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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) - November 8, 1995
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PPG INDUSTRIES, INC.
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(Exact name of Registrant as specified in its charter)
Pennsylvania 1-1687 25-0730780
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State or Other (Commission File Number) (IRS Employer
jurisdiction of Identification
incorporation No.)
One PPG Place, Pittsburgh, Pennsylvania 15272
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 412/434-3131
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Not Applicable
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(Former name or former address, if changed since last report)
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Item 7. Financial Statements and Exhibits
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The following exhibits are filed hereby so as to become, by way of
incorporation by reference, exhibits to Registration Statement No. 33-04983
on Form S-3 dated April 18, 1986:
(1.1) Form of Underwriting Agreement
(4.3) First Supplemental Indenture dated as of April 1, 1986
(filed as Exhibit 4.2 to the Company's Registration
Statement No. 33-03938 on Form S-3, dated March 12, 1986)
(4.4) Second Supplemental Indenture, dated as of October 1, 1989
(4.5) Third Supplemental Indenture, dated as of November 1, 1995
(12) Computation of Ratio of Earnings to Fixed Charges
(25.1) Form T-1 Statement of Eligibility and Qualification Under
the Trust Indenture Act of 1939
SIGNATURE
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Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
PPG INDUSTRIES, INC.
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(Registrant)
/s/ William H. Hernandez
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William H. Hernandez
Senior Vice President,
Finance
Date: November 8, 1995
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Exhibit 1.1
PPG INDUSTRIES, INC.
Debt Securities
UNDERWRITING AGREEMENT
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To the Underwriters listed
in the Terms Agreement
Referred to Herein.
1. Introductory. PPG Industries, Inc., a Pennsylvania corporation
("Company"), proposes to issue and sell from time to time certain of its
unsecured debt securities registered under the registration statement referred
to in Section 2(a) ("Registered Securities"). The Registered Securities will be
issued under an indenture, dated as of August 1, 1982, as amended and
supplemented ("Indenture"), between the Company and Harris Trust and Savings
Bank, as Trustee, in one or more series, which series may vary as to interest
rates, maturities, redemption provisions, selling prices and other terms, with
all such terms for any particular series of the Registered Securities being
determined at the time of sale. Particular series of the Registered Securities
will be sold pursuant to a Terms Agreement referred to in Section 3, for resale
in accordance with terms of offering determined at the time of sale.
The Registered Securities involved in any such offering are hereinafter
referred to as the "Offered Securities". The firm or firms which agree to
purchase the Offered Securities are hereinafter referred to as the
"Underwriters" of such Securities, and the representative or representatives of
the Underwriters, if any, specified in a Terms Agreement referred to in Section
3 are hereinafter referred to as the "Representatives"; provided, however, that
if the Terms Agreement does not specify any representative of the Underwriters,
the term "Representatives", as used in this Agreement (other than in Sections
2(b), 5(c) and 6 and the second sentence of Section 3), shall mean the
Underwriters.
2. Representations and Warranties of the Company. The Company, as of the
date of each Terms Agreement referred to in Section 3, represents and warrants
to, and agrees with, each Underwriter that:
(a) A registration statement (No. 33- ), including a
prospectus, relating to the Registered Securities has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended at the time of any Terms Agreement
referred to in Section 3, is hereinafter referred to as the "Registration
Statement", and the prospectus included in such Registration Statement, as
supplemented as contemplated by Section 3 to reflect the terms of the
Offered Securities and the terms of offering thereof, as first filed with
the Commission pursuant to and in accordance with Rule 424(b) ("Rule
424(b)") under the Securities Act of 1933 ("Act"), including all material
incorporated by reference therein, is hereinafter referred to as the
"Prospectus". No document has been or will be prepared or distributed in
reliance on Rule 434 under the Act.
(b) On the effective date of the registration statement relating to the
Registered Securities, such registration statement conformed in all respects
to the requirements of the Act, the Trust Indenture Act of 1939 ("Trust
Indenture Act") and the rules and regulations of the Commission ("Rules and
Regulations") and did not include any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, and on the date of each Terms
Agreement referred to in Section 3, the Registration Statement and the
Prospectus will conform in all respects to the requirements of the Act, the
Trust
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Indenture Act and the Rules and Regulations, and neither of such documents
will include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any of such documents based upon written
information furnished to the Company by any Underwriter through the
Representatives, if any, specifically for use therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus; and the
Company is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification.
(d) Each subsidiary corporation of the Company has been duly
incorporated and is an existing corporation in good standing under the laws
of the jurisdiction of its incorporation, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus; and each subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification; all of the issued and
outstanding capital stock of each subsidiary owned by the Company has been
duly authorized and validly issued and is fully paid and nonassessable; and
the capital stock of each subsidiary owned by the Company, directly or
through subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Indenture has been duly authorized, executed and delivered and
has been duly qualified under the Trust Indenture Act; the Offered
Securities have been duly authorized; and when the Offered Securities are
delivered and paid for pursuant to the Terms Agreement on the Closing Date
(as defined below) or pursuant to Delayed Delivery Contracts (as hereinafter
defined), such Offered Securities will have been duly executed,
authenticated, issued and delivered and will conform to the description
thereof contained in the Prospectus and the Indenture and such Offered
Securities will constitute valid and legally binding obligations of the
Company, enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws
of general applicability relating to or affecting creditors' rights and to
general equity principles.
(f) The Offered Securities have been approved for listing on the
exchange (if any) indicated in the Terms Agreement, subject to notice of
issuance.
(g) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the issuance
and sale of the Offered Securities by the Company, except as required under
the Act and the Trust Indenture Act and such as may be required under state
securities laws.
(h) The execution, delivery and performance of the Indenture, the Terms
Agreement (including the provisions of this Agreement) and any Delayed
Delivery Contracts and the issuance and sale of the Offered Securities and
compliance with the terms and provisions thereof will not
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result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any statute, any rule, regulation or order of
any governmental agency or body or any court, domestic or foreign, having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or any
such subsidiary is a party or by which the Company or any such subsidiary is
bound or to which any of the properties of the Company or any such
subsidiary is subject, or the charter or by-laws of the Company or any such
subsidiary, and the Company has full power and authority to authorize, issue
and sell the Offered Securities as contemplated by the Terms Agreement
(including the provisions of this Agreement).
(i) The Terms Agreement (including the provisions of this Agreement)
and any Delayed Delivery Contracts have been duly authorized, executed and
delivered by the Company.
(j) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them, in each case free from liens,
encumbrances and defects that would materially affect the value thereof or
materially interfere with the use made or to be made thereof by them; and
except as disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases with
no exceptions that would materially interfere with the use made or to be
made thereof by them.
(k) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or bodies
necessary to conduct the business now operated by them and have not received
any notice of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the Company and its subsidiaries taken as
a whole.
(l) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
might have a material adverse effect on the Company and its subsidiaries
taken as a whole.
(m) The Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights to
inventions, know-how, patents, copyrights, confidential information and
other intellectual property (collectively, "intellectual property rights")
necessary to conduct the business now operated by them, or presently
employed by them, and have not received any notice of infringement of or
conflict with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(n) Except as disclosed in the Prospectus, neither the Company nor any
of its subsidiaries is in violation of any statute, any rule, regulation,
decision or order of any governmental agency or body or any court, domestic
or foreign, relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively,
"environmental laws"), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any
off-site disposal or contamination pursuant to any environmental laws, or is
subject to any
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claim relating to any environmental laws, which violation, contamination,
liability or claim would individually or in the aggregate have a material
adverse effect on the Company and its subsidiaries taken as a whole; and the
Company is not aware of any pending investigation which might lead to such a
claim.
(o) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or
in the aggregate have a material adverse effect on the condition (financial
or other), business, prospects or results of operations of the Company and
its subsidiaries taken as a whole, or would materially and adversely affect
the ability of the Company to perform its obligations under the Indenture,
the Terms Agreement (including the provisions of this Agreement) or any
Delayed Delivery Contracts, or which are otherwise material in the context
of the sale of the Offered Securities; and no such actions, suits or
proceedings are threatened or, to the Company's knowledge, contemplated.
(p) The financial statements included in the Registration Statement and
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with generally accepted
accounting principles in the United States applied on a consistent basis,
except as described therein, and any schedules included in the Registration
Statement present fairly the information required to be stated therein.
(q) Except as disclosed in the Prospectus, since the date of the latest
audited financial statements included in the Prospectus there has been no
material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole.
(r) The Company is not and, after giving effect to the offering and
sale of the Offered Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as
defined in the Investment Company Act of 1940.
(s) Neither the Company nor any of its affiliates does business with
the government of Cuba or with any person or affiliate located in Cuba
within the meaning of Section 517.075, Florida Statutes, and the Company
agrees to comply with such Section if prior to the completion of the
distribution of the Offered Securities it commences doing such business.
3. Purchase and Offering of Offered Securities. The obligation of the
Underwriters to purchase the Offered Securities will be evidenced by an
agreement or exchange of other written communications ("Terms Agreement") at the
time the Company determines to sell the Offered Securities. The Terms Agreement
will incorporate by reference the provisions of this Agreement, except as
otherwise provided therein, and will specify the firm or firms which will be
Underwriters, the names of any Representatives, the principal amount to be
purchased by each Underwriter, the purchase price to be paid by the Underwriters
and the terms of the Offered Securities not already specified in the Indenture,
including, but not limited to, interest rate, maturity, any redemption
provisions and any sinking fund requirements and whether any of the Offered
Securities may be sold to institutional investors pursuant to Delayed Delivery
Contracts (as defined below). The Terms Agreement will also specify the time
and date of delivery and payment (such time and date, or such other time not
later than seven full business days
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thereafter as the Underwriter first named in the Terms Agreement (the "Lead
Underwriter") and the Company agree as the time for payment and delivery, being
herein and in the Terms Agreement referred to as the "Closing Date"), the place
of delivery and payment and any details of the terms of offering that should be
reflected in the prospectus supplement relating to the offering of the Offered
Securities. For purposes of Rule 15c6-1 under the Securities Exchange Act of
1934, the Closing Date (if later than the otherwise applicable settlement date)
shall be the date for payment of funds and delivery of securities for all the
Offered Securities sold pursuant to the offering, other than Contract Securities
for which payment of funds and delivery of securities shall be as hereinafter
provided. The obligations of the Underwriters to purchase the Offered
Securities will be several and not joint. It is understood that the
Underwriters propose to offer the Securities for sale as set forth in the
Prospectus.
