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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM 10-K
(MARK ONE)
/X/ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE FISCAL YEAR ENDED MARCH 29, 1998
OR
/ / TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM ________________ TO ________________
COMMISSION FILE NO. 1-10348
--------------------------
PRECISION CASTPARTS CORP.
(Exact name of registrant as specified in its charter)
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<S> <C>
OREGON 93-0460598
(State or other jurisdiction (I.R.S. Employer
of Identification No.)
incorporation or organization)
4650 S.W. MACADAM AVE.,
SUITE 440 PORTLAND, OR 97201 97201-4254
(Address of principal (Zip Code)
executive offices)
</TABLE>
Registrant's telephone number, including area code: (503) 417-4800
--------------------------
Securities Registered Pursuant to Section 12(b) of the Act:
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<S> <C>
Name of Each Exchange
Title of Each Class on Which Registered
COMMON STOCK, NEW YORK STOCK EXCHANGE
WITHOUT PAR VALUE
</TABLE>
Securities Registered Pursuant to Section 12(g) of the Act:
NONE
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months, (or for such shorter period that the
Registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes /X/ No / /
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. / /
The aggregate market value of voting stock held by non-affiliates of the
registrant as of June 19, 1998 was $1,307,020,094.
As of the close of business on June 19, 1998, Registrant had 24,344,961
shares of Common Stock, without par value, outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Exhibit 13, the "Financial Section of the 1998 Annual Report to Shareholders
of Precision Castparts Corp." for the year ended March 29, 1998 is incorporated
by reference in Parts II and IV and appended hereto.
Portions of the Registrant's Proxy Statement dated June 26, 1998 in
connection with the 1998 Annual Meeting of Shareholders are incorporated by
reference in Part III.
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<PAGE>
FORM 10-K
ANNUAL REPORT
TABLE OF CONTENTS
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PAGE
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PART I
Item 1. BUSINESS..................................................................................... 1
Products and Markets......................................................................... 1
Sales and Distribution....................................................................... 8
Backlog...................................................................................... 9
Competition.................................................................................. 9
Research and Development..................................................................... 10
Employees.................................................................................... 10
Patents and Trade Secrets.................................................................... 10
Materials and Supplies....................................................................... 10
Government Regulations....................................................................... 11
International Operations..................................................................... 11
Environmental Compliance..................................................................... 11
Forward Looking Statements................................................................... 12
Item 2. PROPERTIES................................................................................... 13
Item 3. LEGAL PROCEEDINGS............................................................................ 13
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.......................................... 13
Executive Officers of the Registrant......................................................... 14
PART II
Item 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS........................ 15
Item 6. SELECTED FINANCIAL DATA...................................................................... 15
Item 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS........ 15
Item 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.................................................. 15
PART III
Item 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT........................................... 16
Item 11. EXECUTIVE COMPENSATION....................................................................... 16
Item 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT............................... 16
Item 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS............................................... 16
PART IV
Item 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K.............................. 17
Signatures................................................................................... 19
Financial Statement Schedule................................................................. 20
Report of Independent Accountants............................................................ 21
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PART I
ITEM 1. BUSINESS
Precision Castparts Corp. ("PCC" or the "Company") is a worldwide
manufacturer of complex metal components and products. The Company is the market
leader in manufacturing large, complex structural investment castings and is the
leading manufacturer of airfoil castings used in jet aircraft engines. In
addition, the Company has expanded into the industrial gas turbine, fluid
management, industrial metalworking tools and machines and other metal products
markets.
PRODUCTS AND MARKETS
The Company's manufacturing of complex metal components and products
includes operations in four principal business areas: precision investment
castings, fluid management products, industrial metalworking tools and machines,
and other metal products.
PRECISION INVESTMENT CASTINGS
The Company is the market leader in manufacturing large, complex structural
investment castings and is the leading manufacturer of airfoil castings used in
jet aircraft engines. The Company manufactures investment castings for every
available jet aircraft engine program in production or under development by its
key customers. The Company is leveraging its experience and expertise in large,
complex structural and airfoil investment castings to manufacture castings for
Industrial Gas Turbine ("IGT") engines used for power generation. In addition,
the Company makes investment castings for use in the automotive, medical
prostheses, satellite launch vehicle and general industrial markets and is
expanding into the airframe and rocket markets.
Because of the complexity of the manufacturing process and the application
of proprietary technologies, the Company believes it currently is the only
manufacturer that can consistently produce the largest complex structural
investment castings in quantities sufficient to meet its customers' quality and
delivery requirements. The Company's emphasis on low cost, high quality products
and timeliness of delivery has enabled it to become one of the leading suppliers
of structural and airfoil castings for jet aircraft engines and to increase its
market share of IGT castings. Investment castings accounted for approximately 62
percent of the Company's net sales in fiscal 1998, with a majority of these
products sold to the aerospace market.
The Company's investment casting technology involves a technical, multi-step
process that uses ceramic molds in the manufacture of metal components with more
complex shapes, closer tolerances and finer surface finishes than parts
manufactured using other casting methods. The investment casting process
involves the creation of a wax pattern of the part to be cast, along with
pathways through which molten metal flows into the ceramic mold; formation of a
ceramic shell around the wax pattern followed by removal of the wax from the
ceramic shell by melting and draining the wax; pouring of molten metal into the
ceramic shell; shell removal; and final processing and inspection.
Trends in the commercial aerospace market are a critical determinant of
demand for the Company's precision investment casting products. Beginning in
1995, demand for investment castings strengthened, primarily due to increased
demand from the commercial aerospace industry, which had been in a cyclical
downturn since 1991. The Company believes the principal causes of the recent
increase in new aircraft orders include increased demand for air travel, the
recent profitability of U.S. commercial airlines, which is being driven by
increased load factors, and government Stage III noise regulations that require
airlines to modernize their fleets. Airlines are responding to these regulations
by retrofitting existing aircraft or purchasing new aircraft.
Large jet aircraft engines are manufactured by a small number of suppliers,
including General Electric ("GE"), Pratt & Whitney, Rolls-Royce ("R-R"), and
several joint ventures. As a result, the Company
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believes a high level of customer service and strong long-term customer
relationships will continue to be important to achieving its goals. The Company
has been supplying castings for jet engines to GE for more than 25 years and has
been supplying Pratt & Whitney with castings for more than 20 years for its
military jet engines and more than 15 years for its commercial jet engines. In
addition, the Company has supplied small structural investment castings to R-R
for more than 10 years and has more recently begun supplying R-R with large,
structural castings for use in its new Trent series of aircraft jet engines. As
the Company has been able to cast larger and more complex parts, manufacturers
of large jet aircraft engines have made increasing use of the Company's
structural castings.
The following table identifies major jet aircraft engines currently in
production that incorporate investment castings produced by the Company.
<TABLE>
<CAPTION>
PRATT &
GE WHITNEY R-R JOINT VENTURES
<S> <C> <C> <C> <C>
Boeing
717 BR715(1)
737-300/400/500 CFM56-3(2)
737-NG CFM56-7(2)
747-400 CF6-80C2 PW4000 RB211-524
757 PW2037 RB211-535
767-300/300ER CF6-80C2 PW4000 RB211-524
Trent 800,
777 GE90 PW4084, 4090, 8104
4098
C-17 F117
F-15 F100
Airbus Industrie
A300-600 CF6-80C2 PW4000
A310-300 CF6-80C2 PW4000
A319/A320/A321 CFM56-5A/B(2)
V2500(3)
A330 CF6-80E1 PW4000 Trent 700
A340-200/300 CFM56-5C(2)
A340-500/600 Trent 500
Lockheed Martin
F-16 F110 F100
F-22 F119
Northrop Grumman
F/A-18 A/B F404
F/A-18 E/F F414
</TABLE>
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(1) Represents engines produced by BMW Roll-Royce AeroEngines, a joint venture
of BMW and R-R.
(2) Represents engines of CFM International ("CFMI"), a joint venture of GE and
Snecma, a major French aerospace company. CFMI has used the Company's
castings in its CFM56 jet engines for more than 20 years.
(3) Represents engines produced by International Aero Engines ("IAE"), a joint
venture of Pratt & Whitney, R-R, Motoren-und Turbinen-Union, Fiat Avio and
Japanese Aero Engine Corporation.
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AEROSPACE STRUCTURAL CASTINGS
The Company's structural castings business includes the largest diameter
stainless steel, nickel-based superalloys and titanium investment castings in
the world, as well as a variety of smaller structural castings. These castings
are stationary components that form portions of the fan, compressor, combustion
and turbine sections of the jet aircraft engine, where strength and structural
integrity are critical. Structural investment castings are sold primarily as
original equipment to jet aircraft engine manufacturers.
The Company believes that trends in the manufacturing of aircraft jet
engines will continue to increase PCC's revenues per engine. As the design of
new generation aircraft engines has emphasized increased thrust, higher fuel
efficiency and reduction of noise and exhaust emissions, engine operating
temperatures and pressures have increased. These conditions require the use of
engine parts made of alloys that are able to withstand these extreme operating
conditions and provide an optimum strength-to-weight ratio. Many of these alloys
are particularly suited to investment casting. In addition, titanium, a metal
with a lower melting temperature than stainless steel or superalloys, is used in
all but the hottest parts of the engine because of the considerable weight
savings. Titanium is an exceptionally difficult metal to cast because of its
reactivity to other elements. The Company, however, has developed the necessary
technology and manufacturing processes to cast large, complex investment
castings in titanium alloys. Many of these new generation engines, which are
expected to be built through the next decade and beyond, make significantly
greater use of the Company's products than did prior engine designs. The Company
manufactures structural investment castings for all three jet aircraft engines
used on the newer Boeing 777 aircraft, and is the sole supplier of structural
investment castings for the new GE90 jet engine. PCC also manufactures, for the
new R-R Trent series of engines, the intermediate case and the tail bearing
housing. These are the largest structural investment castings for jet aircraft
engines in the world.
AEROSPACE AIRFOIL CASTINGS
The Company manufactures precision cast airfoils, which include the
stationary vanes and rotating blades used in the turbine section of aircraft jet
engines. This engine section is considered the "hot" section, where temperatures
may exceed 2,400 degrees Fahrenheit. These conditions require use of superalloys
and special casting techniques to manufacture airfoil castings with internal
cooling passageways that provide both high performance and longer engine life.
The Company uses various casting technologies to produce its turbine
airfoils. Conventional casting processes are employed to produce equiaxed
airfoil castings, in which the metal grains are oriented randomly throughout the
casting. A more advanced process enables the Company to produce directionally
solidified ("DS") airfoil castings, in which the metal grains are aligned
longitudinally. This alignment decreases the internal stress on the weakest
portion of a metal part where the various grains adjoin, thereby providing
increased strength and improved efficiencies in engine performance over equiaxed
parts. An even more advanced process enables the Company to produce single
crystal ("SX") airfoil castings, which consist of one large superalloy crystal
without grain boundaries. SX castings provide greater strength and performance
characteristics than either equiaxed or DS castings, as well as longer engine
life.
As engine sizes grow to generate greater thrust for larger aircraft, and the
turbine sections of these engines must work harder and burn hotter, the major
aircraft engine manufacturers have increasingly been designing their engines
with DS and SX blades. The DS and SX cast airfoils, with their complex cooling
passages, have been instrumental in enabling these engines to operate at gas
temperatures frequently in excess of 2,400 degrees Fahrenheit. SX cast airfoils
are used both in new and redesigned engines, particularly in jet engines used in
military applications where performance requirements are higher and blade life
is shorter than in commercial engines.
The demand for aerospace airfoil castings is determined primarily by the
number and type of engines required for new jet aircraft, the frequency of
engine repairs and the inventory levels of replacement parts maintained by the
principal jet aircraft engine manufacturers and repair centers. A jet engine's
airfoil
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components have shorter useful lives than structural investment castings and are
replaced periodically during engine maintenance. As a result, the Company's
sales of aerospace airfoil castings are less affected by the cyclical patterns
of the aerospace industry than are the Company's sales of structural investment
castings. The replacement market for aerospace airfoil castings principally
depends on the engine's time in service and the expected life of the airfoil
casting. Based upon estimates provided by its major customers, the Company
believes that approximately 50 percent of its sales of cast airfoils are used as
replacement parts.
INDUSTRIAL GAS TURBINES
In fiscal 1994, the Company began to focus on the manufacture of airfoil
castings for industrial gas turbine engines. The Company targeted this market
because it believes (i) the performance and reliability standards PCC has
developed in the manufacture of aerospace airfoil castings are applicable to the
manufacture of IGT airfoils, (ii) the worldwide market is large, approximately
$500 million, and (iii) the market was principally serviced by a single
supplier. The Company's IGT products consist of airfoil castings used in large,
land-based gas turbines designed for electrical power generation. In addition,
the Company manufactures structural and airfoil castings for aircraft-derivative
gas turbine engines which are used for power generation as well as other land
and marine-based applications. Sales of aircraft-derivative gas turbine products
are reported in the general industrial and energy market area and are not
combined with IGT product sales. See Sales and Distribution section of this
report.
IGT manufacturers have significantly improved the efficiency and reduced the
pollution profiles of industrial gas turbines, principally by incorporating
component-level advances which are included not only in new engines but also in
the refurbishing and upgrading of existing turbines. PCC has leveraged its DS
and SX airfoil casting knowledge from the aerospace market into the IGT market
to produce IGT airfoil blades and vanes better able to withstand the extreme
heat and stresses of the new higher-temperature gas turbines. IGT engines are
built with investment castings that are similar, but generally larger, than
blades and vanes manufactured by the Company for the aerospace market. Because
of their size, IGT airfoils are more difficult to cast than smaller aerospace
airfoils with the same properties.
Since industrial gas turbines are primarily used in electrical power
generation, airfoil casting sales for new industrial gas turbine engines are
tied to the growth of global electricity consumption, while demand for
replacement parts depends on the size and usage rate of the installed base. Gas
turbine power generation has several advantages over other power-generation
methods, such as coal and nuclear-powered facilities, including lower average
capital cost, shorter installation and regulatory approval time, ease of adding
a new industrial gas turbine engine to an existing power plant to increase
output and the clean-burning characteristics of natural gas. The Company
believes these advantages have led to increased demand for gas turbine engines.
OTHER INVESTMENT CASTING PRODUCTS
The Company's strategy for profitable growth also includes the pursuit of
new opportunities for the Company's existing investment casting technology. The
Company has been expanding the application of its investment casting technology
in the automotive, medical prostheses, satellite and general industrial markets
by manufacturing such products as turbocharger wheels, artificial hips and
knees, parts for satellite launch vehicles and impellers for pumps and
compressors. The Company is also expanding into other new markets, such as
airframes and rockets. Recent engineering studies have demonstrated that, in
certain applications, airframe components manufactured from investment castings
surpass aircraft design requirements and have mechanical properties that are
equivalent to forgings. Since castings are traditionally lower cost than
forgings, aircraft manufacturers have begun to show substantial interest in
using investment castings for airframe applications such as aileron and flap
hinges, pylons and wing spurs and ribs. For the rockets market, the Company has
its unique Thermally Controlled Solidification technology. This technology
provides consistent casting capability for thin-walled and cylindrical parts.
