
holders thereof who satisfy certain conditions relating to the provision of
information in connection with the Shelf Registration Statement. The Company
will use its best efforts to cause the applicable registration statement to be
declared effective as promptly as possible by the Commission. For purposes of
the foregoing, "Transfer Restricted Securities" means each Old Note until (i)
the date on which such Old Note has been exchanged by a person other than a
broker-dealer for a New Note in the Exchange Offer, (ii) following the exchange
by a broker-dealer in the Exchange Offer of an Old Note for a New Note, the date
on which such New Note is sold to a purchaser who receives from such
broker-dealer on or prior to the date of such sale a copy of this Prospectus,
(iii) the date on which such Old Note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement or (iv) the date on which such Old Note is distributed to the public
pursuant to Rule 144 or Rule 145 under the Act.
The Registration Rights Agreement also provides that if obligated to
file the Shelf Registration Statement, the Company will use its best efforts to
cause such Shelf Registration Statement to be declared effective by the
Commission on or prior to 120 days after such obligation arises and to use its
best efforts to cause such Shelf Registration Statement to remain effective and
usable for a period of three years following the initial effectiveness thereof.
If the Company is obligated to file the Shelf Registration Statement and such
Shelf Registration Statement is not declared effective within 1880 days after
the Closing Date of the Old Notes (such event being a "Shelf Registration
Default"), then the Company will pay to each holder of Transfer Restricted
Securities, with respect to the first 90-day period immediately following such
Shelf Registration Default, liquidated damages in an amount equal to one-half of
one percentage point (.5%) per annum of the principal amount of Transfer
Restricted Securities held by such holder. Following the cure of all Shelf
Registration Defaults, the payment of liquidated damages will cease.
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Holders of Notes will be required to make certain representations to
the Company in order to participate in the Exchange Offer and will be required
to deliver information to be used in connection with the Shelf Registration
Statement and to provide comments on the Shelf Registration Statement within the
time periods set forth in the Registration Rights Agreement in order to have
their Notes included in the Shelf Registration Statement and benefit form the
provisions regarding liquidated damages set forth above. In addition, for so
long as any Transfer Restricted Securities are outstanding during any period
when the Company is not subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, the Company will continue to provide to Holders of
Transfer Restricted Securities and to prospective purchasers of such Transfer
Restricted Securities the information required by Rule 144A(d)(4).
DESCRIPTION OF OLD NOTES
The terms of the Old Notes are identical in all material respects to
the New Notes, except that (i) the Old Notes have not been registered under the
Securities Act, are subject to certain restrictions on transfer and are
entitled to certain registration rights under the Registration Rights Agreement
(which rights will terminate upon consummation of the Exchange Offer, except to
the extent that the Initial Purchasers may have certain registration rights
under limited circumstances); (ii) the New Notes are issuable in minimum
denominations of $1,000 and integral multiples thereof compared to minimum
denominations of $250,000 and integral multiples of $1,000 in excess thereof
for the Old Notes; and (iii) the New Notes will not provide for any increase in
the interest rate thereon. In that regard, the Old Notes provide that, in the
event that the Exchange Offer is not consummated or a shelf registration
statement (the "Shelf Registration Statement") with respect to the resale of
the Old Notes is not declared effective on or prior to November 17, 1995, the
interest rate on the Old Notes will increase by 0.50% per annum following
November 17, 1995; provided, however, that if the Company requests holders of
Old Notes to provide certain information called for by the Registration Rights
Agreement for inclusion in any such Shelf Registration Statement, then Old
Notes owned by holders who do not deliver such information to the Company or
who do not provide comments on the Shelf Registration Statement when required
pursuant to the Registration Rights Agreement will not be entitled to any such
increase in the interest rate. Upon the consummation of the Exchange Offer or
the effectiveness of a Shelf Registration Statement, as the case may be, after
November 17, 1995, the interest rate on any Old Notes which remain outstanding
will be reduced, from the date of such consummation or effectiveness, as the
case may be, to 7.0% per annum and the Old Notes will not thereafter be
entitled to any increase in the interest rate thereon. The New Notes are not
entitled to any such increase in the interest rate thereon. In addition, the
Old Notes and the New Notes will constitute a single series of debt securities
under the Indenture. Accordingly, holders of Old Notes should review the
information set forth under "Risk Factors-Consequences of Failure to Exchange"
and "Description of Notes."
CERTAIN UNITED STATES FEDERAL INCOME TAX CONSEQUENCES
The following summary describes certain United States Federal income
tax considerations to holders of the New Notes who are subject to U.S. net
income tax with respect to the New Notes ("U.S. persons") and who will hold the
New Notes as capital assets. There can be no assurance that the U.S. Internal
Revenue Service (the "IRS") will take a similar view of the purchase, ownership
or disposition of the New Notes. This discussion is based uon the provisions of
the Internal Revenue Code of 1986, as amended, and regulations, rulings and
judicial decisions now in effect, all of which are subject to change. It does
not include any description of the tax laws of any state, local or foreign
governments or any estate or gift tax considerations that may be applicable to
the New Notes or holders thereof. It does not discuss all aspects of U.S.
Federal income taxation that may be relevant to a particular investor in light
of his particular investment circumstances or to certain types of investors
subject to special treatment under the U.S. Federal income tax laws (for
example, dealers in securities or currencies, S corporations, life insurance
companies, tax-exempt organizations, taxpayers subject to the alternative
minimum tax and non-U.S. persons) and also does not discuss New Notes held as a
hedge against currency risks or as part of a straddle with other investments or
as part of a "synthetic security" or other integrated investment (including a
"conversion transaction") comprised of a New Note and one or more other
investments, or situations in which the functional currency of the holders is
not the U.S. dollar.
Holders of Old Notes contemplating acceptance of the Exchange Offer
should consult their own tax advisors with respect to their particular
circumstances and with respect to the effects of state, local or foreign tax
laws to which they may be subject.
EXCHANGE OF NOTES
The exchange of Old Notes for New Notes should not be a taxable event
to holders for federal income tax purposes. The exchange of Old Notes for the
New Notes pursuant to the Exchange Offer should not be treated as an "exchange"
for federal income tax purposes because the New Notes should not be considered
to differ materially in kind or extent from the Old Notes. If, however, the
exchange of the Old Notes for the New Notes were treated as an exchange for
federal income tax purposes, such exchange should constitute a recapitalization
for federal income tax purposes. Accordingly, the New Notes should have the
same issue price as the Old Notes, and a holder should have the same adjusted
basis and holding period in the New Notes as it had in the Old Notes
immediately before the exchange.
INTEREST ON THE NEW NOTES
A holder of a New Note will be required to report as ordinary interest
income for U.S. Federal income tax purposes interest earned on the New Note in
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accordance with the holder's method of tax accounting.
DISPOSITION OF NEW NOTES
A holder's tax basis for a New Note generally will be the holder's
purchase price for the Old Note. Upon the sale, exchange, redemption,
retirement or other disposition of a New Note, a holder will recognize gain or
loss equal to the difference (if any) between the amount realized and the
holder's tax basis in the New Note. Such gain or loss will be long-term capital
gain or loss if the New Note has been held for more than one year and otherwise
will be short-term capital gain or loss (with certain exceptions to the
characterization as capital gain if the New Note was acquired at a market
discount).
BACKUP WITHHOLDING
A holder of a New Note may be subject to backup withholding at the
rate of 31% with respect to interest paid on the New Note and proceeds from the
sale, exchange, redemption or retirement of the New Note, unless such holder
(a) is a corporation or comes within certain other exempt categories and, when
required, demonstates that fact or (b) provides a correct taxpayer
identification number, certifies as to no loss of exemption from backup
withholding and otherwise complies with applicable requirements of the backup
withholding rules. A holder of a New Note who does not provide the Company with
his correct taxpayer identification number may be subject to penalties imposed
by the IRS.
A holder of a New Note who is not a U.S. person will generally be
exempt from backup withholding and information reporting requirements, but may
be required to comply with certification and identification procedures in order
to obtain an exemption from backup withholding and information reporting.
Any amount paid as backup withholding will be creditable against the
holder's U.S. Federal income tax liability.
PLAN OF DISTRIBUTION
Each broker-dealer that receives New Notes for its own account pursuant
to the Exchange Offer must acknowledge that it will deliver a prospectus in
connection with any resale of such New Notes. This Prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of New Notes received in exchange for Old Notes where
such Old Notes were acquired as a result of market-making activities or other
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trading activities. The Company has agreed that for a period of 90 days after
the Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of New Notes by
broker-dealers. New Notes received by broker-dealers for their own account
pursuant to the Exchange Offer may be sold from time to time in one or more
transactions in the over-the-counter market, in negotiated transactions, through
the writing of options on the New Notes or a combination of such methods of
resale, at market prices prevailing at the time of resale, at prices related to
such prevailing market prices or negotiated prices. Any such resale may be made
directly to purchasers or to or through brokers or dealers who may receive
compensation in the form of commissions or concessions from any such
broker-dealer and/or the purchasers of any such New Notes. Any broker-dealer
that resells New Notes that were received by it for its own account pursuant to
the Exchange Offer and any broker or dealer that participates in a distribution
of such New Notes may be deemed to be an "underwriter" within the meaning of the
Securities Act and any profit on any such resale of New Notes and any
commissions or concessions received by any such persons may be deemed to be
underwriting compensation under the Securities Act. The Letter of Transmittal
states that by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
For a period of 270 days after the Expiration Date the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer other than commissions or concessions of any
brokers or dealers and will indemnify the holders of the Notes (including any
broker-dealers) against certain liabilities, including liabilities under the
Securities Act.
DESCRIPTION OF CAPITAL STOCK
GENERAL
RPM's authorized capital stock consists of 100,000,000 Common Shares,
without par value. There were 56,957,000 shares outstanding as of May 31, 1995.
All presently outstanding RPM Common Shares have been duly authorized and
validly issued, and are fully paid and nonassessable. Dividends, which may be
declared at the discretion of the Board of Directors of RPM, must be paid
equally on all issued and outstanding RPM Common Shares out of funds legally
available therefor. Upon liquidation, any excess net assets after all payments
of debts and costs must be paid to shareholders in proportion to the number of
RPM Common Shares held. RPM Common Shares are not subject to preemptive rights,
conversion rights, redemption provisions or sinking fund provisions.
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The holder of each RPM Common Share is entitled to one vote on all
matters submitted to shareholders generally, except that shareholders have the
right to cumulate their votes for the election of directors as permitted by Ohio
law. The Board of Directors is divided into three Classes with the term of
office of one of such Classes expiring in each year. At each Annual Meeting of
Shareholders the successors to the Directors of the Class whose term is expiring
at that time are elected to hold office for a term of three years.
Classification of the Board of Directors increases the number of RPM Common
Shares necessary under cumulative voting to elect a Director in any given year.
Subject to the provisions of Articles Seventh and Eighth of RPM's Amended
Articles of Incorporation (the "Amended Articles"), as hereinafter summarized,
all matters submitted to a vote of shareholders are determined by a vote of the
holders of shares entitling them to exercise a majority of the voting power of
RPM present in person or by proxy at a meeting called to consider such matter.
Article Seventh of RPM's Amended Articles provides, in essence, that
proposals (i) with respect to a merger, consolidation or acquisition wherein the
existing shareholders of RPM would hold less than two-thirds of the voting power
of RPM, or of the surviving or new corporation, immediately after consummation
of the transaction, and (ii) with respect to a sale of substantially all of the
assets of RPM, both require adoption or approval by two-thirds of the voting
power of RPM.
Article Eighth of RPM's Amended Articles provides, in essence, that the
affirmative vote of at least 80% of the voting power of RPM is required to
effect a merger, consolidation, sale, lease or exchange of substantially all of
the assets of RPM where the other party to the transaction, including its
"affiliates" and "associated persons," as defined, is a holder, directly or
indirectly, of 5% or more of the outstanding shares of any class of RPM entitled
to vote at a meeting called to consider such a proposed transaction, as of the
record date used to determine the shareholders entitled to vote upon such
transaction. The Board of Directors, acting in good faith, shall make a
conclusive determination as to whether the proposed transaction requires an 80%
vote of shareholders. The requirement for approval by an 80% vote shall not be
applicable to proposals which received the formal approval of the Board of
Directors of RPM prior to the acquisition of the 5% share interest by the other
party, provided that with respect to any proposed transaction as to which the
80% voting requirement would otherwise be applicable there has also been a
disclosure to all shareholders of any inducements in connection with the
proposed transaction offered to officers and Directors of RPM which are not
extended to all shareholders.
OHIO LAW
As an Ohio corporation, RPM is subject to certain provisions of Ohio
law which may discourage or render more difficult an unsolicited takeover of
RPM. Among these are provisions that (i) prohibit certain mergers, sales of
assets, issuances or purchases of securities, liquidation or dissolution, or
reclassification of the then outstanding shares of an Ohio corporation involving
certain holders of stock representing 10% or more of the voting power, unless
such transactions are either approved by the directors in office prior to the
10%
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shareholder becoming such or involve a 10% shareholder which has been such for
at least three years and certain requirements related to the price and form of
consideration to be received by shareholders are met; and (ii) provide Ohio
corporations with the right to recover profits realized under certain
circumstances by persons engaged in "greenmailing" or who otherwise sell
securities of a corporation within 18 months of proposing to acquire such
corporation.
In addition, pursuant to Section 1701.831 of the Ohio Revised Code, the
purchase of certain levels of voting power of RPM (one-fifth or more, one-third
or more, or a majority) can be made only with the prior authorization of the
holders of at least a majority of the total voting power of RPM and the separate
prior authorization of the holders of at least a majority of the voting power
held by shareholders other than the proposed purchaser, officers of RPM and
Directors of RPM who are also employees.
TRANSFER AGENT AND REGISTRAR
The transfer agent and registrar for RPM's Common Shares is Society
National Bank, Cleveland, Ohio.
LEGAL MATTERS
Certain legal matters in connection with the Notes offered hereby will
be passed upon for the Company by Calfee, Halter & Griswold, Cleveland, Ohio.
William A. Papenbrock, Esq., a partner of Calfee, Halter & Griswold, is a
Director of the Company and as of May 31, 1995 owned 8,907 Common Shares of the
Company.
54
<PAGE> 58
INDEPENDENT PUBLIC ACCOUNTANTS
The consolidated financial statements of the Company included in its
Annual Report on Form 10-K for the fiscal year ended May 31, 1994 have been
examined by Ciulla Stephens & Co., independent public accountants, as set forth
in their report included therein and incorporated herein by reference. The
consolidated financial statements of Rust-Oleum Corporation for the fiscal year
ended October 31, 1993 included in the Company's Current Report on Form 8-K
dated June 28, 1994 (as amended September 9, 1994) have been examined by KPMG
Peat Marwick LLP, independent public accountants, as set forth in their report
included therein and incorporated herein by reference. The consolidated
financial statements of NDSI for the fiscal year ended December 31, 1994
included in the Company's Current Report on Form 8-K dated July 24, 1995 have
been examined by KPMG Peat Marwick LLP, independent public accountants, as set
forth in their report therein and incorporated herein by reference. The report
of KPMG Peat Marwick LLP covering the December 31, 1994 financial statements of
NDSI contains an explanatory paragraph that states that NDSI's wholly owned
subsidiary, Dryvit Systems, Inc., has experienced rust related warranty expense
arising from prior years sales. No reasonable estimate of unreported claims
could be made at December 31, 1994 and accordingly, the financial statements do
not include any adjustments relating to the outcome of this uncertainty. The
consolidated financial statements referred to above are incorporated herein by
reference in reliance upon such reports and upon the authority of such firms as
experts in accounting and auditing.
55
<PAGE> 59
No person is authorized in connection with any offering made hereby to give
any information or to make any representation not contained in this Prospectus
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company. This Prospectus does not
constitute an offer to sell or a solicitation of an offer to buy any security
other than the Notes offered hereby, nor does it constitute an offer to sell or
a solicitation of an offer to buy any of the Notes to any person in any
jurisdiction in which it is unlawful to make such an offer or solicitation to
such person. Neither the delivery of this Prospectus or the accompanying Letter
of Transmittal nor any sale made hereunder shall under any circumstances create
any implication that the information contained herein is correct as of any date
subsequent to the date hereof.
--------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
AVAILABLE INFORMATION .................................................. 4
INCORPORATION OF CERTAIN DOCUMENTS BY
REFERENCE ........................................................... 5
PROSPECTUS SUMMARY ..................................................... 6
ACQUISITION OF NARRAGANSETT/DSI
ACQUISITION CO., INC
AND ITS WHOLLY OWNED SUBSIDIARY
DRYVIT SYSTEMS, INC ................................................. 15
THE COMPANY ............................................................ 15
BUSINESS ............................................................... 15
RISK FACTORS ........................................................... 18
THE EXCHANGE OFFER ..................................................... 19
USE OF PROCEEDS ........................................................ 31
CAPITALIZATION ......................................................... 32
SELECTED FINANCIAL INFORMATION ......................................... 32
DESCRIPTION OF NOTES ................................................... 33
DESCRIPTION OF OLD NOTES................................................ 50
CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES ........................................................ 50
PLAN OF DISTRIBUTION ................................................... 51
DESCRIPTION OF CAPITAL STOCK ........................................... 52
LEGAL MATTERS .......................................................... 54
INDEPENDENT PUBLIC ACCOUNTANTS ......................................... 55
</TABLE>
----------------------
[RPM, INC. LOGO]
Offer to Exchange
its
7.0% Senior Notes Due 2005
($150,000,000 principal amount outstanding)
for 7.0% Senior Exchange Notes Due 2005
($150,000,000 principal amount outstanding)
------------
Offer to Exchange--Prospectus
------------
___________, 1995
56
<PAGE> 60
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. Indemnification of Directors and Officers.
Ohio Revised Code Section 1701.13(E) and Article VI of Registrant's
Amended Code of Regulations (incorporated herein by reference as Exhibit 3.2)
provide for indemnification of Directors and officers against certain
liabilities.
The Registrant has purchased a Directors and Officers Liability
Insurance Policy (incorporated herein by reference as Exhibit 99.1).
The Registrant has entered into Indemnification Agreements with each of
its Directors and executive officers providing for additional indemnification
protection beyond that provided by the Directors and Officers Liability
Insurance Policy. A copy of the form of Indemnification Agreement is
incorporated herein by reference and is filed as Exhibit 99.2 to this
Registration Statement.
Reference is made to Section 5 of the Registration Rights Agreement
(Exhibit 4.6 to the Registration Statement) which provides indemnification to
the Registrant's officers, Directors and controlling persons against certain
civil liabilities, including liabilities under the Securities Act.
Item 21. Exhibits and Financial Statement Schedules.
(a) Exhibits. See the Exhibit Index at page E-1 of this Registration
Statement.
(b) Financial Statement Schedules. The financial statement schedules
required by this item are incorporated by reference from the Company's Annual
Report on Form 10-K for the fiscal year ended May 31, 1994.
Item 22. Undertakings.
(a) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Act and will
be governed by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of
prospectus filed as part of a registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act
shall be deemed to be part of the registration statement as of the time
it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a
form of prospectus shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
II-1
<PAGE> 61
(c) The undersigned registrant hereby undertakes to respond to requests
for information that is incorporated by reference into the prospectus pursuant
to Items 4, 10(b), 11, or 13 of this Form within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of
a post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-2
<PAGE> 62
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant has duly caused this Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Cleveland
and State of Ohio, on the 1st day of August, 1995.
RPM, Inc.
By /s/ Thomas C. Sullivan
--------------------------------------
Thomas C. Sullivan, Chairman of the
Board of Directors and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below, constitutes and appoints Thomas C. Sullivan, James A.
Karman, Paul A. Granzier and William A. Papenbrock, or any one of them, his or
her true and lawful attorneys-in-fact and agents, with full power of
substitution for him or her and his or her name, place and stead, in any and all
capacities, to sign any or all amendments or post-effective amendments to this
Registration Statement, and to file same, with all Exhibits thereto and other
documents in connection therewith, with the Securities and Exchange Commission,
granting unto such attorneys-in-fact and agents, or any one of them, full power
and authority to do and perform each and every act and things requisite and
necessary to be done in and about the premises, as fully and to all intents and
purposes as he or she might or could do in person, hereby ratifying and
conforming all that such attorneys-in-fact and agents or any one of them, or
their or his substitute or substitutes may lawfully do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities indicated and on the 1st day of August, 1995.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Thomas C. Sullivan Chairman of the Board of
- -------------------------
Thomas C. Sullivan Directors and Chief Executive Officer (principal
executive officer)
/s/ James A. Karman President, Chief Operating
- ------------------------- Officer and Director
James A. Karman
/s/ Frank C. Sullivan Vice President and Chief
- ------------------------- Financial Officer (principal financial officer)
Frank C. Sullivan
</TABLE>
II-3
<PAGE> 63
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<S> <C>
/s/ Glenn R. Hasman Vice President --
- ------------------------- Administration (principal accounting officer)
Glenn R. Hasman
/s/ Max D.Amstutz Director
- -------------------------
Max D. Amstutz
/s/ Edward B. Brandon Director
- -------------------------
Edward B. Brandon
/s/ Lorrie Gustin Director
- -------------------------
Lorrie Gustin
/s/ Roy H. Holdt Director
- -------------------------
Roy H. Holdt
/s/ E. Bradley Jones Director
- -------------------------
E. Bradley Jones
/s/ Donald K. Miller Director
- -------------------------
Donald K. Miller
/s/ John H. Morris, Jr. Director
- -------------------------
John H. Morris, Jr.
/s/ Kevin O'Donnell Director
- -------------------------
Kevin O'Donnell
/s/ William A. Papenbrock Director
- -------------------------
William A. Papenbrock
/s/ Stephen Stranahan Director
- -------------------------
Stephen Stranahan
</TABLE>
II-4
<PAGE> 64
Exhibit 23.1
CONSENT OF
INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of our report dated
July 8, 1994 which appears in the Annual Report on Form 10-K for the fiscal year
ended May 31, 1994 of RPM, Inc. and of our report on the Financial Statement
Schedules which appears in such Annual Report on Form 10-K. We also consent to
the reference to our firm made under the heading "INDEPENDENT PUBLIC
ACCOUNTANTS" in the Prospectus.
/s/ CIULLA STEPHENS & CO.
CIULLA STEPHENS & CO.
Cleveland, Ohio
July 28,1995
II-5
<PAGE> 65
Exhibit 23.2
CONSENT OF
INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Prospectus constituting part
of this Registration Statement on Form S-4 of our report dated February 28, 1995
which appears in the Current Report on Form 8-K, dated July 24, 1995, of RPM,
Inc. and to the reference to our firm made under the heading "INDEPENDENT PUBLIC
ACCOUNTANTS" in the Prospectus.
Our report dated February 28, 1995 contains an explanatory paragraph that states
that Narragansett/DSI Acquisition Co., Inc.'s wholly owned subsidiary, Dryvit
Systems, Inc., has experienced rust related warranty expense arising from prior
years sales. Dryvit Systems, Inc. has made provision for reported claims;
however, no provision has been made for unreported claims as they cannot be
reasonably estimated. Accordingly, no additional provision for any liability
that may result has been recognized in the financial statements.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
Providence, Rhode Island
July 28, 1995
II-6
<PAGE> 66
Exhibit 23.3
CONSENT OF
INDEPENDENT AUDITORS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-4 of our report dated
December 10, 1993 with respect to the consolidated financial statements of
Rust-Oleum Corporation for the two years ended October 31, 1993 filed with RPM,
Inc.'s Current Report on Form 8-K, dated June 28, 1994. We also consent to the
reference to our firm made under the heading "INDEPENDENT PUBLIC ACCOUNTANTS" in
the Prospectus constituting part of this Registration Statement on Form S-4.
/s/ KPMG PEAT MARWICK LLP
KPMG PEAT MARWICK LLP
July 28, 1995
II-7
<PAGE> 67
Exhibit 23.4
CONSENT OF COUNSEL
The consent of Calfee, Halter & Griswold is contained in their opinion
filed as Exhibit 5.1 to this Registration Statement.
II-8
<PAGE> 68
RPM, INC.
Exhibit Index
<TABLE>
<CAPTION>
===================================================================================================================================
Sequential
Exhibit No. Description Page
- ----------- ----------- ----------
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
3.1 Amended Articles of Incorporation, as amended .................................
(A)(B)(C)
- -----------------------------------------------------------------------------------------------------------------------------------
3.2 Amended Code of Regulations ................................................... (D)
- -----------------------------------------------------------------------------------------------------------------------------------
4.1 Specimen Certificate of Common Shares, without par value, of RPM, Inc. ........
(E)
- -----------------------------------------------------------------------------------------------------------------------------------
4.2 Specimen LYONs Certificate..................................................... (C)
- -----------------------------------------------------------------------------------------------------------------------------------
4.3 Specimen Note Certificate for New Notes........................................
- -----------------------------------------------------------------------------------------------------------------------------------
4.4 Specimen Note Certificate for Old Notes........................................
- -----------------------------------------------------------------------------------------------------------------------------------
4.5 Indenture, dated as of June 1, 1995, between RPM, Inc. and The First
National Bank of Chicago, as Trustee...........................................
- -----------------------------------------------------------------------------------------------------------------------------------
4.6 Registration Rights Agreement, dated as of June 20, 1995, among RPM,
Inc., Chase Securities, Inc. and Bear, Stearns & Co. Inc.......................
- -----------------------------------------------------------------------------------------------------------------------------------
5.1 Opinion of Calfee, Halter & Griswold as to the validity of the Notes...........
- -----------------------------------------------------------------------------------------------------------------------------------
23.1 Consent of Ciulla Stephens & Co. (See page II-5 of this Registration
Statement).....................................................................
- -----------------------------------------------------------------------------------------------------------------------------------
23.2 Consent of KPMG Peat Marwick LLP. (See page II-6 of this Registration
Statement).....................................................................
- -----------------------------------------------------------------------------------------------------------------------------------
23.3 Consent of KPMG Peat Marwick LLP (See page II-7 of this Registration
Statement).....................................................................
- -----------------------------------------------------------------------------------------------------------------------------------
23.4 Consent of Calfee, Halter & Griswold. (See page II-8 of this Registration
Statement).....................................................................
- -----------------------------------------------------------------------------------------------------------------------------------
24.1 Power of Attorney.............................................................. (F)
- -----------------------------------------------------------------------------------------------------------------------------------
25.1 Form T-1 Statement of Eligibility of The First National
Bank of Chicago................................................................
- -----------------------------------------------------------------------------------------------------------------------------------
99.1 Executive Risk Policy.......................................................... (H)
- -----------------------------------------------------------------------------------------------------------------------------------
99.2 Form of Indemnification Agreement entered into by and between the
Company and each of its Directors and Executive Officers.......................
(I)
- -----------------------------------------------------------------------------------------------------------------------------------
99.3 Plan and Agreement of Merger among RPM, Inc., Narragansett/DSI
Acquisition Co., Inc ("NDSI") and NDSI's securityholders....................... (G)
- -----------------------------------------------------------------------------------------------------------------------------------
99.4* Form of Letter of Transmittal..................................................
- -----------------------------------------------------------------------------------------------------------------------------------
99.5* Form of Notice of Guaranteed Delivery..........................................
- -----------------------------------------------------------------------------------------------------------------------------------
99.6* Form of Exchange Agent Agreement...............................................
===================================================================================================================================
- ---------------------
* To be filed by amendment.
</TABLE>
E-1
<PAGE> 69
(A) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1984.
(B) Incorporated herein by referenced to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1987.