If the Terms Agreement provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company authorizes the Underwriters to solicit
offers to purchase Offered Securities pursuant to delayed delivery contracts
substantially in the form of Annex I attached hereto ("Delayed Delivery
Contracts") with such changes therein as the Company may authorize or approve.
Delayed Delivery Contracts are to be with institutional investors, including
commercial and savings banks, insurance companies, pension funds, investment
companies and educational and charitable institutions. On the Closing Date the
Company will pay, as compensation, to the Representatives for the accounts of
the Underwriters, the fee set forth in such Terms Agreement in respect of the
principal amount of Offered Securities to be sold pursuant to Delayed Delivery
Contracts ("Contract Securities"). The Underwriters will not have any
responsibility in respect of the validity or the performance of Delayed
Delivery Contracts. If the Company executes and delivers Delayed Delivery
Contracts, the Contract Securities will be deducted from the Offered Securities
to be purchased by the several Underwriters and the aggregate principal amount
of Offered Securities to be purchased by each Underwriter will be reduced pro
rata in proportion to the principal amount of Offered Securities set forth
opposite each Underwriter's name in such Terms Agreement, except to the extent
that the Lead Underwriter determines that such reduction shall be otherwise
than pro rata and so advise the Company. The Company will advise the Lead
Underwriter not later than the business day prior to the Closing Date of the
principal amount of Contract Securities.
The Offered Securities delivered to the Underwriters on the Closing Date
will be in definitive fully registered form in such denominations and registered
in such names as the Lead Underwriter requests.
If the Terms Agreement specifies "Book-Entry Only" settlement or otherwise
states that the provisions of this paragraph shall apply, the Company will
deliver against payment of the purchase price the Offered Securities in the form
of one or more permanent global Securities in definitive form (the "Global
Securities") deposited with the Trustee as custodian for The Depository Trust
Company ("DTC") and registered in the name of Cede & Co., as nominee for DTC.
Interests in any permanent global Securities will be held only in book-entry
form through DTC, except in the limited circumstances described in the
Prospectus. Payment for the Offered Securities shall be made by the Underwriters
(if the Terms Agreement specifies that the Offered Securities will not trade in
DTC's Same Day Funds Settlement System) by certified or official bank check or
checks in New York Clearing House (next day) funds or (if the Terms Agreement
specifies that the Offered Securities will trade in DTC's Same Day Funds
Settlement System) in Federal (same day) funds by official check or checks or
wire transfer to an account in New York previously designated to the Lead
Underwriter by the Company at a bank acceptable to the Lead Underwriter, in each
case drawn to the order of PPG Industries, Inc. at the place of payment
specified in the Terms Agreement on the Closing Date, against delivery to the
Trustee as custodian for DTC of the Global Securities representing all of the
Offered Securities.
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4. Certain Agreements of the Company. The Company agrees with the several
Underwriters that it will furnish to Sullivan & Cromwell, counsel for the
Underwriters, one signed copy of the registration statement relating to the
Registered Securities, including all exhibits, in the form it became effective
and of all amendments thereto and that, in connection with each offering of
Offered Securities:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(2) (or, if applicable and if consented
to by the Lead Underwriter, subparagraph (5)) not later than the second
business day following the execution and delivery of the Terms Agreement.
(b) The Company will advise the Lead Underwriter promptly of any
proposal to amend or supplement the Registration Statement or the Prospectus
and will afford the Lead Underwriter a reasonable opportunity to comment on
any such proposed amendment or supplement; and the Company will also advise
the Lead Underwriter promptly of the filing of any such amendment or
supplement and of the institution by the Commission of any stop order
proceedings in respect of the Registration Statement or of any part thereof
and will use its best efforts to prevent the issuance of any such stop order
and to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to amend
the Prospectus to comply with the Act, the Company promptly will notify the
Lead Underwriter of such event and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Lead Underwriter's consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall constitute
a waiver of any of the conditions set forth in Section 5.
(d) As soon as practicable, but not later than 16 months, after the
date of each Terms Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the
registration statement relating to the Registered Securities, (ii) the
effective date of the most recent post-effective amendment to the
Registration Statement to become effective prior to the date of such Terms
Agreement and (iii) the date of the Company's most recent Annual Report on
Form 10-K filed with the Commission prior to the date of such Terms
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus
and all amendments and supplements to such documents, in each case as soon
as available and in such quantities as the Lead Underwriter reasonably
requests. The Company will pay the expenses of printing and distributing to
the Underwriters all such documents.
(f) The Company will arrange for the qualification of the Offered
Securities for sale and the determination of their eligibility for
investment under the laws of such jurisdictions as the Lead
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Underwriter designates and will continue such qualifications in effect so
long as required for the distribution.
(g) During the period of five years after the date of any Terms
Agreement, the Company will furnish to the Representatives and, upon
request, to each of the other Underwriters, if any, as soon as practicable
after the end of each fiscal year, a copy of its annual report to
stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under
the Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from
time to time, such other information concerning the Company as the Lead
Underwriter may reasonably request.
(h) The Company will pay all expenses incident to the performance of
its obligations under the Terms Agreement (including the provisions of this
Agreement) and will reimburse the Underwriters (if and to the extent
incurred by them) for any filing fees or other expenses (including fees and
disbursements of counsel) incurred by them in connection with qualification
of the Registered Securities for sale and determination of their eligibility
for investment under the laws of such jurisdictions as the Lead Underwriter
may designate and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Offered
Securities for any applicable filing fee of the National Association of
Securities Dealers, Inc. relating to the Registered Securities, for any
travel expenses of the Company's officers and employees and any other
expenses of the Company in connection with attending or hosting meetings
with prospective purchasers of Registered Securities and for expenses
incurred in distributing the Prospectus, any preliminary prospectuses, any
preliminary prospectus supplements or any other amendments or supplements to
the Prospectus to the Underwriters.
(i) Except in connection with employee benefit or Director compensation
plans of the Company, the Company will not, without the prior written
consent of the Lead Underwriter, offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to United States dollar-
denominated debt securities issued or guaranteed by the Company and having a
maturity of more than one year from the date of issue, or publicly disclose
the intention to make any such offer, sale, pledge, disposal or filing, for
a period beginning at the time of execution of the Terms Agreement and
ending the number of days after the Closing Date specified under "Blackout"
in the Terms Agreement.
5. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Offered Securities will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) On or prior to the date of the Terms Agreement, the Representatives
shall have received a letter, dated the date of delivery thereof, of
Deloitte & Touche LLP or another independent certified public accounting
firm reasonably satisfactory to the Representatives confirming that they are
independent public accountants with respect to the Company within the
meaning of the Act and the applicable published Rules and Regulations
thereunder and stating in effect that:
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(i) in their opinion the financial statements and any schedules of
the Company examined by them and included in the Prospectus comply in
form in all material respects with the applicable accounting
requirements of the Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by the American
Institute of Certified Public Accountants for a review of interim
financial information as described in Statement on Auditing Standards
No. 71, Interim Financial Information, on any unaudited interim
financial statements of the Company included in the Registration
Statement;
(iii) on the basis of the review referred to in clause (ii) above,
a reading of the latest available interim financial statements of the
Company, inquiries of officials of the Company who have responsibility
for financial and accounting matters and other specified procedures,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements of the Company included
in the Prospectus, if any, do not comply in form in all material
respects with the applicable accounting requirements of the Act and
the related published Rules and Regulations or any material
modifications should be made to such unaudited financial statements
for them to be in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that of
the audited financial statements;
(B) if any unaudited "capsule" information is contained in the
Prospectus, the unaudited consolidated net sales, net operating
income, net income and net income per share amounts or other amounts
constituting such "capsule" information and described in such letter
do not agree with the corresponding amounts set forth in the
unaudited consolidated financial statements;
(C) at the date of the latest available balance sheet of the
Company read by such accountants, or at a subsequent specified date
not more than five days prior to the date of the Terms Agreement,
there was any change in the capital stock or any increase in short-
term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet of the Company read by such accountants, there was any
decrease in consolidated net current assets or net assets, as
compared with amounts shown on the latest balance sheet of the
Company included in the Prospectus; or
(D) for the period from the closing date of the latest income
statement of the Company included in the Prospectus to the closing
date of the latest available income statement read by such
accountants there were any decreases, as compared with the
corresponding period of the previous year and with the period of
corresponding length ended the date of the latest income statement
included in the Prospectus, in consolidated net sales or net
operating income, in the total or per share amounts of consolidated
income before extraordinary items or net income or in the ratio of
earnings to fixed charges;
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except in all cases set forth in clauses (C) and (D) above for changes,
increases or decreases which the Prospectus discloses have occurred or
may occur or which are described in such letter; and
(iv) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Prospectus (in each case to the extent that such dollar
amounts, percentages and other financial information are derived from
the general accounting records of the Company and its subsidiaries
subject to the internal controls of the Company's accounting system or
are derived directly from such records by analysis or computation) with
the results obtained from inquiries, a reading of such general
accounting records and other procedures specified in such letter and
have found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as otherwise
specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 4(a) of this
Agreement. No stop order suspending the effectiveness of the Registration
Statement or of any part thereof shall have been issued and no proceedings
for that purpose shall have been instituted or, to the knowledge of the
Company or any Underwriter, shall be contemplated by the Commission.
(c) Subsequent to the execution of the Terms Agreement, there shall not
have occurred (i) any change, or any development or event involving a
prospective change, in the condition (financial or other), business,
properties or results of operations of the Company or its subsidiaries
which, in the judgment of a majority in interest of the Underwriters
including any Representatives, is material and adverse and makes it
impractical or inadvisable to proceed with completion of the public offering
or the sale of and payment for the Offered Securities; (ii) any downgrading
in the rating of any debt securities of the Company by any "nationally
recognized statistical rating organization" (as defined for purposes of Rule
436(g) under the Act), or any public announcement that any such organization
has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible
upgrading, and no implication of a possible downgrading, of such rating);
(iii) any suspension or limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading on
such exchange, or any suspension of trading of any securities of the Company
on any exchange or in the over-the-counter market for a period of more than
two hours; (iv) any banking moratorium declared by U.S. Federal or New York
authorities; or (v) any outbreak or escalation of major hostilities in which
the United States is involved, any declaration of war by Congress or any
other substantial national or international calamity or emergency if, in the
judgment of a majority in interest of the Underwriters including any
Representatives, the effect of any such outbreak, escalation, declaration,
calamity or emergency makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Offered
Securities.