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FLUID MANAGEMENT PRODUCTS
The Company designs, manufactures, markets and services a broad range of
high quality, precision industrial fluid management products, including fluid
handling industrial valves, industrial pumps and fluid measuring instruments.
The Company's finished fluid management products are manufactured primarily from
castings, forging and fabricated steel parts. These products are sold worldwide
to a wide range of end-user markets under well-established brand names,
including: General Valve, NEWCO, TECHNO, Barber, Baronshire, TBV and OIC valves,
Johnston, PACO, E/ONE and Crown pumps, and Water Specialties and Penberthy
measuring instruments.
The Company entered the fluid management market in July 1996 with the
acquisition of NEWFLO, Inc. (now called PCC Flow Technologies, Inc.). Recent
acquisitions, including Crown Pumps, OIC Valves and Baronshire Engineering
Limited, have enabled PCC Flow Technologies to further expand its product lines
and markets. Subsequent to the end of fiscal 1998, the Company continued to
expand its fluid management products and markets by acquiring Environment/One
Corporation and TBV.
The manufacturing process for fluid management products requires knowledge
of multiple metalforming and processing technologies, including casting,
machining, welding, heat treating, assembly and processing of metal components.
Testing procedures, material management and traceability, and quality control
are also important aspects of the Company's operations. Fluid management
products accounted for approximately 20 percent of the Company's net sales in
fiscal 1998 and were sold primarily to the general industrial and energy
markets.
The Company uses its substantial knowledge of international fluid management
technologies, complex metal component manufacturing and its end-user markets to
develop engineered valves, pumps and instruments that the Company believes
provide customer benefits superior to those of other manufacturers. Many of the
products offered by the Company are customized to end-user requirements or
designed for specialized applications. The Company's maintenance, repair and
service centers, extensive distribution network and inventory of products enable
it to provide responsive service and timely deliveries to customers, thereby
enhancing the marketability of the Company's products. The Company believes its
brand names, quality products and responsive service network also lead to repeat
orders, stable demand and customer loyalty.
VALVES
The Company manufactures and markets specialty industrial and general
purpose valves, fittings and flanges, principally for the chemical, refining,
energy, pulp and paper and marine markets. The Company's valve products consist
primarily of multi-turn industrial valves, check valves, quarter turn industrial
ball and plug valves, double block and bleed dual expanding plug valves,
four-way diverter valves and valve operators, stainless steel butterfly valves
and corrosion-resistant titanium ball valves. Many of the Company's valves are
manufactured under contract by ISO 9001-qualified overseas suppliers to precise
industry and end-user standards and specifications. The valve designs are
developed and modified by the Company's engineering staff for particular
applications as determined by market conditions and end-user specification. The
Company markets its valve products under several brand names, including General
Valve, NEWCO, TECHNO, Barber, Baronshire, TBV and OIC. The Company believes its
General Valve positive shut-off, double block and bleed valve and its
Technocheck hinged check valves are among the most technologically advanced
products sold in the fluid control market.
PUMPS
The Company manufactures and markets a complete line of general purpose and
specialty pumps for power, cogeneration, geothermal, municipal, residential and
industrial (including petroleum, chemical, mining, marine and pulp and paper)
applications. The Company also supplies repair parts and service for pumps. The
Company's pump products consist primarily of single and double suction
centrifugal pumps,
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submersible and non-clog pumps, booster pump systems, vertical turbine, mixed
flow and axial flow pumps and grinder pumps. The Company is one of the few pump
manufacturers that produces large vertical pumps over 36 inches in diameter. The
capacities of certain of the Company's pumps extend up to heads of 3,400 feet
and flows up to 230,000 gallons per minute. The Company markets its pump
products under several brand names, including Johnston, PACO, Crown and E/ONE
pumps. The Company believes its Johnston vertical turbine pumps, its PACO
booster systems and "Smart Pumps" and its E/One low pressure sewer systems are
among the leading products sold in the fluid handling market.
INSTRUMENTS
The Company manufactures, markets and distributes propeller meters and fluid
measurement equipment for the municipal, irrigation and industrial markets. The
Company manufactures five types of propeller meters (main line, low pressure,
open flow, vertical flow and high pressure) and three general types of
measurement devices that are used to read, record and transmit data generated by
the meters. The Company's meters and fluid measurement devices are designed to
handle a wide range of fluids, such as fresh or salt water, treated waste water,
diesel and jet fuel, bore hole slurry, light oils, food processing fluids and
slurries, and other liquid and chemical applications. Meters are sold in 44
different models varying in size from 1.5 inches to 120 inches, in service
pressures up to 3,000 pounds per square inch, in flow rates from 4 to 300,000
gallons per minute and in operating temperature ranges from 35 to 350 degrees
Fahrenheit. The Company markets its fluid measurement products under several
brand names, including Water Specialties and Penberthy. The Company believes its
Water Specialties line of propeller meters is one of the leading lines of
propeller meters in the U.S., primarily due to its superior product design and
manufacturing.
SERVICES
The Company maintains a number of service and repair facilities as well as
stocking warehouses in the U.S. and Canada which provide aftermarket
maintenance, repair, pre-sale modification services and inventory availability
for the Company's large installed base of fluid management products, as well as
repair and replacement of fluid management products of other manufacturers. The
market for replacement units, repair parts and repair services generally offers
the Company higher margins and is less dependent on industry economic conditions
than the market for equipment for new industrial facilities.
INDUSTRIAL METALWORKING TOOLS AND MACHINES
The Company maintains the number one or two position in its served markets
for industrial metalworking tools and has leading market positions in the
manufacture of metalworking machines for general industrial markets. The Company
entered these markets in March 1995 with the acquisition of Quamco, Inc. (now
called PCC Specialty Products, Inc.). The Company has since increased its
presence in the industrial metalworking tools and machines markets with three
additional acquisitions since 1995. The acquisitions of Olofsson and Astro
Punch, both acquired in fiscal 1997, and PCC Pittler, acquired in fiscal 1998,
complemented the Company's capabilities as a leading manufacturer of highly
engineered industrial metalworking tools and machines.
The Company's industrial metalworking tools and machines include machine
systems used for boring and turning processes primarily in the automotive and
general industrial markets, cold forming dies and related machines primarily
used in the fastener industry, and other metalworking tools and machines used by
industrial manufacturers. The Company believes it has been able to maintain its
leading market positions due to the quality of its products, the continued
development of new technologies to enable the high-speed manufacture of high
quality fasteners, brand name recognition and excellent customer service.
Industrial metalworking tools and machines accounted for approximately 10
percent of the Company's net sales in fiscal 1998 and were sold primarily to the
automotive and general industrial markets.
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METALWORKING TOOLS
The Company designs, manufactures and distributes a wide variety of
precision metalworking tools to industrial companies that serve the automotive,
appliance, construction, farm equipment, medical and aerospace industries. The
Company's industrial metalworking tools consist primarily of heading, threading
and gundrilling tools. The Company markets its heading and threading tools,
which are used to form a variety of fasteners and threaded parts, under the
Reed-Rico and Astro Punch brand names. The Company's gundrilling tools, which
are distributed under the Eldorado brand name, are used to drill precision holes
to very close tolerances in such products as turbine engines, engine blocks,
cylinder heads, transmission shafts, connecting rods and medical prostheses.
METALWORKING MACHINES
The Company designs, manufactures and distributes several types of
metalworking machines primarily for the automotive industry. The Company's
industrial metalworking machines include threading machines and attachments,
gundrilling machines and computer-controlled specialized machine systems for
boring and turning applications. The Company markets its threading machines and
attachments, which are used to form a variety of threaded parts and fasteners,
under the Reed-Rico and Hartford brand names. The Company's gundrilling
machines, like its gundrilling tools, are distributed under the Eldorado brand
name. The Company's specialized machine systems for boring and turning processes
are sold under the Olofsson and Pittler brand names.
OTHER METAL PRODUCTS
The Company is the largest producer of powdered metal parts manufactured by
metal-injection-molding ("MIM"), and is a leading manufacturer of specialty
powdered metal gears and tungsten carbide cutting tools and wear parts. In
addition, the Company manufactures advanced technology, lightweight, net-shape
metal-matrix-composite parts that are made by combining aluminum and silicon
carbide ("AlSiC," a registered trademark of the Company) using a patented
pressure-infiltration-casting-process. The Company believes these businesses
have the potential for rapid growth and complement the Company's core
competencies in metals, precision metalworking and the management of complex
manufacturing processes. In fiscal 1998, the Company acquired J&L Fiber
Services, Inc., a manufacturer of metal refiner plates and screen cylinders for
the pulp and paper industry. Other metal products accounted for approximately 8
percent of the Company's net sales in fiscal 1998 and were sold primarily to the
general industrial and automotive markets.
The MIM process is particularly well-suited to high volume production of
small, complicated metal parts for numerous industries, including computer
peripherals, medical, electronics, automotive, power tools and firearms. In
addition, the Company manufactures powdered metal gears and tungsten carbide
cutting tools and wear parts for various industrial markets using a press and
sinter process. The Company also manufactures advanced technology, lightweight,
net shape metal-matrix-composite parts using a
pressure-infiltration-casting-process. Metal-matrix-composite parts, which have
high thermal conductivity and tightly controlled thermal expansion
characteristics are used in electronic applications that require heat
dissipation, such as automotive, telecommunication, aerospace and computer
products. The Company believes the broad range of products and highest standards
of craftsmanship offer growth opportunities in numerous industry applications.
The Company is also the world leader in the design, manufacture and sale of
refiner plates to the pulp and paper production markets under the J&L Fiber
Services brand name. Refiner plates, which are highly engineered metal castings,
are an integral part of the wood pulping process. Refiner plates not only
transport pulp through the system, but also perform critical work on the pulp
that affects the ultimate quality of the paper produced. In addition, the
Company manufactures conventional and rebuildable
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screen cylinders which are metal filtering devices inside pressure vessels that
separate the usable wood fiber from undesirable elements in the pulp slurry mix.
SALES AND DISTRIBUTION
The Company sells its complex metal components and products into five major
market areas: aerospace, general industrial and energy, industrial gas turbines,
automotive, and other markets which include applications for markets such as
medical, firearms and ordnance. The relative size of sales to these markets is
shown below for fiscal years 1998, 1997 and 1996.
FISCAL 1998
Net Sales $1,316.7 million
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
<TABLE>
<CAPTION>
53%
<S> <C>
30%
5%
7%
5%
</TABLE>
53% Aerospace
30% General Industrial and Energy
5% Industrial Gas Turbine
7% Automotive
5% Other
FISCAL 1997
Net Sales $972.8 million
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
<TABLE>
<CAPTION>
53%
<S> <C>
28%
7%
7%
5%
</TABLE>
53% Aerospace
28% General Industrial and Energy
7% Industrial Gas Turbine
7% Automotive
5% Other
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FISCAL 1996
Net Sales $556.8 million
EDGAR REPRESENTATION OF DATA POINTS USED IN PRINTED GRAPHIC
<TABLE>
<CAPTION>
68%
<S> <C>
16%
4%
6%
6%
</TABLE>
68% Aerospace
16% General Industrial and Energy
4% Industrial Gas Turbine
6% Automotive
6% Other
The Company's sales to the aerospace market of $693.8 million in fiscal 1998
increased 34 percent from $517.3 million in fiscal 1997. Sales to the aerospace
market as a percentage of total net sales remained constant at 53 percent in
fiscal 1998 and fiscal 1997, reflecting the Company's leading market position
and the overall strength of the commercial aerospace sector. The Company
believes its diversification into IGT, general industrial, energy and automotive
markets will help mitigate the adverse impact of potential downturns in the
aerospace cycle.
The Company's sales of investment castings are made through a relatively
small number of direct sales personnel located in each business operation and
through field sales representatives located at U.S. and international locations
near the Company's major customers. Industrial metalworking tools, industrial
metalworking machines and other metal products are sold by both the Company's
sales forces and sales representatives in the U.S., Europe, Asia and Latin
America. The Company's fluid management products and services are also sold by a
direct sales and marketing staff and through a worldwide network of independent
sales representatives and distributors. Due to the sophisticated nature of the
Company's products, the Company's sales efforts require technical personnel to
work closely with customers to identify and assist in the development of new
products and product modifications and to provide other services that are
necessary to obtain new and repeat orders.
BACKLOG
The backlog of unfilled orders believed to be firm at the end of each of the
Company's last three fiscal years was $795.8 million as of March 29, 1998,
$739.0 million as of March 30, 1997 and $539.7 million as of March 31, 1996. The
increase in fiscal 1998 backlog is primarily due to increased orders from
aerospace customers and the inclusion of companies acquired in fiscal 1997 and
1998.
The majority of sales to customers are made on individual purchase orders.
Most of the Company's orders are subject to termination by the customer upon
payment of the cost of work in process plus a related profit factor.
Historically, the Company has not experienced significant order cancellations.
COMPETITION
The Company is subject to substantial competition in all of the markets it
serves. Components and products similar to those made by the Company can be made
by competitors using either the same types of
9
<PAGE>
manufacturing processes or other forms of manufacturing. Although the Company
believes its manufacturing processes, technology and experience provide
advantages to its customers, such as high quality, competitive prices and
physical properties that often meet more stringent demands, alternative forms of
manufacturing can be used to produce many of the components and products made by
the Company. Despite intense competition, the Company believes it is the number
one or two supplier in most of its principal markets. Several factors, including
long-standing customer relationships, technical expertise, state-of-the-art
facilities and dedicated employees, aid the Company in maintaining its
competitive advantages.
In its precision investment casting business, the Company's principal
competitor is the Howmet Corporation ("Howmet"). Howmet produces stainless
steel, superalloy and titanium investment castings for the aerospace and IGT
markets. Although the Company is the market leader for cast airfoils used in jet
aircraft engines, Howmet is believed to hold in excess of 50 percent of the
total market for cast airfoils, principally due to its substantial position in
the industrial gas turbine market. The Company believes that Howmet is capable
of producing structural castings comparable to all but the largest and most
complex of the Company's structural investment castings. The Company also
believes Howmet has the financial and technical resources to produce structural
castings as large and complex as those produced by the Company, should it decide
to do so. The Company's competitors for large structural castings also include
companies engaged in manufacturing parts using metal forgings, machining and
fabrication methods. Investment casting produces many types of parts at
significantly lower cost than do these alternate production methods.
In its other major business areas, which include fluid management products,
industrial metalworking tools and machines and other metal products, the Company
generally competes with a large number of companies in each of the markets
served. The major competitive factors affecting these other business areas
include product design and quality, performance characteristics, pricing and
product availability.
RESEARCH AND DEVELOPMENT
The Company maintains separate research and development departments at PCC
Structurals, Inc., PCC Airfoils, Inc., and PCC Flow Technologies, Inc. The
research and development effort at these locations is directed at the scientific
aspects of developing new and improved manufacturing processes. These research
and development expenditures amounted to $2.9 million in 1998, $2.6 million in
1997, and $3.5 million in 1996. A substantial amount of the Company's
technological capability is the result of engineering work and experimentation
performed in connection with process development and production of new parts.
This engineering work is charged to the cost of production and is not included
in research and development expenditures.