(C) Incorporated herein by reference to the appropriate
exhibit to the Company's Form S-3 Registration Statement (Reg. No. 33-50868).
(D) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1988.
(E) Incorporated herein by reference to the appropriate
exhibit to the Company's Registration Statement on Form S-3 (Reg. No. 33-39849).
(F) Set forth on the signature pages to this Registration
Statement.
(G) Incorporated herein by reference to the appropriate
exhibit to the Company's Current Report on Form 8-K, dated July 24, 1995.
(H) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1989.
(I) Incorporated herein by reference to the appropriate
exhibit to the Company's Annual Report on Form 10-K for the fiscal year ended
May 31, 1991.
E-2
<PAGE> 1
EXHIBIT 4.3
RPM
NO. R- $
DATED:
7.0% SENIOR NOTES DUE 2005
CUSIP 749685 AE 3
RPM, Inc., an Ohio corporation (hereinafter called the "Company", which
term includes any successor corporation under the Indenture referred to below),
for value received, hereby promises to pay to
or registered assigns, the principal sum of DOLLARS
on June 15, 2005, and to pay interest thereon from June 20, 1995 or from the
most recent date to which interest has been paid or duly provided for,
semiannually on June 15 and December 15 in each year (each, an "Interest Payment
Date"), commencing December 15, 1995, and at Maturity, at the rate of 7.0% per
annum, until the principal hereof is paid or duly made available for payment.
Interest on this Note shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months. The interest so payable and punctually paid
or duly provided for on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the June 1 or December 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on the relevant Regular Record Date by virtue of
having been such Holder, and may be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to the Holder of this Note not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.
Payment of the principal of and the interest on this Note will be made
at the office or agency of the Company maintained for that purpose in The City
of New York, in such coin or currency of the United States of America as at the
time of payment is legal tender for payment of public and private debts;
provided, however, that, at the option of the Company, interest may be paid by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set
forth below, which further provisions shall for all purposes have the same
effect as if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
RPM, INC.
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee By: /s/ Thomas C. Sullivan
Chairman
Attest: /s/ Paul A. Granzier
By: Secretary
--------------------
Authorized Signatory
<PAGE> 2
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture dated as of June 1, 1995 (herein called, together with all
indentures supplemental thereto, the "Indenture") between the Company and The
First National Bank of Chicago, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes, and the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, limited (subject to exceptions
provided in the Indenture) to the aggregate principal amount specified in the
Officers' Certificate dated June 15, 1995 establishing the terms of the Notes
pursuant to the Indenture.
The Notes are not subject to redemption prior to maturity.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note, at the
time, place and rate, and in the coin or currency, herein and in the Indenture
prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this Note are payable, duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in the
denominations specified in the Officers' Certificate dated June 15, 1995
establishing the terms of the Notes, all as more fully provided in the Indenture
and such Officers' Certificate. As provided in the Indenture and in such
Officers' Certificate, and subject to certain limitations set forth in the
Indenture, such Officers' Certificate and in this Note, the Notes are
exchangeable for a like aggregate principal amount of Notes in authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligations under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes, and
satisfies certain other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
- --------------------------------------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT --_______________ Custodian _______________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of Under Uniform Gifts to Minors Act
survivorship and not as tenants in common _________________________________________
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s),
assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
|----------------------------------|
|----------------------------------|
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
- -------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ____________________________________________________________________
_______________________________________________________________________Attorney
to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated:
_____________________________
Notice: The signature to this assignment must correspond with the name as
it appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
- --------------------------------------------------------------------------------
<PAGE> 1
EXHIBIT 4.4
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR
OTHERWISE TRANSFER THIS SECURITY, PRIOR TO THE DATE (THE "RESALE RESTRICTION
TERMINATION DATE") WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL ISSUANCE
DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER"
AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF
A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO
NON-U.S. PERSONS THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF
REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THIS SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL ACCREDITED INVESTOR, FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (F) PURSUANT TO ANY OTHER
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT,
SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE
OR TRANSFER (i) PURSUANT TO CLAUSE (D), (E), OR (F) TO REQUIRE THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATIONS AND/OR OTHER INFORMATION SATISFACTORY TO
EACH OF THEM, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE THAT A
CERTIFICATE OF TRANSFER IN THE FORM APPEARING IN THIS SECURITY IS COMPLETED AND
DELIVERED BY THE TRANSFEROR AND, IF APPLICABLE, THE TRANSFEREE TO THE TRUSTEE.
THE HOLDER OF THIS NOTE IS ENTITLED TO THE BENEFITS OF THE REGISTRATION RIGHTS
AGREEMENT REFERRED TO BELOW AND, BY ITS ACCEPTANCE HEREOF, AGREES TO BE BOUND BY
AND TO COMPLY WITH THE PROVISIONS OF SUCH REGISTRATION RIGHTS AGREEMENT.
RPM
NO. R- $
DATED:
7.0% SENIOR NOTES DUE 2005
CUSIP 749685 AE 3
RPM, Inc., an Ohio corporation (hereinafter called the "Company", which term
includes any successor corporation under the Indenture referred to below), for
value received, hereby promises to pay to
or registered assigns, the principal sum of DOLLARS
on June 15, 2005, and to pay interest thereon from June 20, 1995 or from the
most recent date to which interest has been paid or duly provided for,
semiannually on June 15 and December 15 in each year (each, an "Interest Payment
Date"), commencing December 15, 1995, and at Maturity, at the rate of 7.0% per
annum, until the principal hereof is paid or duly made available for payment.
Interest on this Note shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months. The interest so payable and punctually paid
or duly provided for on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the June 1 or December 1 (whether
or not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on the relevant Regular Record Date by virtue of
having been such Holder, and may be paid to the Person in whose name this Note
(or one or more Predecessor Securities) is registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest to be fixed
by the Trustee, notice whereof shall be given to the Holder of this Note not
less than 10 days prior to such Special Record Date, or may be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Notes may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in such Indenture.
The Holder of this Note is entitled to the benefits of the Registration Rights
Agreement dated as of June 20, 1995 between the Company and the Initial
Purchasers named therein (as the same may be amended from time to time, the
"Registration Rights Agreement"). In the event that either (i) the Exchange
Offer Registration Statement (as such term is defined in the Registration Rights
Agreement) is not filed with the Securities and Exchange Commission (the
"Commission") on or prior to the 45th calendar day following the date of the
original issuance of the Notes (unless changes in law or the applicable
interpretation of the Staff of the Division of Corporation Finance of the
Commission (the "Staff") do not permit the Company to effect the Exchange Offer
(as such term is defined in the Registration Rights Agreement), in which case
clause (iv) shall apply), (ii) the Exchange Offer Registration Statement is not
declared effective under the Securities Act on or prior to the 120th calendar
day following the date of the original issuance of the Notes (unless changes in
law or the applicable interpretation of the Staff do not permit the Company to
effect the Exchange Offer, in which case clause (iv) shall apply), (iii) the
Exchange Offer is not consummated on or prior to the 150th calendar day
following the date of the original issuance of the Notes (unless changes in law
or the applicable interpretation of the Staff do not permit the Company to
effect the Exchange Offer, in which case clause (iv) shall apply), or (iv) a
Shelf Registration Statement (as such term is defined in the Registration Rights
Agreement) is not declared effective under the Securities Act on or prior to the
later of the 180th calendar day after the date of the original issuance of the
Notes and the 45th calendar day after the publication of the change in law or
interpretation, the interest rate borne by the Notes shall be increased by
one-half of one percent per annum following such 45th calendar day in the case
of (i) above, following such 120th calendar day in the case of (ii) above,
following such 150th calendar day in the case of (iii) above or following such
180th or 45th calendar day (as applicable) in the case of (iv) above. The
aggregate amount of such increase from the original interest rate pursuant to
those provisions will in no event exceed one-half of one percent per annum. Upon
(w) the filing of the Exchange Offer Registration Statement after the 45th
calendar day described in (i) above, (x) the effectiveness of the Exchange Offer
Registration Statement after the 120th calendar day described in clause (ii)
above, (y) the consummation of the Exchange Offer after the 150th calendar day
described in clause (iii) above, or (z) the effectiveness of a Shelf
Registration Statement after the 180th or 45th calendar day (as applicable)
described in clause (iv), the related increase in the interest rate will cease
to be effective. The Company shall promptly provide the Trustee with notice of
any change in the interest rate borne by this Note.
Payment of the principal of and the interest on this Note will be made at the
office or agency of the Company maintained for that purpose in The City of New
York, in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that, at the option of the Company, interest may be paid by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register.
Reference is hereby made to the further provisions of this Note set forth
below, which further provisions shall for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
RPM, INC.
This is one of the Securities of
the series designated therein
referred to in the within-mentioned
Indenture. By: /s/ Thomas C. Sullivan
Chairman
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest: /s/ Paul A. Granzier
By:__________________________
Authorized Signatory Secretary
<PAGE> 2
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes") issued and to be issued in one or more series under
an Indenture dated as of June 1, 1995 (herein called, together with all
indentures supplemental thereto, the "Indenture") between the Company and The
First National Bank of Chicago, as Trustee (herein called the "Trustee", which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Notes, and the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, limited (subject to exceptions
provided in the Indenture) to the aggregate principal amount specified in the
Officers' Certificate dated June 15, 1995 establishing the terms of the Notes
pursuant to the Indenture.
The Notes are not subject to redemption prior to maturity.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series issued
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding of each series affected thereby. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities of any series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Note shall be conclusive and binding
upon such Holder and upon all future Holders of this Note and of any Notes
issued upon the registration of transfer hereof or in exchange herefor or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this Note or of the
Indenture shall alter or impair the obligation of the Company, which is absolute
and unconditional, to pay the principal of and interest on this Note, at the
time, place and rate, and in the coin or currency, herein and in the Indenture
prescribed.
As provided in the Indenture and subject to certain limitations set forth
therein and in this Note, the transfer of this Note may be registered on the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for the purpose in any place
where the principal of and interest on this Note are payable, duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by the Holder hereof or by his
attorney duly authorized in writing, and thereupon one or more new Notes, of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in the
denominations specified in the Officers' Certificate dated June 15, 1995
establishing the terms of the Notes, all as more fully provided in the Indenture
and such Officers' Certificate. As provided in the Indenture and in such
Officers' Certificate, and subject to certain limitations set forth in the
Indenture, such Officers' Certificate and in this Note, the Notes are
exchangeable for a like aggregate principal amount of Notes in authorized
denominations as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith, other than in
certain cases provided in the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture contains provisions whereby (i) the Company may be discharged
from its obligations with respect to the Notes (subject to certain exceptions)
or (ii) the Company may be released from its obligations under specified
covenants and agreements in the Indenture, in each case if the Company
irrevocably deposits with the Trustee money or U.S. Government Obligations
sufficient to pay and discharge the entire indebtedness on all Notes, and
satisfies certain other conditions, all as more fully provided in the Indenture.
This Note shall be governed by and construed in accordance with the laws of
the State of New York.
All terms used in this Note which are defined in the Indenture shall have the
meanings assigned to them in the Indenture.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
- --------------------------------------------------------------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this
instrument, shall be construed as though they were written out in full according
to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT--______________ Custodian_____________
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right of survivor- Under Uniform Gifts to Minors Act
ship and not as tenants in common _____________________________________
State
</TABLE>
Additional abbreviations may also be used though not in the above list.
------------------
FOR VALUE RECEIVED, the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________________________________________
| |
|______________________________________________|
_______________________________________________________________________________
_______________________________________________________________________________
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing_____________________________________________________________________
_____________________________________________________________________ Attorney
to transfer said Note on the books of the Company with full power of
substitution in the premises.
Dated: _________________________
Notice: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without
alteration or enlargement or any change whatever.
_______________________________________________________________________________
CERTIFICATE OF TRANSFER
In connection with any transfer of this Note occurring prior to the date that
is three years after the later of the date of original issuance of this Note and
the last date on which this Note (or any Predecessor Security) was owned by the
Company or any affiliate of the Company, the undersigned confirms that this Note
is being transferred:
CHECK ONE BOX BELOW
[ ] (a) as long as this Note is eligible for resale pursuant to Rule 144A under
the Securities Act of 1933, as amended, to a person the undersigned
reasonably believes is a "qualified institutional buyer" (a "QIB") as
defined in such Rule 144A that purchases for its own account or for the
account of a QIB to whom notice is given that the transfer is being made
in reliance on such Rule 144A;
[ ] (b) pursuant to offers and sales to non-U.S. persons that occur outside of
the United States within the meaning of Regulation S under the Securities
Act of 1933, as amended;
[ ] (c) To an institutional "accredited investor" (as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act of 1933, as amended) that has
furnished to the Trustee a signed letter containing certain representations
and agreements (the form of which letter can be obtained from the Trustee);
or
[ ] (d) to the Company.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee under the Indenture by the manual signature of one of its
authorized signatories, this Note shall not be entitled to any benefits under
the Indenture or be valid or obligatory for any purpose.
Dated:______________________________ ____________________________
SIGNATURE
Signature Guaranteed:______________________
____________________________
SIGNATURE
TO BE COMPLETED BY PURCHASER IF (a) ABOVE IS CHECKED.
The undersigned represents and warrants that it is acquiring this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it or any such account, as the case may be, is a "qualified
institutional buyer" within the meaning of Rule 144A under the Securities Act of
1933, as amended, and is aware that the sale to it is being made in reliance on
Rule 144A and acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or has determined
not to request such information and that it is aware that the transferor is
relying upon the undersigned's foregoing representations in order to claim the
exemption from registration provided by Rule 144A.
Dated:_________________
NOTICE: To be executed by an executive officer
<PAGE> 1
EXHIBIT 4.5
==========================================================================
RPM, INC.,
Issuer
to
THE FIRST NATIONAL BANK OF CHICAGO,
Trustee
____________
INDENTURE
____________
Dated as of June 1, 1995
Debt Securities
==========================================================================
<PAGE> 2
Reconciliation and tie between
Trust Indenture Act of 1939 (the "Trust Indenture Act")
and Indenture
<TABLE>
<CAPTION>
Trust Indenture
---------------
Act Section Indenture Section
----------- ------------------
<S> <C>
section 310(a)(1) .......................... 607
(a)(2) ............................ 607
(b) ............................... 608
section 312(a)............................. 701
(b)................................ 702
(c) ............................... 702
section 313(a) ............................. 703
(b)(2)............................. 703
(c)................................ 703
(d) ............................... 703
section 314(a) ............................. 704
(c)(1)............................. 102
(c)(2)............................. 102
(e)................................ 102
(f)................................ 102
section 316(a)(last sentence)............... 101
(a)(1)(A).......................... 502, 512
(a)(1)(B).......................... 513
(b)................................ 508
section 31/(a)(1)........................... 503
(a)(2)............................. 504
(b)................................ 1003
section 318(a).............................. 108
</TABLE>
______________________
Note: This reconciliation and tie shall not, for any purpose, be deemed
to be part of the Indenture.
Attention should also be directed to Section 318(c) of the Trust
Indenture Act (the provisions of which Act are intended to apply to this
Indenture, regardless of whether this Indenture is qualified thereunder), which
provides that the provisions of Sections 310 to and including 317 are a part of
and govern every qualified indenture, whether or not physically contained
therein.
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<S> <C>
Recitals..................................................... 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions......................................... 2
Act...................................................... 2
Additional Amounts....................................... 2
Affiliate................................................ 2
Attributable Value....................................... 3
Authenticating Agent..................................... 3
Authorized Newspaper..................................... 3
Bearer Security.......................................... 3
Board of Directors....................................... 3
Board Resolution......................................... 4
Business Day............................................. 4
Capital Lease Obligation................................. 4
Cedel.................................................... 4
Certificated Security.................................... 4
Closing Date............................................. 4
Commission............................................... 4
Common Shares............................................ 4
Company.................................................. 4
Company Request and Company Order........................ 5
Consolidated Shareholders' Equity........................ 5
Conversion Event......................................... 5
Corporate Trust Office................................... 5
Corporation.............................................. 5
Coupon................................................... 5
CUSIP number............................................. 5
Defaulted Interest....................................... 5
Dollars or $............................................. 5
ECU...................................................... 6
Equity Interest.......................................... 6
Euroclear................................................ 6
European Union........................................... 6
European Monetary System................................. 6
Event of Default......................................... 6
Exchange Act............................................. 6
Foreign Currency......................................... 6
GAAP..................................................... 6
Holder .................................................. 7
</TABLE>
i
<PAGE> 4
<TABLE>
<S> <C>
Indebtedness ....................................... 7
Indenture............................................ 7
Independent Public Accountants....................... 7
Indexed Security..................................... 7
Interest............................................. 7
Interest Payment Date................................ 7
Judgment Currency.................................... 7
Legal Holidays....................................... 8
Lien ................................................ 8
Material Subsidiary.................................. 8
Maturity............................................. 8
Net Available Proceeds............................... 8
New York Banking Day................................. 8
Office or Agency..................................... 8
Officers' Certificate................................ 8
Opinion of Counsel................................... 9
Original Issue Discount Security..................... 9
Outstanding.......................................... 9
Paying Agent......................................... 10
Person............................................... 10
Place of Payment..................................... 10
Predecessor Security................................. 10
Principal Property................................... 11
Purchaser Letter..................................... 11
QIB.................................................. 11
Redemption Date...................................... 11
Redemption Price..................................... 11
Registered Security.................................. 11
Regular Record Date.................................. 11
Regulation S......................................... 11
Regulation S Global Security......................... 11
Required Currency.................................... 11
Responsible Officer.................................. 11
Restricted Certificated Securities................... 11
Restricted Global Security........................... 11
Restricted Period.................................... 12
Restricted Securities................................ 12
Restrictive Legends.................................. 12
Revolving Credit Facility............................ 12
Sale and Leaseback Transaction....................... 12
Securities Act....................................... 12
Security or Securities............................... 12
Security Register and Security Registrar............. 12
Special Record Date.................................. 12
</TABLE>
ii
<PAGE> 5
<TABLE>
<S> <C> <C>
Stated Maturity ...................................... 12
Subsidiary ........................................... 13
Transfer Restrictions ................................ 13
Trust Indenture Act .................................. 13
Trustee .............................................. 13
United States ........................................ 13
United States Alien................................... 13
U.S. Depository or Depository ........................ 13
Unrestricted Global Securities ....................... 13
Vice President ....................................... 14
Voting Stock ........................................ 14
Section 102. Compliance Certificates and Opinions ....... 14
Section 103. Form of Documents Delivered to Trustee ...... 14
Section 104. Acts of Holders ............................. 15
Section 105. Notices, etc. to Trustee and Company ........ 17
Section 106. Notice to Holders of Securities; Waiver...... 17
Section 107. Language of Notices ......................... 18
Section 108. Applicability of Trust Indenture Act;
Conflict with Trust Indenture Act ........... 19
Section 109. Effect of Headings and Table of Contents .... 19
Section 110. Successors and Assigns ...................... 19
Section 111. Separability Clause ......................... 19
Section 112. Benefits of Indenture ....................... 19
Section 113. Governing Law ............................... 19
Section 114. Legal Holidays .............................. 20
Section 115. Counterparts ................................ 20
Section 116. Judgment Currency .......................... 20
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally ............................ 21
Section 202. Form of Trustee's Certificate of
Authentication .............................. 23
Section 203. Securities in Global Form ................... 23
Section 204. Legends on Restricted Securities ............ 24
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series ........ 24
Section 302. Currency; Denominations ..................... 28
Section 303. Execution, Authentication, Delivery and
Dating ...................................... 28
</TABLE>
iii
<PAGE> 6
<TABLE>
<S> <C>
Section 304. Temporary Securities . . . . . . . . . 30
Section 305. Registration, Transfer and Exchange . 31
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . . . . . . . . . . . 36
Section 307. Payment of Interest and Certain
Additional Amounts; Rights to
Interest and Certain Additional
Amounts Preserved . . . . . . . . . . 37
Section 308. Persons Deemed Owners . . . . . . . . 39
Section 309. Cancellation . . . . . . . . . . . . . 40
Section 310. Computation of Interest . . . . . . . 40
ARTICLE FOUR
SATISFACTIONS AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge . . . . . . 40
Section 402. Defeasance and Covenant Defeasance . . 42
Section 403. Application of Trust Money . . . . . . 46
ARTICLE FIVE
REMEDIES
Section 501. Events of Default . . . . . . . . . . 46
Section 502. Acceleration of Maturity, Rescission
and Annulment . . . . . . . . . . . . 48
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee . . . . . . 50
Section 504. Trustee May File Proofs of Claim . . . 50
Section 505. Trustee May Enforce Claims without
Possession of Securities or Coupons. . 51
Section 506. Application of Money Collected . . . . 52
Section 507. Limitations on Suits . . . . . . . . . 52
Section 508. Unconditional Right of Holders to
Receive Principal and any Premium,
Interest and Additional Amounts . . . 53
Section 509. Restoration of Rights and Remedies . . 53
Section 510. Rights and Remedies Cumulative . . . . 53
Section 511. Delay or Omission Not Waiver . . . . 54
Section 512. Control by Holders of Securities . . . 54
Section 513. Waiver of Past Defaults . . . . . . . 54
Section 514. Waiver of Stay or Extension Laws . . . 55
Section 515. Undertaking for Costs . . . . . . . . 55
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee . . . . . . 56
</TABLE>
iv
<PAGE> 7
<TABLE>
<S> <C>
Section 602. Notice of Defaults . . . . . . . . . . . 57
Section 603. Not Responsible for Recitals or Issuance
of Securities . . . . . . . . . . . . . 57
Section 604. May Hold Securities . . . . . . . . . . . 58
Section 605. Money Held in Trust . . . . . . . . . . . 58
Section 606. Compensation and Reimbursement . . . . . 58
Section 607. Corporate Trustee Required; Eligibility . 59
Section 608. Resignation and Removal; Appointment of
Successor . . . . . . . . . . . . . . . . 59
Section 609. Acceptance of Appointment by Successor. . 61
Section 610. Merger, Conversion, Consolidation or
Succession to Business . . . . . . . . . 62
Section 611. Appointment of Authenticating Agent . . . 63
ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and
Addresses of Holders . . . . . . . . . . 65
Section 702. Preservation of Information;
Communications to Holders . . . . . . . . 65
Section 703. Reports by Trustee . . . . . . . . . . 65
Section 704. Reports by Company . . . . . . . . . . . 66
ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on
Certain Terms . . . . . . . . . . . . . 67
Section 802. Successor Person Substituted for Company. 68
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent
of Holders . . . . . . . . . . . . . . . 68
Section 902. Supplemental Indentures with Consent of
Holders . . . . . . . . . . . . . . . . . 69
Section 903. Execution of Supplemental Indentures . . 71
Section 904. Effect of Supplemental Indentures . . . . 71
Section 905. Reference in Securities to Supplemental
Indentures . . . . . . . . . . . . . . . 71
Section 906. Conformity with Trust Indenture Act . . . 71
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium,
Interest and Additional Amounts . . . . . 72
</TABLE>
v
<PAGE> 8
<TABLE>
<S> <C>
Section 1002. Maintenance of Office or Agency . . . 72
Section 1003. Money for Securities Payments to Be
Held in Trust . . . . . . . . . . . . . 73
Section 1004. Additional Amounts. . . . . . . . . . . 75
Section 1005. Limitation on Liens . . . . . . . . . . 76
Section 1006. Restrictions on Sale and Leaseback
Transactions . . . . . . . . . . . . . 78
Section 1007. Corporate Existence . . . . . . . . . . 79
Section 1008. Waiver of Certain Covenants . . . . . . 79
Section 1009. Company Statement as to Compliance,
Notice of Certain Defaults . . . . . . 79
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article . . . . . . . 80
Section 1102. Election to Redeem, Notice to Trustee 80
Section 1103. Section by Trustee of Securities to be
Redeemed . . . . . . . . . . . . . . . 80
Section 1104. Notice of Redemption . . . . . . . . . 81
Section 1105. Deposit of Redemption Price . . . . . 82
Section 1106. Securities Payable on Redemption Date 83
Section 1107. Securities Redeemed in Part . . . . . 84
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article . . . . . . . 84
Section 1202. Satisfaction of Sinking Fund Payments
with Securities . . . . . . . . . . . 84
Section 1203. Redemption of Securities for Sinking
Fund . . . . . . . . . . . . . . . . . 85
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article . . . . . . . 86
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article . . . . . . . 86
ARTICLE FIFTEEN
</TABLE>
vi
<PAGE> 9
MEETINGS OF HOLDERS OF SECURITIES
<TABLE>
<S> <C>
Section 1501. Purposes for Which Meetings May Be
Called . . . . . . . . . . . . . . . . 87
Section 1502. Call, Notice and Place of Meetings . . 87
Section 1503. Persons Entitled to Vote at Meetings . 87
Section 1504. Quorum; Action . . . . . . . . . . . . 88
Section 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings . . . . . . 89
Section 1506. Counting Votes and Recording Action of
Meetings . . . . . . . . . . . . . . . 90
Section 201. Forms of Restrictive Legends . . . . . 94
Section 202. Form of Legend for Global Securities. . 96
Section 33. Form of Purchaser Letter . . . . . . . 97
Section 104. Delivery of Certain Information . . . . 101
</TABLE>
vii
<PAGE> 10
INDENTURE, dated as of June 1, 1995 (the "Indenture"), among RPM, Inc.,
a corporation duly organized and existing under the laws of the State of Ohio
(hereinafter called the "Company"), having its principal executive office
located at 2628 Pearl Road, Medina, Ohio 44258, and The First National Bank of
Chicago, a national banking association duly organized and existing under the
laws of the United States (hereinafter called the "Trustee"), having its
Corporate Trust Office located at One First National Plaza, Suite 0126,
Chicago, Illinois 60670-0126.
RECITALS
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its senior unsecured
debentures, notes or other evidences of indebtedness (hereinafter called the
"Securities"), unlimited as to principal amount, to bear such rates of
interest, to mature at such time or times, to be issued in one or more series
and to have such other provisions as shall be fixed as hereinafter provided.
The Company has duly authorized the execution and delivery of this
Indenture. All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually covenanted
and agreed, for the equal and proportionate benefit of all Holders of the
Securities or of any series thereof and any Coupons (as herein defined) as
follows:
<PAGE> 11
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States and, except as otherwise
herein expressly provided, the terms "generally accepted accounting
principles" or "GAAP" with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted in the United States at the date of such
computation;
(4) the words "herein", "hereof, "hereto" and "hereunder" and
other words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) the word "or" is always used inclusively (for example, the
phrase "A or B" means "A or B or both", not "either A or B but not
both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders specified
therein and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified
2
<PAGE> 12
Person. For the purposes of this definition, "control", when used with respect
to any specified Person means the power to direct the management and policies
of such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Attributable Value" means, as to any particular lease under which any
Person is at the time liable other than a Capital Lease Obligation, and at any
date as of which the amount thereof is to be determined, the total net amount
of rent required to be paid by such Person under such lease during the
remaining term thereof as determined in accordance with GAAP, discounted from
the respective due dates thereof to the date of determination at a rate per
annum equal to the discount rate that would be applicable to a Capital Lease
Obligation with like term in accordance with GAAP. The net amount of rent
required to be paid under any such lease for any such period shall be the
aggregate amount of rent payable by the lessee with respect to such period
after excluding, in accordance with generally accepted accounting principles,
amounts required to be paid on account of insurance, taxes, assessments,
utility, operating and labor costs and similar charges and rents charged as a
percentage of sales in excess of a base amount. In the case of any lease which
is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated. "Attributable Value" means, as to a Capital Lease
Obligation under which any Person is at the time liable and at any date as of
which the amount thereof is to be determined, the capitalized amount thereof
that would appear on the face of a balance sheet of such Person in accordance
with GAAP.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 611 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of
the place of publication or in the English language, customarily published on
each day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any day that is a Business Day in
the place of publication.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
3
<PAGE> 13
"Board Resolution" means a copy of one or more resolutions, certified
by the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, any day other than a Saturday, Sunday or other day on which banking
institutions in such Place of Payment or other location are authorized or
obligated by law, regulation or executive order to close.