(d) The Representatives shall have received an opinion, dated the
Closing Date, of the General Counsel of the Company named in the Prospectus,
to the effect that:
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(i) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the Commonwealth of
Pennsylvania, with corporate power and authority to own its properties
and conduct its business as described in the Prospectus; and the Company
is duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification;
(ii) The Indenture has been duly authorized, executed and delivered
by the Company and has been duly qualified under the Trust Indenture
Act; the Offered Securities have been duly authorized; the Offered
Securities other than any Contract Securities have been duly executed,
authenticated, issued and delivered; the Indenture and the Offered
Securities other than any Contract Securities constitute, and any
Contract Securities, when executed, authenticated, issued and delivered
in the manner provided in the Indenture and sold pursuant to Delayed
Delivery Contracts, will constitute, valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and the
Offered Securities other than any Contract Securities conform, and any
Contract Securities, when so issued and delivered and sold will conform,
to the description thereof contained in the Prospectus;
(iii) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by the Terms Agreement
(including the provisions of this Agreement) in connection with the
issuance or sale of the Offered Securities by the Company, except such
as have been obtained and made under the Act and the Trust Indenture Act
and such as may be required under state securities laws (in rendering
his opinion with respect to this Section 5(d)(iii) the Company's General
Counsel may rely as to matters of New York law, upon the opinion of
Sullivan & Cromwell referred to below);
(iv) The execution, delivery and performance of the Indenture, the
Terms Agreement (including the provisions of this Agreement) and any
Delayed Delivery Contracts and the issuance and sale of the Offered
Securities and compliance with the terms and provisions thereof will not
result in a breach or violation of any of the terms and provisions of,
or constitute a default under, any statute, any rule, regulation or
order of any governmental agency or body or any court having
jurisdiction over the Company or any subsidiary of the Company or any of
their properties, or any agreement or instrument to which the Company or
any such subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the Company or
any such subsidiary is subject, or the charter or by-laws of the Company
or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Offered Securities as contemplated by the
Terms Agreement (including the provisions of this Agreement);
(v) The Registration Statement has become effective under the Act,
the Prospectus was filed with the Commission pursuant to the
subparagraph of Rule 424(b) specified in such opinion on the date
specified therein, and, to the best of the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement or
any part thereof has been issued and no proceedings for that purpose
have been instituted or are pending or
10
<PAGE>
contemplated under the Act, and the registration statement relating to
the Registered Securities, as of its effective date, the Registration
Statement and the Prospectus, as of the date of the Terms Agreement, and
any amendment or supplement thereto, as of its date, complied as to form
in all material respects with the requirements of the Act, the Trust
Indenture Act and the Rules and Regulations; such counsel have no reason
to believe that such registration statement, as of its effective date,
the Registration Statement, as of the date of the Terms Agreement or as
of the Closing Date, or any amendment thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the
Prospectus, as of the date of the Terms Agreement or as of such Closing
Date, or any amendment or supplement thereto, as of its date or as of
the Closing Date, contained any untrue statement of a material fact or
omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; the descriptions in the Registration
Statement and Prospectus of statutes, legal and governmental proceedings
and contracts and other documents are accurate and fairly present the
information required to be shown; and such counsel do not know of any
legal or governmental proceedings required to be described in the
Prospectus which are not described as required or of any contracts or
documents of a character required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it being
understood that such counsel need express no opinion as to the financial
statements or other financial data contained in the Registration
Statement or the Prospectus; and
(vi) The Terms Agreement (including the provisions of this
Agreement) and any Delayed Delivery Contracts have been duly authorized,
executed and delivered by the Company.
(e) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date, with respect to the incorporation of the Company, the validity of the
Offered Securities, the Registration Statement, the Prospectus and other
related matters as the Representatives may require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters. In rendering such
opinion, Sullivan & Cromwell may rely as to the incorporation of the Company
and all other matters governed by Pennsylvania law upon the opinion of the
Company's General Counsel referred to above.
(f) The Representatives shall have received a certificate, dated the
Closing Date, of the President or any Vice-President and a principal
financial or accounting officer of the Company in which such officers, to
the best of their knowledge after reasonable investigation, shall state that
the representations and warranties of the Company in this Agreement are true
and correct, that the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that no stop order suspending the effectiveness
of the Registration Statement or of any part thereof has been issued and no
proceedings for that purpose have been instituted or are contemplated by the
Commission and that, subsequent to the date of the most recent financial
statements in the Prospectus, there has been no material adverse change, nor
any development or event involving a prospective material adverse change, in
the condition (financial or other), business, properties or results of
operations of the
11
<PAGE>
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) The Representatives shall have received a letter, dated the Closing
Date, of Deloitte & Touche LLP or another independent certified public
accounting firm reasonably satisfactory to the Representatives which meets
the requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more than
five days prior to the Closing Date for the purposes of this subsection.
The Company will furnish the Representatives with such conformed copies of such
opinions, certificates, letters and documents as the Representatives reasonably
request. The Lead Underwriter may in its sole discretion waive on behalf of the
Underwriters compliance with any conditions to the obligations of the
Underwriters under this Agreement and the Terms Agreement.
6. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus or preliminary prospectus
supplement, or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any of such
documents in reliance upon and in conformity with written information furnished
to the Company by any Underwriter through the Representatives, if any,
specifically for use therein.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus or
preliminary prospectus supplement, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representatives, if any, specifically for use therein,
and will reimburse any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
it from any
12
<PAGE>
liability which it may have to any indemnified party otherwise than under
subsection (a) or (b) above. In case any such action is brought against any
indemnified party and it notifies the indemnifying party of the commencement
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it may wish, jointly with any other indemnifying party similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party (who shall not, except with the consent of the indemnified
party, be counsel to the indemnifying party), and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without the
prior written consent of the indemnified party, effect any settlement of any
pending or threatened action in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release of
such indemnified party from all liability on any claims that are the subject
matter of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company on the
one hand and the Underwriters on the other from the offering of the Securities
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and the Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from the offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the Underwriters.
The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The amount paid by an indemnified party as a
result of the losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any action or claim which is the subject of this
subsection (d). Notwithstanding the provisions of this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligations in
this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company under this Section shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the
13
<PAGE>
Underwriters under this Section shall be in addition to any liability which the
respective Underwriters may otherwise have and shall extend, upon the same terms
and conditions, to each director of the Company, to each officer of the Company
who has signed the Registration Statement and to each person, if any, who
controls the Company within the meaning of the Act.
7. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities under the Terms Agreement and
the aggregate principal amount of Offered Securities that such defaulting
Underwriter or Underwriters agreed but failed to purchase does not exceed 10% of
the total principal amount of Offered Securities, the Lead Underwriter may make
arrangements satisfactory to the Company for the purchase of such Offered
Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by the Closing Date, the non-defaulting Underwriters shall
be obligated severally, in proportion to their respective commitments under the
Terms Agreement (including the provisions of this Agreement), to purchase the
Offered Securities that such defaulting Underwriters agreed but failed to
purchase. If any Underwriter or Underwriters so default and the aggregate
principal amount of Offered Securities with respect to which such default or
defaults occur exceeds 10% of the total principal amount of Offered Securities
and arrangements satisfactory to the Lead Underwriter and the Company for the
purchase of such Offered Securities by other persons are not made within 36
hours after such default, the Terms Agreement will terminate without liability
on the part of any non-defaulting Underwriter or the Company, except as provided
in Section 8. As used in this Agreement, the term "Underwriter" includes any
person substituted for an Underwriter under this Section. Nothing herein will
relieve a defaulting Underwriter from liability for its default. The respective
commitments of the several Underwriters for the purposes of this Section shall
be determined without regard to reduction in the respective Underwriters'
obligations to purchase the principal amounts of the Offered Securities set
forth opposite their names in the Terms Agreement as a result of Delayed
Delivery Contracts entered into by the Company.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to the Terms Agreement (including the provisions of this Agreement)
will remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any Underwriter,
the Company or any of their respective representatives, officers or directors or
any controlling person, and will survive delivery of and payment for the Offered
Securities. If the Terms Agreement is terminated pursuant to Section 7 or if for
any reason the purchase of the Offered Securities by the Underwriters is not
consummated, the Company shall remain responsible for the expenses to be paid or
reimbursed by it pursuant to Section 4 and the respective obligations of the
Company and the Underwriters pursuant to Section 6 shall remain in effect. If
the purchase of the Offered Securities by the Underwriters is not consummated
for any reason other than solely because of the termination of the Terms
Agreement pursuant to Section 7 or the occurrence of any event specified in
clause (iii), (iv) or (v) of Section 5(c), the Company will reimburse the
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Offered Securities.
9. Notices. All communications hereunder will be in writing and, if sent to
the Underwriters, will be mailed, delivered or telegraphed and confirmed to them
at their addresses furnished to the Company in writing for the purpose of
communications hereunder or, if sent to the Company, will be mailed, delivered
or telegraphed and confirmed to it at One PPG Place, Pittsburgh, Pennsylvania
15272, Attention: Senior Vice President, Finance.
14
<PAGE>
10. Successors. The Terms Agreement (including the provisions of this
Agreement) will inure to the benefit of and be binding upon the Company and such
Underwriters as are identified in the Terms Agreement and their respective
successors and the officers and directors and controlling persons referred to in
Section 6, and no other person will have any right or obligation hereunder.
11. Representation of Underwriters. Any Representatives will act for the
several Underwriters in connection with the financing described in the Terms
Agreement, and any action under such Terms Agreement (including the provisions
of this Agreement) taken by the Representatives jointly or by the Lead
Underwriter will be binding upon all the Underwriters.
12. Counterparts. The Terms Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
13. Applicable Law. This Agreement and the Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York, without regard to principles of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to the Terms Agreement
(including the provisions of this Agreement) or the transactions contemplated
thereby.
15
<PAGE>
ANNEX I
(Three copies of this Delayed Delivery Contract should be signed and returned
to the address shown below so as to arrive not later than 9:00 A.M.,
New York time, on ........................ ............, 19...*.)