EMPLOYEES
At March 29, 1998, the Company employed 10,367 people, including 3,067
people at PCC Structurals, 3,985 people at PCC Airfoils, 1,252 people at PCC
Flow Technologies, 1,537 people at PCC Specialty Products, 261 people at J&L
Fiber Services, 244 people at Advanced Forming Technology ("AFT"), and 21 people
in corporate functions. Approximately 24 percent of these employees have union
affiliation or are covered by collective bargaining agreements. The Company is
expected to negotiate eight union contracts or collective bargaining agreements
affecting 10% of the workforce during fiscal 1999. Management believes that
labor relations in the Company have generally been satisfactory.
PATENTS AND TRADE SECRETS
Prior to 1988, the Company had not applied for patents covering its
structural casting processes in the belief that the processes are more securely
protected by retaining the information as trade secrets and avoiding the
technical disclosures required in patent applications. For similar reasons, AFT
has not applied
10
<PAGE>
for patents covering its MIM process. The Company's trade secrets consist
principally of technology developed over years of experience in the manufacture
of complex investment castings and MIM parts. More recently, the Company has
applied for or been issued a number of patents relating to new technology and
processes developed at PCC Structurals, PCC Airfoils and PCC Flow Technologies.
In connection with its acquisitions of PCC Airfoils, PCC Composites (now
part of AFT), PCC Specialty Products, PCC Flow Technologies and J&L Fiber
Services, the Company acquired a number of U.S. and foreign patents. The Company
also acquired certain rights and obligations under license agreements. The
Company receives no significant royalty income from patents.
MATERIALS & SUPPLIES
The Company uses a number of raw materials in its products, including
certain metals such as cobalt, titanium, nickel and molybdenum, which are found
in only a few parts of the world. These metals are required for the alloys used
in the Company's precision investment castings. The availability and costs of
these metals may be influenced by private or governmental cartels, changes in
world politics, unstable governments in exporting nations and inflation.
Similarly, supplies of tool grade steel used by the Company may also be subject
to variation in availability and cost. The Company enters into option contracts
to hedge the price of nickel and has escalation clauses in certain of its
long-term contracts with major customers. Shortages of, and price increases for,
certain raw materials used by the Company have occurred in the past and may
occur in the future. Future shortages or price fluctuations in raw materials
could have a material adverse effect on the Company.
GOVERNMENT REGULATIONS
Certain of the Company's products are manufactured and sold under U.S.
government contracts or subcontracts. Consequently, the Company is directly and
indirectly subject to various federal rules, regulations and orders applicable
to government contractors. Violation of applicable government rules and
regulations could result in civil liability, in cancellation or suspension of
existing contracts or in ineligibility for future contracts or subcontracts
funded in whole or in part with federal funds.
INTERNATIONAL OPERATIONS
The Company is both a purchaser of products from, and supplier to,
businesses located outside of the U.S. Certain risks are inherent in
international operations, including the risk of government financed competition,
changes in trade policies, tariff regulations and difficulties in obtaining U.S.
export and import licenses.
ENVIRONMENTAL COMPLIANCE
The Company generates certain waste materials that must be disposed of,
including certain materials for which disposal requires compliance with
environmental protection laws and regulations. The Company conducts its
operations at industrial sites where hazardous materials have been managed for
many years, including periods before careful management of these materials was
required or generally believed to be necessary. Consequently, the Company is
subject to various environmental laws that impose compliance obligations and can
create liability for historical releases of hazardous substances.
During the period 1970-1973, the Company contracted for disposal of certain
industrial waste at the Pasco Landfill located near Pasco, Washington. The
Washington State Department of Ecology ("Ecology") notified the Company that it
had determined that the Company is a Potentially Liable Party ("PLP") for the
contamination at Pasco Landfill Superfund Site. The Company joined with
approximately 40 other PLPs that sent industrial wastes to the site, as well as
with the owners, operators and other PLPs, to fund the initial Remedial
Investigation and Feasibility Study, which was completed and accepted by Ecology
in March 1994. In April, 1995, the PLPs and Ecology agreed on a Phase II
Remedial Investigation/ Feasibility
11
<PAGE>
Study Work Plan to study potential remediation alternatives. The Company's costs
are currently being paid by its insurers although they have reserved the right
to deny coverage for the remedial action costs.
In 1989, the Oregon Health Division ("Health Division") alleged that the
Company discharged low level radioactive material to the Portland city sewer in
violation of the Company's radioactive materials license. The City of Portland
also has alleged that the discharges violated the Company's discharge permit.
Although the Company contested the alleged violations, it undertook extensive
cleaning of portions of the sewer system under a consent agreement with the City
and the Health Division. The extent to which other investigation or remedial
work may be necessary, however, is unknown.
As a result of inspections conducted in 1995, the Massachusetts Department
of Environmental Protection ("MDEP") has taken enforcement action against the
Company's Merriman operations for alleged violations of certain environmental
laws relating to waste management. Merriman has negotiated a settlement with the
MDEP for most of the alleged violations and believes the outstanding alleged
violations can be settled for an immaterial amount. PCC Specialty Products, Inc.
has entered an Administrative Consent Order with the MDEP pursuant to which it
is conducting investigations of contamination of the Merriman facility. The
extent to which these investigations will lead to requirements for remedial
action is not yet known.
PCC Specialty Products, Inc. is investigating contamination at its facility
in Holden, Massachusetts. This investigation is proceeding under requirements of
Massachusetts law, and the MDEP has not taken any enforcement action. The extent
to which these investigations will lead to requirements for remedial action is
not yet known.
12
<PAGE>
In 1993, a lawsuit was filed in federal district court in Connecticut
against Quamco Inc., a corporation that the Company acquired in 1995 and which
is now known as PCC Specialty Products, Inc. (Marrone v. Quamco, Inc., USDC,
Conn.). The plaintiff alleged that Quamco was liable for property damages
relating to hazardous substances contamination allegedly caused by Quamco at
property it leased from the plaintiff. The court entered a default judgement in
favor of the Company in March 1997. In March 1998, the court denied the
plaintiff's motion to vacate the default judgement. All appeal periods have
expired and the court's default judgement is final.
The Connecticut Department of Environmental Protection ("CDEP") has required
PCC Specialty Products, Inc. to undertake remedial action at its former
Contromatics facility. Remedial systems are in place and were supplemented in
1997 at CDEP's request. Whether or not additional remedial action is necessary
will depend upon pending evaluations of the new remedial systems.
FORWARD LOOKING STATEMENTS
Information included within this section relating to projected growth and
future results and events constitutes forward-looking statements. Actual results
in future periods may differ materially from the forward-looking statements
because of a number of risks and uncertainties, including but not limited to
fluctuations in the aerospace and general industrial cycles; the relative
success of the Company's entry into new markets, including the rapid ramp-up for
industrial gas turbine component production; competitive pricing; the
availability and cost of materials and supplies; relations with the Company's
employees; the Company's ability to manage its operating costs and to integrate
acquired businesses in an effective manner; governmental regulations and
environmental matters; risks associated with international operations and world
economies; and implementation of new technologies. Any forward-looking
statements should be considered in light of these factors.
12
<PAGE>
ITEM 2. PROPERTIES
The Company's manufacturing plants and administrative offices, along with
certain information concerning the products and facilities are as follows:
<TABLE>
<CAPTION>
BUILDING SPACE (SQ. FT.)
----------------------------------
DIVISION NO. OF FACILITIES LEASED OWNED TOTAL
- ----------------------------------------------------------- ------------------- ---------- ---------- ----------
<S> <C> <C> <C> <C>
Executive & Corporate Offices
Domestic................................................. 1 7,500 -- 7,500
Foreign.................................................. -- -- -- --
PCC Structurals
Domestic................................................. 15 308,600 820,200 1,128,800
Foreign.................................................. 1 -- 77,000 77,000
PCC Airfoils
Domestic................................................. 10 44,200 907,000 951,200
Foreign.................................................. 3 153,000 249,000 402,000
PCC Flow Technologies
Domestic................................................. 36 484,200 748,400 1,232,600
Foreign.................................................. 17 110,200 126,500 236,700
PCC Specialty Products
Domestic................................................. 14 205,700 816,500 1,022,200
Foreign.................................................. 1 250,200 -- 250,200
J&L Fiber Services
Domestic................................................. 6 94,900 88,900 183,800
Foreign.................................................. 2 2,900 -- 2,900
Advanced Forming Technology
Domestic................................................. 4 68,000 18,000 86,000
Foreign.................................................. -- -- -- --
Total Company
Domestic................................................. 86 1,213,100 3,399,000 4,612,100
Foreign.................................................. 24 516,300 452,500 968,800
--- ---------- ---------- ----------
Total...................................................... 110 1,729,400 3,851,500 5,580,900
--- ---------- ---------- ----------
--- ---------- ---------- ----------
</TABLE>
The Company continues to expand its manufacturing capacity to meet
anticipated market demand for its products. See "Management's Discussion and
Analysis," in Exhibit 13, the "Financial Section of the 1998 Annual Report to
Shareholders of Precision Castparts Corp."
ITEM 3. LEGAL PROCEEDINGS
For a description of claims relating to environmental matters, see "Item 1.
Business--Environmental Compliance."
Various lawsuits arising during the normal course of business are pending
against the Company. In the opinion of management, the outcome of these lawsuits
will have no significant effect on PCC's consolidated financial position.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
Not applicable.
13
<PAGE>
EXECUTIVE OFFICERS OF THE REGISTRANT (A)
<TABLE>
<CAPTION>
OFFICER
NAME SINCE AGE POSITION HELD WITH THE REGISTRANT
- ---------------------------------------------- ---------- --- ----------------------------------------------
<S> <C> <C> <C>
William C. McCormick.......................... (b) 1985 64 Chairman and Chief Executive Officer
Steven C. Riedel.............................. (c) 1997 52 Senior Vice President and President--
Industrial Products Operations
William D. Larsson............................ (d) 1980 53 Vice President and Chief Financial Officer
Mark Donegan.................................. (e) 1992 41 Executive Vice President and President-- PCC
Structurals, Inc.
Peter G. Waite................................ (f) 1980 54 Executive Vice President and President-- PCC
Airfoils, Inc.
David W. Norris............................... (g) 1996 46 Executive Vice President and President-- PCC
Flow Technologies, Inc.
Greg M. Delaney............................... (h) 1998 43 Executive Vice President and President-- PCC
Specialty Products, Inc.
Dennis L. Konkol.............................. (i) 1997 39 President--J&L Fiber Services, Inc.
Istvan F.K. Vamos............................. (j) 1997 31 President--Advanced Forming Technology, Inc.
James A. Johnson.............................. (k) 1996 57 Treasurer and Assistant Secretary
Shawn R. Hagel................................ (l) 1997 33 Corporate Controller and Assistant Secretary
</TABLE>
- ------------------------
(a) The officers serve for a term of one year and until their successors are
elected.
(b) Elected Chairman in 1994, Chief Executive Officer in 1991 and Director in
1986.
(c) Elected Senior Vice President and President--Industrial Products Operations
in 1998.
(d) Elected Vice President and Chief Financial Officer in 1993.
(e) Elected Executive Vice President and President--PCC Structurals, Inc. in
1992.
(f) Elected Executive Vice President and President--PCC Airfoils, Inc. in 1986.
(g) Elected Executive Vice President and President--PCC Flow Technologies, Inc.
in 1996.
(h) Elected Executive Vice President and President--PCC Specialty Products, Inc.
in 1998.
(i) Elected President--J&L Fiber Services, Inc. in 1997.
(j) Elected President--Advanced Forming Technology, Inc. in 1997.
(k) Elected Treasurer in 1993 and Assistant Secretary in 1996.
(l) Elected Corporate Controller and Assistant Secretary in 1997.
14
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY AND RELATED STOCKHOLDER MATTERS
As of June 6, 1998 there were approximately 3,715 shareholders of record of
the Company's common stock. The Company's common stock is listed on the New York
Stock Exchange under the symbol PCP. It is also traded on the Midwest Stock
Exchange, the Pacific Stock Exchange and the Philadelphia Stock Exchange.
Additional information with respect to Market for the Registrant's Common Stock
and Related Stockholder Matters, including dividends, is incorporated herein by
reference to the Five-Year Summary of Selected Financial Data and the Quarterly
Financial Information in Exhibit 13, the "Financial Section of the 1998 Annual
Report to Shareholders of Precision Castparts Corp." The Company expects to
continue to pay quarterly cash dividends, subject to its earnings, financial
condition and other factors.
ITEM 6. SELECTED FINANCIAL DATA
Information with respect to Selected Financial Data is incorporated herein
by reference to the "Five-Year Summary of Selected Financial Data" in Exhibit
13, the "Financial Section of the 1998 Annual Report to Shareholders of
Precision Castparts Corp."
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS
OF OPERATIONS
Information with respect to Management's Discussion and Analysis of
Financial Condition and Results of Operations is incorporated herein by
reference to "Management's Discussion and Analysis" in Exhibit 13, the
"Financial Section of the 1998 Annual Report to Shareholders of Precision
Castparts Corp."
Information included in "Management's Discussion & Analysis" in Exhibit 13,
the "Financial Section of the 1998 Annual Report to Shareholders of Precision
Castparts Corp." describing the divisions relating to projected growth and
future results and events constitutes forward-looking statements. Actual results
in future periods may differ materially from the forward-looking statements
because of a number of risks and uncertainties, including but not limited to
fluctuations in the aerospace and general industrial cycles; the relative
success of the Company's entry into new markets, including the rapid ramp-up for
industrial gas turbine component production; competitive pricing; the
availability and cost of materials and supplies; relations with the Company's
employees; the Company's ability to manage its operating costs and to integrate
acquired businesses in an effective manner; governmental regulations and
environmental matters; risks associated with international operations and world
economies; and implementation of new technologies. Any forward-looking
statements should be considered in light of these factors.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Information with respect to Financial Statements and Supplementary Data is
incorporated herein by reference to pages 1 through 46 of Exhibit 13, the
"Financial Section of the 1998 Annual Report to Shareholders of Precision
Castparts Corp."
15
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT
Information with respect to Directors of the Company is incorporated herein
by reference to "Proposal 1: Election of Directors" continuing through "Report
of the Compensation Committee on Executive Compensation" in the Company's Proxy
Statement dated June 26, 1998 for the 1998 Annual Meeting of Shareholders of the
Registrant. The information required by this item with respect to the Company's
executive officers follows Part I, Item 4 of this document.
ITEM 11. EXECUTIVE COMPENSATION
Information with respect to Executive Compensation is incorporated herein by
reference to "Compensation of Executive Officers" in the Proxy Statement dated
June 26, 1998 for the 1998 Annual Meeting of Shareholders of the Registrant.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
Information with respect to Security Ownership of Certain Beneficial Owners
and Management is incorporated herein by reference to "Security Ownership of
Certain Beneficial Owners" and "Security Ownership of Directors and Executive
Officers" in the Proxy Statement dated June 26, 1998 for the 1998 Annual Meeting
of Shareholders of the Registrant.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
Information with respect to Certain Relationships and Related Transactions
is incorporated herein by reference to "Board Compensation, Attendance and
Committees, Certain Transactions" in the Proxy Statement dated June 26, 1998 for
the 1998 Annual Meeting of Shareholders of the Registrant.