"Capital Lease Obligation" of any Person means the obligation to pay
rent or other payment amounts under a lease of (or other indebtedness
arrangements conveying the right to use) real or personal property of such
Person which is required to be classified and accounted for as a capital lease
or a liability on the face of a balance sheet of such Person in accordance with
GAAP. The stated maturity of such obligation, as of any date (the "measurement
date"), shall be the date of the last payment of rent or any other amount due
under such lease prior to the first date after the measurement date on or after
which such lease may be terminated by the lessee, at its sole option, without
payment of a penalty.
"Cedel" means Cedel Bank, societe anonyme, or its successor.
"Certificated Security" means any Security other than a global
Security.
"Closing Date", when used with respect to any Securities of any series
(or of any identifiable tranche of any series), means the last date of original
issuance of any Security of the series of which such Security is a part.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, as
amended, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act, then the body performing such duties at such time.
"Common Shares" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person, and any other obligor upon the
Securities.
4
<PAGE> 14
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Consolidated Shareholders' Equity" of any Person means the consolidated
shareholders' equity of such Person, determined on a consolidated basis in
accordance with GAAP.
"Conversion Event" means the cessation of use of (i) a Foreign Currency
both by the government of the country or the confederation which issued such
Currency and for the settlement of transactions by a central bank or other
public institutions of or within the international banking community, (ii) the
ECU both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Union or (iii) any
currency unit or composite currency other than the ECU for the purposes for
which it was established.
"Corporate Trust Office" means the principal corporate trust office of
the Trustee at which, at any particular time, its corporate trust business
shall be administered, which office at the date of original execution of this
Indenture is located at One First National Plaza, Suite 0126, Chicago, Illinois
60670-0126.
"Corporation" includes corporations and, except for purposes of Article
Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to Bearer Security.
"Currency", with respect to any payment, deposit or other transfer in
respect of the principal of or any premium or interest on or any Additional
Amounts with respect to any Security, means Dollars or the Foreign Currency, as
the case may be, in which such payment, deposit or other transfer is required
to be made by or pursuant to the terms hereof and, with respect to any other
payment, deposit or transfer pursuant to or contemplated by the terms hereof,
means Dollars.
"CUSIP number" means the alphanumeric designation assigned to a
Security by Standard & Poor's Ratings Group, CUSIP Service Bureau.
"Defaulted Interest" has the meaning specified in Section 307.
"Dollars" or "$" means a dollar or other equivalent unit of legal
tender for payment of public or private debts in the United States of America.
5
<PAGE> 15
"ECU" means the European Currency Units as defined and revised from time
to time by the Council of the European Community.
"Equity Interest" in any Person means any and all shares, interests,
participations and other equivalents (however designated) of capital stock of
or other ownership interests in such Person, and any options or other rights to
acquire, and any securities or other interests convertible into or exchangeable
for, any of the foregoing.
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
office, or its successor, as operator of the Euroclear System, or its successor.
"European Union" means the European Community, the European Coal and
Steel Community and the European Atomic Energy Community.
"European Monetary System" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934 and any
statute successor thereto, in each case as amended from time to time.
"Foreign Currency" means any currency, currency unit or composite
currency, including, without limitation, the ECU, issued by the government of
one or more countries other than the United States of America or by any
recognized confederation or association of such governments.
"GAAP" means such accounting principles as are generally accepted in the
United States of America as of the date or time of any computation required
hereunder.
"Government Obligations" means securities which are (i) direct
obligations of the United States of America or the other government or
governments in the confederation which issued the Foreign Currency in which the
principal of or any premium or interest on such or any Additional Amounts in
respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of such government or
governments or (ii) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of the United States of America or such
other government or governments, in each case where the timely payment or
payments thereunder are unconditionally guaranteed as a full faith and credit
obligation by the United States of America or such other government or
governments, and which, in the case of (i) or (ii), are not callable or
redeemable at the option of the issuer or issuers thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of or other amount with respect to any such Government Obligation
held by such custodian for the account of the holder of a depository
6
<PAGE> 16
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the
Government Obligation or the specific payment of interest on or principal of or
other amount with respect to the Government Obligation evidenced by such
depository receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"Indebtedness", with respect to any Person, means indebtedness for
borrowed money or for the unpaid purchase price of real or personal property
of, or guaranteed by, such Person (other than trade accounts payable arising in
the ordinary course of business) and computed in accordance with GAAP.
"Indenture" means this instrument as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other obligor under the
Securities or the Coupons, are independent public accountants within the
meaning of the Securities Act and the rules and regulations promulgated by the
Commission thereunder, who may be the independent public accountants regularly
retained by the Company or who may be other independent public accountants.
Such accountants or firm shall be entitled to rely upon any Opinion of Counsel
as to the interpretation of any legal matters relating to this indenture or
certificates required to be provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal thereof payable at Stated Maturity may be more or less than the
principal amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such Additional
Amounts.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Judgement Currency" has the meaning specified in Section 116.
7
<PAGE> 17
"Legal Holidays" has the meaning specified in Section 114.
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect
as any of the foregoing).
"Material Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock and whose net sales
exceed 4% of the Company's consolidated net sales determined in accordance
with GAAP consistently applied.
"Maturity", with respect to any Security, means the date on which the
principal of such Security or an installment of principal becomes due and
payable as provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption or repurchase,
notice of option to elect repayment or otherwise.
"Net Available Proceeds" from any Sale Transaction by any Person means
cash or readily marketable cash equivalents received (including by way of sale
or discounting of a note, installment receivable or other receivable, but
excluding any other consideration received in the form of assumption by the
acquiree of indebtedness or obligations relating to the properties or assets
that are the subject of such Sale Transaction or received in any other noncash
form) therefrom by such Person, net of (i) all legal, title and recording
taxes, expenses, commissions and other fees and expenses incurred and all
federal, state, provincial, foreign and local taxes required to be accrued as a
liability as a consequence of such Sale Transaction, (ii) all payments made by
such Person or its Subsidiaries on any indebtedness which is secured in whole
or part by any such properties and assets in accordance with the terms
of any Lien upon or with respect to any such properties and assets or which
must, by the terms of such Lien, or in order to obtain a necessary consent to
such Sale Transaction or by applicable law, be repaid out of the proceeds from
such Sale Transaction, and (iii) all distributions and other payments made to
minority interest holders in Subsidiaries of such Person or joint ventures as a
result of such Sale Transaction.
"New York Banking Day" has the meaning specified in Section 116.
"Office" or "Agency", with respect to any Securities, means an office
or agency of the Company maintained or designated as a Place of Payment for
such Securities pursuant to Section 1002 or any other office or agency of the
Company maintained or designated for such Securities pursuant to Section 1002
or, to the extent designated or required by Section 1002 or, to the extent
designated or required by Section 1002 in lieu of such office or agency, the
Corporate Trust Office of the Trustee.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman, the President or a Vice President, and by the
Treasurer, an Assistant
8
<PAGE> 18
Treasurer, the Secretary or an Assistant Secretary of the Company, that
complies with the requirements of Section 314(e) of the Trust Indenture
Act and is delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company or other counsel who shall be reasonably
acceptable to the Trustee, that, if required by the Trust Indemnity Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security issued pursuant to
this Indenture which provides for declaration of an amount less than the
principal amount thereof to be due and payable upon acceleration pursuant to
Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(i) any such Security theretofore cancelled by the
Trustee or the Security Registrar or delivered
to the Trustee or the Security Registrar for
cancellation;
(ii) any such Security for whose payment at the
Maturity thereof money in the necessary amount
has been theretofore deposited pursuant
hereto with the Trustee or any Paying Agent
(other than the Company), in trust or set aside
and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for
the Holders of such Securities and any Coupons
appertaining thereto, provided that, if such
Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) any such Security with respect to which the
Company has effected defeasance pursuant to the
terms hereof, except to the extent provided in
Section 402;
(iv) any such Security which has been paid pursuant
to Section 306 or in exchange for or in lieu of
which other Securities have been authenticated
and delivered pursuant to this Indenture, unless
there shall have been presented to the Trustee
proof satisfactory to it that such Security is held
by a bona fide purchaser in whose hands such
Security is a valid obligation of the Company;
and
(v) any such Security converted or exchanged as
contemplated by this Indenture, if the terms of
such Security provide for such conversion or
exchange pursuant to Section 301;
provided, however, that in determining whether the Holders of the
requisite principal amount of Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes,
9
<PAGE> 19
(i) the principal amount of an Original Issue Discount Security that may be
counted in making such determination and that shall be deemed to be Outstanding
for such purposes shall be equal to the amount of the principal thereof that
pursuant to the terms of such Original Issue Discount Security would be
declared (or shall have been declared to be) due and payable upon a declaration
of acceleration thereof pursuant to Section 502 at the time of such
determination, and (ii) the principal amount of any Indexed Security that may
be counted in making such determination and that shall be deemed outstanding
for such purpose shall be equal to the principal amount of such Indexed
Security at original issuance, unless otherwise provided in or pursuant to this
Indenture, and (iii) the principal amount of a Security denominated in a
Foreign Currency shall be the Dollar equivalent, determined on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the Dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or such other
obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such
determination or relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which a Responsible
Officer of the Trustee knows to be so owned shall be so disregarded. Securities
so owned which shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or an Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to, any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any Additional
Amounts with respect to, such Security are payable as provided in or pursuant
to this Indenture.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same Indebtedness as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same Indebtedness as the lost, destroyed, mutilated or stolen
Security or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
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<PAGE> 20
"Principal Property" means any manufacturing, assembly or storage
facility (including related land and improvements thereon and all machinery and
equipment included therein) owned or used by the Company or any Subsidiary
which is located within the United States (including its territories and
possessions) or Canada, other than any such facility the gross book value of
which (including related land and improvements thereon and all machinery and
equipment included therein without deduction of any depreciation reserves) does
not exceed 4% of Consolidated Shareholders' Equity of the Company.
"Purchaser Letter" means a letter substantially in the form annexed to a
Restricted Security.
"QIB" has the meaning specified in Section 201.
"Redemption Date", with respect to any Security or portion thereof to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
pursuant to this Indenture.
"Registered Security" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture as the "Regular Record Date".
"Regulation S" means Regulation S promulgated under the Securities
Act, or any successor provision thereto.
"Regulation S Global Security" has the meaning specified in Section 201.
"Required Currency" has the meaning specified in Section 116.
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Certificated Securities" means Certificated Securities that
are Restricted Securities.
"Restricted Global Security" has the meaning specified in Section 201.
11
<PAGE> 21
"Restricted Period" has the meaning specified in Section 201.
"Restricted Securities" has the meaning specified in Section 201.
"Restrictive Legends" has the meaning specified in Section 305.
"Revolving Credit Facility" means the Credit Facility, dated as of June
23, 1994, by and among the Company, National City Bank and The First National
Bank of Chicago, as Co-Agents, and The Chase Manhattan Bank (National
Association), as Administrative Agent, as the same may be amended from time to
time.
"Sale and Leaseback Transaction" of any Person means an arrangement
with any lender or investor or to which such lender or investor is a party
providing for the leasing by such Person of any Principal Property that, within
12 months of the start of such lease and after the Reference Date, has been or
is being sold, conveyed, transferred or otherwise disposed of by such Person to
such lender or investor or to any Person to whom funds have been or are to be
advanced by such lender or investor on the security of such property. The term
of such arrangement, as of any date (the "measurement date"), shall end on the
date of the last payment of rent or any other amount due under such arrangement
after the measurement date on or after which such arrangement may be terminated
by by the lessee, at its sole option, without payment of a penalty. "Sale
Transaction" means any such sale, conveyance, transfer or other disposition.
The "Reference Date" means, for any property that becomes a Principal Property
after, or the construction or development of which is underway on and completed
after, June 1, 1995, the last day of the 24th month after the date of the
acquisition, completion of construction and commencement of operation of such
property and, for any other property, June 1, 1995.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Security" or "Securities" means any note or notes, bond or bonds,
debenture or debentures, or any other evidences of Indebtedness, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities", with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of
Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date
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<PAGE> 22
established by or pursuant to this Indenture as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable.
"Subsidiary" means any Corporation of which at the time of
determination the Company or one or more Subsidiaries owns or controls directly
or indirectly more than 50% of the shares of Voting Stock.
"Transfer Restrictions" has the meaning specified in Section 305.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such with
respect to one or more series of Securities pursuant to the applicable
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as used
with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided herein or in any Security,
means the United States of America (including the states thereof and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, means any Person who, for United States Federal income tax
purposes, is a foreign corporation, a non-resident alien individual, a
non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or
a non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depository" or "Depository" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depository by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Exchange Act and, if so
provided with respect to any Security, any successor to such Person. If at any
time there is more than one such Person, "U.S. Depository" or "Depository"
shall mean, with respect to any Securities, the qualifying entity which has been
appointed with respect to such Securities.
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"Unrestricted Global Securities" has the meaning specified in Section
201.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "Vice President".
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
Section 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided in this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent, if any, have been complied with, except that in the
case of any such application or request as to which the furnishing of such
documents or any of them is specifically required by any provision of this
Indenture relating to such particular application or request, no additional
certificate or opinion need be furnished.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon an Opinion of Counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the
opinion with respect to the matters upon which his certificate or opinion is
based are erroneous. Any such Opinion of Counsel may be based, insofar as it
relates to factual matters, upon a certificate or opinion of, or representations
by, an officer or officers of the Company stating that the information with
respect to such factual matters is in the possession of the Company, unless
such counsel knows, or in the exercise of reasonable care should know, that the
certificate or opinion or representations with respect to such matters are
erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent, waiver or
other action provided by or pursuant to this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by an agent
duly appointed in writing. If, but only if, Securities of a series are
issuable as Bearer Securities, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in or pursuant to this
Indenture to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument or
instruments and any such record (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent, or
of the holding by any Person of a Security, shall be sufficient for any purpose
of this Indenture and (subject to Section 315 of the Trust Indenture Act)
conclusive in favor of the Trustee and the Company and any agent of the Trustee
or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
Without limiting the generality of this Section 104, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depository that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other Act provided in or
pursuant to this Indenture to be made, given or taken by Holders, and a U.S.
Depository that is a Holder of a global Security may provide its proxy or
proxies to the beneficial owners of interests in any such global Security
through such U.S. Depository's standing instructions and customary practices.
The Trustee shall fix a record date for the purpose of determining the
Persons who are beneficial owners of interest in any permanent global Security
held by a U.S. Depository entitled under the procedures of such U.S. Depository
to make, give or take, by a proxy or proxies duly appointed in writing, any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided in or pursuant to this Indenture to be made, given or taken by
Holders. If such a record date is fixed, the Holders on such record date or
their
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duly appointed proxy or proxies, and only such Persons, shall be entitled to
make, give or take such request, demand, authorization, direction,
notice, consent, waiver or other Act, whether or not such Holders remain
Holders after such record date. No such request, demand, authorization,
direction, notice, consent, waiver or other Act shall be valid or effective if
made, given or taken more than 90 days after such record date.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, shall be proved by the Security Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date of
the termination of holding the same, may be proved by the production of such
Bearer Securities or by a certificate executed, as depositary, by any trust
company, bank, banker or other depositary reasonably acceptable to the Company,
wherever situated, if such certificate shall be deemed by the Company and the
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate or
affidavit of the Person holding such Bearer Securities, if such certificate or
affidavit is deemed by the Trustee to be satisfactory. The Trustee and the
Company may assume that such ownership of any Bearer Secunty continues until
(1) another certificate or affidavit bearing a later date issued in respect of
the same Bearer Security is produced, or (2) such Bearer Security is produced
to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer
Outstanding. The ownership, principal amount and serial numbers of Bearer
Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(e) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may at its option (but is not obligated to),
by Board Resolution, fix in advance a record date for the determination of
Holders of Registered Securities entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act. If such a
record date is fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such record date, but
only the Holders of Registered Securities of record at the close of business on
such record date shall be deemed to be Holders for the purpose of determining
whether Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
Outstanding Securities shall be computed
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as of such record date; provided that no such authorization, agreement
or consent by the Holders of Registered Securities shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act by the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security
Registrar, any Paying Agent or the Company in reliance thereon. whether or not
notation of such Act is made upon such Security.
Section 105. Notices, etc. to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or other Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or the Company shall be
sufficient for purpose hereunder if made, given, furnished or filed
in writing to or with the Trustee at its Corporate Trust Office, or
(2) the Company by the Trustee or any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to the attention of its Secretary at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing
to the Trustee by the Company.
Section 106. Notice to Holders of Secutities, Waiver.
Except as otherwise expressly provided in or pursuat to this Indenture,
where this Indenture provides for notice to Holders of Securities of any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security affected by such
event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date,
prescribed for the giving of such Notice; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities, if any, if published in an Authorized Newspaper in
The City of New York and, if such Securities are then listed on any
stock exchange outside the United States, in an Authorized Newspaper in
such city as the Company shall advise the Trustee
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that such stock exchange so requires, on a Business Day at least twice,
the first such publication to be not earlier than the earliest date
and the second such publication not later than the latest date
prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given
by mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder of a Registered Security shall affect the
sufficiency of such notice with respect to other Holders of Registered
Securities or the sufficiency of any notice to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In the case by reason of the suspension of regular mail service or by reason of
any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearers Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of any notice mailed
to Holders of Registered Securities as provided above.
Where this Indenture provides for notice in any manner, such notice may
be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders of Securities shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
Section 107. Language of Notices.
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that, if the Company so elects, any published notice
may be in an official language of the country of publication.
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Section 108. Applicability of Trust Indenture Act; Conflict with Trust
Indenture Act.
The parties hereto agree that this Indenture shall be subject to the
provisions of the Trust Indenture Act, and the rules and regulations of the
Commission promulgated thereunder, that are required to be part of an indenture
to be qualified under such Trust Indenture Act and, to the extent applicable,
shall be governed by such provisions. If any provision hereof limits,
qualifies or conflicts with any duties under any required provision of the
Trust Indenture Act imposed hereon by Section 318(c) thereof, such required
provision shall control.
Section 109. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 110. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 111. Separability Clause.
In case any provision in this Indenture, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceablity of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder and the Holders of
Securities or Coupons, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in said
state.
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Section 114. Legal Holidays.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, in any case where any Interest Payment Date, Stated Maturity or
Maturity of any Security, or the last date on which a Holder has the right to
convert or exchange Securities of a series that are convertible or
exchangeable, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security or any
Coupon other than a provision in any Security or Coupon that states that such
provision shall apply in lieu hereof) payment need not be made at such Place of
Payment on such date, and such Securities need not be converted or exchanged on
such date but such payment may be made, and such Securities may be converted or
exchanged, on the next succeeding day that is a Business Day at such Place of
Payment with the same force and effect as if made on the Interest Payment Date,
at the Stated Maturity or Maturity or on such last day for conversion or
exchange, and no interest shall accrue on the amount payable on such date or at
such time for the period from and after such Interest Payment Date, Stated
Maturity, Maturity or last day for conversion or exchange, as the case may be,
to the next succeeding Business Day.
Section 115. Counterparts.
This Indenture may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do so
under applicable law, that (a) if for the purpose of obtaining judgement in
any court it is necessary to convert the sum due in respect of the principal
of, or premium or interest, if any, or Additional Amounts on the Securities of
any series (the "Required Currency") into a currency in which a judgment will
be rendered (the "Judgment Currency"), the rate of exchange used shall be the
rate at which in accordance with normal banking procedures the Trustee could
purchase in The City of New York the Required Currency with the Judgment
Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this, Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied
by any tender, or any recovery pursuant to any judgment (whether or not entered
in accordance with clause (a)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (iii) shall not be affected by judgment being obtained for any
other sum due under this Indenture. For purposes of the foregoing, "New York
Banking Day" means any day except a Saturday, Sunday or a legal
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holiday in The City of New York or a day on which banking institutions in
The City of New York are authorized or obligated by law, regulation or
executive order to be closed.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms Generally.
Each Registered Security, Restricted Security, Bearer Security, Coupon
and temporary global Security issued pursuant to this Indenture shall be in the
form established by or pursuant to a Board Resolution or in one or more
indentures supplemental hereto, shall have such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
or pursuant to this Indenture or any indenture supplemental hereto and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Security or Coupon as evidenced by their execution of
such Security or Coupon.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall be issuable in registered form without Coupons and shall not
be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Securities of any series offered and sold as part of their initial
distribution in reliance on Regulation S under the Securities Act shall be
issued in the form of one or more global Securities of such series in
definitive, fully registered form without coupons, substantially in the form
set forth herein, with such applicable legends as are provided for in
accordance with this Section 201 and Section 301. Such global Securities shall
be registered in the name of the Depositary for such global Securities or its
nominee and deposited with the Trustee, at its Corporate Trust Office, as
custodian for such Depositary, duly executed by the Company and authenticated
by the Trustee as herein provided, for credit by the Depositary to the
respective accounts of beneficial owners of such Securities (or to such other
accounts as they may direct) at Euroclear or Cedel. Until such time as the
applicable Restricted Period shall have terminated, each such global Security
shall be referred to herein as a "Regulation S Global Security." After such
time as the applicable Restricted Period shall have Terminated, each such
global Security shall be referred to herein as an "Unrestricted Global
Security". The aggregate principal amount of any Regulation S Global Security
and any Unrestricted Global Security may from time to time
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be increased or decreased by adjustments made on the records of the Trustee, as
custodian for the Depositary for such global Security, as provided in Section
305. As used herein, the term "Restricted Period", with respect to global
Securities of any series (or of any identifiable tranche of any series)
initially offered and sold in reliance on Regulation S, means the period of 40
consecutive days beginning on and including the later of (a) the day that the
underwriter(s) or placement agent(s), if any, for the offering of Securities of
such series (or tranche) advises the Company and the Trustee in writing is the
day on which such Securities of such series were first offered to persons
other than distributors (as defined in Regulation S) in reliance on Regulation S
and (ii) the Closing Date. Except as otherwise provided pursuant to Section
301 or agreed to by the Company, no Regulation S Global Security or
Unrestricted Global Security shall be issued except as provided in this
paragraph to evidence Securities offered and sold as part of their initial
distribution in reliance on Regulation S.
Securities of any series offered and sold as part of their initial
distribution in transactions exempt from the registration requirements of the
Securities Act other than pursuant to Regulation S ("Restricted Securities") to
Persons who are "qualified institutional buyers", as defined in Rule 144A under
the Securities Act ("QIBs") shall be issued in the form of one or more global
Securities of such series (each a "Restricted Global Security") in definitive,
fully registered form without coupons, with such applicable legends as are
provided for in accordance with this Section 201 and Section 301. Such global
Securities shall be registered in the name of the Depositary for such Global
Security or its nominee and deposited with the Trustee, at its Corporate Trust
Office, as custodian for such Depositary, duly executed by the Company and
authenticated by the Trustee as hereinafter provided. The aggregate principal
amount of any Restricted Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee, as custodian for
the Depositary for such global Security, as provided in Section 305.
Restricted Securities of any series offered and sold as part of their
initial distribution to Persons who are not QIBs shall be issued in the form
of Restricted Certificated Securities in definitive, fully registered form
without interest coupons, with such applicable legends as are provided for in
accordance with this Section 201 and Section 301. Restricted Certificated
Securities may not be transferred or exchanged for interests in a global
Security except as otherwise provided herein or pursuant to Section 301.
For all purposes of this Indenture, the term "Restricted Securities"
shall include all Securities issued upon registration of transfer of, exchange
for or in lieu of Restricted Securities except as otherwise provided in Section
305.
Unless otherwise agreed to by the Company, no Restricted Global
Security or Restricted Certificated Security shall be authenticated and
delivered hereunder unless and until each purchaser of a beneficial interest in
such Restricted Global Security or the purchaser of such Restricted
Certificated Security, as applicable, shall have executed and delivered to the
Company and the underwriter(s) or placement agent(s), if any, for the offering
of such Securities a Purchaser Letter substantially in the form set forth in an
annex to such Restricted Global
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Security or Restricted Certificated Security, as the case may be, and the
Company certifies to the Trustee in writing to that effect.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
______________________,
as Trustee
By_________
Authorized Signatory
Section 203. Securities in Global Form.
Unless otherwise provided in or pursuant to this Indenture, the
Securities shall not be issuable in global form. If Securities of a series
shall be issuable in global form, any such Security may provide that it or any
number of such Securities shall represent the aggregate amount of all
Outstanding Securities of each series (or such lesser amount as is permitted by
the terms thereof) from time to time endorsed thereon and may also provide that
the aggregate amount of Outstanding Securities represented thereby may from
time to time be increased or reduced to reflect exchanges. Any endorsement of
any Security in global form to reflect the amount, or any increase or decrease
in the amount, or changes in the rights of Holders, of Outstanding Securities
represented thereby shall be made in such manner and by such Person or Persons
as shall be specified therein or in the Company Order to be delivered pursuant
to Section 303 or 304 with respect thereto. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any instructions by the Company with
respect to a Security in global form shall be in writing but need not be
accompanied by or contained in an Officers' Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified as
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<PAGE> 33
contemplated by Section 301, payment of principal of and any premium and
interest on any Security in permanent global form shall be made to the Person
or Persons specified therein.
Notwithstanding the provisions of Section 308 and except as provided in
the preceding paragraph, the Company, the Trustee and any agent of the Company
and the Trustee shall treat as the Holder of such principal amount of
Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such
permanent global Security in registered form, or (ii) in the case of a
permanent global Security in bearer form, the Person or Persons specified
pursuant to Section 301.
Section 204. Legends on Restricted Securities.