DELAYED DELIVERY CONTRACT
-------------------------
[Insert date of initial public offering]
PPG Industries, Inc.
c/o [Insert Name and Address of Lead Underwriter]
Attention: [ ]
Gentlemen:
The undersigned hereby agrees to purchase from PPG Industries, Inc., a
Pennsylvania corporation ("Company"), and the Company agrees to sell to the
undersigned, [If one delayed closing, insert--as of the date hereof, for
delivery on , 19 ("Delivery Date"),]
$..............
principal amount of the Company's [Insert title of securities] ("Securities"),
offered by the Company's Prospectus dated , 19 and a Prospectus
Supplement dated , 19 relating thereto, receipt of copies
of which is hereby acknowledged, at % of the principal amount thereof plus
accrued interest, if any, and on the further terms and conditions set forth in
this Delayed Delivery Contract ("Contract").
[If two or more delayed closings, insert the following:
The undersigned will purchase from the Company as of the date hereof, for
delivery on the dates set forth below, Securities in the principal amounts set
forth below:
Delivery Date Principal Amount
------------- ----------------
.............................................. .............
.............................................. .............
Each of such delivery dates is hereinafter referred to as a Delivery Date.]
- -----------------------------
* Insert date which is third full business day prior to Closing Date under
the Terms Agreement.
<PAGE>
Payment for the Securities that the undersigned has agreed to purchase for
delivery on--the--each--Delivery Date shall be made to the Company or its order
by certified or official bank check in New York Clearing House (next day) funds
at the office of at .M. on--the--such--Delivery Date
upon delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on--the--such--Delivery Date in definitive fully
registered form and in such denominations and registered in such names as the
undersigned may designate by written or telegraphic communication addressed to
the Company not less than five full business days prior to--the--such--Delivery
Date.
It is expressly agreed that the provisions for delayed delivery and payment
are for the sole convenience of the undersigned; that the purchase hereunder of
Securities is to be regarded in all respects as a purchase as of the date of
this Contract; that the obligation of the Company to make delivery of and
accept payment for, and the obligation of the undersigned to take delivery of
and make payment for, Securities on--the--each--Delivery Date shall be subject
only to the conditions that (1) investment in the Securities shall not at--the--
such--Delivery Date be prohibited under the laws of any jurisdiction in the
United States to which the undersigned is subject and (2) the Company shall have
sold to the Underwriters the total principal amount of the Securities less the
principal amount thereof covered by this and other similar Contracts. The
undersigned represents that its investment in the Securities is not, as of the
date hereof, prohibited under the laws of any jurisdiction to which the
undersigned is subject and which governs such investment.
Promptly after completion of the sale to the Underwriters the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by--a copy--copies--of the opinion[s] of counsel for the
Company delivered to the Underwriters in connection therewith.
This Contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the acceptance of any such Contract is in the
Company's sole discretion and, without limiting the foregoing, need not be on a
first-come, first-served basis. If this Contract is acceptable to the Company,
it is requested that the Company sign the form of acceptance below and mail
2
<PAGE>
or deliver one of the counterparts hereof to the undersigned at its address set
forth below. This will become a binding contract between the Company and the
undersigned when such counterpart is so mailed or delivered.
Yours very truly,
.......................................
(Name of Purchaser)
By ....................................
.....................................
(Title of Signatory)
.....................................
.....................................
(Address of Purchaser)
Accepted, as of the above date.
PPG Industries, Inc.
By ..............................
[Insert Title]
3
<PAGE>
Draft of October 23, 1995
PPG INDUSTRIES, INC.
("Company")
Debt Securities
TERMS AGREEMENT
---------------
, 19
To: The [Representative[s] of the] Underwriters identified herein
Dear Sirs:
The undersigned agrees to sell to the several Underwriters named [in
Schedule A hereto] [below] for their respective accounts, on and subject to the
terms and conditions of the Underwriting Agreement filed as an exhibit to the
Company's registration statement on Form S-3 (No. 33- ) ("Underwriting
Agreement"), the following securities ("Offered Securities") on the following
terms:
Title: [ %] [Floating Rate]--Notes--Debentures--Bonds--Due
.
Principal Amount: $ .
Interest: [ % per annum, from , 19 , payable semiannually on
and , commencing , 19 , to holders of record on the
preceding or , as the case may be.] [Zero coupon.]
Maturity: , 19 .
Optional Redemption:
Sinking Fund:
Listing: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
Delayed Delivery Contracts: [None.] [Delivery Date[s] shall be , 19 .
Underwriters' fee is % of the principal amount of the Contract Securities.]
Purchase Price: % of principal amount, plus accrued interest[, if any,]
from , 19 .
<PAGE>
Expected Reoffering Price: % of principal amount, subject to change by the
[Representative[s] [Underwriters].
Closing: A.M. on , 19 , at , in New York Clearing House
(next day) funds.
Settlement and Trading: [Physical certificated form.] [Book-Entry Only via
DTC. The Offered Securities [will] [will not] trade in DTC's Same Day Funds
Settlement System.]
Blackout: Until days after the Closing Date.
[Name[s] and Address[es] of [Representative[s]] [Underwriter[s]]:]
The respective principal amounts of the Offered Securities to be purchased
by each of the Underwriters are set forth opposite their names in Schedule A
hereto.
The provisions of the Underwriting Agreement are incorporated herein by
reference.
The Offered Securities will be made available for checking and packaging at
the office of at least 24 hours prior to the Closing
Date.
If the Offered Securities are denominated in a currency other than United
States dollars, make appropriate modifications to provisions of the Terms
Agreement (e.g., type of funds specified under "Closing") and consider
including in the Terms Agreement such changes and additions to the
Underwriting Agreement as may be appropriate in the circumstances, e.g.,
expanding the blackout provision in Section 4 to cover debt securities
denominated in the currency in which the Offered Securities are denominated,
expanding Section 5(c)(iv) to cover a banking moratorium declared by
authorities in the country of such currency, expanding Section 5(c)(v) to
cover a change or prospective change in, or governmental action affecting,
exchange controls applicable to such currency, and modifying Section 5(d) to
permit a statement to the effect that enforcement of the Indenture and the
Offered Securities is subject to provisions of law which may require that a
judgment for money damages rendered by a court in the United States be
expressed only in United States dollars and appropriate exceptions as to any
provisions requiring payment of additional amounts. Also consider requiring
an opinion of counsel for the Company confirming information as to United
States tax matters in the Prospectus and an opinion of foreign counsel for the
Company regarding such matters as foreign consents, approvals, authorizations,
licenses, waivers, withholding taxes, transfer or stamp taxes and any
information as to foreign laws in the Prospectus.
2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement between the Company and
the several Underwriters in accordance with its terms.
Very truly yours,
PPG Industries, Inc.
By...............................
[Insert title]
The foregoing Terms Agreement is hereby confirmed
and accepted as of the date first above written.
[Underwriters' signatures]
3
<PAGE>
SCHEDULE A
Principal
Underwriter Amount
- ----------- ------
- ---------------------------- $
---------
Total........................................... $
=========
4
<PAGE>
EXHIBIT 4.4
===============================================================================
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF OCTOBER 1, 1989
TO
Indenture Dated As Of
August 1, 1982
PPG INDUSTRIES, INC.
TO
Harris Trust and Savings Bank,
Trustee
Modifying 10.70% Restricted Installment Notes
to 9.30% Restricted Notes
===============================================================================
<PAGE>
<TABLE>
<CAPTION>
Table of Contents
Page
----
<S> <C>
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
9.30% RESTRICTED NOTES
SECTION 101. Modification of Notes. . . . . . . . . . . . . . . 2
ARTICLE TWO
SECURITY FORMS
SECTION 201. Legend of Notes; Attachment of Modified
Terms . .. . . . . . . . . . . . . . . . . . . . 2
SECTION 202. Form of Legend . . . . . . . . . . . . . . . . . . 2
SECTION 203. Form of Face of Modified Note . . . . . . . . . . 3
SECTION 204. Form of Reverse of Modified Note . . . . . . . . . 4
SECTION 205. Form of Trustee's Certificate
of Authentication. . . . . . . . . . . . . . . . 7
SECTION 206. Provision for Acquiring Modified Notes
without Restrictions . . . . . . . . . . . . . . 8
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and Holder
of Modified Notes . . . . . . . . . . . . . . . 8
SECTION 302. Terms Have Meanings Defined in Indenture . . . . . 8
SECTION 303. Invalidity of Any Provisions Not
to Affect Others . . . . . . . . . . . . . . . . 8
SECTION 304. Date of Execution Indicated by
Acknowledgements . . . . . . . . . . . . . . . . 9
SECTION 305. Provisions Bind and Benefit Successors . . . . . . 9
SECTION 306. Descriptive Headings for Convenience Only. . . . . 9
SECTION 307. Execution in Counterparts. . . . . . . . . . . . . 9
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SIGNATURES AND SEALS. . . . . . . . . . . . . . . . . . . . . . 11
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . 12
</TABLE>
<PAGE>
SECOND SUPPLEMENTAL INDENTURE, dated as of October 1, 1989 between PPG
Industries, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (herein called the "Company"), having its
principal office at One PPG Place, Pittsburgh, Pennsylvania, 15272, and Harris
Trust and Savings Bank, a corporation duly organized and existing under the laws
of the State of Illinois, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has heretofore executed and delivered to the Trustee an
Indenture dated as of August 1, 1982 and the First Supplemental Indenture
thereto, dated as of April 1, 1986 (the Indenture as supplemented by the First
Supplemental Indenture is herein called the "Current Indenture").
Pursuant to an agreement dated September 16, 1985 between the Company and
The Pitcairn Company, the Company paid cash and issued and delivered its 10.75%
Restricted Installment Note, in the principal amount of $171,264,000 to The
Pitcairn Company in exchange for 8,896,868 shares of Common Stock, par value
$1.66-2/3 per share, of the Company and agreed to include such note under an
indenture qualified under the Trust Indenture Act of 1939.
Pursuant to an agreement dated as of February 20, 1986 between the Company
and The Pitcairn Company, the Company agreed to issue and deliver 10.70%
Restricted Installment Notes of the Company in the aggregate principal amount of
$171,264,000 (the "Installment Notes") under the Original Indenture to The
Pitcairn Company in exchange for the 10.75% Restricted Installment Note referred
to in the predceeding recital.
The Company, having received on or before September 25, 1989 the consent of
certain holders of the Installment Notes constituting in the aggregate not less
than 66-2/3% in principal amount of the Outstanding Installment Notes (the
"Consenting Noteholders"), has agreed to modify the terms and conditions of the
Installment Notes held by the Consenting Noteholders as set forth in this Second
Supplemental Indenture. Such modified notes are hereinafter referred to as the
"Modified Notes" or "9.30% Restricted Notes".