16
<PAGE>
PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K
(A)(1) FINANCIAL STATEMENTS
The following financial statements incorporated by reference from Exhibit
13, the "Financial Section of the 1998 Annual Report to Shareholders of
Precision Castparts Corp." are filed as part of this report.
<TABLE>
<CAPTION>
PAGE IN EXHIBIT 13,
THE "FINANCIAL SECTION
OF THE 1998 ANNUAL REPORT
TO SHAREHOLDERS
STATEMENT OF PRECISION CASTPARTS CORP."
- ------------------------------------------------------------------------------------ -----------------------------
<S> <C>
Consolidated Statements of Income................................................... 7
Consolidated Balance Sheets......................................................... 8
Consolidated Statements of Cash Flows............................................... 10
Consolidated Statements of Shareholders' Investment................................. 13
Notes to Financial Statements....................................................... 14
Report of Independent Accountants................................................... 42
</TABLE>
(A)(2) FINANCIAL STATEMENT SCHEDULE
The following schedule is filed as part of this report:
Schedule II--Valuation and Qualifying Accounts
Report of Independent Accountants on Financial Statement Schedule
(A)(3) EXHIBITS
<TABLE>
<C> <C> <S>
(3)A -- Restated Articles of Incorporation of Precision Castparts Corp. as amended
(Incorporated herein by reference to Exhibit 3.1 to Amendment No. 3 to the
Company's Registration Statement on form 8A/A, Filed September 27, 1997.) (File
number 1-10348)
(3)B -- Bylaws of Precision Castparts Corp. (Incorporated herein by reference to
Exhibit 3.2 to Amendment No. 3 to the Company's Registration Statement on Form
8A/A, Filed September 27, 1997.) (File number 1-10348)
(4)A -- Indenture dated December 17, 1997 between the First National Bank of Chicago as
Trustee and Precision Castparts Corp.
(10)A -- Precision Castparts Corp. Revised and Restated Stock Incentive Plan as amended.
(Incorporated herein by reference to Exhibit (10)A in the Form 10-K dated April
3, 1994.) (File number 1-10348)
(10)B -- Precision Castparts Corp. Non-Employee Directors' Stock Option Plan.
(Incorporated herein by reference to Item 6(a), Exhibit (10)B in the Form 10Q
dated August 8, 1997.) (File number 1-10348)
(10)C -- Precision Castparts Corp. 1994 Stock Incentive Plan. (Incorporated herein by
reference to Appendix A in Registrant's June 20, 1994 Proxy Statement to
Shareholders.) (File number 1-10348)
(10)D -- Precision Castparts Corp. Nonemployee Directors' Deferred Compensation Plan
dated January 1, 1995. (Incorporated herein by reference to Exhibit (10)D in
the Form 10-K dated April 2, 1995.) (File number 1-10348)
</TABLE>
17
<PAGE>
<TABLE>
<C> <C> <S>
(10)E -- Precision Castparts Corp. Executive Deferred Compensation Plan dated January 1,
1995 (Incorporated herein by reference to Exhibit (10)E in the Form 10-K dated
April 2, 1995.) (File number 1-10348)
(10)F -- Bank of America Credit Agreement Dated July 31, 1996 among Precision Castparts
Corp.; Certain of its Subsidiaries; Bank of America National Trust and Savings
Association, as Agent; Letter of Credit Issuing Bank; and The Other Financial
Institutions Party Hereto Arranged by BA Securities, Inc. (Incorporated herein
by reference to Exhibit (10)H in the Form 10Q dated October 25, 1996.) (File
number 1-10348)
(10)G -- Precision Castparts Corp. Executive Performance Compensation Plan.
(Incorporated herein by reference to Item 6(a), Exhibit (10)G in the Form 10Q
dated August 8, 1997.) (File number 1-10348)
(10)H -- Compensation Arrangement between Precision Castparts Corp. and Gregory M.
Delaney.
(10)I -- Form of Change of Control Agreement and Indemnity Agreement for Officers and
Executives of Precision Castparts Corp. (Incorporated herein by reference to
Exhibit (10)I in the Form 10K dated June 27, 1997.) (File number 1-10348)
(10)J -- Form of Employment Agreement, dated as of April 2, 1997 between Precision
Castparts Corp. and Steven C. Riedel. (Incorporated herein by reference to
Exhibit (10)J in the Form 10K dated June 27, 1997.) (File number 1-10348)
(10)K -- Precision Castparts Corp. Supplemental Executive Retirement Program 1998, Dated
January 1, 1998.
(10)L -- Precision Castparts Corp. 1998 Employee Stock Purchase Plan (Incorporated
herein by reference to Item 6(a), Exhibit (10)L in the Form 10Q dated August 8,
1997.) (File number 1-10348)
(11) -- Calculation of Earnings Per Share for the Year Ended March 29, 1998.
(12) -- Calculation of Ratio of Earnings to Fixed Charges.
(13) -- Financial Section of the 1998 Annual Report to Shareholders of Precision
Castparts Corp. for the Year Ended March 29, 1998.
(21) -- Subsidiaries of Precision Castparts Corp.
(23) -- Consent of Independent Accountants.
(27) -- Financial Data Schedule.
</TABLE>
(B) NOT APPLICABLE.
(C) SEE (A)(3) ABOVE.
(D) SEE (A)(2) ABOVE.
18
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) 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.
<TABLE>
<S> <C> <C>
PRECISION CASTPARTS CORP.
By /s/ WILLIAM C. MCCORMICK
------------------------------------------
William C. McCormick
CHAIRMAN OF THE BOARD, DIRECTOR AND
CHIEF EXECUTIVE OFFICER
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant in the capacities and on the dates indicated.
SIGNATURE TITLE
- ------------------------------ --------------------------
As officers or directors of
PRECISION CASTPARTS CORP.
/s/ WILLIAM C. MCCORMICK Chairman of the Board,
- ------------------------------ Director and Chief
William C. McCormick Executive Officer
Vice President and Chief
/s/ WILLIAM D. LARSSON Financial Officer
- ------------------------------ (Principal Financial and
William D. Larsson Accounting Officer)
/s/ PETER R. BRIDENBAUGH
- ------------------------------ Director
Peter R. Bridenbaugh
/s/ DEAN T. DUCRAY
- ------------------------------ Director
Dean T. DuCray
/s/ DON R. GRABER
- ------------------------------ Director
Don R. Graber
/s/ ROY M. MARVIN
- ------------------------------ Director
Roy M. Marvin
/s/ VERNON E. OECHSLE
- ------------------------------ Director
Vernon E. Oechsle
/s/ STEVEN G. ROTHMEIER
- ------------------------------ Director
Steven G. Rothmeier
19
<PAGE>
SCHEDULE II
PRECISION CASTPARTS CORP. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS
FOR THE YEARS ENDED
(000'S OMITTED)
<TABLE>
<CAPTION>
COLUMN A COLUMN B COLUMN C COLUMN D COLUMN E
- ----------------------------------- ----------- ------------------------ ----------- -----------
ADDITIONS
------------------------
BALANCE AT CHARGED TO BALANCE AT
BEGINNING COSTS AND BUSINESS END OF
CLASSIFICATION OF PERIOD EXPENSES ACQUISITIONS DEDUCTIONS PERIOD
- ----------------------------------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Deducted from assets to which they apply:
Reserve for doubtful accounts:
March 31, 1996................... $ 1,200 $ -- $ 100 $ 200(1) $ 1,100
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
March 30, 1997................... $ 1,100 $ 900 $ 1,400 $ 800(1) $ 2,600
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
March 29, 1998................... $ 2,600 $ 1,100 $ 700 $ 600(1) $ 3,800
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
Deferred tax asset valuation
allowance:
March 31, 1996................... $ 3,800 $ 500(2) $ 200 $ 400(3) $ 4,100
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
March 30, 1997................... $ 4,100 $ 500(2) $ 1,300 $ 2,400(3) $ 3,500
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
March 29, 1998................... $ 3,500 $ -- $ -- $ 2,000(3) $ 1,500
----------- ----------- ----------- ----------- -----------
----------- ----------- ----------- ----------- -----------
</TABLE>
- ------------------------
(1) Write off of bad debts.
(2) Establishment of valuation allowances on capital-loss carryforwards or
operating loss carryforwards.
(3) Utilization of tax benefits under capital-loss or operating loss
carryforwards.
20
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To the Board of Directors of Precision Castparts Corp.
Our audits of the consolidated financial statements referred to in our
report dated April 29, 1998 appearing on page 33 of the 1998 Annual Report to
Shareholders of Precision Castparts Corp. (which report and consolidated
financial statements are included as Exhibit 13 in this Annual Report on Form
10-K) also included an audit of the Financial Statement Schedule listed in Item
14(a)(2) of this Form 10-K. In our opinion, this Financial Statement Schedule
presents fairly, in all material respects, the information set forth therein
when read in conjunction with the related consolidated financial statements.
<TABLE>
<S> <C>
/s/ PRICE WATERHOUSE LLP
--------------------------------------
PRICE WATERHOUSE LLP
Portland, Oregon
April 29, 1998
</TABLE>
21
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBITS
- ---------
<S> <C> <C> <C>
(3)A -- Restated Articles of Incorporation of Precision Castparts Corp. as amended (Incorporated herein
by reference to Exhibit 3.1 to Amendment No. 3 to the Company's Registration Statement on
form 8A/A, Filed September 27, 1997.) (File number 1-10348)
(3)B -- Bylaws of Precision Castparts Corp. (Incorporated herein by reference to Exhibit 3.2 to
Amendment No. 3 to the Company's Registration Statement on Form 8A/A, Filed September 27,
1997.) (File number 1-10348)
(4)A -- Indenture dated December 17, 1997 between the First National Bank of Chicago as Trustee and
Precision Castparts Corp.
(10)A -- Precision Castparts Corp. Revised and Restated Stock Incentive Plan as amended. (Incorporated
herein by reference to Exhibit (10)A in the Form 10-K dated April 3, 1994.) (File number
1-10348)
(10)B -- Precision Castparts Corp. Non-Employee Directors' Stock Option Plan. (Incorporated herein by
reference to Item 6(a), Exhibit (10)B in the Form 10Q dated August 8, 1997.) (File number
1-10348)
(10)C -- Precision Castparts Corp. 1994 Stock Incentive Plan. (Incorporated herein by reference to
Appendix A in Registrant's June 20, 1994 Proxy Statement to Shareholders.) (File number
1-10348)
(10)D -- Precision Castparts Corp. Nonemployee Directors' Deferred Compensation Plan dated January 1,
1995. (Incorporated herein by reference to Exhibit (10)D in the Form 10-K dated April 2,
1995.) (File number 1-10348)
(10)E -- Precision Castparts Corp. Executive Deferred Compensation Plan dated January 1, 1995
(Incorporated herein by reference to Exhibit (10)E in the Form 10-K dated April 2, 1995.)
(File number 1-10348)
(10)F -- Bank of America Credit Agreement Dated July 31, 1996 among Precision Castparts Corp.; Certain
of its Subsidiaries; Bank of America National Trust and Savings Association, as Agent; Letter
of Credit Issuing Bank; and The Other Financial Institutions Party Hereto Arranged by BA
Securities, Inc. (Incorporated herein by reference to Exhibit (10)H in the Form 10Q dated
October 25, 1996.) (File number 1-10348)
(10)G -- Precision Castparts Corp. Executive Performance Compensation Plan. (Incorporated herein by
reference to Item 6(a), Exhibit (10)G in the Form 10Q dated August 8, 1997.) (File number
1-10348)
(10)H -- Compensation Arrangement between Precision Castparts Corp. and Gregory M. Delaney.
(10)I -- Form of Change of Control Agreement and Indemnity Agreement for Officers and Executives of
Precision Castparts Corp. (Incorporated herein by reference to Exhibit (10)I in the Form 10K
dated June 27, 1997.) (File number 1-10348)
(10)J -- Form of Employment Agreement, dated as of April 2, 1997 between Precision Castparts Corp. and
Steven C. Riedel. (Incorporated herein by reference to Exhibit (10)J in the Form 10K dated
June 27, 1997.) (File number 1-10348)
(10)K -- Precision Castparts Corp. Supplemental Executive Retirement Program 1998, Dated January 1,
1998.
</TABLE>
22
<PAGE>
<TABLE>
<CAPTION>
EXHIBITS
- ---------
<S> <C> <C> <C>
(10)L -- Precision Castparts Corp. 1998 Employee Stock Purchase Plan (Incorporated herein by reference
to Item 6(a), Exhibit (10)L in the Form 10Q dated August 8, 1997.) (File number 1-10348)
(11) -- Calculation of Earnings Per Share for the Year Ended March 29, 1998.
(12) -- Calculation of Ratio of Earnings to Fixed Charges.
(13) -- Financial Section of the 1998 Annual Report to Shareholders of Precision Castparts Corp. for
the Year Ended March 29, 1998.
(21) -- Subsidiaries of Precision Castparts Corp.
(23) -- Consent of Independent Accountants.
(27) -- Financial Data Schedule.
</TABLE>
23
<PAGE>
================================================================================
PRECISION CASTPARTS CORP.
TO
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
-----------
INDENTURE
Dated as of December 17, 1997
Providing for Issuance of
Debt Securities in Series
================================================================================
<PAGE>
PRECISION CASTPARTS CORP.