Except as otherwise specified as contemplated by Section 301 for the
Securities of any Series, all Restricted Securities shall bear the legend(s)
with respect to restrictions on transfer specified in any form of Security
adopted pursuant to Section 201 unless and until such legend(s) are removed
and such Securities cease to be Restricted Securities pursuant to Section 305.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited. The Securities may be issued
in one or more series.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officers' Certificate, or established in one or more indentures
supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of such
Securities of such series which may be authenticated and delivered
under this Indenture (except for Securities authenticated and delivered
upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 305, 306, 905
or 1107 or the terms of such Securities);
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(3) if such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with Coupons, without Coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) if any of such Securities are to be issuable in global
form, when any of such Securities are to be issuable in global form and
(i) whether beneficial owners of interests in any such global Security
may exchange such interests for Securities of the same series and of
like tenor and of any authorized form and denomination, and the
circumstances under which any such exchanges may occur, if other than
in the manner specified in Section 305, and (ii) the name of the
Depository or the U.S. Depository, as the case may be, with respect to
any global Security;
(5) if any of such Securities are to be issuable as Bearer
Securities or in global form, the date as of which any such Bearer
Security or global Security shall be dated (if other than the date of
original issuance of the first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer
Securities, whether interest in respect of any portion of a temporary
Bearer Security in global form payable in respect of an Intrest Payment
Date therefor prior to the exchange, if any, of such temporary Bearer
Security for definitive Securities shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event, the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(7) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(8) the rate or rates at which such Securities shall bear
interest, if any, or the method or methods, if any, by which such rate
or rates are to be determined, the date or dates, if any, from which
such interest shall accrue or the method or methods, if any, by which
such date or dates are to be determined, the Interest Payment Dates, if
any, on which such interest shall be payable and the Regular Record
Date, if any, for the interest payable on Registered Securities on any
Interest Payment Date, whether and under what circumstances Additional
Amounts on such Securities or any of them shall be payable, the notice,
if any, to Holders regarding the determination of interest on a
floating rate Security and
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the manner of giving such notice, and the basis upon which
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan,
The City of New York, the place or places where the principal of, any
premium and interest on or any Additional Amounts with respect to such
Securities shall be payable, Registered Securities may be surrendered
for registration of transfer or exchange, any of such Securities may be
surrendered for conversion or exchange and notices or demands to or
upon the Company in respect of such Securities and this Indenture may
be served, the extent to which, or the manner in which, any interest
payment on a global Security on an Interest Payment Date, will be paid
and the manner in which any principal of or premium, if any, on any
global Security will be paid;
(10) whether any of such Securities are to be redeemable at the
option of the Company and, if so, the date or dates on which, the
period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed,
in whole or in part, at the option of the Company;
(11) if the Company is obligated to redeem or purchase any of
such Securities to any sinking fund or analogous provision or at the
option of any Holder thereof and, if so, the date or dates on which,
the period or periods within which, the pnce or prices at which and the
other terms and conditions upon which such Securities shall be redeemed
or purchased, in whole or in part, pursuant to such obligation, and any
provisions for the remarketing of such Securities redeemed or purchased;
(12) the denominations in which any of such Securities that
are Registered Securities shall be issuable if other than denominations
of $1,000 and any integral multiple thereof, the minimum denominations
in which any of such Securities that are Restricted Securities shall be
issuable if other than the denominations of $100,000, and the
denominations in which any of such Securities that are Bearer
Securities shall be issuable if other than the denomination of $5,000;
(13) whether the Securities of the series will be convertible
into shares of Common Shares and/or exchangeable for other securities,
and if so, the terms and conditions upon which such Securities will be
so convertible or exchangeable;
(14) if other than the principal amount thereof, the portion of
the principal amount of any of such Securities that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion is to be determined;
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(15) if other than Dollars, the Foreign Currency in which
payment of the principal of, any premium or interest on or any
Additional Amounts with respect to any of such Securities shall be
payable;
(16) if the principal of, any premium or interest on or any
Additional Amounts with respect to, any of such Securities are to be
payable, at the election of the Company or a Holder thereof or
otherwise, in Dollars or in a Foreign Currency other than that in which
such Securities are stated to be payable, the date or dates on which,
the period or periods within which, and the other terms and conditions
upon which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are stated to be payable and the Currency in which such
Securities or any of them are to be paid pursuant to such election;
(17) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to, such
Securities may be determined with reference to an index, formula or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such amounts shall be determined and
paid or payable;
(18) any deletions from, modifications of or additions to the
Events of Default or covenants of the Company with respect to any of
such Securities, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein;
(19) the applicability, if any, of Section 402 to any of such
Securities and provisions in modification of, in addition to or in lieu
of any of the provisions of Section 402;
(20) if any of such Securities are to be issuable upon the
exercise of warrants, and the time, manner and place for such
Securities to be authenticated and delivered;
(21) if any of such Securities are to be issuable in global
form and are to be issuable in definitive form (whether upon original
issue or upon exchange of a temporary Security) only upon receipt of
certain certificates or other documents or satisfaction of other
conditions, then the form and terms of such certificates, documents or
conditions;
(22) if there is more than one Trustee, the identity of the
Trustee and, if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities; and
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(23) any other terms of such Securities which the Company may
establish in accordance with Section 901.
All Securities of any one series and all Coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to Currency of payments due thereunder, denomination and the rate of interest,
or method of determining the rate of interest, if any, Maturity and the date
from which interest, if any, shall accrue and except as may otherwise be
provided by the Company in or pursuant to the Board Resolution and set forth in
the Officers' Certificate or in any indenture or indentures supplemental hereto
pertaining to such series of Securities. The terms of the Securities of any
series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee on original issue from time to time
upon telephonic or written order of persons designated in the Officers'
Certificate or supplemental indenture (telephonic instructions to be promptly
confirmed in writing by such person) and that such persons are authorized to
determine, consistent with such Officers' Certificate or any applicable
supplemental indenture, such terms and conditions of the Securities of such
series as are specified in such Officers' Certificate or supplemental
indenture. All Securities of any one series need not be issued at the same time
and, unless otherwise so provided by the Company, a series may be reopened for
issuances of additional Securities of such series or to establish additional
terms of such series of Securities.
If any of the terms of the Securities of any series shall be
established by action taken by or pursuant to a Board Resolution, the Board
Resolution shall be delivered to the Trustee at or prior to the delivery of the
Officers' Certificate setting forth the terms of such series.
Section 302. Currency, Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated in
Dollars shall be issuable in registered form without Coupons in denominations
of $1,000 and any integral multiple thereof, Restricted Securities shall be
issuable only in minimum denominations of $100,000 and any integral multiple of
$1,000 in excess thereof, and Bearer Securities denominated in Dollars shall be
issuable in the denomination of $5,000. Securities not denominated in Dollars
shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman
of the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon and attested by
its Secretary or one of its Assistant
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Secretaries. Coupons shall be executed on behalf of the Company by the
Treasurer or any Assistant Treasurer of the Company. The signature of any of
these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company shall bind the Company, notwithstanding that such individuals or
any of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of such
Securities or Coupons.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officers'
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities have been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
Coupons appertaining thereto, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be
fully protected in relying upon,
(i) an Opinion of Counsel to the effect that:
(a) the form or forms and terms of such Securities
and Coupons, if any, have been established in conformity
with the provisions of this Indenture;
(b) all conditions precedent to the authentication
and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and that such
Securities, and Coupons, when completed by appropriate
insertion and executed and delivered by the Company to the
Trustee for authentication pursuant to this Indenture, and
authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of
Counsel, will constitute legally valid and binding obligations of the
Company, enforceable against the Company in accordance with their
terms, subject to bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the enforcement of
creditors' rights generally, and subject to general principles of
equity (regardless of whether enforcement is sought in a proceeding in
equity or at law) and will entitle the Holders thereof to the benefits
of this Indenture;
(c) all laws and requirements in respect of the execution
and delivery by the Company of such Securities and Coupons, if any,
have been complied with; and
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(d) with respect to any Securities
issued other than Restricted Securities, this
Indenture has been qualified under the Trust
Indenture Act; and
(ii) an Officers' Certificate stating that, to
the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse
of time would become, an Event of Default with respect
to any of the Securities shall have occurred and be
continuing.
If all the Securities of any series are not to be issued at one time,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before
the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in a
manner which is not reasonably acceptable to the Trustee or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified in or pursuant to this Indenture.
No Security or Coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose, unless
there appears on such Security a certificate of authentication substantially in
the form provided for in Section 202 or 611 executed by or on behalf of the
Trustee or by the Authenticating Agent, by the manual signature of one of its
authorized officers. Such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder. Except as permitted by Section 306 or 307, the
Trustee shall not authenticate and deliver any Bearer Security unless all
Coupons appertaining thereto then matured have been detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized
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<PAGE> 40
denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form or, if authorized in or
pursuant to this Indenture, in bearer form with one or more Coupons or without
Coupons and with such appropriate insertions, omissions, substitutions and
other variations as the officers of the Company executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
Such temporary Securities may be in global form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary Securities
are issued, the Company shall cause definitive Securities to be prepared
without unreasonable delay. After the preparation of definitive Securities of
the same series and containing terms and provisions that are identical to those
of any temporary Securities, such temporary Securities shall be exchangeable
for such definitive Securities upon surrender of such temporary Securities at
an Office or Agency for such Securities, without charge to any Holder thereof.
Upon surrender for cancellation of any one or more temporary Securities
(accompanied by any unmatured Coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of authorized denominations of
the same series and containing identical terms and provisions; provided,
however, that no definitive Bearer Security, except as provided in or pursuant
to this Indenture, shall be delivered in exchange for a temporary Registered
Security; and provided, further, that a definitive Bearer Security shall be
delivered in exchange for a temporary Bearer Security only in compliance with
the conditions set forth in or pursuant to this Indenture. Unless otherwise
provided in or pursuant to this Indenture with respect to a temporary global
Security, until so exchanged the temporary Securities of any series shall in
all respects be entitled to the same benefits under this Indenture as
definitive Securities of such series.
Section 305. Registration Transfer and Exchange.
(a) General
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe and the transfer restrictions applicable to Restricted Securities
herein provided, the Company shall provide for the registration of the
Registered Securities of such series and of transfers of the Registered
Securities of such series. Such Office or Agency shall be the "Security
Registrar" for that series of Securities. In the event that the Trustee shall
not be the Security Registrar, it shall have the right to examine the Security
Register at all reasonable times. The Trustee is hereby initially appointed as
Security Registrar for each series of Securities. In the event that the
Trustee shall cease to be Security Registrar with respect to a series of
Securities, it shall have the right to examine the Security Register for such
series at all reasonable times. There shall be only one Security Register for
each series of Securities.
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Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency for such series, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Registered Securities of
the same series denominated as authorized in or pursuant to this indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged at
any Office or Agency for such series. Whenever any Registered Securities are
so surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive.
If provided in or pursuant to this Indemnity, with respect to
Securities of any series, at the option of the Holder, Bearer Securities of
such series may be exchanged for Securities of such series containing identical
terms, denominated as authorized in or pursuant to this Indenture and in the
same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, with all unmatured Coupons
and all matured Coupons in default thereto appertaining. If the Holder of a
Bearer Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
and the Trustee in an amount equal to the face amount of such missing Coupon or
Coupons, or the surrender of such missing Coupon or Coupons may be waived by
the Company and the Trustee if there is furnished to them such security or
indemnity as they may require to save each of them and any Paying Agent
harmless. If thereafter the Holder of such Bearer Security shall surrender to
any Paying Agent any such missing Coupon in respect of which such a payment
shall have been made, such Holder shall be entitled to receive the amount of
such payment; provided, however, that, except as otherwise provided in Section
1002, interest represented by Coupons shall be payable only upon presentation
and surrender of those Coupons at an Office or Agency for such series located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such Office or Agency for such
series in exchange for a Registered Security of such series and of like tenor
after the close of business at such Office or Agency on (i) any Regular Record
Date and before the opening of business at such Office or Agency on the
relevant Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such Office or Agency on the related date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the
Coupon relating to such Interest Payment Date or proposed date of payment, as
the case may be (or, if such Coupon is so surrendered with such Bearer
Security, such Coupon shall be returned to the Person so surrendering the
Bearer Security), and interest or Defaulted Interest, as the case may be, shall
not be payable on such interest Payment Date or proposed date for payment, as
the case may be, in respect of the
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Registered Security issued in exchange for such Bearer Security, but
shall be payable only to the Holder of such Coupon when due in accordance with
the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to Securities
of any series, at the option of the Holder, Registered Securities of such
series may be exchanged for Bearer Securities upon such terms and conditions as
may be provided in or pursuant to this Indenture with respect to such series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities which the Holder making
the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
certificated Securities only if (i) the Depository is at any time unwilling,
unable or ineligible to continue as Depository and a successor depository is
not appointed by the Company within 60 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so exchangeable,
or (iii) an Event of Default has occurred and is continuing with respect to the
Securities. If the beneficial owners of interests in a global Security are
entitled to exchange such interests for certificated Securities, then without
unnecessary delay but in any event not later than the earliest date on which
such interests may be so exchanged, the Company shall deliver to the Trustee
certificated Securities in such denominations as are required by or pursuant to
this Indenture, and of the same series, containing identical terms and in
aggregate principal amount equal to the principal amount of such global
Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such global Security shall be surrendered from
time to time by the U.S. Depository or such other Depository as shall be
specified in the Company Order with respect thereto, and in accordance with
instructions given to the Trustee and the U.S. Depository or such other
Depository, as the case may be (which actions shall be in writing but need not
be in or accompanied by an Officers' Certificate or be accompanied by an
Opinion of Counsel), as shall be specified in the Company Order with respect
thereto to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or in part, for certificated Securities as described above
without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered global Security, a like
aggregate principal amount of certificated Securities of the same series of
authorized denominations and of like tenor as the portion of such global
Security to be exchanged, which (unless such Securities are not issuable both
as Bearer Securities and as Registered Securities, in which case the Securities
exchanged for the global Security shall be issuable only in the form in which
the Securities are issuable, as provided in or pursuant to this Indenture)
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof;
provided, however, that no such exchanges may occur during a period beginning
at the opening of business 15 days before any selection of Securities of the
same series to be redeemed and ending on the relevant Redemption Date; and
provided, further,
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that (unless otherwise provided in or pursuant to this Indenture) no
Bearer Security delivered in exchange for a portion of a global Security shall
be mailed or otherwise delivered to any location in the United States.
Promptly following any such exchange in part, such global Security shall be
returned by the Trustee to such Depository or the U.S. Depository, as the case
may be, or such other Depository or U.S. Depository referred to above in
accordance with the instructions of the Company referred to above. If a
Registered Security is issued in exchange for any portion of a global Security
after the close of business at the Office or Agency for such Security where
such exchange occurs on or after (i) any Regular Record Date for such Security
and before the opening of business at such Office or Agency on the next
Interest Payment Date, or (ii) any Special Record Date for such Security and
before the opening of business at such Office or Agency on the related proposed
date for payment of interest or Defaulted Interest, as the case may be,
interest shall not be payable on such Interest Payment Date or proposed date
for payment, as the case may be, in respect of such Registered Security, but
shall be payable on such Interest Payment Date or proposed date for payment, as
the case may be, only to the Person to whom interest in respect of such portion
of such global Security shall be payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company evidencing the same
debt and entitling the Holders thereof to the same benefits under this
Indenture as the Securities surrendered upon such registration of transfer or
exchange.
Every Registered Security presented or surrendered for registration of
transfer or for exchange or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge and any other
expenses (including the fees and expenses of the Trustee) that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 304, 905 or 1107 not involving any
transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business 15
days before the day of the selection for redemption of Securities of like tenor
and the same series under Section 1103 and ending at the close of business on
the day of such selection, or (ii) to register the transfer of or exchange any
Registered Security so selected for redemption in whole or in part, except in
the case of any Security to be redeemed in part, the portion thereof not to be
redeemed, or (iii) to exchange any Bearer Security so selected for redemption
except, to the extent provided with respect to such Bearer Security, that such
Bearer Security may be exchanged for a Registered Security of like
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tenor and the same series, provided that such Registered Security shall
be immediately surrendered for redemption with written instruction for payment
consistent with the provisions of this Indenture or (iv) to issue, register the
transfer of or exchange any Security which, in accordance with its terms, has
been surrendered for repayment at the option of the Holder, except the portion,
if any, of such Security not to be so repaid.
(b) Restricted Securities.
Restricted Securities of each series shall be subject to the
restrictions on transfer (the "Transfer Restrictions") provided in the
applicable legend(s) (the "Restrictive Legends") required to be set forth on
the face of each Security as contemplated by Sections 201 and 301 for the
Restricted Securities of such series, and each Holder of a Security, by its
acceptance thereof, agrees to be bound by, and to comply with, the Transfer
Restrictions, in each case unless compliance with the Transfer Restrictions
shall be waived by the Company in writing delivered to the Trustee.
Except as otherwise specified as contemplated by Section 301 for the
Securities of any series, the Transfer Restrictions shall cease and terminate
with respect to any particular Security upon receipt by the Company of evidence
satisfactory to it (which may include an opinion of independent counsel
experienced in matters of United States federal securities law) that, as of the
date of determination, such Security (a) could be transferred by the Holder
thereof pursuant to Rule 144(k) promulgated under the Securities Act, (b) has
been sold pursuant to an effective registration statement under the Securities
Act, or (c) has been transferred (i) in a transaction satisfying all the
requirements of Rule 903 or 904 (as applicable) of Regulation S promulgated
under the Securities Act or (ii) pursuant to Rule 144 under the Securities Act,
and receipt by the Trustee of an Officer's Certificate certifying that the
Company has received such evidence and that the Transfer Restrictions have
ceased and terminated with respect to such Security. All references in the
preceding sentence to any Regulation, Rule or provision thereof shall be deemed
also to refer to any successor provisions thereof. In addition, the Company
may terminate the Transfer Restrictions with respect to any particular Security
in such other circumstances as it determines are appropriate for this purpose
and shall deliver to the Trustee and an Officer's Certificate certifying that
the Transfer Restrictions have ceased and terminated with respect to such
Security.
At the request of the Holder and upon the surrender of such Security to
the Trustee or Security Registrar for exchange in accordance with the
provisions of this Section 305, any Security as to which the Transfer
Restrictions shall have terminated in accordance with the preceding paragraph
shall be exchanged for a new Security, of like tenor and aggregate principal
amount, but without the Restrictive Legends. Any Security as to which the
Restrictive Legends shall have been removed pursuant to this paragraph (and any
Securities issued upon registration of transfer of, exchange for or in lieu of
such Security) shall thereupon cease to be "Restricted Securities" for all
purposes of this Indenture.
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The Company shall notify the Trustee of the effective date of any
registration statement registering any Restricted Securities under the
Securities Act and shall ensure that any opinion of counsel received by it in
connection with the removal of any Restrictive Legend is also addressed to the
Trustee. The Trustee shall not be liable for any action taken or omitted to be
taken by it in good faith and without negligence on its part in accordance with
such notice or any opinion of counsel.
As used in this Section 305(b), the term "transfer" encompasses any
sale, pledge, transfer or other disposition of any Securities referred to
herein.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section 306, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of the same series containing
identical terms and of like principal amount and bearing a munber not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security or
Coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or in lieu of any such mutilated, destroyed, lost or stolen Security or in
exchange for the Security to which a destroyed, lost or stolen Coupon
appertains with all appurtenant Coupons not destroyed, lost or stolen, a new
Security of the same series containing identical terms and of like principal
amount and bearing a number not contemporaneously outstanding, with Coupons
corresponding to the Coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
Coupon appertains.
Notwithstanding the foregoing provisions of this Section 306, in case
any mutilated, destroyed, lost or stolen Security or Coupon has become or is
about to become due and payable, the Company in its discretion may, instead of
issuing a new Security, pay such Security or Coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an Office or Agency for such Securities
located outside the United States and, unless otherwise provided in or pursuant
to this Indenture, any interest on Bearer Securities and any Additional Amounts
with respect to such interest shall be payable only upon presentation and
surrender of the Coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
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be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security, with any Coupons appertaining thereto issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen Coupon
appertains, shall constitute a separate obligation of the Company, whether or
not the destroyed, lost or stolen Security and Coupons appertaining thereto or
the destroyed, lost or stolen Coupon shall be at any time enforceable by
anyone, and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of such series and any
Coupons, if any, duly issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or Coupons.
Section 307. Payment of Interest and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business
at an Office or Agency for such Security on any Regular Record Date therefor
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date therefor, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date and
interest shall not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any
interest on and any Additional Amounts with respect to any Registered Security
which shall be payable, but shall not be punctually paid or duly provided for,
on any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder; and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Person in whose name such Registered Security (or a
Predecessor Security thereof) shall
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be registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the following
manner. The Company shall notify the Trustee in writing of the amount of
Defaulted Interest proposed to be paid on such Registered Security and
the date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when so deposited to be held
in trust for the benefit of the Person entitled to such Defaulted Interest
as in this Clause provided. Thereupon, the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to the Holder of such Registered Security (or
a Predecessor Security thereof) at his address as it appears in the
Security Register not less than 10 days prior to such Special Record Date.
The Trustee may, in its discretion, in the name and at the expense of the
Company, cause a similar notice to be published at least once in an
Authorized Newspaper of general circulation in the Borough of Manhattan,
The City of New York, but such publication shall not be a condition
precedent to the establishment of such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record Date
therefor having been mailed as aforesaid, such Defaulted Interest shall be
paid to the Person in whose name such Registered Security (or a Predecessor
Security thereof) shall be registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security is surrendered at the
Office or Agency for such Security in exchange for a Registered Security
after the close of business at such Office or Agency on any Special Record
Date and before the opening of business at such Office or Agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the Coupon relating to such proposed
date of payment and Defaulted Interest shall not be payable on such
proposed date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but shall be payable only to the Holder
of such Coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange on which such Security may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this Clause, such
payment shall be deemed practicable by the Trustee.
Unless otherwise provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture, at the option of the
Company, interest on Registered
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Securities that bear interest may be paid by mailing a check to the address of
the Person entitled thereto as such address shall appear in the Security
Register or by transfer to an account maintained by the payee with a bank
located in the United States.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
In the case of any Registered Security of any series that is
convertible, which Registered Security is converted after any Regular Record
Date and on or prior to the next succeeding Interest Payment Date (other than
any Registered Security with respect to which the Stated Maturity is prior to
such Interest Payment Date), interest with respect to which the Stated Maturity
is on such Interest Payment Date shall be payable on such interest Payment Date
notwithstanding such conversion, and such interest (whether or not punctually
paid or duly provided for) shall be paid to the Person in whose name that
Registered Security (or one or more predecessor Registered Securities) is
registered at the close of business on such Regular Record Date. Except as
otherwise expressly provided in the immediately preceding sentence, in the case
of any Registered Security which is converted, interest with respect to which
the Stated Maturity is after the date of conversion of such Registered Security
shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Registered Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Registered Security is registered in
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of principal of, any premium and (subject to Sections 305
and 307) interest on and any Additional Amounts with respect to such Registered
Security and for all other purposes whatsoever, whether or not any payment with
respect to such Registered Security shall be overdue, and neither the Company,
nor the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of any Bearer Security or the bearer of any Coupon as the
absolute owner of such Security or Coupon for the purpose of receiving payment
thereof or on account thereof and for all other purposes whatsoever, whether or
not any payment with respect to such Security or Coupon shall be overdue, and
neither the Company, nor the Trustee or any agent of the Company or the Trustee
shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depository shall have any rights under this Indenture with respect
to such global Security, and such Depository may be treated by the Company, the
Trustee, and any agent of the Company or the Trustee as the owner of such
global Security for all purposes whatsoever. None of the
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Company, the Trustee, any Paying Agent or the Security Registrar will have any
responsibility or liability for any aspect of the records relating to or
payments made on account of beneficial ownership interests of a global Security
or for maintaining, supervising or reviewing any records relating to such
beneficial ownership interests.
Section 309. Cancellation.
All Securities and Coupons surrendered for payment, redemption,
registration of transfer, exchange or conversion or for credit against any
sinking fund payment shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee, and any such Securities and Coupons, as
well as Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly by the Trustee. The Company may at any
time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in
any manner whatsoever, and all Securities so delivered shall be cancelled
promptly by the Trustee. No Securities shall be authenticated in lieu of or in
exchange for any Securities cancelled as provided in this Section, except as
expressly permitted by or pursuant to this Indenture. All cancelled Securities
and Coupons held by the Trustee shall be destroyed by the Trustee, unless by a
Company Order the Company directs their return to it.
Section 310. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture, interest
on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
SATISFACTION AND DISCHARGE OF INDENTURE
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order (except as to any surviving rights of
registration of transfer, exchange or conversion of Securities of such series
herein expressly provided for and any right to receive Additional Amounts) and
any Coupons appertaining thereto, and the Trustee, on receipt of a Company
Order, at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture as to such series,
when
(1) either
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(A) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange for
Registered Securities of such series and maturing after such exchange whose
surrender is not required or has been waived as provided in Section 305, (ii)
Securities and Coupons of such series which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306, (iii) Coupons
appertaining to Securities of such series called for redemption and maturing
after the relevant Redemption Date whose surrender has been waived as provided
in Section 1107, and (iv) Securities and Coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 1003) have been delivered to the Trustee for
cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for such
purpose, money in an amount sufficient to pay and discharge the entire
indebtedness on such Securities and any Coupons appertaining thereto not
theretofore delivered to the Trustee for cancellation, including the principal
of, any premium and interest on, and any Additional Amounts with respect to
such Securities and any Coupons appertaining thereto, to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Maturity thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding Securities of
such series and any Coupons appertaining thereto; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture as to
such series have been complied with.
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In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of such series as to which it is Trustee and if the other conditions
thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 605 and, if money shall have been deposited with the
Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations
of the Trustee under Sections 305, 306, 403 and the last paragraph of Section
1003 shall survive.
Section 402. Defeasance and Covenant Defeasance.
(a) If, pursuant to Section 301, provision is made for either or
both of (i) defeasance of the Securities of or within a series under subsection
(b) of this Section 402 or (ii) covenant defeasance of the Securities of or
within a series under subsection (c) of this Section 402, then such provisions,
together with the other provisions of this Section 402 (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any Coupons
appertaining thereto, and the Company may at its option by Board Resolution,
at any time, with respect to such Securities and any coupons appertaining
thereto, elect to have Section 402(b) (if applicable) or Section 402(c) (if
applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in
this Section 402.
(b) Upon the Company's exercise of the above option applicable to
this Section 402(b) with respect to any Securities of or within a series, the
Company shall be deemed to have been discharged from its obligations with
respect to such Outstanding Securities and any Coupons appertaining thereto on
the date the conditions set forth in subsection (d) of this Section 402 are
satisfied (hereinafter, "defeasance"). For this purpose, such defeasance means
that the Company shall be deemed to have paid and discharged the entire
indebtedness represented by such Outstanding Securities and any Coupons
appertaining thereto, which shall thereafter be deemed to be "Outstanding" only
for the purposes of subsection (e) of this Section 402 and the other Sections
of this Indenture referred to in clauses (i) and (ii) below, and to have
satisfied all of its other obligations under such Securities and any
Coupons appertaining thereto and this Indenture insofar as such Securities and
any Coupons appertaining thereto are concerned (and the Trustee, at the expense
of the Company, shall execute proper instruments acknowledging the same),
except for the following which shall survive until otherwise terminated or
discharged hereunder: (i) the rights of Holders of such Outstanding Securities
and any Coupons appertaining thereto to receive, solely from the trust fund
described in subsection (d) of this Section 402 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining thereto when
such payments are due, (ii) the Company's obligations with respect to such
Securities under Sections 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1004, (iii) the rights, powers,
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trusts, duties and immunities of the Trustee hereunder and (iv) this Section
402. The Company may exercise its option under this Section 402(b)
notwithstanding the prior exercise of its option under subsection (c) of this
Section 402 with respect to such Securities and any Coupons appertaining
thereto.
(c) Upon the Company's exercise of the above option applicable to
this Section 402(c) with respect to any Securities of or within a series, the
Company shall be released from its obligations under Sections 1005 and 1006,
and, if specified pursuant to Section 301, its obligations under any other
covenant, with respect to such Outstanding Securities and any Coupons
appertaining thereto on and after the date the conditions set forth in
subsection (d) of this Section 402 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any Coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1005 and 1006 or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder.
For this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any Coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a default or an Event
of Default under Section 501(4) or 501(8) or otherwise, as the case may be, but,
except as specified above, the remainder of this Indenture and such Securities
and any Coupons appertaining thereto shall be unaffected thereby.