The Company has duly authorized the execution and delivery of this Second
Supplemental Indenture to modify Consenting Noteholders' Installment Notes
issued under the Current Indenture into the Modified Notes.
All things necessary to make this Second Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
<PAGE>
NOW THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the modification of the
Installment Notes into the Modified Notes, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Modified Notes, as
follows:
ARTICLE ONE
9.30% RESTRICTED NOTES
SECTION 101. Modification of Notes.
Pursuant to Section 902 of the Current Indenture, the terms of the
Installment Notes of the Consenting Noteholders are modified to the form of the
Modified Note set forth in Article Two below.
ARTICLE
SECURITY FORMS
SECTION 201. Legend of Notes; Attachment of Modified Terms.
The Modified Notes shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations are as required or permitted by the Original Indenture and this
Second Supplemental Indenture and may have such letters, numbers or other marks
of identification and such legends or endorsements placed thereon as may,
consistently with the Original Indenture and this Second Supplemental Indenture,
be determined by the officers executing the Modified Notes, as evidenced by
their execution of the Modified Notes.
The Trustee's certificate of authentication shall be in substantially the
form set forth in this Article.
Upon receipt of an Installment Note of a Consenting Noteholder, the trustee
shall modify such Installment Note into a Modified Note by imprinting the legend
set forth in Section 202 hereof on the face and reverse side of such Installment
Note and attaching thereto a properly completed form of Modified Note as set
forth in Sections 203, 204 and 205 hereof.
SECTION 202. Form of Legend.
THIS NOTE IS SUBJECT TO THE SECOND SUPPLEMENTAL INDENTURE BETWEEN THE
COMPANY AND THE TRUSTEE UNDER WHICH THE FORM AND TERMS OF THIS NOTE HAVE BEEN
MODIFIED TO THE FORM AND TERMS ATTACHED HERETO.
<PAGE>
SECTION 203. Form of Face of Modified Note.
The Face of the 10.70% Restricted Installment Note to which this is
attached is modified to read as follows:
PPG INDUSTRIES, INC.
9.30% Restricted Note
No. ...... $...........
PPG INDUSTRIES, INC., a corporation duly organized and existing under the
laws of the Commonwealth of Pennsylvania (herein called the "Company", which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ..................., or
registered assigns, the principal sum of ............ Dollars on October 1,
1999. The Company promises to pay interest on the unpaid principal balance
hereof from and including April 1, 1989 through July 24, 1989 at the rate of
10.70% per annum, and from and including July 25, 1989, or from and including
the most recent Interest Payment Date after July 25, 1989 to which interest has
been paid or duly provided for, at the rate of 9.30% per annum, semi-annually on
October 1 and April 1 in each 12-month period commencing October 1, 1989, until
the principal hereof is paid or made available for payment and (to the extent
that the payment of such interest shall be legally enforceable) at the rate of
9.30% per annum on any overdue principal and premium, if any, and on any overdue
installment of interest. 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 September 15 or March 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either 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 Holders of the Notes (as hereinafter defined) not less
than 10 days prior to such Special Record Date, or to be paid at any time in any
other lawful manner, all as more fully provided in such Indenture.
Payment of the principal of and premium, if any, and interest on this Note
will be made at the office or agency of the Company maintained for that purpose
in Chicago, Illinois, in such coin or currency of the United States of America
as at the time of payment is legal tender for
<PAGE>
payment of public and private debts, provided, however, that at the option of
the Company payment of interest may be made 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
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to below by manual signature, this Note shall not be entitled
to any benefit under such Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
PPG INDUSTRIES, INC.
By.................................
[CORPORATE SEAL]
Attest:
..............................
SECTION 204. Form of Reverse of Modified Note.
The reverse of the 10.70% Restricted Installment Note to which this is
attached is modified to read as follows:
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 August 1, 1982 between the Company and Harris Trust and
Savings Bank, as Trustee (herein called the "Trustee", which term includes any
successor trustee under said Indenture), as heretofore and hereafter
supplemented and amended (said Indenture as so supplemented and amended being
herein called the "Indenture"), to which Indenture 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 of 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
in aggregate principal amount to $171,264,000.
<PAGE>
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 to be
affected under the Indenture at anytime by the Company and the Trustee with the
consent of the Holders of 66-2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each 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 Note 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 premium, if any, and
interest (if any) on this Note at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and premium, if any, and
interest (if any) on this Note are payable, duly endorsed by, 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 his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for a like aggregate principal sum, will be issued to the
designated transferee or transferees.
Except, by will, the laws of descent or distribution or otherwise by
operation of law, this Note may be sold, transferred, pledged or assigned only
to a Permitted Transferee (as hereinafter defined). No transfer will be
effective unless the Trustee receives from the proposed transferee a completed
affidavit to the effect that the proposed transferee is a Permitted Transferee.
Permitted Transferees are (a) for a Holder of a Note who is a natural person:
(i) the Holder's spouse, ancestors, lineal descendants, whether adopted or by
the whole or half
<PAGE>
blood, brothers and sisters, whether adopted or by the whole or half blood, or
any spouse of such persons (collectively, such Holder's "Immediate Family"),
(ii) any charitable institution and (iii) any trust, partnership or corporation
at least 90% of the beneficial interest, partnership interest or capital stock
of which is held by the Holder, members of the Holder's Immediate Family or any
charitable institution; (b) for a Holder of a Note that is either (i) an estate,
(ii) a trust for the benefit of charitable institutions, a natural person's
Immediate Family or both or (iii) a common law trust having a beneficiaries only
natural persons (and no more than 15 such person); a beneficiary of such or
trust or a member of such beneficiary's Immediate Family; (c) for a Holder of a
Note which is a corporation; the survivor of a merger or consolidation involving
the initial Holder and (d) for a Holder of a Note which is a corporation or
partnership having as shareholders or partners only natural persons (and no more
than 15 such persons) the shareholders or partners of such Holder as of the
distribution date.
Notwithstanding anything contained herein to the contrary: if the Company's
outstanding publicly-held debt securities are rated below BBB by Standard &
Poor's Corporation or below Baa by Moody's Investors Service, Inc. (or the
equivalent rating in the event of any change in the rating categories), without
regard to any subcategories of such ratings; then on or after September 17,
1987, the Holder of this Note shall have the right to exchange this Note for one
of more new Notes, of authorized denominations and for a like aggregate
principal sum, identical in all respects to this Note, except that such new Note
or Notes shall not contain this or the immediately preceding paragraph. In any
such exchange, the Holder shall deliver this Note to the Trustee, together with
an affidavit identifying the condition that has caused this Note to be
exchangeable, and request the issuance of such a new Note or new Notes.
Notwithstanding anYthing contained herein to the contrary, on or after
October 1, 1989, the Holder of this Note shall have the right to exchange this
Note for one or more new Notes, of authorized denominations and for a like
aggregate principal sum, identical in all respects to this Note except that it
shall not contain this paragraph or the immediately preceding two paragraphs,
provided, however, that the right to exchange this Note provided in this
paragraph shall not become effective until the date on which there shall have
been delivered to the Company rulings from the Internal Revenue Service (or, in
lieu thereof, an opinion of counsel in form and substance reasonably acceptable
to the Company) to the effect that the becoming effective of such right will
constitute neither a disposition of this Note within the meaning of Section 453B
of the Internal Revenue Code of 1954, as amended, nor a payment within the
meaning of Section 453(f) of the Internal Revenue Code of 1954, as amended. The
Company will notify the Trustee that such rulings (or such opinion) have been
received, and shall direct the Trustee to give written notice thereof to each
Holder.
<PAGE>
Notwithstanding anything contained herein to the contrary, the rights of
the Holder of this Note to receive payments hereunder may be limited by the
Pennsylvania Business Corporation Law to the unrestricted and unreserved earned
surplus of the Company and, with the approval of the shareholders of the
Company, the unrestricted capital surplus of the Company, at the time of such
payments. The Company shall seek shareholder approval, if necessary, of payments
under the Notes from unrestricted capital surplus if such approval would be
required under the Pennsylvania Business Corporation Law at the time of any such
payments.
The Notes are issuable only in registered form without coupons. As provided
in the Indenture and subject to certain limitations therein set forth the
Installment Notes are exchangeable for a like aggregate principal sum of new
Notes of a different authorized denomination 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.
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.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
SECTION 205. Form of Trustee's Certificate of Authentication.
The form of Trustee's Certificate of Authentication of the 10.70%
Restricted Installment Note to which this is attached is modified to read as
follows:
This is one of the Securities denominated the 9.30% Restricted Notes
referred to in the within-mentioned Indenture.
Harris Trust and Savings Bank
as Trustee
By: ..............................
Authorized Officer
<PAGE>
SECTION 206. Provision for Acquiring Modified Notes without Restrictions.
If pursuant to the terms of the Modified Notes set forth in Sections 202
and 203 above, the Holder acquires the right to exchange a 9.30% Restricted Note
for one or more new Modified Notes without provision for restrictions on
transfer, then upon request of any such Holder and compliance with the terms of
the Modified Notes, the Trustee shall authenticate and deliver in exchange for
the 9.30% Restricted Note one or more new Modified Notes in a like aggregate
principal sum and in authorized denominations and containing the same terms and
conditions except that (1) the new Modified Note or Modified Notes shall be
entitled "9.30% Restricted Note" and (2) the new Modified Note or Modified Notes
shall not include the paragraphs providing for restrictions on transfer or the
removal thereof.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. Benefits Restricted to Parties and Holder of Modified Notes.
Nothing in this Second Supplemental Indenture, expressed or implied, is
intended or shall be construed to confer upon, or to give to, any person, firm,
or corporation other than the parties hereto, and the Holders of the Modified
Notes any right, remedy or claim under or by reason of this Second Supplemental
Indenture or any covenant, condition or stipulation hereof; and the covenants,
stipulations and agreements in this Second Supplemental Indenture contained are
and shall be for the sole and exclusive benefit of the parties hereto, their
successors and assigns, and the Holders of the Modified Notes.
SECTION 302. Terms Have Meanings Defined in Indenture.
All terms used in this Second Supplemental Indenture which are defined in
the Indenture shall, for all purposes hereof, have the respective meanings
specified in the Indenture, otherwise specifically provided herein or unless the
context otherwise requires.
SECTION 303. Invalidity of Any Provisions Not To Affect Others.