Certain Sections of this Indenture relating to
Sections 310 through 318, inclusive, of the
Trust Indenture Act of 1939:
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
ss. 310(a)(1) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 608
610
ss. 311(a) . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . 613
ss. 312(a) . . . . . . . . . . . . . . . . . . . . . . 701
702(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 702(b)
(c) . . . . . . . . . . . . . . . . . . . . . . 702(c)
ss. 313(a) . . . . . . . . . . . . . . . . . . . . . . 703(a)
(b) . . . . . . . . . . . . . . . . . . . . . . 703(a)
(c) . . . . . . . . . . . . . . . . . . . . . . 703(a)
(d) . . . . . . . . . . . . . . . . . . . . . . 703(b)
ss. 314(a) . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . . . . . . . . . . . 101
1004
(b) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . 102
ss. 315(a) . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . 514
ss. 316(a) . . . . . . . . . . . . . . . . . . . . . . 101
(a)(1)(A). . . . . . . . . . . . . . . . . . . . . . 502
512
(a)(1)(B). . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . 104(c)
ss. 317(a)(1) . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . 1003
ss. 318(a) . . . . . . . . . . . . . . . . . . . . . . 107
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
ARTICLE ONE
Definitions and Other Provisions
of General Application
<S> <C>
Section 101. Definitions......................................................1
Section 102. Compliance Certificates and Opinions............................10
Section 103. Form of Documents Delivered to Trustee..........................11
Section 104. Acts of Holders; Record Dates...................................12
Section 105. Notices, Etc., to Trustee and Company...........................13
Section 106. Notice to Holders; Waiver.......................................13
Section 107. Conflict with Trust Indenture Act...............................14
Section 108. Effect of Headings and Table of Contents........................14
Section 109. Successors and Assigns..........................................14
Section 110. Separability Clause.............................................15
Section 111. Benefits of Indenture...........................................15
Section 112. Governing Law...................................................15
Section 113. Legal Holidays..................................................15
ARTICLE TWO
Security Forms
Section 201. Forms Generally.................................................16
Section 202. Form of Face of Security........................................16
Section 203. Form of Reverse of Security.....................................19
Section 204. Additional Provisions Required in
Book-Entry Security...........................................23
Section 205. Form of Trustee's Certificate of
Authentication................................................24
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series............................24
Section 302. Denominations...................................................27
Section 303. Execution, Authentication, Delivery and
Dating........................................................27
Section 304. Temporary Securities............................................30
Section 305. Registration, Registration of
Transfer and Exchange.........................................31
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities....................................................33
Section 307. Payment of Interest; Interest Rights
Preserved.....................................................34
Section 308. Persons Deemed Owners...........................................35
Section 309. Cancellation....................................................36
Section 310. Computation of Interest.........................................36
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<S> <C>
Section 311. CUSIP Numbers...................................................36
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.....................................................37
Section 402. Application of Trust Money......................................38
ARTICLE FIVE
Remedies
Section 501. Events of Default...............................................38
Section 502. Acceleration of Maturity; Rescission
and Annulment.................................................41
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee....................................42
Section 504. Trustee May File Proofs of Claim................................43
Section 505. Trustee May Enforce Claims Without
Possession of Securities......................................44
Section 506. Application of Money Collected..................................44
Section 507. Limitation on Suits.............................................44
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.......................45
Section 509. Restoration of Rights and Remedies..............................45
Section 510. Rights and Remedies Cumulative..................................46
Section 511. Delay or Omission Not Waiver....................................46
Section 512. Control by Holders..............................................46
Section 513. Waiver of Past Defaults.........................................47
Section 514. Undertaking for Costs...........................................47
Section 515. Waiver of Usury, Stay or Extension Laws.........................47
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.............................48
Section 602. Notice of Defaults..............................................48
Section 603. Certain Rights of Trustee.......................................49
Section 604. Not Responsible for Recitals or
Issuance of Securities........................................50
Section 605. May Hold Securities.............................................50
Section 606. Money Held in Trust.............................................51
Section 607. Compensation and Reimbursement..................................51
Section 608. Disqualification; Conflicting Interests.........................52
Section 609. Corporate Trustee Required;
Eligibility...................................................52
Section 610. Resignation and Removal;
Appointment of Successor......................................52
ii
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<S> <C>
Section 611. Acceptance of Appointment by
Successor.....................................................55
Section 612. Merger, Conversion, Consolidation
or Succession to Business.....................................56
Section 613. Preferential Collection of Claims
Against Company...............................................57
Section 614. Appointment of Authenticating Agent.............................57
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders................................59
Section 702. Preservation of Information;
Communications to Holders.....................................59
Section 703. Reports by Trustee..............................................60
Section 704. Reports by Company..............................................60
ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only on Certain
Terms.........................................................61
Section 802. Successor Substituted...........................................62
Section 803. Officers' Certificate and
Opinion of Counsel............................................62
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders............................................62
Section 902. Supplemental Indentures with Consent
of Holders....................................................64
Section 903. Execution of Supplemental Indentures............................65
Section 904. Effect of Supplemental Indentures...............................66
Section 905. Conformity with Trust Indenture Act.............................66
Section 906. Reference in Securities to
Supplemental Indentures.......................................66
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and
Interest......................................................66
Section 1002. Maintenance of Office or Agency.................................66
Section 1003. Money for Securities Payments to
Be Held in Trust..............................................67
iii
<PAGE>
<S> <C>
Section 1004. Statement by Officers as to Default.............................69
Section 1005. Existence.......................................................69
Section 1006. INTENTIONALLY LEFT BLANK........................................69
Section 1007. Payment of Taxes and Other Claims...............................69
Section 1008. Limitation on Liens.............................................70
Section 1009. Limitation on Sales and Leasebacks..............................71
Section 1010. Limitation on Debt of Restricted
Subsidiaries..................................................72
Section 1011. Waiver of Certain Covenants.....................................73
Section 1012. Calculation of Original Issue Discount..........................73
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article........................................74
Section 1102. Election to Redeem: Notice to Trustee...........................74
Section 1103. Selection by Trustee of Securities to Be
Redeemed......................................................74
Section 1104. Notice of Redemption............................................75
Section 1105. Deposit of Redemption Price.....................................76
Section 1106. Securities Payable on Redemption Date...........................76
Section 1107. Securities Redeemed in Part.....................................77
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article........................................77
Section 1202. Satisfaction of Sinking Fund Payments
with Securities...............................................78
Section 1203. Redemption of Securities for Sinking
Fund..........................................................78
ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance...........................................79
Section 1302. Defeasance and Discharge........................................79
Section 1303. Covenant Defeasance.............................................80
Section 1304. Conditions to Defeasance or
Covenant Defeasance...........................................80
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
Miscellaneous Provisions......................................83
Section 1306. Reinstatement...................................................84
</TABLE>
- -------------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
iv
<PAGE>
INDENTURE, dated as of December 17, 1997, between Precision Castparts
Corp., a corporation duly organized and existing under the laws of the State of
Oregon (herein called the "Company"), having its principal office at 4650 S.W.
Macadam Avenue, Suite 440, Portland, Oregon, and The First National Bank of
Chicago, a national banking association, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes or other evidences of indebtedness (herein called the
"Securities"), to be issued in one or more series as in this Indenture provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Securities or of series thereof, as
follows:
ARTICLE ONE
Definitions and Other Provisions
of General Application
Section 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
<PAGE>
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as
are generally accepted at the date of such computation; and
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case may
be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt," in respect of any Sale and Leaseback Transaction,
means, as of the time of determination, the total obligation (discounted to
present value at the rate per annum equal to the discount rate which would be
applicable to a capital lease obligation with like term in accordance with
generally accepted accounting principles) of the lessee for rental payments
(other than amounts required to be paid on account of property taxes,
maintenance, repairs, insurance, water rates and other items which do not
constitute payments for property rights) during the remaining portion of the
initial term of the lease included in such Sale and Leaseback Transaction.
-2-
<PAGE>
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 614 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Book-Entry Security" means a Security in the form prescribed in
Section 204 evidencing all or part of a series of Securities, issued to the
Depositary for such series or its nominee, and registered in the name of such
Depositary or such nominee.
"Business Day", when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
or executive order to close.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Vice
Chairman of the Board, its President or a Vice President, and by its Treasurer,
an Assistant Treasurer, its Controller, an Assistant Controller, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
-3-
<PAGE>
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities (excluding any indebtedness for
money borrowed having a maturity of less than 12 months from the date of the
most recent consolidated balance sheet of the Company but which by its terms is
renewable or extendable beyond 12 months from such date at the option of the
borrower), (ii) all Investments in Unrestricted Subsidiaries and (iii) all
goodwill, trade names, patents, unamortized debt discount and expense and any
other like intangibles, all as set forth on the most recent consolidated balance
sheet of the Company and computed in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which office at the date of original execution of this Indenture is located at
One First National Plaza, Suite 0126, Chicago, Illinois 60670, Attention:
Corporate Trust Administration, except that, with respect to presentation of the
Securities for payment or registration of transfers or exchanges and the
location of the register, such term means the office or agency of the Trustee at
which at any particular time its corporate agency business shall be conducted,
which at the date of original execution of this Indenture is located at c/o
First Chicago Trust Company of New York, 14 Wall Street, 8th Floor-Window 2, New
York, New York 10005.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debt" has the meaning specified in Section 1008.
"Defaulted Interest" has the meaning specified in Section 307.
"Depositary" means, with respect to the Securities of any series
issuable or issued in whole or in part in the form of one or more Book-Entry
Securities, the Person designated as Depositary for such series by the Company
pursuant to Section 301, which Person shall be a clearing agency registered
under the Securities Exchange Act of 1934; and if at any time there is more than
one such Person, 'Depositary' as used with respect to the Securities of any
series shall mean the Depositary with respect to the Securities of such series.
-4-
<PAGE>
"Event of Default" has the meaning specified in Section 501.
"Funded Debt" means all Debt having a maturity of more than 12 months
from the date as of which the determination is made or having a maturity of 12
months or less but by its terms being renewable or extendable beyond 12 months
from such date at the option of the borrower, but excluding any such Debt owed
to the Company or a Restricted Subsidiary.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument, and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the forms and terms of
particular series of Securities established as contemplated by Section 301.
"Indexed Security" means any Security which provides that the
principal amount thereof payable at Stated Maturity may be more or less than the
principal face amount thereof at original issuance.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Investment," with respect to any Person, means any obligations or
other securities of, capital contribution to, or investment in such Person, in
each case in the amount that would be reflected from time to time on a balance
sheet of the Company prepared in accordance with generally accepted accounting
principles.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated
-5-
<PAGE>
Maturity or by declaration of acceleration, call for redemption or otherwise.
"Mortgage" means, with respect to any property or assets, any mortgage
or deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or other security arrangement of any kind or nature whatsoever on
or with respect to such property or assets (including any conditional sale or
other title retention agreement having substantially the same economic effect as
any of the foregoing).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, a Vice Chairman of the Board, the President or a Vice President, and
by the Treasurer, an Assistant Treasurer, the Controller, an Assistant
Controller, the Secretary or an Assistant Secretary, of the Company, and
delivered to the Trustee. One of the officers signing an Officers' Certificate
given pursuant to Section 1004 shall be the principal executive, financial or
accounting officer of the Company. Each such certificate shall include the
statements provided for in Section 102.
"Operating Property" means any real property or equipment located
within the United States and owned by, or leased to, the Company or any of its
Restricted Subsidiaries that has a market value in excess of 0.5% of
Consolidated Net Tangible Assets.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company, and who shall be acceptable to the Trustee. Each such
opinion shall include the statements provided for in Section 102.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the necessary
amount has been theretofore
-6-
<PAGE>
deposited with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such Securities;
provided that, if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to Section 1104 of this Indenture
or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1302 and
1303, with respect to which the Company has effected defeasance or covenant
defeasance as provided in Article Thirteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities in
respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
provided, however, 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, or whether sufficient funds are available for redemption or
for any other purpose, and for the purpose of making the calculations required
by section 313 of the Trust Indenture Act, (i) the principal amount of an
Original Issue Discount Security that shall be deemed to be Outstanding shall be
the amount of the principal thereof that would be due and payable as of the date
of such determination upon acceleration of the Maturity thereof pursuant to
Section 502, (ii) the principal amount of a Security denominated in one or more
foreign currencies or currency units shall be the U.S. dollar equivalent,
determined in the manner provided as contemplated by Section 301 on the date of
original issuance of such Security, of the principal amount (or, in the case of
an Original Issue Discount Security, the U.S. dollar equivalent on the date of
original issuance of such Security of the amount determined as provided in (i)
above) of such Security, (iii) the principal amount of any Indexed Security that
may be counted in making such determination or calculation and that shall be
deemed to be Outstanding for such purpose shall be equal to the principal face
amount of such Indexed Security at original issuance, unless otherwise provided
with respect to
-7-
<PAGE>
such Security pursuant to Section 301, and (iv) 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 a Responsible Officer of the Trustee actually
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.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or any premium or interest on any Securities on behalf of the
Company.
"Person" means any individual, corporation, partnership, joint
venture, trust, unincorporated organization or government or any agency or
political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of and any premium and
interest on the Securities of that series are payable as specified as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means
any vice president, any assistant secretary, any assistant treasurer, any trust
officer or assistant trust officer, or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above
designated officers and also means, with respect to a particular corporate trust
matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.
"Restricted Subsidiary" means any Subsidiary of the Company that owns
Operating Property that has a market value in excess of 1% of Consolidated Net
Tangible Assets.
"Sale and Leaseback Transaction" means any arrangement with any Person
providing for the leasing to the Company or any Subsidiary of any Operating
Property, which Operating Property has been or is to be sold or transferred by
the Company or such Subsidiary to such Person.
"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and delivered
under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest means
a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means any corporation of which at least a majority of the
outstanding stock having by the terms thereof ordinary voting power for the
election of directors of such corporation (irrespective of whether or not at the
time stock of any other class or classes of such corporation shall have or might
have voting power by reason of the happening of any contingency) is at the time
directly or indirectly owned by the Company, or by one or more other
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Subsidiaries, or by the Company and one or more other Subsidiaries.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939 as so amended.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"U.S. Government Obligations" has the meaning specified in Section
1304.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish to
the Trustee such certificates and opinions as may be required under the Trust
Indenture Act. Each such certificate or opinion shall be given in the form of an
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include
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(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or opinion of counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
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Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given, made
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Securities of any series entitled to give or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders of
Securities of such series. If not set by the Company prior to the
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first solicitation of a Holder of Securities of such series made by any Person
in respect of any such action, or, in the case of any such vote, prior to such
vote, the record date for any such action or vote shall be the 30th day (or, if
later, the date of the most recent list of Holders required to be provided
pursuant to Section 701) prior to such first solicitation or vote, as the case
may be. With regard to any record date for action to be taken by the Holders of
one or more series of Securities, only the Holders of Securities of such series
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the Security
Register.
(e) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be sufficient
for every purpose hereunder if made, given, furnished or filed in writing
to or with the Trustee at its Corporate Trust Office, Attention: Corporate
Trust Administration, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided) if
in writing and mailed, first-class postage prepaid, to the Company
addressed to it at the address of its principal office specified in the
first paragraph of this instrument or at any other address previously
furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
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Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date (if any), and not earlier than the earliest date (if any),
prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders. Any notice mailed to a Holder in the
manner herein prescribed shall be conclusively deemed to have been received by
such Holder, whether or not such Holder actually receives such notice. Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of
notice by Holders shall be filed with the Trustee, but such filing shall not be
a condition precedent to the validity of any action taken in reliance upon such
waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such Act to be a
part of and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the latter provision shall be
deemed to apply to this Indenture as so modified or to be excluded, as the case
may be.
Section 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 109. Successors and Assigns.
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All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
Section 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or of the
Securities (other than a provision of the Securities of any series which
specifically states that such provision shall apply in lieu of this Section))
payment of interest or principal (and premium, if any) need not be made at such
Place of Payment on such date, but may be made on the next succeeding Business
Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date, the Redemption Date, or at the Stated Maturity or
Maturity.
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ARTICLE TWO
Security Forms
Section 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form as shall be established by or
pursuant to a Board Resolution or in one or more indentures supplemental hereto,
in each case with such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by this Indenture, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary therefor or as may, consistently herewith, be
determined by the officers executing such Securities, as evidenced by their
execution of the Securities. If the form of Securities of any series is
established by, or by action taken pursuant to, a Board Resolution, a copy of an
appropriate record of such action shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Company Order contemplated by Section 303 for the
authentication and delivery of such Securities.
The definitive Securities shall be printed, lithographed or engraved
on steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as evidenced by their
execution of such Securities.
Section 202. Form of Face of Security.
[insert any legend required by the Internal Revenue Code and the
regulations thereunder.]
PRECISION CASTPARTS CORP.
............................................
No. ......................... $...............
CUSIP No.______________
Precision Castparts Corp., a corporation duly organized and existing
under the laws of Oregon (herein called the "Company", which term includes any
successor
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Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to ................................., or registered assigns, the
principal sum of ........................... Dollars on .....................