(d) The following shall be the conditions to application of
subsection (b) or (c) of this Section 402 to any Outstanding Securities of or
within a series and any Coupons appertaining thereto:
(i) The Company shall irrevocably have deposited or caused
to be deposited with the Trustee (or another trustee satisfying the
requirements of Section 607 who shall agree to comply with the
provisions of this Section 402 applicable to it) as trust funds in
trust for the purpose of making the following payments, specifically
pledged as security for, and dedicated solely to, the benefit of the
Holders of such Securities and any Coupons appertaining thereto, (1) an
amount in Dollars or in such Foreign Currency in which such Securities
and any Coupons appertaining thereto are then specified as payable at
Stated Maturity, or (2) Government Obligations applicable to such
Securities and Coupons appertaining thereto (determined on the basis of
the Currency in which such Securities and Coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any Coupons appertaining
thereto, money in an amount, or (3) a combination thereof, in any case,
in an amount, sufficient, without consideration of any
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reinvestment of such principal and interest, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (y) the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any Coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (z) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any Coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any Coupons appertaining thereto.
(ii) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instnunent to which the Company is a party or by
which it is bound.
(iii) No Event of Default or event which with notice or lapse of time
or both would become an Event of Default with respect to such Securities and
any Coupons appertaining thereto shall have occured and be continuing on the
date of such deposit and, with respect to defeasance only, at any time during
the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the
expiration of such period).
(iv) In the case of an election under subsection (b) of this Section
402, the Company shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company has received from the Internal Revenue Service a
letter ruling, or there has been published by the Internal Revenue Service a
Revenue Ruling, or (ii) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any Coupons appertaining thereto
will not recognize income, gain or loss for Federal income tax purposes as a
result of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the case
if such defeasance had not occurred.
(v) In the case of an election under subsection (c) of this Section
402, the Company shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any Coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such covenant defeasance had not occurred.
(vi) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance
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or covenant defeasance under subsection (b) or (c) of this Section 402
(as the case may be) have been complied with.
(vii) Notwithstanding any other provisions of this Section
402(d), such defeasance or covenant defeasance shall be effected in
compliance with any additional or substitute terms, conditions or
limitations which may be imposed on the Company in connection
therewith pursuant to Section 301.
(e) Subject to the provisions of the last paragraph of Section
1003, all money and Government Obligations (or other property as may be
provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 402(e), the "Trustee") pursuant to subsection (d) of Section 402 in
respect of any Outstanding Securities of any series and any Coupons appertaining
thereto shall be held in trust and applied by the Trustee, in accordance with
the provisions of such Securities and any Coupons appertaining thereto and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities and any Coupons appertaining
thereto of all sums due and to become due thereon in respect of principal (and
premium, if any) and interest and Additional Amounts, if any, but such money
need not be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant to
Section 301, if, after a deposit referred to in Section 402(d)(i) has been
made, (a) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Section 301 or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 402(d)(i) has been made in respect of such Security, or (b)
a Conversion Event occurs in respect of the Foreign Currency in which the
deposit pursuant to Section 402(d)(i) has been made, the indebtedness
represented by such Security and any Coupons appertaining thereto shall be
deemed to have been, and will be, fully discharged and satisfied through the
payment of the principal of (and premium, if any), and interest, if any, on
such Security as the same becomes due out of the proceeds yielded by converting
(from time to time as specified below in the case of any such election) the
amount or other property deposited in respect of such Security into the
Currency in which such Security becomes payable as a result of such election or
Conversion Event based on (x) in the case of payments made pursuant to clause
(a) above, the applicable market exchange rate for such Currency in effect on
the second Business Day prior to each payment date, or (y) with respect to a
Conversion Event, the applicable market exchange rate for such Foreign Currency
in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the Government Obligations
deposited pursuant to this Section 402 or the principal or interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any Coupons
appertaining thereto.
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Anything in this Section 402 to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in subsection (d) of this Section 402 which,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Section 402.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
money and Government Obligations deposited with the Trustee pursuant to Section
401 or 402 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the Coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled
thereto, of the principal, premium, interest and Additional Amounts for whose
payment such money has or Government Obligations have been deposited with or
received by the Trustee; but such money and Government Obligations need not be
segregated from other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or be effected by operation
of law pursuant to any judgment, decree or order of any court or any order,
rule or regulation of any administrative or governmental body), unless such
event is specifically deleted or modified in or pursuant to the supplemental
indenture or Board Resolution creating a particular series of Securities or in
the Officers' Certificate for such series:
(1) default in the payment of any interest on or any
Additional Amounts payable in respect of any Security of such series
when such interest becomes or such Additional Amounts become due and
payable, and continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of or any
premium on any Security of such series when it becomes due and payable
at its Maturity; or
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(3) default in the deposit of any sinking fund payment when and as
due by the terms of a Security of such series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been expressly
included in this Indenture solely for the benefit of a series of Securities
other than such series), and continuance of such default or breach for a period
of 60 days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of at
least 25% in principal amount of the Outstanding Securities of such series, a
written notice specifying such default or breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder; or
(5) if any event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be secured or
evidenced, any Indebtedness of the Company or any Subsidiary, whether such
Indebtedness now exists or shall hereafter be created, shall happen and
shall result in such Indebtedness in principal amount in excess of the greater
of $50,000,000 or 10% of Consolidated Shareholders' Equity of the Company
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such acceleration shall not be rescinded
or annuled, or such Indebtedness shall not have been discharged, within a
period of 60 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in principal amount of the Outstanding Securities of
such series, a written notice specifying such event of default and requiring
the Company to cause such acceleration to be rescinded or annulled or to cause
such Indebtedness to be discharged and stating that such notice is a "Notice of
Default" hereunder; or
(6) the entry of one or more judgments, orders or decrees for the
payment of money in excess of $50,000,000, either individually or in the
aggregate (net of amounts covered by insurance, bond, surety or similar
instrument), against the Company or any Subsidiary, or any of their respective
properties, which judgment, order or decree shall not be discharged and either
(a) any creditor shall have commenced an enforcement proceeding upon such
judgment, order or decree or (b) such judgment, order or decree shall remain
unstayed and in effect for a period of 60 consecutive days; or
(7) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company
or any Material Subsidiary in an involuntary proceeding under any
applicable bankruptcy, insolvency, reorganization or other similar law
and such decree or order shall remain unstayed and in effect for a
period of 60 consecutive days; or
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(b) a decree or order adjudging the Company or any Material
Subsidiary to be insolvent, or approving a petition seeking
reorganization, arrangement, adjustment or composition of the Company
or any Material Subsidiary and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Company or any Material Subsidiary or of any substantial part of
the property of the Company or any Material Subsidiary, as the case
may be, or ordering the winding up or liquidation of the affairs of
the Company or any Material Subsidiary; or
(8) the commencement by the Company or any Material Subsidiary of a
voluntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law or of a voluntary proceeding seeking to be
adjudicated insolvent or the consent by the Company or any Material Subsidiary
to the entry of a decree or order for relief in an involuntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any insolvency proceedings against it, or the filing by
the Company or any Material Subsidiary of a petition or answer or consent
seeking reorganization or relief under any applicable law, or the consent by
the Company or any Material Subsidiary to the filing of such petition or to the
appointment of or taking possession by a custodian, receiver, liquidator,
assignee, trustee or similar official of the Company or any Material Subsidiary
or any substantial part of the property of the Company or any Material
Subsidiary or the making by the Company or any Material Subsidiary of an
assignment for the benefit of creditors, or the taking of corporate action by
the Company or any Material Subsidiary in furtherance of any such action; or
(9) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of any series at the
time Outstanding (other than an Event of Default specified in clause (7) or (8)
of Section 501) occurs and is continuing, then the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders) provided that so long as the Revolving Credit
Facility is in effect, such declaration shall not become effective until the
earlier of (a) five business days after receipt of such notice of acceleration
from the Holders or the Trustee by the agent under the Revolving Credit
Facility
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or (b) acceleration of the Indebtedness under the Revolving Credit Facility,
and upon any such declaration such principal or such lesser amount shall
become immediately due and payable.
If an Event of Default specified in clause (7) or (8) of Section 501
occurs, all unpaid principal of and accrued interest on the Outstanding
Securities of that series (or such lesser amount as may be provided for in the
Securities of such series) shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder of any Security of that series.
At any time after Securities of any series have been accelerated and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of not less
than a majority in principal amount of the Outstanding Securities of such
series, by written notice to the Company and the Trustee, may rescind and annul
such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum of
money sufficient to pay
(A) all overdue installments of any interest on and
Additional Amounts with respect to all Securities of such series and
any Coupon appertaining thereto,
(B) the principal of and any premium on any
Securities of such series which have become due otherwise than by
such declaration of acceleration and interest thereon and any
Additional Amounts with respect thereto at the rate or rates borne by
or provided for in such Securities,
(C) to the extent that payment of such interest or
Additional Amounts is lawful, interest upon overdue installments of
any interest and Additional Amounts at the rate or rates borne by or
provided for in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel and all other amounts
due the Trustee under Section 606; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any installment of interest on
or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have
become due and payable and such default continues for a period of 30 days,
or
(2) default is made in the payment of the principal of or any
premium on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining
thereto, the whole amount of money then due and payable with respect to such
Securities and any Coupons appertaining thereto, with interest upon the overdue
principal, any premium and, to the extent that payment of such interest shall
be legally enforceable, upon any overdue installments of interest and
Additional Amounts at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount of money as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel and all other amounts due to the Trustee under Section
606.
If the Company fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as trustee of an express trust, may institute
a judicial proceeding for the collection of the money so due and unpaid, and
may prosecute such proceeding to judgment or final decree, and may enforce the
same against the Company or any other obligor upon such Securities and any
Coupons appertaining thereto and collect the monies adjudged or decreed to be
payable in the manner provided by law out of the property of the Company or any
other obligor upon such Securities and any Coupons appertaining thereto,
wherever situated.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series
and any Coupons appertaining thereto by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the
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Company or any other obligor upon the Securities or the property of the
Company or such other obligor or their creditors, the Trustee (irrespective of
whether the principal of the Securities shall then be due and payable as
therein expressed or by declaration or otherwise and irrespective of whether
the Trustee shall have made any demand on the Company for the payment of any
overdue principal, premium, interest or Additional Amounts) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such
lesser amount as may be provided for in the Securities of such series,
of the principal and any premium, interest and Additional Amounts
owing and unpaid in respect of the Securities and any Coupons
appertaining thereto and to file such other papers or documents
as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents or
counsel) and of the Holders of Securities or any Coupons allowed in
such judicial proceeding, and
(ii) to collect and receive any monies or other property
payable or deliverable on any such claim and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities or any Coupons to make such payments to the Trustee
and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities or any Coupons, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and any other
amounts due the Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Security or any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or Coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall
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be for the ratable benefit of each and every Holder of a Security or
Coupon in respect of which such judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, or any
premium, interest or Additional Amounts, upon presentation of the Securities or
Coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid
upon the Securities and any Coupons for principal, any premium,
interest and Additional Amounts in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the aggregate amounts due and
payable on such Securities and Coupons for principal, any premium,
interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitations on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of such series;
(2) the Holders of not less than 25% in principal amount
of the Outstanding Securities of such series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
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(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of such
series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
Section 508. Unconditional Right of Holders to Receive Principal and
any Premium, Interest and Additional Amounts.
Notwithstanding any other provision in this Indenture, the Holder of
any Security or Coupon shall have the right, which is absolute and
unconditional, to receive payment of the principal of, any premium and (subject
to Sections 305 and 307) interest on, and any Additional Amounts with respect
to, such Security or payment of such Coupon, as the case may be, on the
respective Stated Maturity or Maturities therefor specified in such Security
or Coupon (or, in the case of redemption, on the Redemption Date or, in the
case of repayment at the option of such Holder if provided in or pursuant to
this Indenture, on the date such repayment is due) and to institute suit for
the enforcement of any such payment and for the right, if any, to convert or
exchange such Security in accordance with its terms, and such right shall not
be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security or a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder, and thereafter all rights and remedies of
the Trustee and each such Holder shall continue as though no such proceeding
had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is
intended to be exclusive of any other right or remedy, and every
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right and remedy, to the extent permitted by law, shall be cumulative
and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security or
Coupon to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to any Holder of a Security or a Coupon may
be exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by such Holder, as the case may be.
Section 512. Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee
or exercising any trust or power conferred on the Trustee with respect to the
Securities of such series and any Coupons appertaining thereto, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture or with the Securities of any series,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) such direction is not unduly prejudicial to the rights
of the other Holders of Securities of such series not joining in such
action.
Section 513. Waiver of Past Defaults.
The Holders of a majority in principal amount of the Outstanding
Securities of any series on behalf of the Holders of all the Securities of such
series and any Coupons appertaining thereto may waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of, any premium or
interest on, or any Additional Amounts with respect to, any Security
of such series or any Coupons appertaining thereto, or
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(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
Section 514. Waiver of Stay or Extension Laws.
The Company covenants that (if and to the full extent that it
may lawfully do so) it will not at any time insist upon, or plead, or in any
manner whatsoever claim or take the benefit or advantage of, any stay or
extension law wherever enacted, now or at any time hereafter in force, which
may affect the covenants or the performance of this Indenture; and the Company
expressly waives (to the extent that it may lawfully do so) all benefit or
advantage of any such law and covenant that it will not hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
Section 515. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken
or omitted, by it as Trustee, the filing by any party litigant in such suit of
any undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable cost, including reasonable attorneys' fees,
against any party litigant in such suit having due regard to the merits and
good faith of the claims or defenses made by such party litigant; but the
provisions of this Section 515 shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding
in the aggregate more than 10% in principal amount of the Outstanding
Securities, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of (or premium, if any) or interest on or Additional
Amounts with respect to any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or
after the Redemption Date, and, in the case of repayment, on or after the date
for repayment) or for the enforcement of the right, if any, to convert or
exchange any Security in accordance with its terms.
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ARTICLE SIX
THE TRUSTEE
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, coupon or other paper or document
reasonably believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or a Company
Order (in each case, other than delivery of any Security, together
with any Coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board
Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon an
Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by or pursuant to this Indenture
at the request or direction of any of the Holders of Securities of any
series or any Coupons appertaining thereto pursuant to this Indenture,
unless such Holders shall have offered to the Trustee reasonable
security or indemnity against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or
direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, coupon or other paper or document,
but the Trustee, in its discretion, may make such further inquiry or
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investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine, during business hours
and upon reasonable notice, the books, records and premises of the
Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
Section 602. Notice of Defaults.
Within 90 days after the occurrence of any default hereunder
with respect to the Securities of any series, the Trustee shall transmit by
mail to all Holders of Securities of such series entitled to receive reports
pursuant to Section 703(c), notice of such default hereunder known to the
Trustee, unless such default shall have been cured or waived; provided,
however, that, except in the case of a default in the payment of the principal
of (or premium, if any), or interest, if any, on, or Additional Amounts with
respect to, any Security of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or trust committee of directors and/or Responsible Officers of the
Tmstee in good faith determine that the withholding of such notice is in the
best interest of the Holders of Securities and Coupons of such series; and
provided, further, that in the case of any default of the character specified
in Section 501(8) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
Section 603. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Tmstee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
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Section 604. May Hold Securities
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of the
Trust Indenture Act, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other Person.
Section 605. Money Held in Trust.
Except as provided in Section 403 and Section 1003, money held by the
Trustee in trust hereunder need not be segregated from other funds except to
the extent required by law and shall be held uninvested. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 606. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by the Trustee hereunder
(which compensation shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to the Trustee's negligence or bad
faith; and
(3) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending themselves
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder, except to the
extent that any such loss, liability or expense was due to the
Trustee's negligence or bad faith.
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As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any Coupons
appertaining thereto.
Any compensation or expense incurred by the Trustee after a default
specified by Section 501 is intended to constitute an expense of administration
under any then applicable bankruptcy or insolvency law. "Trustee" for purposes
of this Section 606 shall include any predecessor Trustee but the negligence or
bad faith of any Trustee shall not affect the rights of any other Trustee under
this Section 606.
Section 607. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is organized and
doing business under the laws of the United States of America, any state
thereof or the District of Columbia, eligible under Section 310(a)(1) of the
Trust Indenture Act to act as trustee under an indenture qualified under the
Trust Act and that has a combined capital and surplus (computed in accordance
with Section 310(a)(2) of the Trust Indenture Act) of at least $50,000,000
subject to supervision or examination by Federal or state authority. If at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and, no appointment
of a successor Trustee pursuant to this Article shall become effective until
the acceptance of appointment by the successor Trustee pursuant to Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company. If the instrument of acceptance by a successor Trustee required by
Section 609 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor Trustee
with respect to such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series, delivered to the Trustee
and the Company.
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(d) If at any time:
(1) the Trustee shall fail to comply with the obligations
imposed upon it under Section 310(b) of the Trust Indenture Act with
respect to Securities of any series after written request therefor by
the Company or any Holder of a Security of such series who has been a
bona fide Holder of a Security of such series for at least six
months, or
(2) the Trustee shall cease to be eligible under Section
607 and shall fail to resign after written request therefor by the
Company or any such Holder, or
(3) the Trustee shall become incapable of acting or shall
be adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company, by or pursuant to a Board
Resolution, may remove the Trustee with respect to all Securities or the
Securities of such series, or (ii) subject to Section 315(e) of the Trust
Indenture Act, any Holder of a Security who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the removal of the Trustee with respect to all Securities of such series and
the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 609. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities
of any series shall be appointed by Act of the Holders of a majority in
principal amount of the Outstanding Securities of such series delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 609, become the successor Trustee with
respect to the Securities of such series and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee with
respect to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the manner
required by Section 609, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of
himself
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and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid,
to the Holders of Registered Securities, if any, of such series as their names
and addresses appear in the Security Register and, if Securities of such series
are issued as Bearer Securities, by publishing notice of such event once in an
Authorized Newspaper in each Place of Payment located outside the United
States. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate Trust
Office.
Section 609. Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
payment of its charges, shall execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 1003, shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
606.
(b) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and such successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, such successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee with respect to
the Securities of that or those series to which the appointment of such
successor Trustee relates, (2) if the retiring Trustee is not retiring with
respect to all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those
series as to which the retiring Trustee is not retiring shall continue to be
vested in the retiring Trustee, and (3) shall add to or change any of the
provisions of this Indenture as shall be necessary to provide for or facilitate
the administration of the trusts hereunder by more than one Trustee, it being
understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any
trust or trusts hereunder administered by any other such Trustee and that no
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Trustee shall be responsible for any notice given to, or received by,
or any act or failure to act on the part of any other Trustee hereunder, and,
upon the execution and delivery of such supplemental indenture, the resignation
or removal of the retiring Trustee shall become effective to the extent
provided therein, such retiring Trustee shall have no further responsibility
for the exercise of rights and powers or for the performance of the duties and
obligations vested in the Trustee under this Indenture with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates; but, on request of the Company or such
successor Trustee, such retiring Trustee, upon payment of its charges with
respect to the Securities of that or those series to which the appointment of
such successor relates and subject to Section 1003 shall duly assign, transfer
and deliver to such successor Trustee, to the extent contemplated by such
supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, subject to its claim, if any,
provided for in Section 606.
(c) Upon request of any Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been
authenticated but not delivered by the Trustee then in office, any successor by
merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
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Section 611. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of transfer,
partial redemption or pursuant to Section 306, and Securities so authenticated
shall be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder.
Wherever reference is made in this Indenture to the authentication and delivery
of Securities by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication and delivery on behalf
of the Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and,
except as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as trustee
under an indenture qualified under the Trust Indenture Act, is authorized under
applicable law and by its charter to act as an Authenticating Agent and has a
combined capital and surplus (computed in accordance with Section 310(a)(2) of
the Trust Indenture Act) of at least $50,000,000. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect specified in this Section.
Any Corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any Corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any Corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall be the successor of
such Authenticating Agent hereunder, provided such Corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written
notice of such appointment by first-class mail, postage prepaid, to all Holders
of Registered Securities, if any, of the series with respect to which such
Authenticating Agent shall serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issued as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor Authenticating Agent has its
principal office if such office is located outside the United States. Any
successor Authenticating Agent, upon acceptance of its appointment hereunder,
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like
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effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section.
The Company agrees to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section. If the Trustee
makes such payments, it shall be entitled to be reimbursed for such payments,
subject to the provisions of Section 606.
The provisions of Sections 308, 603 and 604 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
______________________________________,
As Trustee
By______________________________
As Authenticating Agent
By______________________________
Authorized Signatory
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not be
accompanied by or contained in an Officers' Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
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ARTICLE SEVEN
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of
each series on ________________ and ____________ of the year or upon
such other dates as are set forth in or pursuant to the Board
Resolution or indenture supplemental hereto authorizing such series, a
list, in each case in such form as the Trustee may reasonably require,
of the names and addresses of Holders as of the applicable date, and
(b) at such other times as the Trustee may request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished,
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 (c) of
the Trust Indenture Act, regardless of the source from which such information
was derived, and that the Trustee shall not be held accountable by reason of
mailing any material pursuant to a request made under Section 312(b) of the
Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the
first May 15 following the first issuance of Securities pursuant to Section
301, if required by Section
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313(a) of the Trust Indenture Act, the Trustee shall transmit, pursuant to
Section 313(c) of the Trust Indenture Act, a brief report dated as of such May
15 with respect to any of the events specified in said Section 313(a) which may
have occurred since the later of the immediately preceding May 15 and the
date of this Indenture.
(b) The Trustee shall transmit the reports required by Section
313(a) of the Trust Indenture Act at the times specified therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the
annual reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the Company
may be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934; or, if the
Company is not required to file information, documents or reports
pursuant to either of said Sections, then it shall file with the
Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may
be required pursuant to Section 13 of the Securities Exchange Act of
1934 in respect of a security listed and registered on a national
securities exchange as may be prescribed from time to time in such
rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company, as the case may be, with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
(3) transmit within 30 days after the filing thereof with
the Trustee, in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, such summaries of any information, documents
and reports required to be filed by the Company pursuant to clauses (1)
and (2) of this Section as may be required by rules and regulations
prescribed from time to time by the Commission.
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ARTICLE EIGHT
CONSOLIDATION, MERGER AND SALES
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or lease
of the property of the Company as an entirety or substantially as an entirety,
to any other Person (whether or not affiliated with the Company); provided,
however, that:
(1) in case the Company shall consolidate with or merge into another
Person or convey, tranfer or lease its properties and assets as an entirety
or substantially as an entirety to any Person, the entity formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and
assets of the Company as an entirety or substantially as an entirety shall
be a Corporation organized and existing under the laws of the United States
of America, any state thereof or the District of Columbia and shall
expressly assume, by an indenture (or indentures, if at such time there is
more than one Trustee) supplemental hereto, executed by the successor
Person and delivered to the Trustee, in form satisfactory to the Trustee
the due and punctual payment of the principal of, any premium and interest
on and any Additional Amounts with respect to, all the Securities and the
performance of every other covenant of this Indenture on the part of the
Company to be performed or observed and shall provide for conversion or
exchange rights in accordance with the provisions of the Securities of any
series that are convertible or exchangeable;
(2) immediately after giving effect to such transaction, no Event of
Default, or event which, after notice or lapse of time, or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) either the Company or the successor Person shall have delivered to
the Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that such consolidation, merger, conveyance, transfer or lease and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
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Section 802. Successor Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person formed by such
consolidation or into which the Company is merged or to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor Person had been named as the Company herein;
and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the Coupons.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures without Consent of Holders.
Without the consent of any Holders of Securities or Coupons, the
Company (when authorized by or pursuant to a Board Resolution) and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company, and the assumption by any such successor of the
covenants of the Company contained herein and in the Securities;
or
(2) to add to the covenants of the Company for the benefit
of the Holders of all or any series of Securities (as shall be
specified in such supplemental indenture or indentures) or to
surrender any right or power herein conferred upon the Company;
or
(3) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as
to principal, to change or eliminate any restrictions on the
payment of principal of, any premium or interest on or any
Additional Amounts with respect to Securities, to permit
Registered Securities to be exchanged for Bearer Securities, to
permit Bearer Securities to be exchanged for Bearer Securities of
other authorized denominations or to permit or facilitate the
issuance of Securities in uncertificated form, provided any such
action shall not adversely affect the interests of the Holders of
Securities of any series or any Coupons appertaining thereto in
any material respect; or
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(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 609; or
(6) to cure any ambiguity or to correct or supplement any
provision herein which may be defective or inconsistent with any other
provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture which shall not adversely affect
the interests of the Holders of Securities of any series or any Coupons
appearing thereto in any material respect; or
(7) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); or
(8) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four, provided
that any such action shall not adversely affect the interests of any Holder
of a Security of such series and any Coupons appertaining thereto or any
other Security or Coupon in any material respect; or
(9) to secure the Securities pursuant to Section 1005 or otherwise;
or
(10) to make provisions with respect to conversion or exchange
rights of Holders of Securities of any series; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
Section 902. Supplemental Indentures uith Consent of Holders.
With the consent of the Holders of not less than 66-2/3 % in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company (when authorized by or pursuant to a Board Resolution),
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
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eliminating any of the provisions of this indenture or of modifying in
any manner the rights of the Holders of Securities of such series under this
Indenture; provided, however, that no such supplemental indenture, without the
consent of the Holder of each Outstanding Security affected thereby, shall
(1) change the Stated Maturity of the principal of, or any premium
or installment of interest on or any Additional Amounts with respect to, any
Security, or reduce the principal amount thereof or the rate (or modify
the calculation of such rate) of interest thereon or any Additional Amounts
with respect thereto, or any premium payable upon the redemption thereof or
otherwise, or change the obligation of the Company to pay Additional
Amounts pursuant to Section 1004 (except as contemplated by Section 801(1)
and permitted by Section 901(1)), or reduce the amount of the principal of
an Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the amount thereof provable in bankruptcy pursuant to Section 504,
change the redemption provisions or adversely affect the right of repayment
at the option of any Holder as contemplated by Article Thirteen, or change
the Place of Payment, Currency in which the principal of, any premium or
interest on, or any Additional Amounts with respect to any Security is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date or, in the case of repayment at
the option of the Holder, on or after the date for repayment), or impair
the right, if any, to convert or exchange such Security in accordance with
its terms, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences) provided
for in this Indenture, or reduce the requirements of Section 1504 for a
quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) make any change that adversely affects the right to convert or
exchange any Security.
A supplemental indenture which changes or eliminates any covenant or
other provision of this Indenture which shall have been included expressly and
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of
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Securities of such series with respect to such covenant or other provision,
shall be deemed not to affect the rights under this Indenture of the Holders of
Securities of any other series.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
Section 903. Execution of Supplemental Indentures.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 315 of the Trust Indenture Act) shall be fully
protected in relying upon, an Opinion of Counsel stating that the execution of
such supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of a Security theretofore or thereafter authenticated and delivered hereunder
and of any Coupon appertaining thereto shall be bound thereby.
Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental indenture
may be prepared and executed by the Company and authenticated and delivered by
the Trustee in exchange for Buying Securities of such series.