In case any one or more of the provisions contained in this Second
Supplemental Indenture or in the Modified Notes shall for any reason be held to
be invalid, illegal or unenforceable in any respect, such
<PAGE>
invalidity, illegality or unenforceability shall not affect any other provision
of this Second Supplemental Indenture and the Modified Notes shall be construed
as if such invalid or illegal or unenforceable provision had never been
contained herein or therein.
SECTION 304. Date of Execution Indicated by Acknowledgements.
Although this Second Supplemental Indenture, for convenience and for the
purpose of reference, i8 dated as of October 1, 1989, the actual date of
execution by the Corporation and the Trustee is as indicated by their respective
acknowledgements hereto annexed.
SECTION 305. Provisions Bind and Benefit Successors.
Subject to the provisions of the Indenture, all the covenants, promises and
agreements in this Second Supplemental Indenture contained by or on behalf of
the Company, or by or on behalf of the Trustee, shall bind and inure to the
benefit of their respective successors and assigns, whether so expressed or not.
The Indenture is hereby ratified and confirmed and shall remain and continue in
full force and effect in accordance with the terms and provisions thereof, as
further amended and supplemented hereby.
SECTION 306. Descriptive Headings for Convenience Only.
The descriptive headings of the several Articles of this Second
Supplemental Indenture are inserted for convenience only and shall not control
or affect the meaning or construction of any of the provisions hereof.
SECTION 307. Execution In Counterparts.
This Second Supplemental Indenture may be simultaneously executed in any
number of counterparts, each of which when so executed and delivered shall be an
original; but such counterparts shall together constitute but one and the same
instrument.
<PAGE>
IN WITNESS THEREOF, the parties hereto have caused this Second Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
PPG Industries, Inc.
By /s/ L. Call
----------------------------
Treasurer
L. Call
Attest:
/s/ Thomas L. Butera
- -------------------------------
Assistant Secretary Harris Trust and Savings Bank
Thomas L. Butera
By /s/ J. Bartolini
-----------------------------
Vice President
J. Bartolini
Attest:
/s/ D. G. Donovan
- ------------------------------
Assistant Secretary
<PAGE>
STATE OF PENNSYLVANIA SS:
COUNTY OF ALLEGHENY
On the 25th day of September, 1989, before me personally came L. M. Call,
to me known, who, being by me duly sworn, did depose and say that he is
Treasurer of PPG Industries, Inc., one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate 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.
/s/ Helen A. Pavlick
-----------------------------------
NOTARIAL SEAL
HELEN A. PAVLICK, NOTARY PUBLIC
PITTSBURGH, ALLEGHENY COUNTY
MY COMMISSION EXPIRES OCT. 29, 1990
Member, Pennsylvania Association of Notaries
STATE OF ILLINOIS SS:
COUNTY OF COOK
On the 4th day of October, 1984, before me personally came J. Bartolini, to
me known, who, being by me duly sworn, did depose and say that he is Vice
President of Harris Trust and Savings Bank, one of the corporations described in
and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate 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.
/s/ J. Muzquiz
--------------------------
"OFFICIAL SEAL''
T. Muzquiz
Notary Public, State of Illinois
My Commission Expires 7/12/93
<PAGE>
Exhibit No. 4.5
===============================================================================
PPG INDUSTRIES, INC.
to
Harris Trust and Savings Bank
Trustee
________
Third Supplemental Indenture
Dated as of November 1, 1995
________
===============================================================================
<PAGE>
THIRD SUPPLEMENTAL INDENTURE, dated as of November 1, 1995, between PPG
Industries, Inc., a corporation duly organized and existing under the laws of
the Commonwealth of Pennsylvania (the "Company"), having its principal offices
at One PPG Place, Pittsburgh, Pennsylvania 15272, and Harris Trust and Savings
Bank, a corporation duly organized and existing under the laws of the State of
Illinois, as Trustee (the "Trustee").
Recitals of the Company
The Company and the Trustee have heretofore executed and delivered an
Indenture, dated as of August 1, 1982 (the "Indenture"), as supplemented by the
First Supplemental Indenture, dated as of April 1, 1986 and the Second
Supplemental Indenture, dated as of October 1, 1989, providing for the issuance
from time to time of the Company's unsecured debentures, notes or other
evidences of indebtedness (the "Securities"), to be issued in one or more series
as in the Indenture provided. Terms defined in the Indenture have the same
meanings herein.
Sections 901(5), 901(7) and 901(9) of the Indenture provide, among other
things, that, without the consent of any Holders, the Company, when authorized
by a Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental to the Indenture (a) to change or
eliminate any provision of the Indenture, provided that such change or
elimination shall not be effective as to any Security Outstanding of any series
created prior to the execution of such supplemental indenture which is entitled
to the benefit of such provision, (b) to establish the form or terms of
Securities of any series as permitted by Sections 201 and 301, or (c) to cure
any ambiguity, to correct or supplement any provision of the Indenture which may
be inconsistent with any other provision of the Indenture, or to make any other
provisions with respect to matters or questions arising under the Indenture,
provided such action shall not adversely affect the interests of the Holders of
Securities of any series in any material respect.
Pursuant to the foregoing authority, the Company proposes in and by this
Third Supplemental Indenture to amend the Indenture in certain respects with
respect to the Securities of any series created on or after the date hereof.
All things necessary to make this Third Supplemental Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
Now, therefore, this Third Supplemental Indenture Witnesseth:
<PAGE>
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
1. The following definitions are hereby added to Section 101 of the
Indenture:
"Covenant Defeasance" has the meaning specified in Section 1303.
"Defeasance" has the meaning specified in Section 1302.
"Depositary" means, with respect to Securities of any series issuable in
whole or in part in the form of one or more Global Securities, a clearing
agency registered under the Securities Exchange Act of 1934 that is
designated to act as Depositary for such Securities as contemplated by
Section 301.
"Global Security" means a Security that evidences all or part of the
Securities of any series and bears the legend set forth in Section 204 (or
such legend as may be specified as contemplated by Section 301 for such
Securities).
"Senior Debt" means indebtedness of the Company ranking prior to
indebtedness issued by the Company under this Indenture.
"U.S. Government Obligation" has the meaning specified in Section 1304.
2. The definition of "Outstanding" in Section 101 of the Indenture is
amended as follows:
By deleting the word "and" at the end of clause (ii), renumbering clause
(iii) as clause (iv) and adding a new clause (iii) to read in its entirety as
follows:
"(iii) Securities as to which Defeasance has been effected pursuant to
Section 1302; and"
2
<PAGE>
By deleting all of the words following "provided, however," and adding in
lieu thereof the following:
"that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or
other action hereunder as of any date, (A) the principal amount of an
Original Issue Discount Security which shall be deemed to be Outstanding
shall be the amount of the principal thereof which would be due and
payable as of such date upon acceleration of the Maturity thereof to such
date pursuant to Section 502, (B) if, as of such date, the principal
amount payable at the Stated Maturity of a Security is not determinable,
the principal amount of such Security which shall be deemed to be
Outstanding shall be the amount as specified or determined as
contemplated by Section 301, (C) the principal amount of a Security
denominated in one or more foreign currencies or currency units which
shall be deemed to be Outstanding shall be the U.S. dollar equivalent,
determined as of such date in the manner provided as contemplated by
Section 301, of the principal amount of such Security (or, in the case of
a Security described in Clause (A) or (B) above, of the amount determined
as provided in such Clause), and (D) Securities owned by the Company or
any other obligor upon the Securities or any Affiliate of the Company or
of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent, waiver or other action, only Securities which
the Trustee knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities
or any Affiliate of the Company or of such other obligor."
3. Section 203 of the Indenture is hereby amended by adding as a new
paragraph immediately after the fifth paragraph:
"[If applicable, insert - The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security] [or]
[certain restrictive covenants and Events of Default with respect to this
3
<PAGE>
Security] [, in each case] upon compliance with certain conditions set forth
in the Indenture.]"
4. A new Section 205 is hereby inserted into the Indenture to read in its
entirety as follows:
"Section 205. Form of Legend for Global Securities.
Unless otherwise specified as contemplated by Section 301 for the
Securities evidenced thereby, every Global Security authenticated and
delivered hereunder shall bear a legend in substantially the following form:
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be exchanged in whole or in part for a
Security registered, and no transfer of this Security in whole or in part may
be registered, in the name of any Person other than such Depositary or a
nominee thereof, except in the limited circumstances described in the
Indenture."
5. Section 301 of the Indenture is hereby amended by:
(i) renumbering clauses (3) through (10) as clauses (4) through (11) and
renumbering clause (11) as clause (20);
(ii) adding the following as clause (3):
"(3) the Person to whom any interest on a Security of the series
shall be payable, if other than the Person in whose name that Security (or
one or more Predecessor Securities) is registered at the close of business on
the Regular Record Date for such interest;" and
(iii) adding the following as clauses (12) through (19):
"(12) if the amount of principal of or any premium or interest on any
Securities of the series may be determined with reference to an index or
pursuant to a formula, the manner in which such amounts shall be determined;
4
<PAGE>
(13) if other than the currency of the United States of America, the
currency, currencies or currency units in which the principal of or any
premium or interest on any Securities of the series shall be payable and the
manner of determining the equivalent thereof in the currency of the United
States of America for any purpose, including for purposes of the definition
of "Outstanding" in Section 101;
(14) if the principal of or any premium or interest on any Securities
of the series is to be payable, at the election of the Company or the Holder
thereof, in one or more currencies or currency units other than that or those
in which such Securities are stated to be payable, the currency, currencies
or currency units in which the principal of or any premium or interest on
such Securities as to which such election is made shall be payable, the
periods within which and the terms and conditions upon which such election is
to be made and the amount so payable (or the manner in which such amount
shall be determined);
(15) if the principal amount payable at the Stated Maturity of any
Securities of the series will not be determinable as of any one or more dates
prior to the Stated Maturity, the amount which shall be deemed to be the
principal amount of such Securities as of any such date for any purpose
thereunder or hereunder, including the principal amount thereof which shall
be due and payable upon any Maturity other than the Stated Maturity or which
shall be deemed to be Outstanding as of any date prior to the Stated Maturity
(or, in any such case, the manner in which such amount deemed to be the
principal amount shall be determined);
(16) if applicable, that the Securities of the series, in whole or any
specified part, shall be defeasible pursuant to Section 1302 or Section 1303
or both such Sections and, if other than by a Board Resolution, the manner in
which any election by the Company to defease such Securities shall be
evidenced;
(17) if applicable, that any Securities of the series shall be
issuable in whole or in part in the form of one or more Global Securities
and, in such case, the respective Depositaries for such Global Securities,
the form of any legend or legends which shall be borne by any such Global
Security in addition to or in lieu of that set forth in Section 205 and any
circumstances in addition to or in lieu of those set forth in Clause (2) of
the last paragraph of Section 305 in which any such Global Security may be
5
<PAGE>
exchanged in whole or in part for Securities registered, and any transfer of
such Global Security in whole or in part may be registered, in the name or
names of Persons other than the Depositary for such Global Security or a
nominee thereof;
(18) any addition to or change in the Events of Default which applies
to any Securities of the series and any change in the right of the Trustee or
the requisite Holders of such Securities to declare the principal amount
thereof due and payable pursuant to Section 502;
(19) any addition to or change in the covenants set forth in Article
Ten which applies to Securities of the series; and"
6. Section 303 of the Indenture is hereby amended by adding the following
paragraph immediately before the penultimate paragraph:
"Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all Securities of a series are not to be originally issued at
one time, it shall not be necessary to deliver the Officer's Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion
of Counsel otherwise required pursuant to such preceding paragraph at or
prior to the time of authentication of each Security of such series if such
documents are delivered at or prior to the time of authentication upon
original issuance of the first Security of such series to be issued."