...... [if the Security is to bear interest prior to Maturity, insert --, and to
pay interest thereon from ........... or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
............. and ............ in each year, commencing ........., at the rate
of .......... % per annum, until the principal hereof is paid or made available
for payment [if applicable, insert -- and (to the extent that the payment of
such interest shall be legally enforceable) at the rate of .... % per annum on
any overdue principal and premium 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 Security (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 .......... or ........ (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 Security (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 Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture].
[If the Security is not to bear interest prior to Maturity, insert -- The
principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of ....% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on
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demand shall bear interest at the rate of ......% per annum (to the extent that
the payment of such interest shall be legally enforceable), which shall accrue
from the date of such demand for payment to the date payment of such interest
has been made or duly provided for, and such interest shall also be payable on
demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest on this Security will be made at the office or
agency of the Company maintained for that purpose in ............., in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts [if applicable, insert -- ;
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 or by wire transfer to an account
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire
instructions.]
[If the Security is payable in a foreign currency, insert -- the
appropriate provision.]
Reference is hereby made to the further provisions of this Security
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 on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the 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.
Precision Castparts Corp.
By.......................................
By.......................................
Attest:
.......................................
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Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of December 17, 1997 (herein called the
"Indenture"), between the Company and The First National Bank of Chicago, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof[, limited in aggregate principal amount to
$..........].
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, [if
applicable, insert-- in whole or in part, at the option of the Company at any
time at a redemption price equal to the greater of (i) 100% of the principal
amount of such Notes or (ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including the portion
of any such payments of interest accrued as of the redemption date) discounted
to the redemption date on a semiannual basis (assuming a 360-day year consisting
of twelve 30-day months) at the [define applicable discount rate] (determined on
the _____ Business Day preceding such redemption date), plus, in each case,
accrued and unpaid interest thereon to the redemption date.] [if applicable,
insert -- (1) on ........... in any year commencing with the year...... and
ending with the year .......... through operation of the sinking fund for this
series at a Redemption Price equal to 100% of the principal amount, and (2)] at
any time [on or after .......... 19..], as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as percentages of
the principal amount): If redeemed [on or before ................, _%, and if
redeemed] during the 12-month period beginning ........ of the years indicated,
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Redemption Redemption
Year Price Year Price
- ---- ---------- ---- ----------
and thereafter at a Redemption Price equal to ..........% of the principal
amount, together in the case of any such redemption [if applicable, insert --
(whether through operation of the sinking fund or otherwise)] with accrued
interest to the Redemption Date, but interest installments whose Stated Maturity
is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of
business on the relevant Regular Record Dates or Special Record Dates referred
to on the face hereof, all as provided in the Indenture.]
[If applicable insert -- The Securities of this series are subject to
redemption upon not less than 30 nor more than 60 days' notice by mail, (1) on
.......... in any year commencing with the year .... and ending with the year
.... through operation of the sinking fund for this series at the Redemption
Prices for redemption through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below, and (2) at
any time [on or after ........], as a whole or in part, at the election of the
Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
.......... of the years indicated,
Redemption Price Redemption Price for
For Redemption Redemption Otherwise
Through Operation Than Through Operation
Year of the Sinking Fund of the Sinking Fund
- ---- ------------------- -------------------
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and thereafter at a Redemption Price equal to ........% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Regular Record Dates or Special Record Dates referred to on the face hereof, all
as provided in the Indenture.]
Notwithstanding the foregoing, the Company may not, prior to
.........., redeem any Securities of this series as contemplated by [Clause (2)
of] the preceding paragraph as a part of, or in anticipation of, any refunding
operation by the application, directly or indirectly, of moneys borrowed having
an interest cost to the Company (calculated in accordance with generally
accepted financial practice) of less than .......% per annum.]
[The sinking fund for this series provides for the redemption on
........ in each year beginning with the year ......... and ending with the year
of .......... [not less than $............ ("mandatory sinking fund") and not
more than] $......... aggregate principal amount of Securities of this series.
Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
[mandatory] sinking fund payments otherwise required to be made [in the inverse
order in which they become due].]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[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
Security] [, in each case] upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the
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principal of the Securities of this series may be declared due and payable in
the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
[If the Security is an Indexed Security, insert -- the appropriate
provision.]
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 any time by the Company and the Trustee with the
consent of the Holders of a majority 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 Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security 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 Security.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and any
premium and interest on this Security at the times, place and rate, and in the
coin or currency, herein prescribed.
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As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security 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 Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $....... and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor 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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security 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 Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Section 204. Additional Provisions Required in
Book-Entry Security.
Any Book-Entry Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203, bear a legend in substantially the
following form:
"This Security is a Book-Entry Security within the meaning of the
Indenture hereinafter referred to and is
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registered in the name of a Depositary or a nominee of a Depositary. This
Security is exchangeable for Securities registered in the name of a person other
than the Depositary or its nominee only in the limited circumstances described
in the Indenture and may not be transferred except as a whole by the Depositary
to a nominee of the Depositary or by a nominee of the Depositary to the
Depositary or another nominee of the Depositary."
Section 205. Form of Trustee's Certificate of
Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
Dated: ______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The First National Bank of Chicago
As Trustee
By.......................................
Authorized Signatory
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
The Securities may be issued from time to time in one or more series.
There shall be established in or pursuant to a Board Resolution and, subject to
Section 303, set forth, or determined in the manner provided, in an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series,
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(1) the title of the Securities of the series (which shall distinguish
the Securities of the series from Securities of any other series);
(2) any limit upon the aggregate principal amount of the Securities of
the series which may be authenticated and delivered under this Indenture
(except for Securities authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Securities of the
series pursuant to Section 304, 305, 306, 906 or 1107 and except for any
Securities which, pursuant to Section 303, are deemed never to have been
authenticated and delivered hereunder);
(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;
(4) the date or dates on which the principal of and premium, if any,
on the Securities of the series is payable or the method of determination
thereof;
(5) the rate or rates at which the Securities of the series shall bear
interest, if any, or the method of calculating such rate or rates of
interest, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which any such interest shall be payable and the Regular
Record Date for any interest payable on any Interest Payment Date;
(6) the place or places where the principal of and any premium and
interest on Securities of the series shall be payable;
(7) the period or periods within which, the price or prices at which,
the currency or currencies (including currency units) in which and the
other terms and conditions upon which Securities of the series may be
redeemed, in whole or in part, at the option of the Company;
(8) the obligation, if any, of the Company to redeem or purchase
Securities of the series pursuant to any sinking fund or analogous
provisions or at the option of a Holder thereof and the period or periods
within which, the price or prices at which and the
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other terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such obligation;
(9) if other than denominations of $1,000 and any integral multiple
thereof, the denominations in which Securities of the series shall be
issuable;
(10) the currency, currencies or currency units in which payment of
the principal of and any premium and interest on any Securities of the
series shall be payable if other than the currency of the United States of
America and the manner of determining the equivalent thereof in the
currency of the United States of America for purposes of the definition of
"Outstanding" in Section 101;
(11) if the amount of payments of principal of or any premium or
interest on any Securities of the series may be determined with reference
to an index, formula or other method, the index, formula or other method by
which such amounts shall be determined;
(12) 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 a Holder
thereof, in one or more currencies or currency units other than that or
those in which the Securities are stated to be payable, the currency,
currencies or currency units in which payment of the principal of and any
premium and interest on Securities of such series as to which such election
is made shall be payable, and the periods within which and the other terms
and conditions upon which such election is to be made;
(13) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series which shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502
or the method by which such portion shall be determined;
(14) the application, if any, of Section 1302 or 1303 to the
Securities of any series;
(15) whether the Securities of the series shall be issued in whole or
in part in the form of one or more Book-Entry Securities and, in such case,
the Depositary with respect to such Book-Entry Security or Securities and
the circumstances under which any Book-Entry
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Security may be registered for transfer or exchange, or authenticated and
delivered, in the name of a Person other than such Depositary or its
nominee, if other than as set forth in Section 305;
(16) any additional, modified or different covenants applicable to one
or more particular series of Securities; and
(17) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture, except as permitted by
Section 901(5)).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set
forth, or determined in the manner provided, in the Officers' Certificate
referred to above or in any such indenture supplemental hereto. All Securities
of any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth, or providing the manner for determining, the terms of
the series.
Section 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such specified denomination with respect to
the Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and
Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its Vice Chairman of the Board, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by its
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Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver or make available for
delivery such Securities; provided, however, that, in the case of Securities of
a series that are not to be originally issued at one time, the Trustee shall
authenticate and deliver or make available for delivery such Securities from
time to time in accordance with such other procedures (including, without
limitation, the receipt by the Trustee of oral or electronic instructions from
the Company or its duly authorized agents, promptly confirmed in writing)
acceptable to the Trustee as may be specified by or pursuant to a Company Order
delivered to the Trustee prior to the time of the first authentication of
Securities of such series. If the form or terms of the Securities of the series
have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, in authenticating such Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the form of such Securities has been established by or pursuant
to Board Resolution as permitted by Section 201, that such form has been
established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by or
pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture;
and
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(c) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute 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.
If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
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 Officers' 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, with
appropriate modifications to cover such future issuances, are delivered at or
prior to the authentication upon original issuance of the first Security of such
series to be issued.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Book-Entry Securities, then the Company shall execute and the Trustee
shall, in accordance with this Section and the Company Order with respect to
such series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Book-Entry Security or Securities, (ii)
shall be registered in the name of the Depositary for such Book-Entry Security
or Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for
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a Book-Entry Security must, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Securities Exchange Act of 1934 and any other applicable statute or regulation.
The Trustee shall have no responsibility to determine if the Depositary is so
registered. Each Depositary shall enter into an agreement with the Trustee
governing the respective duties and rights of such Depositary and the Trustee
with regard to Book-Entry Securities.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder. Notwithstanding the
foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such
Security to the Trustee for cancellation as provided in Section 309, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver or make available for delivery, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or
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agency of the Company in a Place of Payment for that series, without charge to
the Holder. Upon surrender for cancellation of any one or more temporary
Securities of any series the Company shall execute and the Trustee shall
authenticate and deliver or make available for delivery in exchange therefor one
or more definitive Securities of the same series, of any authorized
denominations and of a like aggregate principal amount and tenor. Until so
exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series and tenor.
Section 305. Registration, Registration of
Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security of any
series at the office or agency in a Place of Payment for that series, the
Company shall execute, and the Trustee shall authenticate and deliver or make
available for delivery, in the name of the designated transferee or transferees,
one or more new Securities of the same series, of any authorized denominations
and of a like aggregate principal amount and tenor.
At the option of the Holder, Securities of any series may be exchanged
for other Securities of the same series, of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Securities to
be exchanged at such office or agency. Whenever any Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver or make available for delivery, the Securities which
the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
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Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company, the Security Registrar or
the Trustee) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company, the Security Registrar and the
Trustee duly executed, by the Holder thereof or his attorney duly authorized in
writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities of that series selected for redemption under Section 1103 and ending
at the close of business on the day of such mailing, or (ii) to register the
transfer of or exchange any Security so selected for redemption in whole or in
part, except the unredeemed portion of any Security being redeemed in part.
Notwithstanding the foregoing, any Book-Entry Security shall be
exchangeable pursuant to this Section 305 for Securities registered in the names
of Persons other than the Depositary for such Security or its nominee only if
(i) such Depositary notifies the Company that it is unwilling or unable to
continue as Depositary for such Book-Entry Security or if at any time such
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, (ii) the Company executes and delivers to the
Trustee a Company Order that such Book-Entry Security shall be so exchangeable
or (iii) there shall have occurred and be continuing an Event of Default with
respect to the Securities. Any Book-Entry Security that is exchangeable pursuant
to the preceding sentence shall be exchangeable for Securities registered in
such names as such Depositary shall direct.
Notwithstanding any other provision in this Indenture, unless and
until it is exchanged in whole or in part for Securities that are not in the
form of a Book-Entry
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Security, a Book-Entry Security may not be transferred or exchanged except as a
whole by the Depositary with respect to such Book-Entry Security to a nominee of
such Depositary or by a nominee of such Depositary to such Depositary or another
nominee of such Depositary.
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver or make available
for delivery in exchange therefor a new Security of the same series and of like
tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and the Trustee shall
authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights
Preserved.
Except as otherwise provided as contemplated by Section 301 with
respect to any series of Securities, interest on any Security which is payable,
and is punctually paid or duly provided for, on any Interest Payment Date shall
be paid to 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 at the office or agency maintained for such purpose pursuant
to Section 1002; provided, however, that at the option of the Company, interest
on Securities of any series that bear interest may be paid (i) by check mailed
to the address of the Person entitled thereto as it shall appear on the Security
Register or (ii) by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register.
Any interest on any Security of any series which is payable, but is
not punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities of such series (or their
respective Predecessor Securities) are registered at the close of business
on a Special Record Date for the payment of such Defaulted Interest, which
shall be fixed in the following manner. The Company shall notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security of such series and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of
money equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled to
such Defaulted
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Interest as in this Clause provided. Thereupon the Trustee shall fix a
Special Record Date for the payment of such Defaulted Interest which shall
be not more than 15 days and not less than 10 days prior to the date of the
proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class postage prepaid, to each Holder of Securities of such series at
his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names
the Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities of any series in any other lawful manner not inconsistent with
the requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if, after
notice given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by the
Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and any premium
and (subject to Section 307) any interest on such Security and for all other
purposes whatsoever,
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whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company or the Trustee shall be affected by notice to the
contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee.
All Securities so delivered and any Securities surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by the Trustee and such
cancellation shall be noted conspicuously on each such Security. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Unless the Company directs otherwise by a Company Order, all
cancelled Securities held by the Trustee may be destroyed, but the Trustee shall
not be obligated to so destroy such Securities, and, if any such cancelled
Security is destroyed, the Trustee shall furnish to the Company a certificate
with respect to such destruction.
Section 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
Section 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
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numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge of
Indenture.