Section 906. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
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ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of the
Securities of each series that it will duly and punctually pay the principal
of, any premium and interest on and any Additional Amounts with respect to, the
Securities of such series in accordance with the terms thereof, any Coupons
appertaining thereto and this Indenture. Any interest due on any Bearer
Security on or before the Maturity thereof, and any Additional Amounts payable
with respect to such interest, shall be payable only upon presentation and
surrender of the Coupons appertaining thereto for such interest as they
severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment is
located outside the United States) may be presented or surrendered for payment,
where Securities of such series may be surrendered for registration of transfer
or exchange, where Securities of such series that are convertible or
exchangeable, may be surrendered for conversion or exchange, and where notices
and demands to or upon the Company in respect of the Securities of such series
relating thereto and this Indenture may be served. If Securities of a series
are issuable as Bearer Securities, the Company shall maintain, subject to any
laws or regulations applicable thereto, an Office or Agency in a Place of
Payment for such series which is located outside the United States where
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment; provided, however, that if the Securities of such
series are listed on The Stock Exchange of the United Kingdom and the Republic
of Ireland or the Luxembourg Stock Exchange or any other stock exchange located
outside the United States and such stock exchange shall so require, the Company
shall maintain a Paying Agent in London, Luxembourg or any other required city
located outside the Umted States, as the case may be, so long as the Securities
of such series are listed on such exchange. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such Office or Agency. If at any time the Company shall fail to maintain
any such required Office or Agency or shall fail to furnish the Trustee with
the address thereof, such presentations, surrenders, notices and demands may be
made or served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of such series and any Coupons appertaining thereto may be presented
and surrendered for payment at the place specified for the purpose with respect
to such Securities as provided in or pursuant to this Indenture, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
Bearer Securities shall be made at any Office or Agency in the United States or
by check mailed to any address in the United States or by transfer to an account
maintained with a bank located in the United States; provided, however, if
amounts owing with respect to any Bearer Securities shall be payable in
Dollars, payment of principal of, any premium or interest on and any Additional
Amounts with respect to any such Security may be made at the Corporate Trust
Office of the Trustee or any Office or Agency designated by the Company in the
Borough of Manhattan, The City of New York, if (but only if) payment of the
full amount of such principal, premium, interest or Additional Amounts at all
offices outside the United States maintained for such purpose by the Company in
accordance with this Indenture is illegal or effectively precluded by exchange
controls or other similar restrictions.
The Company may also from time to time designate one or more other
Offices or Agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an Office
or Agency in each Place of Payment for Securities of any series for such
purposes. The Company shall give prompt written notice to the Trustee of any
such designation or rescission and of any change in the location of any such
other Office or Agency. Unless otherwise provided in or pursuant to this
Indenture, the Company hereby designates as the Place of Payment for each
series of Securities, and initially appoints the Office or Agency of the
Corporate Trust Office of the Trustee for such purpose. Pursuant to Section
301(9) of this Indenture, the Company may subsequently appoint a place or
places in the Borough of Manhattan, The City of New York where such Securities
may be payable.
Unless otherwise specified with respect to any Securities pursuant to
Section 301, if and so long as the Securities of any series (i) are denominated
in a Foreign Currency or (ii) may be payable in a Foreign Currency, or so long
as it is required under any other provision of this Indenture, then the Company
will maintain with respect to each such series of Securities, or as so required
at least one exchange rate agent.
Section 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with respect
to, any of the Securities of such series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency or Currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as
herein provided, and shall promptly notify the Trustee of its action or failure
so to act.
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Whenever the Company shall have one or more Paying Agents for any
series of Securities, it shall, on or prior to each due date of the principal
of, any premium or interest on or any Additional Amounts with respect to, any
Securities of such series, deposit with any Paying Agent a sum (in the
Currency or Currencies described in the preceding paragraph) sufficient to pay
the principal or any premium, interest or Additional Amounts so becoming due,
such sum to be held in trust for the benefit of the Persons entitled thereto,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.
The Company shall cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent shall:
(1) hold all sums held by it for the payment of the
principal of, any premium or interest on or any Additional Amounts with
respect to, Securities of such series in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons
or otherwise disposed of as provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company
(or any other obligor upon the Securities of such series) in the making
of any payment of principal, any premium or interest on or any
Additional Amounts with respect to the Securities of such series; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same terms as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided herein or pursuant hereto, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of, any premium or interest on or any
Additional Amounts with respect to, any Security of any series and remaining
unclaimed for two years after such principal or any such premium or interest or
any such Additional Amounts shall have become due and payable shall be paid to
the Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security or any Coupon
appertaining thereto
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shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in an Authorized Newspaper
in each Place of Payment for such series or to be mailed to Holders of
Registered Securities of such series, or both, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication or mailing nor shall it be later
than two years after such principal and any premium or interest or Additional
Amounts shall have become due and payable, any unclaimed balance of such money
then remaining will be repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided therein. Whenever
in this Indenture there is mentioned, in any context, the payment of the
principal of or any premium or interest on, or in respect of, any Security of
any series or any Coupon or the net proceeds received on the sale or exchange
of any Security of any series, such mention shall be deemed to include mention
of the payment of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
such terms, and express mention of the payment of Additional Amounts (if
applicable) in any provision hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not
made.
Except as otherwise provided in or pursuant to this Indenture, if the
Securities of a series provide for the payment of Additional Amounts, at least
10 days prior to the first Interest Payment Date with respect to such series of
Securities (or if the Securities of such series shall not bear interest prior
to Maturity, the first day on which a payment of principal is made), and at
least 10 days prior to each date of payment of principal or interest if there
has been any change with respect to the matters set forth in the below-mentioned
Officers' Certificate, the Company shall furnish to the Trustee and the
principal Paying Agent or Paying Agents, if other than the Trustee, an Officers'
Certificate instructing the Trustee and such Paying Agent or Paying Agents
whether such payment of principal of or interest on the Securities of such
series shall be made to Holders of Securities of such series or the Coupons
appertaining thereto who are United States Aliens without withholding for or on
account of any tax, assessment or other governmental charge described in the
Securities of such series. If any such withholding shall be required, then
such Officers' Certificate shall specify by country the amount, if any,
required to be withheld on such payments to such Holders of Securities or
Coupons, and the Company agrees to pay to the Trustee or such Paying Agent the
Additional Amounts required by the terms of such Securities. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
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negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by any of them in reliance on any Officers'
Certificate fumished pursuant to this Section.
Section 1005. Limitation on Liens.
(a) The Company shall not, and shall not permit any Subsidiary of the
Company to, incur or suffer to exist any Lien upon any Principal Property, or
upon any Equity Interest in any Subsidiary of the Company (whether such
Principal Property or Equity Interest is now owned or hereafter acquired), to
secure any Indebtedness without making, or causing such Subsidiary to make,
effective provision for securing the Securities (and no other Indebtedness of
the Company or any Subsidiary of the Company except, if the Company shall so
determine, any other Indebtedness of the Company or any Subsidiary which is not
subordinate in right of payment to the Securities) (x) equally and ratably with
such Indebtedness as to such Principal Property or Equity Interest for as long
as such Indebtedness shall be so secured unless (y) such Indebtedness is
Indebtedness of the Company or any Subsidiary which is subordinate in right of
payment to the Securities, in which case prior to such Indebtedness as to such
Principal Property or shares for as long as such Indebtedness shall be so
secured.
The foregoing restrictions will not apply to Liens existing at the date
of this Indenture or to:
(i) Liens securing only the Securities;
(ii) Liens on property of a Person existing at the time such Person is
merged into or consolidated with the Company or any Subsidiary of the
Company (but only to the extent such Liens cover such property);
(iii) Liens on property existing immediately prior to the time of
acquisition thereof (and not in anticipation of the financing of such
acquisition);
(iv) any Lien upon a Principal Property (including any property that
becomes a Principal Property after acquisition thereof) to secure
Indebtedness incurred for the purpose of financing all or any part of the
purchase price or the cost of construction or improvement of the property
subject to such Lien; provided, however, that (A) such Principal Property
first becomes a Principal Property after, or construction or development of
such Principal Property is underway on and completed after, June 1, 1995,
(B) the principal amount of any Indebtedness secured by such Lien (1) does
not exceed 100% of such purchase price or cost and (2) is incurred not
later than 24 months after such purchase or the completion of such
construction or improvement, whichever is later, and (C) such Lien does not
extend to or cover any other property other than such item of property and
any improvements on such item;
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(v) any Lien securing Indebtedness owing to the Company or to a wholly-
owned Subsidiary of the Company (provided that such Indebtedness is at all
times held by the Company or by a Person which is a wholly-owned Subsidiary
of the Company); provided, however, that for purposes of this Section 1005
and Section 1006 hereof, upon either (A) the transfer or other disposition
of an Indebtedness by a Lien so permitted to a Person other than the
Company or another wholly-owned Subsidiary of the Company or (B) the
issuance (other than directors' qualifying shares), sale, lease, transfer or
other disposition of shares of capital stock of any such wholly-owned
Subsidiary to a Person other than the Company or another wholly-owned
Subsidiary of the Company, the provisions of this Clause (v) shall no
longer be applicable to such Lien and such Lien shall be subject (if
otherwise subject) to the requirements of this Section 1005 without regard
to this Clause (v);
(vi) easements, reciprocal easement agreements, rights-of-way,
restrictions and other similar charges or encumbrances, any Liens arising
thereunder and any Liens arising by operation of law with respect to any
capitalized or operating leases to which the Company or any Subsidiary is a
party, in each case not interfering in any material respect with the
business of the Company or its Subsidiaries and incurred in the ordinary
course of business;
(vii) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payment of customs duties in connection with the
importation of goods;
(viii) Liens for the purpose of securing any appeal or stay or
discharge in the course of any legal proceeding and Liens on or resulting
from judgments or awards in respect of which the Company or any of its
Subsidiaries shall at any time in good faith be prosecuting an appeal
or proceeding for review;
(ix) Liens existing as of the date hereof securing obligations
of the Company or any Subsidiary outstanding on such date or otherwise
permitted under this Section 1005 and all initial and subsequent renewals,
extensions, refinancings, replacements or refundings thereof (without
increase in the principal amount remaining unpaid at the time of any such
renewal, extension, refinancing, replacement or refunding); and
(x) Liens arising from filing UCC financing statements regarding leases.
(b) In addition to the foregoing, the Company and its Subsidiaries
may incur and suffer to exist a Lien to secure any debt or enter into a Sale
and Leaseback Transaction without equally and ratably securing the Securities
if, after giving effect thereto, the sum of (i) the principal amount of
Indebtedness secured by all Liens incurred after the date of this Indenture and
otherwise prohibited by this Indenture and (ii) the Attributable Value of all
Sale and
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Leaseback Transactions entered into after the date of the Indenture and
otherwise prohibited by this Indenture does not exceed the greater of
$50,000,000 or 10% of the Consolidated Shareholders' Equity of the Company.
(c) If the Company shall hereafter be required under this Section
1005 to make (or cause to be made) effective provision for securing the
Securities, then (i) the Company will promptly deliver to the Trustee an
Officers' Certificate and Opinion of Counsel stating that this Section 1005 has
been complied with and that any instruments executed by the Company or any
Subsidiary of the Company in the performance of this Section 1005 shall comply
with the requirements hereof, and (ii) the Trustee is hereby authorized to
enter into an indenture or agreement supplemental hereto and to take such
action, if any, as it may deem advisable to enable it to enforce the rights of
the Holders of the Securities as so secured.
Section 1006. Restrictions on Sale and Leaseback Transactions.
The Company shall not, and shall not permit any Subsidiary of
the Company to, enter into any Sale and Leaseback Transaction (except for a
period not exceeding 36 months) unless:
(1) The Company or such Subsidiary would be
entitled to enter into such Sale and Leaseback Transaction
pursuant to the provisions of Section 1005 (b) hereof
without equally and ratably securing the Securities; or
(2) The Company or such Subsidiary applies or
commits to apply, within 180 days before or after the Sale
Transaction pursuant to such Sale and Leaseback
Transaction, an amount equal to the Net Available Proceeds
therefrom to the repayment of indebtedness of the Company
(including Securities) which is PARI PASSU with or prior
to the Securities or, if all such indebtedness has been
repaid, the repayment of other indebtedness of the Company
or, if all such other indebtedness has been repaid, the
repayment of indebtedness of any Subsidiary of the
Company; provided that the amount to be applied or
committed to repayment of such indebtedness shall be
reduced by (a) the principal amount of any Securities
delivered within 180 days before or after such Sale
Transaction to the Trustee for retirement and cancellation,
and (b) the principal amount of such indebtedness as is
voluntarily retired by the Company within 180 days before
or after such Sale Transaction (it being understood that
no amount so applied or committed and no Securities so
delivered or indebtedness so retired may be counted more
than once for such purpose); provided, further, that no
repayment or retirement referred to in this Clause (2)
may be effected by payment at maturity or pursuant to any
mandatory sinking fund payment or any mandatory prepayment
or repurchase provision.
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Section 1007. Corporate Existence.
Subject to Article Eight, 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 that of each Subsidiary and their respective rights (charter and
statutory) and franchises; provided, however, that the foregoing shall not
obligate the Company or any Subsidiary to preserve any such right or franchise
if the Company or any Subsidiary shall determine that the preservation thereof
is no longer desirable in the conduct of its business or the business of such
Subsidiary and that the loss thereof is not disadvantageous in any material
respect to any Holder.
Section 1008. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 or 1006 with respect to
the Securities of any series if before the time for such compliance the Holders
of a majority in principal amount of the Outstanding Securities of such series,
by Act of such Holders, either shall waive such compliance in such instance or
generally shall have waived compliance with such term, provision or condition,
but no such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force and
effect.
Section 1009. Company Statement as to Compliance, Notice of Certain
Defaults
(a) The Company shall deliver to the Trustee within 120 days after
the end of each fiscal year, a written statement (which need not be contained
in or accompanied by an Officers' Certificate) signed by the principal
executive officer, the principal financial officer or the principal accounting
officer of the Company, stating that:
(i) a review of the activities of the
Company during such year and of its performance
under this Indenture has been made under his or
her supervision; and
(ii) to the best of his or her
knowledge, based on such review, (a) the Company
has complied with all the conditions and
covenants imposed on it under this Indenture
throughout such year, or, if there has been a
default in the fulfillment of any such condition
or covenant, specifying each such default known to
him or her and the nature and status thereof, and
(b) no event has occurred and is continuing which
is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an
event has occurred and is continuing, specifying
each such event known to him and the nature and
status thereof.
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(b) The Company shall deliver to the Trustee, within five business
days after the occurrence thereof, written notice of any Event of Default or
any event which after notice or lapse of time or both would become an Event of
Default pursuant to Section 501(4).
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of (a) less than all of the Securities of any series or
(b) all of the Securities of any series, with the same issue date, interest
rate or formula, Stated Maturity and other terms, the Company shall, at least
60 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed.
Section 1103. Selection by Trustee of Securities to be Redeemed.
If less than all of the Securities of any series with the same issue
date, interest rate or formula, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of Registered
Securities of such series; provided, however, that no such partial redemption
shall reduce the portion of the principal amount of a Registered Security of
such series not redeemed to less than the minimum denomination for a Security
of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be
redeemed.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption. Securities which
have been converted during a selection of Securities to be redeemed shall be
treated by the Trustee as Outstanding for the purpose of such selection.
Section 1104. Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the
Holders of Securities to be redeemed. Failure to give notice by mailing in the
manner herein provided to the Holder of any Registered Securities designated
for redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all Outstanding
Securities of any series are to be redeemed, the
identification (and, in the case of partial
redemption, the principal amount) of the
particular Security or Securities to be redeemed,
(4) in case any Security is to be
redeemed in part only, the notice which relates
to such Security shall state that on and after
the Redemption Date, upon surrender of such
Security, the Holder of such Security will
receive, without charge, a new Security or
Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
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(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed, and,
if applicable, that interest thereon shall cease to accrue on and after said
date,
(6) the place or places where such Securities, together (in the case
of Bearer Securities) with all Coupons appertaining thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the Redemption
Price and any accrued interest and Additioml Amounts pertaining thereto,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all Coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing Coupon or Coupons will be deducted from the
Redemption Price, unless security or indemnity satisfactory to the Company, the
Trustee and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such Bearer
Securities may be exchanged for Registered Securities not subject to redemption
on the Redemption Date pursuant to Section 305 or otherwise, the last date, as
determined by the Company, on which such exchanges may be made,
(10) in the case of Securities of any series that are convertible or
exchangeable, the conversion or exchange price or rate, the date or dates on
which the right to convert or exchange the principal of the Securities of such
series to be redeemed will commence or terminate and the place or places where
such Securities may be surrendered for conversion or exchange, and
(11) the CUSIP munber or the Euroclear or the Cedel reference numbers
of such Securities, if any (or any other numbers used by a Depository to
identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
Section 1105. Deposit of Redemption Price.
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On or prior to any Redemption Date, the Company shall deposit, with
respect to the Securities of any series called for redemption pursuant to
Section 1104, with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the applicable Currency sufficient to pay
the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date, unless otherwise specified pursuant to Section 301 for
the Securities of such series) any accrued interest on and Additional Amounts
with respect thereto, all such Securities or portions thereof which are to be
redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and the Coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all Coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with any accrued interest
and Additional Amounts to the Redemption Date; provided, however, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only upon presentation and
surrender of Coupons for such interest (at an Office or Agency located outside
the United States except as otherwise provided in Section 1002), and provided,
further, that, except as otherwise specified pursuant to Section 301 for the
Registered Securities of such series, installments of interest on Registered
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable to the Holders of such Securities, or one or more Predecessors
Securities, registered as such at the close of business on the Regular Record
Dates therefor according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save
each of them and any Paying Agent harmless. If thereafter the Holder of such
Security shall surrender to the Trustee or any Paying Agent any such missing
Coupon in respect of which a deduction shall have been made from the Redemption
Price, such Holder shall be entitled to receive the amount so deducted;
provided, however, that any interest or Additional Amounts represented by
Coupons shall be payable only upon presentation and surrender of those Coupons
at an Office or Agency for such Security located outside of the United States
except as otherwise provided in Section 1002.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency for such Security (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Registered Security or Securities
of the same series, containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. If a Security in global form is so surrendered,
the Company shall execute, and the Trustee shall authenticate and deliver to
the U.S. Depository or other Depository for such Security in global form as
shall be specified in the Company Order with respect thereto to the Trustee,
without service charge, a new Security in global form in a denomination equal
to and in exchange for the unredeemed portion of the principal of the Security
in global form so surrendered.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
series, the cash amount of any sinking fund payment may be subject to reduction
as provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
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The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any series to be made pursuant to the
terms of such Securities (1) deliver Outstanding Securities of such series
(other than any of such Securities previously called for redemption or any of
such Securities in respect of which cash shall have been released to the
Company), together in the case of any Bearer Securities of such series with all
unmatured Coupons appertaining thereto, and (2) apply as a credit Securities
of such series which have been redeemed either at the election of the Company
pursuant to the terms of such series of Securities or through the application
of permitted optional sinking fund payments pursuant to the terms of such
Securities, provided that such series of Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by
the Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such sinking fund
payment shall be reduced accordingly. If as a result of the delivery or credit
of Securities of any series in lieu of cash payments pursuant to this Section
1202, the principal amount of Securities of such series to be redeemed in order
to exhaust the aforesaid cash payment shall be less than $100,000, the Trustee
need not call Securities of such series for redemption, except upon Company
Request, and such cash payment shall be held by the Trustee or a Paying Agent
and applied to the next succeeding sinking fund payment, provided, however,
that the Trustees or such Paying Agent shall at the request of the Company from
time to time pay over and deliver to the Company any cash payment so being
held by the Trustee or such Paying Agent upon delivery by the Company to the
Trustee of Securities of that series purchased by the Company having an unpaid
principal amount equal to the cash payment requested to be released to the
Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and crediting of
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment,
and will also deliver to the Trustee any Securities to be so credited and not
theretofore delivered. If such Officers' Certificate shall specify an optional
amount to be added in cash to the next ensuing mandatory sinking fund payment,
the Company shall thereupon be obligated to pay the amount therein specified.
Not less than 60 days before each such sinking fund payment date the Trustee
shall select the Securities to be redeemed upon such sinking fund payment date
in the manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104. Such notice having been duly given, the
redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated Maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1301, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
ARTICLE FOURTEEN
SECURITIES IN FOREIGN CURRENCIES
Section 1401. Applicability of Article.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same Currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than Dollars shall be
treated for any such action or distribution as that amount of Dollars that
could be obtained for such amount on such reasonable basis of exchange and as
of the record date with respect to Registered Securities of such series (if
any) for such action, determination of rights or distribution (or, if there
shall be no applicable record date, such other date reasonably proximate to the
date of such action, determination of rights or distribution) as the Company
may specify in a written notice to the Trustee or, in the absence of such
written notice, as the Trustee may determine.
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ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other Act
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New
York, or, if Securities of such series have been issued in whole or in part as
Bearer Securities, in London or in such place outside the United States as the
Trustee shall determine. Notice of every meeting of Holders of Securities of
any series, setting forth the time and the place of such meeting and in general
terms the action proposed to be taken at such meeting, shall be given, in the
manner provided in Section 106, not less than 21 nor more than 180 days prior
to the date fixed for the meeting.
(b) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified
in Section 1501, by written request setting forth in reasonable detail the
action proposed to be taken at the meeting, and the Trustee shall not have made
the first publication of the notice of such meeting within 21 days after
receipt of such request or shall not thereafter proceed to cause the meeting to
be held as provided herein, then the Company or the Holders of Securities of
such series in the amount above specified, as the case may be, may determine
the time and the place in the Borough of Manhattan, The City of New York, or,
if Securities of such series are to be issued as Bearer Securities, in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities of
such series, or (2) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall
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be entitled to be present or to speak at any meeting of Holders of Securities
of any series shall be the Persons entitled to vote at such meeting and their
counsel, any representatives of the Trustee and its counsel and any
representatives of the Company and its counsel.
Section 1504. Quorum; Action
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of at least 66-2/3 %
in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66-2/3 % in principal amount of the Outstanding Securities of
such series shall constitute a quorum. In the absence of a quorum within 30
minutes after the time appointed for any such meeting, the meeting shall, if
convened at the request of Holders of Securities of such series, be dissolved.
In any other case the meeting may be adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further adjourned for a period of not less than 10
days as determined by the chairman of the meeting prior to the adjournment of
such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except that such notice need be
given only once not less than five days prior to the date on which the meeting
is scheduled to be reconvened. Notice of the reconvening of an adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted only by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; provided, however, that, except as limited by the proviso to Section
902, any resolution with respect to any consent or waiver which this Indenture
expressly provides may be given by the Holders of at least 66-2/3 % in
principal amount of the Outstanding Securities of a series may be adopted at a
meeting or an adjourned meeting duly convened and at which a quorum is present
as aforesaid only by the affirmative vote of the Holders of at least 66-2/3
% in principal amount of the Outstanding Securities of that series; and
provided, further, that, except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other Act which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the
Holders of such specified percentage in principal amount of the Outstanding
Securities of such series.
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Any resolution passed or decision taken at any meeting of Holders of
Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the Coupons
appertaining thereto, whether or not such Holders were present or represented
at the meeting.
Section 1505. Detemdnation of Voting Rights, Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any
meeting of Holders of Securities of such series in regard to proof of the
holding of Securities of such series and of the appointment of proxies and in
regard to the appointment and duties of inspectors of votes, the submission and
examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing the
proxy witnessed or guaranteed by any trust company, bank or banker authorized
by Section 104 to certify to the holding of Bearer Securities. Such regulations
may provide that written instruments appointing proxies, regular on their face,
may be presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary chairman.
A permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting, each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of
Securities of such series held or represented by him; provided, however, that
no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be
not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
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Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1502 and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
* * * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed, all
as of the day and year first above written.
[SEAL] RPM, INC.
Attest: Frank C. Sullivan
-----------------------
Frank C. Sullivan By Thomas C. Sullivan
V.P and C.F.O. ------------------------------------
Name: Thomas C. Sullivan
Title: Chairman of the Board
and Chief Executive Officer
[SEAL] THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
Attest:
By R. D. Manella
------------------------------------
Name: R.D. Manella
Title: Vice President
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STATE OF OHIO
: SS.:
COUNTY OF CUYAHOGA
On the 20th day of June 1995, before me personally came Thomas C.
Sullivan, to me known, who, being by me duly sworn, did depose and say that he
is the Chairman of RPM, Inc., an Ohio corporation, one of the persons described
in and who executed the foregoing instrument; that he knows the seal of said
Corporation; that the seal affixed to said instrument is such Corporation's
seal; that it was so affixed by authority of the Board of Directors of said
Corporation; and that he signed his name thereto by like authority.
Edward W. Moore
----------------------------
Notary Public
[NOTARIAL SEAL] EDWARD WINSLOW MOORE
NOTARY PUBLIC - STATE OF OHIO
My commission has no expiration date.
Section 142.
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STATE OF ILLINOIS
: SS.:
COUNTY OF COOK
On the 16th day of JUNE, 1995, before me personally came R.D. Manella,
to me known, who, being by me duly sworn, did depose and say that he is a Vice
President of The First National Bank of Chicago, a national banking association
organized and existing under the laws of the United States of America, one of
the persons described in and who executed the foregoing instrument; that he
knows the seal of said Corporation; that the seal affixed to said instrument is
such Corporation's seal; that it was so affixed by authority of the Board of
Directors of said Corporation; and that he signed his name thereto by like
authority.
Darla R. Coulson
------------------------
Notary Public
[NOTARIAL SEAL] OFFICIAL SEAL
DARLA R COULSON
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES: 05/17/98
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<PAGE> 1
EXHIBIT 4.6
==============================================================================
REGISTRATION RIGHTS AGREEMENT
Dated as of June 20, 1995
by and among
RPM, INC.,
CHASE SECURITIES, INC.
and
BEAR, STEARNS & CO. INC.
==============================================================================
<PAGE> 2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of June 20, 1995, by and among RPM, Inc., a
corporation organized under the laws of the State of Ohio (the
"Company"), CHASE SECURITIES, INC. and BEAR, STEARNS & CO. INC.
(collectively, the "Initial Purchasers").
This Agreement is made pursuant to the Purchase Agreement
dated June __, 1995 between the Company and the Initial
Purchasers (the "Purchase Agreement"), which provides for the
sale by the Company to the Initial Purchasers, severally, of
$100,000,000 aggregate principal amount of the Company's __%
Senior Notes Due June 15, 2005 (the "Initial Securities"). In
order to induce the Initial Purchasers to enter into the Purchase
Agreement, the Company has agreed to provide to the Initial
Purchasers and their respective direct and indirect transferees
the registration rights set forth in this Agreement. The
execution of this Agreement is a condition to the closing under
the Purchase Agreement.
In consideration of the foregoing, the parties hereto agree
as follows:
1. DEFINITIONS. As used in this Agreement, the following
capitalized defined terms shall have the following meanings:
"1933 ACT" shall mean the Securities Act of 1933, as amended
from time to time.
"1934 ACT" shall mean the Securities Exchange Act of 1934,
as amended from time to time.
"CLOSING DATE" shall mean the Closing Time as defined in the
Purchase Agreement.
"COMPANY" shall have the meaning set forth in the preamble
and also includes the Company's successors.
"DEPOSITARY" shall mean The Depository Trust Company, or any
other depositary appointed by the Company; provided, however,
that such depositary must have an address in the Borough of
Manhattan, in The City of New York.
"EXCHANGE OFFER" shall mean the exchange offer by the
Company of Exchange Securities for Registrable Securities
pursuant to Section 2(a) hereof.
"EXCHANGE OFFER REGISTRATION" shall mean a registration
under the 1933 Act effected pursuant to Section 2(a) hereof.
2
<PAGE> 3
"EXCHANGE OFFER REGISTRATION STATEMENT" shall mean an
exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and
supplements to such registration statement, in each case
including the Prospectus contained therein, all exhibits thereto
and all materials incorporated by reference therein.
"EXCHANGE SECURITIES" shall mean ___% Senior Notes Due June
15, 2005 issued by the Company under the Indenture containing
terms identical to the Initial Securities (except that (i)
interest thereon shall accrue from the last date on which
interest was paid on the Initial Securities or,if no such
interest has been paid, from the date of their original issue,
(ii) the transfer restrictions thereon shall be eliminated and
(iii) certain provisions relating to an increase in the stated
rate of interest thereon shall be eliminated), to be offered to
Holders of Initial Securities in exchange for Initial Securities
pursuant to the Exchange Offer.