7. Section 305 of the Indenture is hereby amended by adding the following
paragraph after the last paragraph thereof:
"The provisions of Clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated for such Global Security
or a nominee thereof and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a single
Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture, no Global
Security may be exchanged in whole or in part for Securities registered, and
no transfer of a Global Security in whole or in part may be
6
<PAGE>
registered, in the name of any Person other than the Depositary for such
Global Security or a nominee thereof unless (A) such Depositary (i) has
notified the Company that it is unwilling or unable to continue as Depositary
for such Global Security or (ii) has ceased to be a clearing agency
registered under the Exchange Act, (B) there shall have occurred and be
continuing an Event of Default with respect to such Global Security or (C)
there shall exist such circumstances, if any, in addition to or in lieu of
the foregoing as have been specified for this purpose as contemplated by
Section 301.
(3) Subject to Clause (2) above, any exchange of a Global Security for
other Securities may be made in whole or in part, and all Securities issued
in exchange for a Global Security or any portion thereof shall be registered
in such names as the Depositary for such Global Security shall direct.
(4) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any
portion thereof, whether pursuant to this Section, Section 304, 306, 906 or
1107 or otherwise, shall be authenticated and delivered in the form of, and
shall be, a Global Security, unless such Security is registered in the name
of a Person other than the Depositary for such Global Security or a nominee
thereof."
8. A new ARTICLE THIRTEEN is hereby inserted into the Indenture to read in
its entirety as follows:
"ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Company's Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 1302
or Section 1303 applied to any Securities or any series of Securities, as the
case may be, designated pursuant to Section 301 as being defeasible pursuant
to such Section 1302 or 1303, in accordance with any applicable requirements
provided pursuant to Section 301 and upon compliance with the conditions set
forth below in this Article. Any such
7
<PAGE>
election shall be evidenced by a Board Resolution or in another manner
specified as contemplated by Section 301 for such Securities.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
the Company shall be deemed to have been discharged from its obligations with
respect to such Securities as provided in this Section on and after the date
the conditions set forth in Section 1304 are satisfied (hereinafter called
"Defeasance"). For this purpose, such Defeasance means that the Company shall
be deemed to have paid and discharged the entire indebtedness represented by
such Securities and to have satisfied all its other obligations under such
Securities and this Indenture insofar as such Securities are concerned (and
the Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), subject to the following which shall survive until
otherwise terminated or discharged hereunder: (1) the rights of Holders of
such Securities to receive, solely from the trust fund described in Section
1304 and as more fully set forth in such Section, payments in respect of the
principal of and any premium and interest on such Securities when payments
are due, (2) the Company's obligations with respect to such Securities under
Sections 304, 305, 306, 1002 and 1003, (3) the rights, powers, trusts, duties
and immunities of the Trustee hereunder and (4) this Article. Subject to
compliance with this Article, the Company may exercise its option (if any) to
have this Section applied to any Securities notwithstanding the prior
exercise of its option (if any) to have Section 1303 applied to such
Securities.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this Section
applied to any Securities or any series of Securities, as the case may be,
(1) the Company shall be released from its obligations under Section 801(3),
Section 1004, Section 1005, and any covenants provided pursuant to Section
301(19), 901(2) or 901(7) for the benefit of the Holders of such Securities
and (2) the occurrence of any event specified in Sections 501(4) (with
respect to any of Section 801(3), Section 1004, Section 1005, and any such
covenants provided pursuant to Section 301(19), 901(2) or 901(7)), 501(5) and
501(8) shall be deemed not to be or result in an Event of Default, in each
case with respect to such Securities as provided in this
8
<PAGE>
Section on and after the date the conditions set forth in Section 1304 are
satisfied (hereinafter called "Covenant Defeasance"). For this purpose, such
Covenant Defeasance means that, with respect to such Securities, 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 specified Section (to the
extent so specified in the case of Section 501(4)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or
by reason of any reference in any such Section to any other provision herein
or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
Section 1304. Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to the application of Section 1302
or Section 1303 to any Securities or any series of Securities, as the case
may be:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 609 and agrees to comply with the
provisions of this Article 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 benefits of the Holders of
such Securities, (A) money in an amount, or (B) U.S. Government
Obligations 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, money in an amount, or
(C) a combination thereof, in each case sufficient, 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 any such other
qualifying trustee) to pay and discharge, the principal of and any
premium and interest on such Securities on the respective Stated
Maturities, in accordance with the terms of this Indenture and such
Securities. As used herein, "U.S. Government Obligation" means (x) any
security which is (i) a direct obligation of the United States of America
for the payment of which the full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or
supervised by and acting as an agency or instrumentality of the United
States of America the payment
9
<PAGE>
of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America, which, in either case (i) or
(ii), is not callable or redeemable at the option of the issuer thereof,
and (y) any depositary receipt issued by a bank (as defined in Section
3(a)(2) of the Securities Exchange Act of 1934, as amended) as custodian
with respect to any U.S. Government Obligation which is specified in
Clause (x) above and held by such bank for the account of the holder of
such depositary receipt, or with respect to any specific payment of
principal of or interest on any U.S. Government Obligation which is so
specified and held, 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 depositary receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific
payment of principal or interest evidenced by such depositary receipt.
(2) In the event of an election to have Section 1302 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(A) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling or (B) since the date of this
instrument, there has been a change in the applicable Federal income tax
law, in either case (A) or (B) to the effect that, and based thereon such
opinion shall confirm that, the Holders of such Securities will not
recognize gain or loss for Federal income tax purposes as a result of the
deposit, Defeasance and discharge to be effected with respect to such
Securities and will be subject to Federal income tax on the same amount,
in the same manner and at the same times as would be the case if such
deposit, Defeasance and discharge were not to occur.
(3) In the event of an election to have Section 1303 apply to any
Securities or any series of Securities, as the case may be, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Securities will not recognize gain or loss for
Federal income tax purposes as a result of the deposit and Covenant
Defeasance to be effected with respect to such Securities and will be
subject to Federal income tax on the same amount, in the same manner and
at the same times as would be the case if such deposit and Covenant
Defeasance were not to occur.
10
<PAGE>
(4) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange,
will be delisted as a result of such deposit.
(5) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 501(6)
and (7), at any time on or prior to the 90th day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until after such 90th day).
(6) Such Defeasance or Covenant Defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture
Act (assuming all Securities are in default within the meaning of such
Act).
(7) Such Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under, any other
agreement or instrument to which the Company is a party or by which it is
bound.
(8) Such Defeasance or Covenant Defeasance shall not result in the
trust arising from such deposit constituting an investment company within
the meaning of the Investment Company Act unless such trust shall be
registered under such Act or exempt from registration thereunder.
(9) At the time of such deposit, (A) no default in the payment of any
principal of or premium or interest on any Senior Debt shall have
occurred and be continuing, (B) no event of default with respect to any
Senior Debt shall have resulted in such Senior Debt becoming, and
continuing to be, due and payable prior to the date on which it would
otherwise have become due and payable (unless payment of such Senior Debt
has been made or duly provided for), and (C) no other event of default
with respect to any Senior Debt shall have occurred and be continuing
permitting (after notice or lapse of time or both) the holders of such
Senior Debt (or a trustee on behalf of such holders) to declare
11
<PAGE>
such Senior Debt due and payable prior to the date on which it would
otherwise have become due and payable.
(10) The Company shall have delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent with respect to such Defeasance or Covenant Defeasance have
been complied with.
Section 1305. Deposited Money and U.S. Government Obligations to Be Held in
Trust; Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 1003, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee (solely for purposes
of this Section and Section 1306, the Trustee and any such other trustee are
referred to collectively as the "Trustee") pursuant to Section 1304 in
respect of any Securities shall be held in trust and applied by the Trustee,
in accordance with the provisions of such Securities and this Indenture, to
the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the
Holders of such Securities, of all sums due and to become due thereon in
respect of principal and any premium and interest, but money so held in trust
need not be segregated from other funds except to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 1304 or the principal and 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 Outstanding Securities.
Anything in this Article to the contrary notwithstanding, the Trustee
shall deliver or pay to the Company from time to time upon Company Request
any money or U.S. Government Obligations held by it as provided in Section
1304 with respect to any Securities 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 the Defeasance
or Covenant Defeasance, as the case may be, with respect to such Securities.
12
<PAGE>
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 1302 or 1303 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
permitted to apply all money held in trust pursuant to Section 1305 with
respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust."
9. All provisions of this Third Supplemental Indenture shall be deemed to be
incorporated in, and made a part of the Indenture; and the Indenture, as
supplemented by this Third Supplemental Indenture, shall be read, taken and
construed as one and the same instrument.
10. The Trustee accepts the trusts created by the Indenture, as supplemented
by this Third Supplemental Indenture, and agrees to perform the same upon the
terms and conditions in the Indenture, as supplemented by this Third
Supplemental Indenture.
11. The recitals contained in the Indenture and the Securities, except the
Trustee's certificate of authentication, shall be taken as statements of the
Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of the
Indenture or the Securities.
12. All amendments to the Indenture made hereby shall have effect only with
respect to the Securities of any series created on or after the date hereof, and
not with respect to the Securities of any series created prior to the date
hereof.
13. All capitalized terms used and not defined herein shall have the
respective meanings assigned to them in the Indenture.