This Indenture shall upon Company Request cease to be of further
effect with respect to Securities of any series (except as to any surviving
rights of registration of transfer, exchange or replacement of such Securities
herein expressly provided for), and the Trustee, at the expense of the Company,
shall execute proper instruments acknowledging satisfaction and discharge of
this Indenture with respect to such Securities, when
(1) either
(A) all such Securities theretofore authenticated and delivered (other
than (i) such Securities which have been destroyed, lost or stolen and
which have been replaced or paid as provided in Section 306 and (ii) such
Securities for whose payment money has theretofore been deposited in trust
or segregated and held in trust by the Company and thereafter repaid to the
Company or discharged from such trust, as provided in Section 1003) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the Trustee for
cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity within
one year, or
(iii) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the
Company
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and the Company, in the case of (i), (ii) or (iii) above, has deposited or
caused to be deposited with the Trustee as trust funds in trust for the purpose
an amount in the currency or currencies or currency unit or units in which such
Securities are payable sufficient to pay and discharge the entire indebtedness
on such Securities not theretofore delivered to the Trustee for cancellation,
for principal and any premium and interest to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture with respect to such Securities have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 402, Article Six and
the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to provisions of the last paragraph of Section 1003, all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal and any premium and
interest for whose payment such money has been deposited with the Trustee.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
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"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of that
series when it becomes due and payable, and continuance of such default for
a period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture with respect to Securities of that series
(other than a covenant or warranty a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written
notice specifying such default or breach and requiring it to be remedied
and stating that such notice is a "Notice of Default" hereunder; or
(5) if an event of default as defined in any mortgage, indenture or
instrument under which there may be issued, or by which there may be
secured or evidenced, any indebtedness for money borrowed of the Company or
any Subsidiary, whether such indebtedness now exists or shall hereafter be
created, if (A) such default either (1) results from the failure to pay the
principal of any such indebtedness at its stated maturity or (2) relates to
an obligation other than the obligation to pay the principal of such
indebtedness at its stated maturity and results in such indebtedness
becoming or being declared due and payable prior to the date on which it
would otherwise become due and payable, (B) the principal amount of such
indebtedness,
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together with the principal amount of any other such indebtedness in
default for failure to pay principal at stated maturity or the maturity of
which has been so accelerated, aggregates $10.0 million or more at any one
time outstanding and (C) such indebtedness is not discharged, or such
acceleration is not rescinded or annulled within a period of 10 Business
Days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of Outstanding Securities a written notice
specifying such event of default and requiring the Company to cause such
acceleration to be rescinded or annulled or to cause such indebtedness to
be discharged and stating that such notice is a "Notice of Default"
hereunder; or
(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable Federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 60
consecutive days; or
(7) the commencement by the Company of a voluntary case or proceeding
under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding to
be adjudicated a bankrupt or insolvent, or the consent by it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable Federal or state bankruptcy,
insolvency, reorganization or other similar law or to the commencement of
any bankruptcy or insolvency case or proceeding against it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking pos-
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session by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or the making by it of an assignment for the benefit
of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action; or
(8) any other Event of Default provided with respect to Securities of
that series.
Section 502. Acceleration of Maturity; Rescission
and Annulment.
If an Event of Default (other than an Event of Default described in
clause 6 or 7 of Section 501) with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities or Indexed
Securities, such portion of the principal amount of such Securities as may be
specified in the terms thereof) of all of the Securities of that series to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by Holders), and upon any such declaration such principal
amount (or, in the case of Original Issue Discount Securities or Indexed
Securities, such specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that series,
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(B) the principal of (and premium, if any, on) any Securities of
that series which have become due otherwise than by such declaration
of acceleration and any interest thereon at the rate or rates
prescribed therefor in such Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(2) all Events of Default with respect to Securities of that series,
other than the non-payment of the principal of Securities of that series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
If an Event of Default described in clause 6 or 7 of Section 501
occurs, the Outstanding Securities shall ipso facto become immediately due and
payable without need of any declaration or other act on the part of the Trustee
or any Holder.
Section 503. Collection of Indebtedness and Suits
for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or premium, if
any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole
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amount then due and payable on such Securities for principal and any premium and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and on any overdue
interest, at the rate or rates prescribed therefor in such Securities, and, in
addition thereto, such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company (or any
other obligor upon the Securities), its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 607.
No provision of this Indenture shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
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Section 505. Trustee May Enforce Claims Without
Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or any premium
or interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
607;
SECOND: To the payment of the amounts then due and unpaid for
principal of and any premium and interest on the Securities in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the amounts due
and payable on such Securities for principal and any premium and interest,
respectively; and
THIRD: The balance, if any, to the Company or to such other Person or
Persons entitled thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
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(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given
to the Trustee before or during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other
Holders, or to obtain or to seek to obtain priority or preference over any other
Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all Holders.
Section 508. Unconditional Right of Holders to
Receive Principal, Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and any premium and (subject to Section 307)
any interest on such Security on the Stated Maturity or Maturities expressed in
such Security (or, in the case of redemption, on the Redemption Date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
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If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in the last paragraph
of Section 306 and as otherwise provided in Section 507, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of such series, provided that
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(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of or any premium or interest on
any Security of such series, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
Section 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess costs,
including reasonable counsel fees and expenses, against any such party litigant,
in the manner and to the extent provided in the Trust Indenture Act; provided
that neither this Section nor the Trust Indenture Act shall be deemed to
authorize any court to require such an undertaking or to make such an assessment
in any suit instituted by the Company, the Trustee or the Holders of 10%
aggregate principal amount of the Outstanding Securities of any series.
Section 515. Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or
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plead, or in any manner whatsoever claim or take the benefit or advantage of,
any usury, stay or extension law wherever enacted, now or at any time hereafter
in force, which may affect the covenants or the performance of this Indenture;
and the Company (to the extent that it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law and covenants that it will not
hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE SIX
The Trustee
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it. Whether or not therein
expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section.
Section 602. Notice of Defaults.
If a default occurs hereunder with respect to Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
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Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall
have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
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inquiry or investigation into such facts or matters as it may see fit, and,
if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture; and
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 604. Not Responsible for Recitals or
Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and neither the Trustee nor any Authenticating Agent assumes any
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee,
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Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
Section 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time such compensation as shall
be agreed in writing between the Company and the Trustee for all services
rendered by it hereunder (which compensation shall not be limited by any
provision of law in regard to the compensation of a trustee of an express
trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any provision
of this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith; and
(3) to indemnify each of the Trustee, or any predecessor Trustee, for,
and to hold it harmless against, any and all loss, liability, damage, claim
or expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or administration of the trust
or trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
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The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 607, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection
with an Event of Default specified in Section 501(6) or Section 501(7), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 608. Disqualification; Conflicting
Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. Corporate Trustee Required;
Eligibility.
There shall at all times be a Trustee hereunder which shall be a
Person that is eligible pursuant to the Trust Indenture Act to act as such and
has a combined capital and surplus of at least $50,000,000 and an office in the
Borough of Manhattan, The City of New York at which at any particular time its
corporate trust business may be administered. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of any
Federal or state supervising or examining authority, then for the purposes of
this Section, the combined capital and surplus of such Person shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
Section 610. Resignation and Removal;
Appointment of Successor.
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(a) No resignation or removal of the Trustee and appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition, at the expense of the
Company, any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 611 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition, at
the expense of the Company, any court of competent jurisdiction for the
appointment of a successor Trustee with respect to the Securities of such
series.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after written
request therefor by the Company or by any Holder who has been a bona fide
Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or by
any such Holder, or
(3) the Trustee shall become incapable of acting or shall be adjudged
a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
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then, in any such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to Section 514, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
to all Holders of Securities of such series in the manner provided in Section
106. Each notice shall include the name of the
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successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
Section 611. Acceptance of Appointment by
Successor.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee so appointed shall
execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which (1) shall
contain such provisions as shall be necessary or desirable to transfer and
confirm to, and to vest in, each successor Trustee all the rights, powers,
trusts and duties of the retiring Trustee with respect to the Securities of that
or those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or
in such supplemental indenture shall constitute such Trustees co-trustees of the
same trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered by
any
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other such Trustee; and upon the execution and delivery of such supplemental
indenture the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates; but, on request of the Company or any successor Trustee, such
retiring Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; provided, however, that to the extent that such
property and money is not held by the Trustee in trust for the benefit of the
Holders of particular Securities, such retiring Trustee shall transfer and
deliver to such successor Trustee such property and money upon payment of its
charges hereunder.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) and (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 612. Merger, Conversion, Consolidation
or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate trust business
of the Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
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as if such successor Trustee had itself authenticated such Securities.
Section 613. Preferential Collection of Claims
Against Company.
If and when the Trustee shall be or become a creditor of the Company
(or any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents with respect
to one or more series of Securities which shall be authorized to act on behalf
of the Trustee to authenticate Securities of such series issued upon original
issue and upon exchange, registration of transfer or partial redemption thereof
or pursuant to Section 306, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
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Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written
notice thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice thereof
to such Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this section.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to or in lieu of the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
Dated: _______________
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
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[------------------],
As Trustee
By.......................................
As Authenticating Agent
By.......................................
Authorized Officer
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee
Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not later than January 15 and July 15 in each year,
a list, in such form as the Trustee may reasonably require, of the names
and addresses of the Holders as of the preceding January 1 or July 1, as
the case may be, and
(b) at such other times as the Trustee may request in writing, within
30 days after the receipt by the Company of any such request, a list in
similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information;
Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of the Holders to communicate with
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other Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall be
as provided by the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of then shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant thereto.
If required by Section 313(a) of the Trust Indenture Act, the Trustee shall,
within sixty days after each May 1 following the date of the first issuance
deliver to Holders a brief report, dated as of such May 1, which complies with
the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
promptly will notify the Trustee when any Securities are listed on any stock
exchange.
Section 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 shall be
filed with the Trustee within 15 days after the same is so required to be filed
with the Commission.
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ARTICLE EIGHT
Consolidation, Merger, Conveyance, Transfer or Lease
Section 801. Company May Consolidate, Etc., Only
on Certain Terms.
The Company shall not consolidate with or merge with or into any other
Person or convey, transfer or lease its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or the
successor Person or purchaser shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States of
America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of and any premium and interest on all the Securities and
the performance or observance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing; and
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, the Person formed by or resulting or
surviving therefrom or which shall have received the properties and assets
of the Company substantially as an entirety would have outstanding any Debt
secured by any Mortgage on any Operating Property, or on any shares of
stock or Debt of any Restricted Subsidiary, which Debt could not at such
time be incurred by such Person under Section 1008 without equally and
ratably securing the Securities, the Company, or such Person, prior to such
consolidation, merger, conveyance, transfer or lease, will secure the
Outstanding Securities, equally and ratably with (or prior to) the Debt
secured by such Mortgage; and
(4) if a supplemental indenture is to be executed in connection with
such consolidation, merger, transfer
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or lease, the Company shall have delivered to the Trustee (A) an Officers'
certificate and (B) an Opinion of Counsel attesting to compliance with
these provisions.
Section 802. Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
with or into, any other Person or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor Person formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
Section 803. Officers' Certificate and
Opinion of Counsel.
The Trustee, subject to the provisions of Sections 601 and 603, shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, conveyance, transfer or lease, and
any such assumption, complies with the provisions of this Article before the
Trustee shall execute any supplemental indenture required pursuant to this
Article.
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures Without
Consent of Holders.
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 hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and
the assumption by any such successor
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of the covenants of the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default with respect to all or any
series of Securities; or
(4) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance of
Securities in bearer form, registrable or not registrable as to principal,
and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form or in the form of Book-Entry
Securities; or
(5) to add to, change or eliminate any of the provisions of this
Indenture in respect of one or more series of Securities, provided that any
such addition, change or elimination (i) shall neither (A) apply to any
Security of any series created prior to the execution of such supplemental
indenture and entitled to the benefit of such provision nor (B) modify the
rights of the Holder of any such Security with respect to such provision or
(ii) shall become effective only when there is no such Security
Outstanding; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series as
permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this Indenture
as shall be necessary to provide for or facilitate the administration of
the trusts hereunder by more than one Trustee, pursuant to the requirements
of Section 611(b); or
(9) if allowed, without penalty under applicable laws and regulations,
to permit payment in the United
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States (including any of the States thereof and the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction of principal, premium, if any, or interest, if any, on
securities in bearer form or coupons, if any; or
(10) to cure any ambiguity, to correct or supplement any provision
herein which is mistaken or may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or questions
arising under this Indenture, provided that such action pursuant to this
clause (10), other than with respect to a mistaken provision, shall not
adversely affect the interests of the Holders of Securities of any series
in any material respect.
Section 902. Supplemental Indentures with Consent
of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of principal of or interest on, any Security, or reduce the principal
amount thereof or the rate of interest thereon or any premium payable upon
the redemption thereof, or reduce the amount of the principal of an
Original Issue Discount Security or any other Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the coin
or currency in which, any Security or any premium or interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1011, except to increase any percentage set forth in such Sections
or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding
Security affected thereby; provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in the
references to "the Trustee" and concomitant changes in this Section and
Section 1011, or the deletion of this proviso, in accordance with the
requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities, or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
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Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act.
Section 906. Reference in Securities to
Supplemental Indentures.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of and any
premium and interest on the Securities of that series in accordance with the
terms of such Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange and where notices
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and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency.
Section 1003. Money for Securities Payments to
Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of or any premium or interest on any of the Securities of that series,
segregate and hold in trust for the benefit of the Persons entitled thereto a
sum sufficient to pay the principal and any premium and interest so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, prior to each due date of the principal of or any
premium or interest on any Securities of that series, deposit with a Paying
Agent a sum sufficient to pay such amount, such sum to be held as provided by
the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and
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deliver to the Trustee an instrument in which such Paying Agent shall agree with
the Trustee, subject to the provisions of this Section, that such Paying Agent
will (i) comply with the provisions of the Trust Indenture Act applicable to it
as a Paying Agent and (ii) during the continuance of any default by the Company
(or any other obligor upon the Securities of that series) in the making of any
payment in respect of the Securities of that series, and upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Securities of that series.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or any premium or
interest on any Security of any series and remaining unclaimed for two years
after such principal, premium or interest has become due and payable shall be
paid to the Company on Company Request, or (if then held by the Company) shall
be discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language, customarily
published on each Business Day and of general circulation in The City of New
York, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the
Company.
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Section 1004. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year of the Company ending after the date hereof, an Officers'
Certificate, one of the signers of which shall be the principal executive
officer, principal financial officer or principal accounting officer of the
Company, stating whether or not to the best knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 1005. Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
Section 1006. INTENTIONALLY LEFT BLANK
Section 1007. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
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Section 1008. Limitation on Liens.
Unless otherwise indicated with respect to any series of Securities,
the Company agrees as to each series of Securities, that it will not, and will
not permit any Restricted Subsidiary to, create, incur, issue, assume or
guarantee any notes, bonds, debentures or other similar evidences of
indebtedness for money borrowed ("Debt"), secured by a Mortgage upon any
Operating Property, or upon shares of capital stock or Debt issued by any
Restricted Subsidiary and owned by the Company or any Restricted Subsidiary,
whether owned at the date of this Indenture or hereafter acquired, without
effectively providing concurrently that the Outstanding Securities (together
with, if the Company shall so determine, any other Debt of the Company or such
Restricted Subsidiary then existing or thereafter created which is not
subordinate to the Securities) shall be secured equally and ratably with or, at
the option of the Company, prior to such Debt so long as such Debt shall be so
secured, unless, at the time of such creation, incurrence, issuance, assumption
or guarantee, after giving effect thereto and to the retirement of any Debt
which is concurrently being retired, the aggregate amount of all such Debt
secured by Mortgages which would otherwise be subject to such restrictions
(other than any Debt secured by Mortgages permitted in Clauses (1) through (7)
of this Section 1008) plus all Attributable Debt of the Company and its
Restricted Subsidiaries in respect of Sale and Leaseback Transactions with
respect to Operating Properties (with the exception of such Sale and Leaseback
Transactions permitted under Clauses (1) through (4) of Section 1009) would not
exceed 10% of Consolidated Net Tangible Assets; provided, however, that this
Section shall not apply to, and there shall be excluded from Debt in any
computation under this Section, Debt secured by:
(1) Mortgages on property existing at the time of the acquisition
thereof;
(2) Mortgages on property of a corporation existing at the time such
corporation is merged into or consolidated with the Company or a Restricted
Subsidiary or at the time of a sale, lease or other disposition of the
properties of such corporation (or a division thereof) as an entirety or
substantially as an entirety to the Company or a Restricted Subsidiary,
provided that any such Mortgage does not extend to any property owned by
the Company or any Restricted Subsidiary immediately prior to such merger,
consolidation, sale, lease or disposition;
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(3) Mortgages on property of a corporation existing at the time such
corporation becomes a Restricted Subsidiary;
(4) Mortgages in favor of the Company or a Restricted Subsidiary;
(5) Mortgages to secure all or part of the cost of acquisition,
construction, development or improvement of the underlying property, or to
secure Debt incurred to provide funds for any such purpose, provided that
the commitment of the creditor to extend the credit secured by any such
Mortgage shall have been obtained not later than 270 days after the later
of (A) the completion of the acquisition, construction, development or
improvement of such property or (B) the placing in operation of such
property;
(6) Mortgages in favor of the United States of America or any State
thereof, or any department, agency or instrumentality or political
subdivision thereof, to secure partial, progress, advance or other
payments; and
(7) Mortgages existing on the date of this Indenture or any extension,
renewal, replacement or refunding of any Debt secured by a Mortgage
existing on the date of this Indenture or referred to in clauses (1) to (3)
or (5) of this Section 1008, provided that the principal amount of Debt
secured thereby and not otherwise authorized by clauses (1) to (3) or (5)
shall not exceed the principal amount of Debt, plus any premium or fee
payable in connection with any such extension, renewal, replacement or
refunding, so secured at the time of such extension, renewal, replacement
or refunding.