"HOLDERS" shall mean the Initial Purchasers, for so long as
they own any Registrable Securities, and each of their respective
successors, assigns and direct and indirect transferees who
become registered owners of Registrable Securities under the
Indenture.
"INDENTURE" shall mean the Indenture relating to the Initial
Securities dated as of June 1, 1995 between the Company and The
First National Bank of Chicago, as trustee, as the same may be
amended from time to time in accordance with the terms thereof.
"INITIAL PURCHASERS" shall have the meaning set forth in the
preamble.
"MAJORITY HOLDERS" shall mean the Holders of a majority of
the aggregate principal amount of outstanding Registrable
Securities; provided that whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is
required hereunder, Registrable Securities held by the Company
shall be disregarded in determining whether such consent or
approval was given by the Holders of such required percentage or
amount.
"PERSON" shall mean an individual, partnership, corporation,
trust or unincorporated organization, or a government or agency
or political subdivision thereof.
"PROSPECTUS" shall mean the prospectus included in a
Registration Statement, including any preliminary prospectus, and
any such prospectus as amended or supplemented by any prospectus
supplement, including a prospectus supplement with respect to the
terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all
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<PAGE> 4
other amendments and supplements to a prospectus, including post-
effective amendments, and in each case including all materials
incorporated by reference therein.
"PURCHASE AGREEMENT" shall have the meaning set forth in the
preamble.
"REGISTRABLE SECURITIES" shall mean the Initial Securities;
provided, however, that the Initial Securities shall cease to be
Registrable Securities when (i) a Registration Statement with
respect to such Initial Securities shall have been declared
effective under the 1933 Act and such Initial Securities shall
have been disposed of pursuant to such Registration Statement,
(ii) such Initial Securities shall have been sold to the public
pursuant to Rule 144 (or any similar provision then in force, but
not Rule 144A) under the 1933 Act, (iii) such Initial Securities
shall have ceased to be outstanding or (iv) upon consummation of
the Exchange Offer but only with respect to Initial Securities
held by a Holder that is eligible to receive fully tradeable
Exchange Securities in connection with the Exchange Offer.
"REGISTRATION EXPENSES" shall mean any and all expenses
incident to performance of or compliance by the Company with this
Agreement, including without limitation: (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc.
("NASD") registration and filing fees, (ii) all fees and expenses
incurred in connection with compliance with state securities or
blue sky laws and compliance with the rules of the NASD
(including reasonable fees and disbursements of counsel for any
underwriters or Holders in connection with blue sky qualification
of any of the Exchange Securities or Registrable Securities),
(iii) all expenses of any Persons in preparing or assisting in
preparing, word processing, printing and distributing any
Registration Statement, any Prospectus, any amendments or
supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance
of and compliance with this Agreement, (iv) all rating agency
fees, (v) all fees and expenses incurred in connection with the
listing, if any, of any of the Registrable Securities on any
securities exchange or exchanges, (vi) the fees and disbursements
of counsel for the Company and of the independent public
accountants of the Company, including the expenses of any special
audits or "cold comfort" letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the
Trustee, and any escrow agent or custodian, and (viii) any fees
and disbursements of the underwriters customarily required to be
paid by issuers or sellers of securities and the reasonable fees
and expenses of any special experts retained by the Company in
connection with any Registration Statement, but excluding fees of
counsel to the underwriters or the Holders and underwriting
discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of Registrable Securities by a Holder.
4
<PAGE> 5
"REGISTRATION STATEMENT" shall mean any registration
statement of the Company which covers any of the Exchange
Securities or Registrable Securities pursuant to the provisions
of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in
each case including the Prospectus contained therein, all
exhibits thereof and all materials incorporated by reference
therein.
"SEC" shall mean the Securities and Exchange Commission.
"SHELF REGISTRATION" shall mean a registration effected
pursuant to Section 2(b) hereof.
"SHELF REGISTRATION STATEMENT" shall mean a "shelf"
registration statement of the Company pursuant to the provisions
of Section 2(b) of this Agreement which covers all of the
Registrable Securities on an appropriate form under Rule 415
under the 1933 Act, or any similar rule that may be adopted by
the SEC, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto
and all materials incorporated by reference therein.
"TRUSTEE" shall mean the trustee with respect to the Initial
Securities under the Indenture.
2. REGISTRATION UNDER THE 1933 ACT. (a) EXCHANGE OFFER
REGISTRATION. To the extent not prohibited by any applicable law
or applicable interpretation of the Staff of the SEC, the Company
shall use its best efforts (A) to file within 45 days after the
Closing Date an Exchange Offer Registration Statement covering
the offer by the Company to the Holders to exchange all of the
Registrable Securities for Exchange Securities, (B) to cause such
Exchange Offer Registration Statement to be declared effective by
the SEC within 120 days after the Closing Date, (C) to cause such
Registration Statement to remain effective until the closing of
the Exchange Offer and (D) to consummate the Exchange Offer
within 150 days following the Closing Date. The Exchange
Securities will be issued under the Indenture. Upon the
effectiveness of the Exchange Offer Registration Statement, the
Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder (other
than Participating Broker-Dealers (as defined in Section 3(f)))
eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder is not an
affiliate of the Company within the meaning of Rule 405 under the
1933 Act, acquires the Exchange Securities in the ordinary course
of such Holder's business and has no arrangements or
understandings with any person to participate in the Exchange
Offer for the purpose of distributing the Exchange Securities) to
trade such Exchange Securities from and after their receipt
5
<PAGE> 6
without any limitations or restrictions under the 1933 Act and
without material restrictions under the securities laws of a
substantial proportion of the several states of the United
States.
In connection with the Exchange Offer, the Company shall:
(i) mail to each Holder a copy of the Prospectus
forming part of the Exchange Offer Registration Statement,
together with an appropriate letter of transmittal and
related documents;
(ii) keep the Exchange Offer open for not less than 30
days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law);
(iii) use the services of the Depositary for the
Exchange Offer;
(iv) permit Holders to withdraw tendered Registrable
Securities at any time prior to the close of business, New
York City time, on the last business day on which the
Exchange Offer shall remain open, by sending to the
institution specified in the notice, a telegram, telex,
facsimile transmission or letter setting forth the name of
such Holder, the principal amount of Registrable Securities
delivered for exchange, and a statement that such Holder is
withdrawing his election to have such Initial Securities
exchanged; and
(v) otherwise comply in all respects with all
applicable laws relating to the Exchange Offer.
As soon as practicable after the close of the Exchange
Offer, the Company shall:
(i) accept for exchange Registrable Securities duly
tendered and not validly withdrawn pursuant to the Exchange
Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which
is an exhibit thereto;
(ii) deliver, or cause to be delivered, to the Trustee
for cancellation all Registrable Securities so accepted for
exchange by the Company; and
(iii) cause the Trustee promptly to authenticate and
deliver Exchange Securities to each Holder of Registrable
Securities equal in amount to the Registrable Securities of
such Holder so accepted for exchange.
6
<PAGE> 7
Interest on each Exchange Security will accrue from the last
date on which interest was paid on the Registrable Securities
surrendered in exchange therefor or, if no interest has been paid
on the Registrable Securities, from the date of its original
issue. The Exchange Offer shall not be subject to any
conditions, other than (i) that the Exchange Offer, or the making
of any exchange by a Holder, does not violate applicable law or
any applicable interpretation of the Staff of the SEC, (ii) the
due tendering of Registrable Securities in accordance with the
Exchange Offer, (iii) that no action or proceeding shall have
been instituted or threatened in any court or by or before any
governmental agency with respect to the Exchange Offer which, in
the Company's judgment, would reasonably be expected to impair
the ability of the Company to proceed with the Exchange Offer,
(iv) that there shall not have been adopted or enacted any law,
statute, rule or regulation which, in the Company's judgment,
would reasonably be expected to impair the ability of the Company
to proceed with the Exchange offer, (v) that there shall not have
been declared by U.S. federal, New York or Ohio authorities a
banking moratorium which, in the Company's judgment, would
reasonably be expected to impair the ability of the Company to
proceed with the Exchange Offer, (vi) that trading generally on
the New York Stock Exchange or in the over-the-counter market
shall not have been suspended by order of the Commission or any
other governmental authority, which, in the Company's judgment,
would reasonably be expected to impair the ability of the Company
to proceed with the Exchange Offer and (vii) that each Holder of
Registrable Securities (other than Participating Broker-Dealers)
who wishes to exchange such Registrable Securities for Exchange
Securities in the Exchange Offer shall have represented that (A)
it is not an affiliate of the Company, (B) any Exchange
Securities to be received by it were acquired in the ordinary
course of business and (C) at the time of the commencement of the
Exchange Offer it has no arrangement with any person to
participate in the distribution (within the meaning of the 1933
Act) of the Exchange Securities and shall have made such other
representations as may be reasonably necessary under applicable
SEC rules, regulations or interpretations to render the use of
Form S-4 or another appropriate form under the 1933 Act
available; provided, however, that none of the foregoing
conditions shall relieve the Company of its obligations under
this Agreement or effect any increase in the interest rate borne
by the Initial Securities pursuant to this Agreement. To the
extent permitted by law, the Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the
Exchange Offer is made, and the Initial Purchasers shall have the
right to contact such Holders and otherwise facilitate the tender
of Registrable Securities in the Exchange Offer.
(b) SHELF REGISTRATION. (i) If, because of any change
in law or applicable interpretations thereof by the Staff of the
SEC, the Company is not permitted to effect the Exchange Offer as
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<PAGE> 8
contemplated by Section 2(a) hereof, or (ii) if for any other
reason the Exchange Offer Registration Statement is not declared
effective within 120 days following the Closing Date, or (iii)
upon the request of either of the Initial Purchasers (with
respect to any Registrable Securities which it acquired directly
from the Company) following the consummation of the Exchange
Offer if such Initial Purchaser shall hold Registrable Securities
which it acquired directly from the Company and if such Initial
Purchaser is not permitted, in the opinion of counsel to the
Initial Purchasers, pursuant to applicable law or applicable
interpretation of the Staff of the SEC to participate in the
Exchange Offer, the Company shall, at its cost:
(A) as promptly as practicable, file with the SEC a
Shelf Registration Statement relating to the offer and sale
of the Registrable Securities by the Holders from time to
time in accordance with the methods of distribution elected
by the Majority Holders of such Registrable Securities and
set forth in such Shelf Registration Statement, and use its
best efforts to cause such Shelf Registration Statement to
be declared effective by the SEC by the 180th day after the
Closing Date (or promptly in the event of a request by an
Initial Purchaser pursuant to clause (iii) above). In the
event that the Company is required to file a Shelf
Registration Statement upon the request of an Initial
Purchaser pursuant to clause (iii) above, the Company shall
file and have declared effective by the SEC both an Exchange
Offer Registration Statement pursuant to Section 2(a) with
respect to all Registrable Securities and a Shelf
Registration Statement [(which may be a combined
Registration Statement with the Exchange Offer Registration
Statement)] with respect to offers and sales of Registrable
Securities held by such Holder or the Initial Purchasers
after completion of the Exchange Offer;
(B) use its best efforts to keep the Shelf
Registration Statement continuously effective in order to
permit the Prospectus forming part thereof to be usable by
Holders for a period of three years from the date the Shelf
Registration Statement is declared effective by the SEC (or
one year from the date the Shelf Registration Statement is
declared effective if such Shelf Registration Statement is
filed upon the request of an Initial Purchaser pursuant to
clause (iii) above) or such shorter period which will
terminate when all of the Registrable Securities covered by
the Shelf Registration Statement have been sold pursuant to
the Shelf Registration Statement; and
(C) notwithstanding any other provisions hereof, use
its best efforts to ensure that (i) any Shelf Registration
Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in
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<PAGE> 9
all material respects with the 1933 Act and the rules and
regulations thereunder, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading and (iii) any Prospectus forming part of any
Shelf Registration Statement, and any supplement to such
Prospectus (as amended or supplemented from time to time),
does not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the
statements, in the light of the circumstances under which
they were made, not misleading.
The Company further agrees, if necessary, to supplement or
amend the Shelf Registration Statement if reasonably requested by
the Majority Holders with respect to information relating to the
Holders and otherwise as required by Section 3(b) below, to use
all reasonable efforts to cause any such amendment to become
effective and such Shelf Registration to become usable as soon as
thereafter practicable and to furnish to the Holders of
Registrable Securities copies of any such supplement or amendment
promptly after its being used or filed with the SEC.
(c) EXPENSES. The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section
2(a) or 2(b) and, in the case of any Shelf Registration
Statement, will reimburse the Holders or Initial Purchasers for
the reasonable fees and disbursements of one firm or counsel
designated in writing by the Majority Holders to act as counsel
for the Holders of the Registrable Securities in connection
therewith, and, in the case of an Exchange Offer Registration
Statement, will reimburse the Initial Purchasers, as applicable,
for the reasonable fees and disbursements of counsel in
connection therewith. Each Holder shall pay all expenses of its
counsel other than as set forth in the preceding sentence,
underwriting discounts and commissions and transfer taxes, if
any, relating to the sale or disposition of such Holder's
Registrable Securities pursuant to the Shelf Registration
Statement.
(d) EFFECTIVE REGISTRATION STATEMENT. (i) The Company will
be deemed not to have used its best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement,
as the case may be, to become, or to remain, effective during the
requisite period if the Company voluntarily takes any action that
would result in any such Registration Statement not being
declared effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such
Registrable Securities during that period unless (A) such action
is required by applicable law or (B) such action is taken by the
Company in good faith and for valid business reasons (not
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<PAGE> 10
including avoidance of the Company's obligations hereunder),
including the acquisition or divestiture of assets, so long as
the Company promptly complies with the requirements of Section
3(k) hereof, if applicable.
(ii) An Exchange Offer Registration Statement pursuant to
Section 2(a) hereof or a Shelf Registration Statement pursuant to
Section 2(b) hereof will not be deemed to have become effective
unless it has been declared effective by the SEC; provided,
however, that if, after it has been declared effective, the
offering of Registrable Securities pursuant to a Registration
Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental
agency or court, such Registration Statement will be deemed not
to have been effective during the period of such interference,
until the offering of Registrable Securities pursuant to such
Registration Statement may legally resume.
(e) INCREASE IN INTEREST RATE. In the event that (i) the
Exchange Offer Registration Statement is not filed with the
Commission on or prior to the 45th calendar day after the Closing
Date (unless changes in law or the applicable interpretation of
the Staff of the SEC do not permit the Company to effect the
Exchange Offer, in which case clause (iv) shall apply), (ii) the
Exchange Offer Registration Statement is not declared effective
on or prior to the 120th calendar day after the Closing Date
(unless changes in law or the applicable interpretation of the
Staff of the SEC do not permit the Company to effect the Exchange
Offer, in which case clause (iv) shall apply), (iii) the Exchange
Offer is not consummated on or prior to the 150th calendar day
after the Closing Date (unless changes in law or the applicable
interpretation of the Staff of the SEC do not permit the Company
to effect the Exchange Offer, in which case clause (iv) shall
apply) or (iv) a Shelf Registration Statement with respect to the
Registrable Securities is required to be filed due to a change in
law or interpretation and such Shelf Registration Statement is
not declared effective on or prior to the later of the 150th
calendar day after the Closing Date and the 45th calendar day
after the publication of the change in law or interpretation, the
interest rate borne by the Initial Securities shall be increased
by 0.50% per annum following such 45-day period in the case of
clause (i) above, such 120-day period in the cause of clause (ii)
above, such 150-day period in the case of clause (iii) above or
such 180-day period or 45-day period (as applicable) in the case
of clause (iv) above; provided that the aggregate increase in
such interest rate will in no event exceed 0.50% per annum. Upon
(w) the filing of the Exchange Offer Registration Statement after
the 45-day period described in clause (i) above, (x) the
effectiveness of the Exchange Offer Registration Statement after
the 120-day period described in clause (ii) above, (y) the
consummation of the Exchange Offer after the 150-day period
described in clause (iii) above, or (z) the effectiveness of a
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<PAGE> 11
Shelf Registration Statement after the 180-day period or 45-day
period (as applicable) described in clause (iv) above, the
interest rate borne by the Initial Securities from the date of
such filing, effectiveness or consummation, as the case may be,
will be reduced to the original interest rate.
(f) SPECIFIC ENFORCEMENT. Without limiting the remedies
available to the Initial Purchasers and the Holders, the Company
acknowledges that any failure by the Company to comply with its
obligations under Section 2(a) and Section 2(b) hereof may result
in material irreparable injury to the Initial Purchasers or the
Holders for which there is no adequate remedy at law, that it
will not be possible to measure damages for such injuries
precisely and that, in the event of any such failure, the Initial
Purchasers or any Holder may obtain such relief as may be
required to specifically enforce the Company's obligations under
Section 2(a) and Section 2(b) hereof.
3. REGISTRATION PROCEDURES. In connection with the
obligations of the Company with respect to the Registration
Statements pursuant to Sections 2(a) and 2(b) hereof, the Company
shall:
(a) prepare and file with the SEC a Registration
Statement, within the time period specified in Section 2, on
the appropriate form under the 1933 Act, which form (i)
shall be selected by the Company, (ii) shall, in the case of
a Shelf Registration, be available for the sale of the
Registrable Securities by the selling Holders thereof and
(iii) shall comply as to form in all material respects with
the requirements of the applicable form and include or
incorporate by reference all financial statements required
by the SEC to be filed therewith, and use its best efforts
to cause such Registration Statement to become effective and
remain effective in accordance with Section 2 hereof;
(b) prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as
may be necessary under applicable law to keep such
Registration Statement effective for the applicable period;
cause each Prospectus to be supplemented by any required
prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 under the 1933 Act; and comply with the
provisions of the 1933 Act with respect to the disposition
of all securities covered by each Registration Statement
during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders
thereof;
(c) in the case of a Shelf Registration, (i) notify
each Holder of Registrable Securities, at least five days
prior to filing, that a Shelf Registration Statement with
11
<PAGE> 12
respect to the Registrable Securities is being filed and
advising such Holders that the distribution of Registrable
Securities will be made in accordance with the method
elected by the Majority Holders; and (ii) furnish to each
Holder of Registrable Securities, to counsel for the Initial
Purchasers, to counsel for the Holders and to each
underwriter of an underwritten offering of Registrable
Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any
amendment or supplement thereof and such other documents as
such Holder or underwriter may reasonably request, including
financial statements and schedules and, if the Holder so
requests, all exhibits (including those incorporated by
reference) in order to facilitate the public sale or other
disposition of the Registrable Securities; and (iii) subject
to the last paragraph of Section 3, hereby consent to the
use of the Prospectus or any amendment or supplement thereto
by each of the selling Holders of Registrable Securities in
connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or
supplement thereto;
(d) use its best efforts to register or qualify the
Registrable Securities under all applicable state securities
or "blue sky" laws of such jurisdictions as any Holder of
Registrable Securities covered by a Registration Statement
and each underwriter of an underwritten offering of
Registrable Securities shall reasonably request by the time
the applicable Registration Statement is declared effective
by the SEC, to cooperate with the Holders in connection with
any filings required to be made with the NASD, and do any
and all other acts and things which may be reasonably
necessary or advisable to enable such Holder to consummate
the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided,
however, that the Company shall not be required to (i)
qualify as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise
be required to qualify but for this Section 3(d) or (ii)
take any action which would subject it to general service of
process or taxation in any such jurisdiction if it is not
then so subject;
(e) in the case of a Shelf Registration, notify each
Holder of Registrable Securities and counsel for the Initial
Purchasers promptly and, if requested by such Holder or
counsel, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any
post-effective amendments and supplements thereto become
effective, (ii) of any request by the SEC or any state
securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or
12
<PAGE> 13
for additional information after the Registration Statement
has become effective, (iii) of the issuance by the SEC or
any state securities authority of any stop order suspending
the effectiveness of a Registration Statement or the
initiation of any proceedings for that purposes, (iv) if,
between the effective date of a Registration Statement and
the closing of any sale of Registrable Securities covered
thereby, the representations and warranties of the Company
contained in any underwriting agreement, securities sales
agreement or other similar agreement, if any, relating to
such offering cease to be true and correct in all material
respects, (v) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation or threatening of any
proceeding for such proposes, (vi) of the happening of any
event or the discovery of any facts during the period a
Shelf Registration Statement is effective which makes any
statement made in such Registration Statement or the related
Prospectus untrue in any material respect or which requires
the making of any changes in such Registration Statement or
Prospectus in order to make the statements therein not
misleading and (vii) of any determination by the Company
that a post-effective amendment to a Registration Statement
would be appropriate.
(f) (A) in the case of the Exchange Offer, (i)
include in the Exchange Offer Registration Statement a "Plan
of Distribution" section covering the use of the Prospectus
included in the Exchange Offer Registration Statement by
broker-dealers who have exchanged their Registrable
Securities for Exchange Securities for the resale of such
Exchange Securities, (ii) furnish to each broker-dealer who
desires to participate in the Exchange Offer, without
charge, as many copies of each Prospectus included in the
Exchange Offer Registration Statement, including any
preliminary prospectus, and any amendment or supplement
thereto, as such broker-dealer may reasonably request, (iii)
include in the Exchange Offer Registration Statement a
statement that any broker-dealer who holds Registrable
Securities acquired for its own account as a result of
market-making activities or other trading activities (a
"Participating Broker-Dealer"), and who receives Exchange
Securities for Registrable Securities pursuant to the
Exchange Offer, may be a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933
Act in connection with any resale of such Exchange
Securities, (iv) subject to the last paragraph of Section 3,
hereby consent to the use of the Prospectus forming part of
the Exchange Offer Registration Statement or any amendment
or supplement thereto, by any broker-dealer in connection
with the sale or transfer of the Exchange Securities covered
13
<PAGE> 14
by the Prospectus or any amendment or supplement thereto,
and (v) include in the transmittal letter or similar
documentation to be executed by an exchange offeree in order
to participate in the Exchange Offer (x) the following
provision:
"If the undersigned is not a broker-dealer, the
undersigned represents that it is not engaged in, and
does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-
dealer that will receive Exchange Securities for its
own account in exchange for Registrable Securities, it
represents that the Registrable Securities to be
exchanged for Exchange Securities were acquired by it
as a result of market-making activities or other
trading activities and acknowledges that it will
deliver a prospectus meeting the requirements of the
1933 Act in connection with any resale of such Exchange
Securities pursuant to the Exchange Offer; however, by
so acknowledging and by delivering a prospectus, the
undersigned will not be deemed to admit that it is an
"underwriter" within the meaning of the 1933 Act"; and
(y) a statement to the effect that by a broker-dealer making
the acknowledgment described in subclause (x) and by
delivering a Prospectus in connection with the exchange of
registrable Securities, the broker-dealer will not be deemed
to admit that it is an underwriter within the meaning of the
1933 Act; and
(B) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use
its best efforts to cause to be delivered at the request of
entities representing the Participating Broker-Dealers
(which entities shall be the Initial Purchasers, unless they
elect not to act as such representatives) only one, if any,
"cold comfort" letter with respect to the Prospectus in the
form existing on the last date for which exchanges are
accepted pursuant to the Exchange Offer and with respect to
each subsequent amendment or supplement, if any, effected
during the period specified in clause (C) below; and
(C) to the extent any Participating Broker-Dealer
participates in the Exchange Offer, the Company shall use
its best efforts to maintain the effectiveness of the
Exchange Offer Registration Statement for a period of 180
days following the closing of the Exchange offer; and
(D) the Company shall not be required to amend or
supplement the Prospectus contained in the Exchange offer
Registration Statement as would otherwise be contemplated by
Section 3(b), or take any other action as a result of this
14
<PAGE> 15
Section 3(f), for a period exceeding 180 days after the
closing of the Exchange offer (as such period may be
extended by the Company) and Participating Broker-Dealers
shall not be authorized by the Company to, and shall not,
deliver such prospectus after such period in connection with
resales contemplated by this Section 3.
(g) (A) in the case of an Exchange Offer, furnish
counsel for the Initial Purchasers and (B) in the case of a
Shelf Registration, furnish counsel for the Holders of
Registrable Securities copies of any request by the SEC or
any state securities authority for amendments or supplements
to a Registration Statement and Prospectus or for additional
information;
(h) make every reasonable effort to obtain the
withdrawal of any order suspending the effectiveness of a
Registration Statement as soon as practicable and provide
immediate notice to each Holder of the withdrawal of any
such order;
(i) in the case of a Shelf Registration, furnish to
each Holder of Registrable Securities, without charge, at
least one conformed copy of each Registration Statement and
any post-effective amendment thereto (without documents
incorporated therein by reference or exhibits thereto,
unless requested);
(j) in the case of a Shelf Registration, cooperate
with the selling Holders of Registrable Securities to
facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold
and not bearing any restrictive legends; and cause such
Registrable Securities to be in such denominations
(consistent with the provisions of the Indenture) and
registered in such names as the selling Holders or the
underwriters, if any, may reasonably request at least two
business days prior to the closing of any sale of
Registrable Securities;
(k) in the case of a Shelf Registration, upon the
occurrence of any event or the discovery of any facts, each
as contemplated by Section 3(e)(vi) hereof, use its best
efforts to prepare a supplement or post-effective amendment
to a Registration Statement or the related Prospectus or any
document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the
purchasers of the Registrable Securities, such Prospectus
will not contain at the time of such delivery any untrue
statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
15
<PAGE> 16
misleading. The Company agrees to notify each Holder to
suspend use of the Prospectus as promptly as practicable
after the occurrence of such an event, and each Holder
hereby agrees to suspend use of the Prospectus until the
Company has amended or supplemented the Prospectus to
correct such misstatement or omission. At such time as such
public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each
case to correct any misstatement of a material fact or to
include any omitted material fact, the Company agrees
promptly to notify each Holder of such determination and to
furnish each Holder such numbers of copies of the
Prospectus, as amended or supplemented, as such Holder may
reasonably request;
(l) obtain a CUSIP number for all Exchange Securities,
or Registrable Securities, as the case may be, not later
than the effective date of a Registration Statement, and
provide the Trustee with printed certificates for the
Exchange Securities or the Registrable Securities, as the
case may be, in a form eligible for deposit with the
Depositary;
(m) (i) cause the Indenture to be qualified under the
Trust Indenture Act of 1939, as amended (the "TIA"), in
connection with the registration of the Exchange Securities,
or Registrable Securities, as the case may be, (ii)
cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the
Indenture to be so qualified in accordance with the terms of
the TIA and (iii) execute, and use its best efforts to cause
the Trustee to execute, all documents as may be required to
effect such changes, and all other forms and documents
required to be filed with the SEC to enable the Indenture to
be so qualified in a timely manner;
(n) in the case of a Shelf Registration enter into
agreements (including underwriting agreements) and take all
other customary and appropriate actions (including those
reasonably requested by the Majority Holders) in order to
expedite or facilitate the disposition of such Registrable
Securities and in such connection whether or not an
underwriting agreement is entered into and whether or not
the registration is an underwritten registration:
(i) make such representations and warranties to
the Holders of such Registrable Securities and the
underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in
similar underwritten offerings as may be reasonably
requested by them;
16
<PAGE> 17
(ii) obtain opinions of counsel to the Company and
updates thereof (which counsel and opinion (in form,
scope and substance) shall be reasonably satisfactory
to the managing underwriters, if any, and the holders
of a majority in principal amount of the Registrable
Securities being sold) addressed to each selling Holder
and the underwriters, if any, covering the matters
customarily covered in opinions requested in sales of
securities or underwritten offerings and such other
matters as may be reasonably requested by such Holders
and underwriters;
(iii) obtain letters and updates thereof from
the Company's independent certified public accountants
addressed to the underwriters, if any, and will use
best efforts to have such letters addressed to the
selling Holders of Registrable Securities, such letters
to be in customary form and covering matters of the
type customarily covered in "cold comfort" letters to
underwriters in connection with similar underwritten
offerings;
(iv) enter into a securities sales agreement with
the Holders and an agent of the Holders providing for,
among other things, the appointment of such agent for
the selling Holders for the purpose of soliciting
purchases of Registrable Securities, which agreement
shall be in form, substance and scope customary for
similar offerings;
(v) if an underwriting agreement is entered into,
cause the same to set forth indemnification provisions
and procedures substantially equivalent to the
indemnification provisions and procedures set forth in
Section 5 hereof with respect to the underwriters and
all other parties to be indemnified pursuant to said
Section 5; and
(vi) deliver such documents and certificates as
may be reasonably requested and as are customarily
delivered in similar offerings.