13
<PAGE>
14. This Third Supplemental Indenture may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
14
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Third
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested, all as of the date first above written.
PPG Industries, Inc.
/s/ W. H. Hernandez
By:__________________________
Name: W. H. Hernandez
Title: Senior Vice President, Finance
[CORPORATE SEAL]
Attest:
/s/ M. C. Hanzel
___________________________
Name: M. C. Hanzel
Title: Assistant Secretary
Harris Trust and Savings Bank
/s/ J. Bartolini
By:___________________________
Name: J. Bartolini
Title: Vice President
[CORPORATE SEAL]
Attest:
/s/ C. Potter
___________________________
Name: C. Potter
Title: Assistant Secretary
15
<PAGE>
State of Pennsylvania )
) ss.:
County of Allegheny )
On the 8th day of November, 1995, before me personally came W. H.
Hernandez, to me known, who, being by me duly sworn, did depose and say that he
is Senior Vice President, Finance of PPG Industries, Inc., one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate 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.
/s/ Susan A. Allan
...............................................
Susan A. Allan
Notary Seal
State of Illinois )
) ss.:
County of Cook )
On the 8th day of November, 1995, before me personally came J. Bartolini,
to me known, who, being by me duly sworn, did depose and say that XX XX she is
Vice President of Harris Trust and Savings Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
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.
/s/ Maryanne Cody
...............................................
Maryanne Cody
Notary Seal
16
<PAGE>
<TABLE>
<CAPTION>
Exhibit 12
PPG Industries, Inc. and Consolidated Subsidiaries
Computation of Ratio of Earnings to Fixed Charges*
(Dollars In Millions)
Year Ended December 31
---------------------------------------- Nine Months
Ended
1990 1991 1992 1993 1994 Sept 30, 1995
---- ---- ---- ---- ---- -------------
<S> <C> <C> <C> <C> <C> <C>
Earnings:
Earnings before income taxes $766.9 $348.1 $537.8 $531.2 $839.8 $984.8
Plus:
Fixed charges exclusive of capitalized interest 169.7 177.4 167.2 127.6 108.2 81.5
Amortization of capitalized interest 8.8 9.8 10.8 11.1 11.6 8.8
Adjustments for equity affiliates (0.4) 0.9 (1.6) (0.7) (2.4) (2.9)
---------------------------------------------------
Total $945.0 $536.2 $714.2 $669.2 $957.2 $1,072.2
===================================================
Fixed Charges:
Interest expense including amortization of
debt discount/premium $150.6 $157.9 $147.4 $107.5 $88.2 $66.5
Rentals - portion representative of interest 19.1 19.5 19.8 20.1 20.0 15.0
---------------------------------------------------
Fixed charges exclusive of capitalized interest 169.7 177.4 167.2 127.6 108.2 81.5
Capitalized interest 17.2 15.3 7.4 6.0 5.3 6.3
---------------------------------------------------
Total $186.9 $192.7 $174.6 $133.6 $113.5 $87.8
===================================================
Ratio of earnings to fixed charges 5.06 2.78 4.09 5.01 8.43 12.21
===================================================
*Earnings used to compute this ratio are consolidated earnings before income taxes plus fixed charges
exclusive of capitalized interest and less undistributed income of unconsolidated affiliates carried on the
equity basis. Earnings for the periods indicated were affected by (income) charges from business
divestitures and realignments as follows, in millions $(0.3), $84.3, $10.4, $126.4, $85.0 and $0.0
respectively for the years ended December 31, 1990, 1991, 1992, 1993, 1994 and the nine months ended
September 30, 1995. "Fixed Charges" consist of interest, whether expensed or capitalized (including
amortization of debt discount), and that portion of rentals which is representative of interest.
</TABLE>
<PAGE>
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) ______
HARRIS TRUST AND SAVINGS BANK
(Name of Trustee)
Illinois 36-1194448
(State of Incorporation) (I.R.S. Employer Identification No.)
111 West Monroe Street, Chicago, Illinois 60603
(Address of principal executive offices)
Judith Bartolini, Harris Trust and Savings Bank,
311 West Monroe Street, Chicago, Illinois, 60606
312-461-2527 phone 312-461-3525 facsimile
(Name, address and telephone number for agent for service)
PPG Industries, Inc.
(Name of obligor)
Pennsylvania 25-0730780
(State of Incorporation) (I.R.S. Employer Identification No.)
One PPG Place
Pittsburgh, Pennsylvania 15272
(Address of principal executive offices)
Debt Securities
(Title of indenture securities)
<PAGE>
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.
Commissioner of Banks and Trust Companies, State of Illinois,
Springfield, Illinois; Chicago Clearing House Association, 164 West
Jackson Boulevard, Chicago, Illinois; 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.
Harris Trust and Savings Bank is authorized to exercise corporate
trust powers.
2. AFFILIATIONS WITH OBLIGOR. If the Obligor is an affiliate of the Trustee,
describe each such affiliation.
The Obligor is not an affiliate of the Trustee.
3. thru 15.
NO RESPONSE NECESSARY
16. LIST OF EXHIBITS.
1. A copy of the articles of association of the Trustee is now in effect
which includes the authority of the trustee to commence business and to
exercise corporate trust powers.
A copy of the Certificate of Merger dated April 1, 1972 between Harris
Trust and Savings Bank, HTS Bank and Harris Bankcorp, Inc. which
constitutes the articles of association of the Trustee as now in effect
and includes the authority of the Trustee to commence business and to
exercise corporate trust powers was filed in connection with the
Registration Statement of Louisville Gas and Electric Company, File No.
2-44295, and is incorporated herein by reference.
2. A copy of the existing by-laws of the Trustee.
A copy of the existing by-laws of the Trustee was filed in connection
with the Registration Statement of C-Cube Microsystems Inc., File
No. 33-97166, and is incorporated herein by reference.
3. The consents of the Trustee required by Section 321(b) of the Act.
(included as Exhibit A on page 2 of this statement)
4. A copy of the latest report of condition of the Trustee published
pursuant to law or the requirements of its supervising or examining
authority.
(included as Exhibit B on page 3 of this statement)
1
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the Trustee,
HARRIS TRUST AND SAVINGS BANK, a corporation organized and existing under the
laws of the State of Illinois, 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 31st day of October, 1995.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
--------------------------
J. Bartolini
Vice President
EXHIBIT A
The consents of the trustee required by Section 321(b) of the Act.
Harris Trust and Savings Bank, as the Trustee herein named, hereby consents that
reports of examinations of said trustee by Federal and State authorities may be
furnished by such authorities to the Securities and Exchange Commission upon
request therefor.
HARRIS TRUST AND SAVINGS BANK
By: /s/ J. Bartolini
--------------------------
J. Bartolini
Vice President
2
<PAGE>
EXHIBIT B
Attached is a true and correct copy of the statement of condition of Harris
Trust and Savings Bank as of June 30, 1995, as published in accordance with a
call made by the State Banking Authority and by the Federal Reserve Bank of the
Seventh Reserve District.
[LOGO OF HARRIS BANK]
Harris Trust and Savings Bank
111 West Monroe Street
Chicago, Illinois 60603
of Chicago, Illinois, And Foreign and Domestic Subsidiaries, at the close of
business on June 30, 1995, a state banking institution organized and operating
under the banking laws of this State and a member of the Federal Reserve System.
Published in accordance with a call made by the Commissioner of Banks and Trust
Companies of the State of Illinois and by the Federal Reserve Bank of this
District.
Bank's Transit Number 71000288
<TABLE>
<CAPTION>
THOUSANDS
ASSETS OF DOLLARS
<S> <C> <C>
Cash and balances due from depository
institutions:
Non-interest bearing balances $975,130
and currency and coin.............
Interest bearing balances.......... $619,550
Securities:..................................
a. Held-to-maturity securities $654,606
b. Available-for-sale securities $1,597,462
Federal funds sold and securities
purchased under agreements to resell in
domestic offices of the bank
and of its Edge and Agreement
subsidiaries, and in IBF's:
Federal funds sold................. $272,684
Securities purchased under $0
agreements to resell..............
Loans and lease financing receivables:
Loans and leases, net of $7,184,420
unearned income...................
LESS: Allowance for loan and $91,061
lease losses......................
-------------
Loans and leases, net of
unearned income, allowance, $7,093,359
and reserve
(item 4.a minus 4.b)...............
Assets held in trading accounts.............. $335,699
Premises and fixed assets (including $139,368
capitalized leases).........................
Other real estate owned...................... $1,018
Investments in unconsolidated $195
subsidiaries and associated companies.......
Customer's liability to this bank on $120,891
acceptances outstanding.....................
Intangible assets............................ $21,763
Other assets................................. $246,739
-------------
TOTAL ASSETS $12,078,464
=============
</TABLE>
3
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits:
In domestic offices........................ $4,184,673
Non-interest bearing................... $2,391,354
Interest bearing....................... $1,793,319
In foreign offices, Edge and
Agreement subsidiaries, and IBF's......... $2,559,227
Non-interest bearing................... $33,115
Interest bearing....................... $2,526,112
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 IBF's:
Federal funds purchased.................... $1,361,248
Securities sold under agreements to
repurchase................................ $1,496,277
Trading Liabilities $264,633
Other borrowed money:........................
a. With original maturity of one year
or less $883,157
b. With original maturity of more than
one year $13,390
Bank's liability on acceptances
executed and outstanding $120,891
Subordinated notes and debentures............ $235,000
Other liabilities............................ $178,632
-------------
TOTAL LIABILITIES $11,297,128
=============
EQUITY CAPITAL
Common stock................................. $100,000
Surplus...................................... $275,000
a. Undivided profits and capital
reserves................................ $409,797
b. Net unrealized holding gains
(losses) on available-for-sale
securities ($3,461)
-------------
TOTAL EQUITY CAPITAL $781,336
=============
Total liabilities, limited-life
preferred stock, and equity capital......... $12,078,464
=============
</TABLE>
I, Steve Neudecker, Vice President of the above-named bank, do hereby declare
that this Report of Condition has been prepared in conformance with the
instructions issued by the Board of Governors of the Federal Reserve System and
is true to the best of my knowledge and belief.
STEVE NEUDECKER
7/28/95
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us and, to the best of our
knowledge and belief, has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and the
Commissioner of Banks and Trust Companies of the State of Illinois and is true
and correct.
ALAN G. McNALLY,
DONALD S. HUNT,
JAMES J. GLASSER,
Directors.
4