The above shall be done at (i) the effectiveness of such
Registration Statement (and, if appropriate, each post-
effective amendment thereto) and (ii) each closing under any
underwriting or similar agreement as and to the extent
required thereunder. In the case of any underwritten
offering, the Company shall provide written notice to the
Holders of all Registrable Securities of such underwritten
offering at least 30 days prior to the filing of a
prospectus supplement for such underwritten offering. Such
notice shall (x) offer each such Holder the right to
17
<PAGE> 18
participate in such underwritten offering, (y) specify a
date, which shall be no earlier than 10 days following the
date of such notice, by which such Holder must inform the
Company of its intent to participate in such underwritten
offering and (z) include the instructions such Holder must
follow in order to participate in such underwritten
offering;
(o) in the case of a Shelf Registration, make
available for inspection by representatives of the Holders
of the Registrable Securities and any underwriters
participating in any disposition pursuant to a Shelf
Registration Statement and any counsel or accountant
retained by such Holders or underwriters, all financial and
other records, pertinent corporate documents and properties
of the Company reasonably requested by any such persons, and
cause the respective officers, directors, employees, and any
other agents of the Company to supply all information
reasonably requested by any such representative,
underwriter, special counsel or accountant in connection
with a Registration Statement;
(p) (i) a reasonable time prior to the filing of any
Exchange offer Registration Statement, any Prospectus
forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to a
Prospectus, provide copies of such document to the Initial
Purchasers, and make such changes in any such document prior
to the filing thereof as any of the Initial Purchasers or
their counsel any reasonably request; (ii) in the case of a
Shelf Registration, a reasonable time prior to filing any
Shelf Registration Statement, any Prospectus forming a part
thereof, any amendment to such Shelf Registration Statement
or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable
Securities, to the Initial Purchasers, to counsel on behalf
of the Holders and to the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any, and
make such changes in any such document prior to the filing
thereof as the Holders of Registrable Securities, the
Initial Purchasers on behalf of such Holders, their counsel
and any underwriter may reasonably request; and (iii) cause
the representatives of the Company to be available for
discussion of such document as shall be reasonably requested
by the Holders of Registrable Securities, the Initial
Purchasers on behalf of such Holders or any underwriter and
shall not at any time make any filing of any such document
of which such Holders, the Initial Purchasers on behalf of
such Holder, their counsel or any underwriter shall not have
previously been advised and furnished a copy or to which
such Holders, the Initial Purchasers on behalf of such
18
<PAGE> 19
Holders, their counsel or any underwriter shall reasonably
object;
(q) in the case of a Shelf Registration, use its best
efforts to cause the Registrable Securities to be rated with
the appropriate rating agencies, if so requested by the
Majority Holders or by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any,
unless the Registrable Securities are already so rated;
(r) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make
available to its security holders, as soon as reasonably
practicable, an earnings statement covering at least 12
months which shall satisfy the provisions of Section 11(a)
of the 1933 Act and Rule 158 thereunder; and
(s) cooperate and assist in any filings required to be
made with the NASD and in the performance of any due
diligence investigation by any underwriter and its counsel.
In the case of a Shelf Registration Statement, the
Company may (as a condition to such Holder's participation in the
Shelf Registration) require each Holder of Registrable Securities
to furnish to the Company such information regarding such Holder
and the proposed distribution by such Holder of such Registrable
Securities as the Company may from time to time reasonably
request in writing.
In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company
of the happening of any event or the discovery of any facts, each
of the kind described in Section 3(e)(ii)-(vi) hereof, such
Holder will forthwith discontinue disposition of Registrable
Securities pursuant to a Registration Statement until such
Holder's receipt of the copies of the supplemented or amended
Prospectus contemplated by Section 3(k) hereof, and, if so
directed by the Company, such Holder will deliver to the Company
(at its expense) all copies in its possession, other than
permanent file copies then in such Holder's possession, of the
Prospectus covering such Registrable Securities current at the
time of receipt of such notice. If the Company shall give any
such notice to suspend the disposition of Registrable Securities
pursuant to a Shelf Registration Statement as a result of the
happening of any event or the discovery of any facts, each of the
kind described in Section 3(e)(vi) hereof, the Company shall be
deemed to have used its best efforts to keep the Shelf
Registration Statement effective during such period of suspension
provided that the Company shall use its best efforts to file and
have declared effective (if an amendment) as soon as practicable
an amendment or supplement to the Shelf Registration Statement
and shall extend the period during which the Registration
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<PAGE> 20
Statement shall be maintained effective pursuant to this
Agreement by the number of days during the period from and
including the date of the giving of such notice to and including
the date when the Holders shall have received copies of the
supplemented or amended Prospectus necessary to resume such
dispositions.
4. UNDERWRITTEN REGISTRATIONS. If any of the
Registrable Securities covered by any Shelf Registration are to
be sold in an underwritten offering, the investment banker or
investment bankers and manager or managers that will manage the
offering will be selected by the Majority Holders of such
Registrable Securities included in such offering and shall be
reasonably acceptable to the Company.
No Holder of Registrable Securities may
participate in any underwritten registration hereunder unless
such Holder (a) agrees to sell such Holdet's Registrable
Securities on the basis provided in any underwriting arrangements
approved by the persons entitled hereunder to approve such
arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and
other documents required under the terms of such underwriting
arrangements.
5. INDEMNIFICATION AND CONTRIBUTION. (a) The
Company shall indemnify and hold harmless the Initial Purchasers,
each Holder, including Participating Broker-Dealers, each
underwriter who participates in an offering of Registrable
Securities, their respective affiliates, and the respective
directors, officers, employees, agents and each Person, if any,
who controls any of such parties within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act as follows:
(i) against any and all losses, liabilities, claims,
damages and expenses whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement (or
any amendment thereto) pursuant to which Exchange Securities
or Registrable Securities were registered under the 1933
Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of
a material fact required to be stated therein or necessary
to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a
material fact contained in any Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission
therefrom of material fact necessary in order to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
20
<PAGE> 21
(ii) against any and all losses, liabilities, claims,
damages and expenses whatsoever, as incurred, to the extent
of the aggregate amount paid in settlement of any
litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of
any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission,
if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expenses whatsoever, as
incurred (including, subject to the provisions of Section
5(c) below, fees and disbursements of counsel chosen by any
indemnified party), reasonably incurred in investigating,
preparing or defending against any litigation, or
investigation or proceeding by any court or governmental
agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission,
or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under subparagraph
(i) or (ii) of this Section 5(a);
provided, however, that this indemnity does not apply to any
loss, liability, claim, damage or expense to the extent arising
out of an untrue statement or omission or alleged untrue
statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Initial
Purchasers, any Holder, including Participating Broker-Dealers or
any underwriter expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or
supplement thereto).
(b) In the case of a Shelf Registration, each Holder
agrees, severally and not jointly, to indemnify and hold harmless
the Company, the Initial Purchasers, each underwriter who
participates in an offering of Registrable Securities and the
other selling Holders and each of their respective directors and
officers (including each officer of the Company who signed the
Registration Statement) and each person, if any, who controls the
Company, the Initial Purchasers, any underwriter or any other
selling Holder within the meaning of Section 15 of the 1933 Act,
against any and all losses, liabilities, claims, damages and
expenses described in the indemnity contained in Section 5(a)
hereof, as incurred, but only with respect to untrue statements
or omissions, or alleged untrue statements or omissions, made in
the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to the
Company by such Holder, as the case may be, expressly for use in
the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto); provided,
however, that no such Holder shall be liable for any claims
21
<PAGE> 22
hereunder in excess of the amount of net proceeds received by
such Holder from the sale of Registrable Securities pursuant to
such Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure
to so notify an indemnifying party shall not relieve such
indemnifying party from any liability which it may have other
than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such
action. In no event shall the indemnifying party or parties be
liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate
but similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances.
(d) In order to provide for just and equitable
contribution in circumstances in which any of the indemnity
provisions set forth in this Section 5 are for any reason held to
be unenforceable by the indemnified parties although applicable
in accordance with its terms, the Company, the Initial Purchasers
and the Holders shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by the Company,
the Initial Purchasers and the Holders, as incurred; provided,
however, that no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person that was not guilty of
such fraudulent misrepresentation. As between the Company, the
Initial Purchasers and the Holders, such parties shall contribute
to such aggregate losses, liabilities, claims, damages and
expenses of the nature contemplated by such indemnity agreement
in such proportion as shall be appropriate to reflect (i) the
relative benefits received by the Company on the one hand and the
Initial Purchasers and the Holders on the other hand, from the
offering of the Exchange Securities or Registrable Securities
included in such offering, and (ii) the relative fault of the
Company on the one hand and the Initial Purchasers and the
Holders on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage
or expense, or action in respect thereof, as well as any other
relevant equitable considerations. The relative benefits
received by the Company on the one hand and the Initial
Purchasers and the Holders on the other hand shall be deemed to
be in the same proportion as (x) in the case of the Company, the
total proceeds from the offering pursuant to the Purchase
Agreement (before deducting expenses) received by the Company
with respect to the Initial Securities sold by the Initial
Purchasers or any Holder bear to (y) in the case of the Initial
Purchasers or any Holder, the aggregate principal amount of
Initial Securities sold by the Initial Purchasers or any such
22
<PAGE> 23
Holder, as the case may be, less the amount of proceeds relating
to such Initial Securities received by the Company. The relative
fault of the Company, on the one hand and the Initial Purchasers
and any such Holders on the other hand shall be determined by
reference to, among other things, whether the untrue statement of
a material fact or alleged untrue statement or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or the Initial Purchasers or any such
Holder, as the case may be, and the parties, relative intent,
knowledge, access to information and opportunity to correct or
prevent such untrue statement or alleged untrue statement or such
omission or alleged omission. The parties hereto agree that it
would not be just and equitable if contribution pursuant to this
Section 5 were to be determined by pro rata allocation or by any
other method of allocation that does not take into account the
relevant equitable considerations. The obligations of the
Initial Purchasers and any Holders in this Section 5(d) are
several in proportion to their respective obligations hereunder
and not joint. Notwithstanding the provisions of this Section
5(d), in no event shall any Holder of Registrable Securities be
required to contribute any amount which is in excess of the
excess on the aggregate principal amount of Registrable
Securities sold by such Holder (net of the proceeds received by
the Company pursuant to the Purchase Agreement with respect
thereto) over the amount that such person has otherwise been
required to pay by reason of such alleged statement or omission.
For purposes of this Section 5, each affiliate of the Initial
Purchasers or a Holder, and each director, officer, employee,
agent and Person, if any, who controls the Initial Purchasers or
a Holder or such affiliate within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Initial Purchasers or such Holder,
and each director of the Company, each officer of the Company who
signed the Registration Statement, and each Person, if any, who
controls the Company within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company.
6. MISCELLANEOUS. (a) RULE 144 AND RULE 144A. For
so long as the Company is subject to the reporting requirements
of Section 13 or 15 of the 1934 Act, the Company covenants that
it will file the reports required to be filed by it under the
1933 Act and Section 13(a) or 15(d) of the 1934 Act and the rules
and regulations adopted by the SEC thereunder, that if it ceases
to be so required to file such reports, it will continue to file
such reports as if it were still required to do so and that it
will upon the request of any Holder of Registrable Securities (i)
make publicly available such information as is necessary to
permit sales pursuant to Rule 144 under the 1933 Act, (ii)
deliver such information to a prospective purchaser as is
necessary to permit sales pursuant to Rule 144A under the 1933
Act and it will take such further action as any Holder of
23
<PAGE> 24
Registrable Securities may reasonably request, and (iii) take
such further action that is reasonable in the circumstances, in
each case, to the extent required from time to time to enable
such Holder to sell its Registrable Securities without
registration under the 1933 Act within the limitation of the
exemptions provided by (x) Rule 144 under the 1933 Act, as such
Rule may be amended from time to time, (y) Rule 144A under the
1993 Act, as such Rule may be amended from time to time, or (z)
any similar rules or regulations hereafter adopted by the SEC.
Upon the request of any Holder of Registrable Securities, the
Company will delivery to such Holder a written statement as to
whether it has complied with such requirements.
(b) NO INCONSISTENT AGREEMENTS. The Company has not
entered into nor will the Company on or after the date of this
Agreement enter into any agreement which is inconsistent with the
rights granted to the Holders of Registrable Securities in this
Agreement or otherwise conflicts with the provisions hereof. The
rights granted to the Holders hereunder do not in any way
conflict with and are not inconsistent with the rights granted to
the holders of the Company's other issued and outstanding
securities under any such agreements.
(c) AMENDMENTS AND WAIVERS. The provisions of this
Agreement, including the provisions of this sentence, may not be
amended, modified or supplemented, and waivers or consents to
departures from the provisions hereof may not be given unless the
Company has obtained the written consent of Holders of at least a
majority in aggregate principal amount of the outstanding
Registrable Securities affected by such amendment, modification,
supplement, waiver or departure; provided, however, that no
amendment, modification, supplement or waiver or consent to any
departure from the provisions of Section 5 hereof shall be
effective as against any Holder of Registrable Securities unless
consented to in writing by such Holder.
(d) NOTICES. All notices and other communications
provided for or permitted hereunder shall be made in writing by
hand-delivery, registered first-class mail, telecopier, or any
courier guaranteeing overnight delivery (i) if to a Holder, at
the most current address given by such Holder to the Company by
means of a notice given in accordance with the provisions of this
Section 6(d), which addresses initially are, with respect to the
Initial Purchasers, the respective addresses set forth in the
Purchase Agreement; and (ii) if to the Company, initially at the
Company's address set forth in the Purchase Agreement and
thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 6(d).
All such notices and communications shall be deemed to
have been duly given: at the time delivered by hand, if
personally delivered; five business days after being deposited in
24
<PAGE> 25
the mail, postage prepaid, if mailed; when receipt is
acknowledged, if telecopied; and on the next business day if
timely delivered to an air courier guaranteeing overnight
delivery.
Copies of all such notices, demands, or other
communications shall be concurrently delivered by the Person
giving the same to the Trustee, at the address specified in the
Indenture.
(e) SUCCESSORS AND ASSIGNS. This Agreement shall
inure to the benefit of and be binding upon the successors,
assigns and transferees of each of the parties, including,
without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein
shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms
hereof or of the Purchase Agreement or the Indenture. If any
transferee of any Holder shall acquire Registrable Securities, in
any manner, whether by operation of law or otherwise, such
Registrable Securities shall be held subject to all of the terms
of this Agreement, and by taking and holding such Registrable
Securities, such Person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and
provisions of this Agreement, including the restrictions on
resale set forth in this Agreement and, if applicable, the
Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(f) THIRD PARTY BENEFICIARIES. The Initial Purchasers
shall be third party beneficiaries to the agreements made
hereunder between the Company, on the one hand, and the Holders,
on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement
necessary or advisable to protect their respective rights or the
rights of Holders hereunder.
(g) COUNTERPARTS. This Agreement may be executed in
any number of counterparts and by the parties hereto to 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.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise
affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK.
25
<PAGE> 26
(j) SEVERABILITY. In the event that any one or more
of the provisions contained herein, or the application thereof in
any circumstance, is held invalid, illegal or unenforceable, the
validity, legality and enforceability of any such provision in
every other respect and of the remaining provisions contained
herein shall not be affected or impaired thereby.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first written above.
RPM, INC.
By /s/ Frank C. Sullivan
-------------------------
Name: Frank C. Sullivan
Title: V.P. and C.F.O.
Confirmed and accepted as of
the date first above written:
CHASE SECURITIES, INC.
By: /s/ Leah S. Schraudenbach
--------------------------
Name: Leah S. Schraudenbach
Title: Vice President
BEAR, STEARNS & CO. INC.
By: /s/ Timothy A. O'Neill
--------------------------
Name: Timothy A. O'Neill
Title: Senior Managing Director
26
<PAGE> 1
EXHIBIT 5.1
[CALFEE, HALTER & GRISWOLD LETTERHEAD]
August 3, 1995
RPM, Inc.
2628 Pearl Road
Medina, Ohio 44258
In connection with the filing by RPM, Inc., an Ohio corporation (the
"Company"), with the Securities and Exchange Commission under the provisions of
the Securities Act of 1933, as amended, of a Registration Statement on Form S-4
(the "Registration Statement") with respect to $150,000,000 aggregate principal
amount of 7.0% Senior Notes due 2005 of the Company (the "Securities"), we have
examined the following: (i) the Amended Articles of Incorporation and Code of
Regulations of the Company, as the same are currently in effect; (ii) the form
of Registration Statement on Form S-4 (including Exhibits thereto) to be filed
with the Securities and Exchange Commission; (iii) the Indenture under which
the Securities have been issued; and (iv) such other documents as we deemed it
necessary to examine as a basis for the opinions hereinafter expressed.
Based upon the foregoing, we are of the opinion that:
(i) The Company is incorporated and validly existing under the laws of
the State of Ohio.
(ii) The Securities are valid and binding obligations of the Company.
We are attorneys licensed to practice law in the State of Ohio. The
opinions expressed herein are limited to the Federal law of the United States
of America and the laws of the State of Ohio. We express no opinion as to the
effect or applicability of the laws of any other jurisdiction except to the
extent hereinafter set forth. Further, we note that the Indenture under which
the Securities have been issued is stated to be governed by the laws of the
State of New York. To the extent the laws of the State of New York govern the
matters as to which the opinions expressed herein are rendered, you may rely
upon our opinions with respect to the laws of the State of New York to the
extent such laws are construed or applied with the same effect as the
substantive laws of the State of Ohio. We express no opinion as to whether the
laws of the State of New York are the same as the laws of the State of Ohio.
This opinion is delivered to you solely in connection with the filing
of the Registration Statement with respect to the Securities, and this letter
and the opinions stated herein may not be relied upon for any other purpose or
by any person other than the Directors and officers of the Company.
We consent to the filing of this opinion with the Registration
Statement and to the use of our name therein under the caption "Legal Matters."
Respectfully submitted,
/s/ CALFEE, HALTER & GRISWOLD
CALFEE, HALTER & GRISWOLD
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)____
--------------------
THE FIRST NATIONAL BANK OF CHICAGO
(Exact name of trustee as specified in its charter)
A National Banking Association 36-0899825
(I.R.S. employer
identification number)
One First National Plaza, Chicago, Illinois 60670-0126
(Address of principal executive offices) (Zip Code)
The First National Bank of Chicago
One First National Plaza, Suite 0286
Chicago, Illinois 60670-0286
Attn: Lynn A. Goldstein, Law Department (312) 732-6919
(Name, address and telephone number of agent for service)
--------------------
RPM, Inc.
(Exact name of obligor as specified in its charter)
Ohio 34-6550857
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification number)
2628 Pearl Road
Medina, Ohio 44258
(Address of principal executive offices) (Zip Code)
Debt Securities
(Title of Indenture Securities)
<PAGE> 2
Item 1. General Information. Furnish the following information as to the
trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
Comptroller of Currency, Washington, D.C.,
Federal Deposit Insurance Corporation,
Washington, D.C., The Board of Governors of
the Federal Reserve System, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
The trustee is authorized to exercise corporate trust powers.
Item 2. Affiliations With the Obligor. If the obligor is an affiliate of the
trustee, describe each such affiliation.
No such affiliation exists with the trustee.
Item 16. List of exhibits. List below all exhibits filed as a part of this
Statement of Eligibility.
1. A copy of the articles of association of the trustee now in
effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act. <PAGE> 3
7. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of Eligibility
to be signed on its behalf by the undersigned, thereunto duly
authorized, all in the City of Chicago and State of Illinois, on the
2nd day of August, 1995.
The First National Bank of Chicago,
Trustee,
By /s/ R.D. Manella
R.D. Manella
Vice President
* Exhibit 1,2,3 and 4 are herein incorporated by reference to Exhibits bearing
identical numbers in Item 12 of the Form T-1 of The First National Bank of
Chicago, filed as Exhibit 26 to the Registration Statement on Form S-3 of
The CIT Group Holdings, Inc., filed with the Securities and Exchange
Commission on February 16, 1993 (Registration No. 33-58418).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 2, 1995
Securities and Exchange Commission
Washington, D.C. 20549
Gentlemen:
In connection with the qualification of an indenture between RPM, Inc. and The
First National Bank of Chicago, the undersigned, in accordance with Section
321(b) of the Trust Indenture Act of 1939, as amended, hereby consents that
the reports of examinations of the undersigned, made by Federal or State
authorities authorized to make such examinations, may be furnished by such
authorities to the Securities and Exchange Commission upon its request
therefor.
Very truly yours,
The First National Bank of Chicago
By: /s/ R. D. Manella
----------------------------------
R. D. Manella
Vice President
4<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Call Date: 3/31/95
ST-BK: 17-1630 PFTEC 031
Page RC-1
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1995
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
Dollar Amounts in C400
Thousands RCFD BIL MIL THOU <-
-------------------- ---- ------------ ----
<S> <C> <C> <C> <C>
ASSETS
1. Cash and balance due from depository institutions (from
Schedule RC-A):
a. Noninterest-bearing balances and currency and coin(1) . . 0081 2,948,128 1.a.
b. Interest-bearing balances(2) . . . . . . . . . . . . . . 0071 8,482,108 1.b.
2. Securities
a. Held-to-maturity securities (from Schedule RC-B,
column A) . . . . . . . . . . . . . . . . . . . . . . . 1754 167,911 2.a.
b. Available-for-sale securities (from Schedule RC-B,
column D) . . . . . . . . . . . . . . . . . . . . . . . . 1773 540,011 2.b.
3. Federal funds sold and securities purchased under agreements
to resell in domestic offices of the bank and its Edge and
Agreement subsidiaries, and in IBFs:
a. Federal Funds sold . . . . . . . . . . . . . . . . . . . 0276 2,508,883 3.a.
b. Securities purchased under agreements to resell . . . . . 0277 1,422,695 3.b.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule
RC-C) . . . . . . . . . . . . . . . . . . . . . . . . . . RCFD 2122 16,238,310 4.a.
b. LESS: Allowance for loan and lease loans . . . . . . . . RCFD 3123 358,207 4.b.
c. LESS: Allocated transfer risk reserve . . . . . . . . . . RCFD 3128 0 4.c.
d. Loans and leases, net of unearned income, allowance, and
reserve (item 4.a minus 4.b and 4.c). . . . . . . . . . . 2125 15,880,103 4.d.
5. Assets held in trading accounts . . . . . . . . . . . . . . 3545 13,257,798 5.
6. Premises and fixed assets (including capitalized leases) . . 2145 516,827 6.
7. Other real estate owned (from Schedule RC-M). . . . . . . . . 2150 13,166 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) . . . . . . . . . . . . . . . 2130 10,363 8.
9. Customers' liability to this bank on acceptances
outstanding . . . . . . . . . . . . . . . . . . . . . . . . 2155 463,961 9.
10. Intangible assets (from Schedule RC-M) . . . . . . . . . . . 2143 119,715 10.
11. Other assets (from Schedule RC-F). . . . . . . . . . . . . . 2160 1,346,941 11.
12. Total assets (sum of items 1 through 11) . . . . . . . . . . 2170 47,678,610 12.
</TABLE>
- --------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held in trading accounts.
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Address: One First National Plaza, Suite 0460
City, State Zip: Chicago, IL 60670-0460
FDIC Certificate No.: 0/3/6/1/8
Call Date: 3/31/95 ST-BK: 17-1630 FFTEC 031
Page RC-2
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
Dollar Amounts in
Thousands Bil Mil Thou
----------------- ------------
<S> <C> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C
from Schedule RC-E, part 1).............................. RCON 2200 14,675,401 13.a.
(1) Noninterest-bearing(1)............................... RCON 6631 5,498,690 13.a.(1)
(2) Interest-bearing..................................... RCON 6636 9,176,711 13.a.(2)
b. In foreign offices, Edge and Agreement subsidiaries, and
TBFs (from Schedule RC-E, part II)....................... RCFN 2200 11,809,645 13.b.
(1) Noninterest-bearing.................................. RCFN 6631 304,669 13.b.(1)
(2) Interest-bearing..................................... RCFN 6636 11,504,976 13.b.(2)
14. Federal funds purchased and securities sold under agreements
to repurchase in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
a. Federal funds purchased.................................. RCFD 0278 2,072,830 14.a.
b. Securities sold under agreements to repurchase........... RCFD 0279 1,484,164 14.b.
15. a. Demand notes issued to the U.S. Treasury................. RCFD 2840 103,138 15.a.
b. Trading liabilities...................................... RCFD 3548 9,101,186 15.b.
16. Other borrowed money:
a. With original maturity of one year or less............... RCFD 2332 2,307,860 16.a.
b. With original maturity of more than one year............. RCFD 2333 506,476 16.b.
17. Mortgage indebtedness and obligations under capitalized
leases...................................................... RCFD 2910 278,108 17.
18. Bank's liability on acceptance executed and outstanding..... RCFD 2920 463,961 18.
19. Subordinated notes and debentures........................... RCFD 3200 1,225,000 19.
20. Other liabilities (from Schedule RC-G)...................... RCFD 2930 699,375 20.
21. Total liabilities (sum of items 13 through 20).............. RCFD 2948 44,727,144 21.
22. Limited-Life preferred stock and related surplus............ RCFD 3282 0 22.
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............... RCFD 3838 0 23.
24. Common stock................................................ RCFD 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).... RCFD 3839 2,304,657 25.
26. a. Undivided profits and capital reserves................... RCFD 3632 447,916 26.a.
b. Net unrealized holding gains (losses) on
available-for-sale securities............................ RCFD 8434 (2,165) 26.b.
27. Cumulative foreign currency translation adjustments......... RCFD 3284 200 27.
28. Total equity capital (sum of items 23 through 27)........... RCFD 3210 2,951,466 28.
29. Total liabilities, limited-life preferred stock, and
equity capital (sum of items 21, 22, and 28)................ RCFD 3300 47,678,610 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that best Number
describes the most comprehensive level of auditing work for the bank by ---------------------
independent external auditors as of any date during 1993........................ RCFD 6724 N/A M.I.
---------------------
</TABLE>
1 = Independent audit of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm which
submits a report on the bank
2 = Independent audit of the bank's parent holding company conducted in
accordance with generally accepted auditing standards by a certified public
accounting firm which submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' explanation of the bank conducted in accordance with generally
accepted auditing standards by a certified public accounting firm (may be
required by state chartering authority)
4 = Directors' examination of the bank performed by other external auditors
(may be required by state chartering authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ----------
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
6