Section 1009. Limitation on Sales and Leasebacks.
Unless otherwise indicated with respect to any series of Securities,
the Company agrees as to each series of Securities, that it will not, and it
will not permit any Restricted Subsidiary to, enter into any Sale and Leaseback
Transaction with respect to any Operating Property unless:
(1) the Sale and Leaseback Transaction is solely with the Company or
another Restricted Subsidiary;
(2) the lease is for a period not in excess of twenty-four months,
including renewals;
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(3) the Company or such Restricted Subsidiary would (at the time of
entering into such arrangement) be entitled as described in clauses (1)
through (7) of Section 1008, without equally and ratably securing the
Securities of each series then outstanding, to create, incur, issue, assume
or guarantee Debt secured by a Mortgage on such Operating Property in the
amount of the Attributable Debt arising from such Sale and Leaseback
Transaction;
(4) the Company or such Restricted Subsidiary within 270 days after
the sale of such Operating Property in connection with such Sale and
Leaseback Transaction is completed, applies an amount equal to the greater
of (i) the net proceeds of the sale of such Operating Property or (ii) the
fair market value of such Operating Property to (A) the retirement of
Securities, other Funded Debt of the Company ranking on a parity with the
Securities or Funded Debt of a Restricted Subsidiary or (B) the purchase of
Operating Property; or
(5) the Attributable Debt of the Company and its Restricted
Subsidiaries in respect of such Sale and Leaseback Transaction and all
other Sale and Leaseback Transactions entered into after the date of this
Indenture (other than any such Sale and Leaseback Transactions as would be
permitted as described in clauses (1) through (4) of this Section 1009),
plus the aggregate principal amount of Debt secured by Mortgages on
Operating Properties then outstanding (not including any such Debt secured
by Mortgages described in clauses (1) through (7) of Section 1008) which do
not equally and ratably secure such Outstanding Securities (or secure such
Outstanding Securities on a basis that is prior to other Debt secured
thereby), would not exceed 10% of Consolidated Net Tangible Assets.
Section 1010. Limitation on Debt of Restricted Subsidiaries.
Unless otherwise indicated, with respect to any series of Securities,
the Company agrees as to each series of Securities, that it will not permit any
Restricted Subsidiary to create, incur, issue, assume or guaranty any Debt,
except: (i) Debt outstanding on the date of the Indenture; (ii) Debt issued to
and held by the Company or a wholly-owned Restricted Subsidiary; (iii) Debt
created, incurred, issued, assumed or guaranteed by a Person prior to the time
the Person became, merges into, or consolidates with such Person and thereby
such Person becomes a Restricted Subsidiary
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(which Debt was not incurred in anticipation of such transaction and was
outstanding prior to such transaction); (iv) Debt incurred to provide funds for
all or part of the cost of acquisition, construction, development or improvement
of property, provided that the commitment of the creditor to extend the credit
evidenced by such Debt shall have been obtained not later than 270 days after
the later of (a) the completion of the acquisition, construction, development or
improvement of such property or (b) the placing in operation of such property;
(v) Debt which is exchanged for, or the proceeds of which are used to replace or
refund, any Debt permitted to be outstanding pursuant to clauses (i) through
(iv) above (or any extension or renewal thereof), in an aggregate principal
amount not to exceed the principal amount of the Debt so exchanged, replaced or
refunded; and (vi) Debt not otherwise permitted pursuant to clauses (i) through
(v) above that, together with any other outstanding Debt created, incurred,
issued, assumed or guaranteed pursuant to this clause (vi), has an aggregate
principal amount at any time outstanding that does not exceed 15% of
Consolidated Net Tangible Assets.
Section 1011. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1005 to 1010, inclusive, with
respect to the Securities of any series if before or after the time for such
compliance the Holders of at least a majority in principal amount of the
Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect such
term, provision or condition except to the extent so expressly waived, and,
until such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.
Section 1012. Calculation of Original Issue Discount.
If the Trustee is requested or required to send Form 1099 (or any
successor form) to Holders of Original Issue Discount Securities, the Company
shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on Outstanding Securities as of the end of
such year and (ii) such other specific information relating to such
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original issue discount as may then be relevant under the Internal Revenue Code
of 1986, as amended from time to time.
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article.
Securities of any series which are redeemable in whole or in part
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for Securities
of any series) in accordance with this Article.
Section 1102. Election to Redeem: Notice to Trustee.
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series, the Company shall, at
least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date, of the principal amount of Securities of such series to be
redeemed and, if applicable, of the tenor of the Securities to be redeemed. In
the case of any redemption of Securities prior to the expiration of any
restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
Section 1103. Selection by Trustee of Securities
to Be Redeemed.
If less than all the Securities of any series are to be redeemed
(unless all of the Securities of such series and of a specified tenor are to be
redeemed), the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series not previously called for redemption, by such method
as the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption a portion of the principal amount of any Security of
such series, provided that the unredeemed portion of the principal amount of any
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security. If less
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than all of the Securities of such series and of a specified tenor are to be
redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series and specified tenor not previously called for
redemption in accordance with the preceding sentence.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
The provisions of the two preceding paragraphs shall not apply with
respect to any redemption affecting only a single Security, whether such
Security is to be redeemed in whole or in part. In the case of any such
redemption in part, the unredeemed portion of the principal amount of the
Security shall be in an authorized denomination (which shall not be less than
the minimum authorized denomination) for such Security.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall identify the Securities to be redeemed
(including CUSIP numbers) and shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption of
any Securities, the principal amounts) of the particular Securities to be
redeemed,
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(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security, or portion thereof, to be redeemed
and, if applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be surrendered
for payment of the Redemption Price, and
(6) that the redemption is for a sinking fund, if such is the case.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company and shall be irrevocable.
Section 1105. Deposit of Redemption Price.
Prior to 12:00 noon New York City time on any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money in the currency or currencies in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series) sufficient to pay the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities
so to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security shall
be paid by the Company at the Redemption Price, together with accrued interest
to the Redemption Date; provided, however, that, unless otherwise specified as
contemplated by Section 301, installments of interest whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of
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business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest from the Redemption Date at the rate prescribed therefor in
the Security.
Section 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver or make available for delivery to the Holder of
such Security without service charge, a new Security or Securities of the same
series and of like tenor, of any authorized denomination as requested by such
Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered.
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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Section 1202. Satisfaction of Sinking Fund Payments
with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been redeemed either at the election of the
Company pursuant to the terms of such Securities or through the application of
permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of such series required to be made
pursuant to the terms of such Securities as provided for by the terms of such
series; provided that such Securities have not been previously so credited. Such
Securities shall be received and credited for such purpose by the Trustee at the
Redemption Price specified in such Securities for redemption through operation
of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
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ARTICLE THIRTEEN
Defeasance and Covenant Defeasance
Section 1301. Applicability of Article; Company's
Option to Effect Defeasance or
Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of a series under Section 1302 or (b) covenant
defeasance of the Securities of a series under Section 1303, then the provisions
of such Section or Sections, as the case may be, together with the other
provisions of this Article Thirteen, with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities, shall be
applicable to the Securities of such series, and the Company may at its option
by Board Resolution, at any time, with respect to the Securities of such series,
elect to have either Section 1302 (if applicable) or Section 1303 (if
applicable) applied to the Outstanding Securities of such series upon compliance
with the conditions set forth below in this Article Thirteen.
Section 1302. Defeasance and Discharge.
Upon the Company's exercise of its option to have this Section applied
to any series of Securities the Company shall be deemed to have been discharged
from its obligations with respect to the Outstanding Securities of such series
on and after the date the conditions precedent set forth below are satisfied
(hereinafter, "defeasance"). For this purpose, such defeasance means that the
Company shall be deemed to have paid and discharged the entire indebtedness
represented by the Outstanding Securities of such series which shall thereafter
be deemed to be "Outstanding" only for the purposes of the Sections of this
Indenture referred to in clauses (A) and (B) of this Section, 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), except for
the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of Outstanding Securities of such series to
receive, solely from the trust fund described in Section 1304 as more fully set
forth in such Section, payments of the principal of (and premium, if any) and
interest on such Securities when such payments are due, (B) the Company's
obligations with respect to such Securities under Sections 305, 306,
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1002 and 1003 and such obligations as shall be ancillary thereto, (C) the
rights, powers, trusts, duties, immunities and other provisions in respect of
the Trustee hereunder and (D) this Article Thirteen. Subject to compliance with
this Article Thirteen, the Company may exercise its option under this Section
1302 notwithstanding the prior exercise of its option under Section 1303 with
respect to the Securities of such series. Following a defeasance, payment of
such Securities may not be accelerated because of an Event of Default.
Section 1303. Covenant Defeasance.
Upon the Company's exercise of its option (if any) to have this
Section applied to any series of Securities (1) the Company shall be released
from its obligations under Sections 801, 1008, 1009 and 1010 (and any covenant
made applicable to such Securities pursuant to Section 301 to be subject to this
provision) and the occurrence of an event specified in Section 501(4) (with
respect to any of Sections 801, 1008, 1009 or 1010) (and any other Event of
Default applicable to such Securities that are determined pursuant to Section
301 to be subject to this provision) shall not be deemed to be an Event of
Default with respect to the Outstanding Securities of such series on and after
the date the conditions set forth below are satisfied (hereinafter, "covenant
defeasance"), and such Securities shall thereafter be deemed not to be
"Outstanding" for the purposes of any direction, waiver, consent or declaration
or Act of Holders (and the consequences of any thereof) in connection with
Sections 801, 1008, 1009 and 1010 (and any other covenant made applicable to
such Security pursuant to Section 301), but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to the Outstanding Securities of such
series, the Company may omit to comply with and shall have no liability in
respect of any term, condition or limitation set forth in any such Section or
such other covenant whether directly or indirectly by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of any
reference in any such Section or such other covenant to any other provision
herein or in any other document, but the remainder of this Indenture and such
Securities shall be unaffected thereby.
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Section 1304. Conditions to Defeasance or
Covenant Defeasance.
The following shall be the conditions precedent to application of
either Section 1302 or Section 1303 to the Outstanding Securities of or within
such series:
(1) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 609 who shall agree to comply with the provisions of this
Article Thirteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for, and
dedicated solely to, the benefit of the Holders of such Securities, (A)
money in an amount (in such currency, currencies or currency units in which
such Securities are then specified as payable at Maturity), 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 an amount, sufficient, without
reinvestment, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered
to the Trustee, to pay and discharge, and which shall be applied by the
Trustee (or other qualifying trustee) to pay and discharge, (i) the
principal of (and premium, if any) and interest on the Outstanding
Securities of such series on the Maturity of such principal, premium, if
any, or interest and (ii) any mandatory sinking fund payments applicable to
such Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and such Securities. Before
such a deposit the Company may make arrangements satisfactory to the
Trustee for the redemption of Securities at a future date or dates in
accordance with Article Eleven, which shall be given effect in applying the
foregoing. For this purpose, "U.S. Government Obligations" means securities
that are (x) direct obligations of the United States of America for the
payment of which its full faith and credit is pledged or (y) obligations of
a Person controlled or supervised by and acting as an agency or
instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the
United States of America, which, in either case, are not callable or
redeemable at the option of the issuer
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thereof, and shall also include a depositary receipt issued by a bank (as
defined in Section 3(a)(2) of the Securities Act of 1933, as amended) as
custodian with respect to any such U.S. Government Obligation or a specific
payment of principal of or interest on any such U.S. Government Obligation
held by such custodian for the account of the holder of such depositary
receipt, provided that (except as required by law) such custodian is not
authorized to make any deduction from the amount payable to the holder of
such depositary receipt from any amount received by the custodian in
respect of the U.S. Government Obligation or the specific payment of
principal of or interest on the U.S. Government Obligation evidenced by
such depositary receipt.
(2) No Event of Default or event which with notice or lapse of time or
both would become an Event of Default with respect to the Securities of
such series shall have occurred and be continuing (A) on the date of such
deposit or (B) insofar as subsections 501(6) and (7) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit or, if longer, ending on the day following the expiration of the
longest preference period applicable to the Company in respect of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(3) Such defeasance or covenant defeasance shall not (A) cause the
Trustee for the Securities of such series to have a conflicting interest as
defined in Section 608 or for purposes of the Trust Indenture Act with
respect to any securities of the Company or (B) result in the trust arising
from such deposit to constitute, unless it is qualified as, a regulated
investment company under the Investment Company Act of 1940, as amended.
(4) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(5) In the case of an election under Section 1302, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (x) the
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (y) since the
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date of this Indenture there has been a change in the applicable Federal
income tax law, in either case to the effect that, and based thereon such
opinion shall confirm that, the Holders of the Outstanding Securities of
such series will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance and will be subject to Federal
income tax on the same amounts, in the same manner and at the same times as
would have been the case if such defeasance had not occurred.
(6) In the case of an election under Section 1303, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of the Outstanding Securities of such series will not recognize
income, gain or loss for Federal income tax purposes as a result of such
covenant defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(7) Such defeasance or covenant defeasance shall be effected in
compliance with any additional terms, conditions or limitations which may
be imposed on the Company in connection therewith pursuant to Section 301.
(8) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 1302
or the covenant defeasance under Section 1303 (as the case may be) have
been complied with.
Section 1305. Deposited Money and U.S. Government
Obligations to be Held in Trust; Other
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 (collectively, for purposes of this
Section 1305, the "Trustee") pursuant to Section 1304 in respect of the
Outstanding Securities of such series 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 Paying Agent (but not
including the Company acting as its own Paying Agent) as the Trustee may
determine, to the
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Holders of such Securities, of all sums due and to become due thereon in respect
of principal (and premium, if any) and interest, but such money 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 money or U.S. Government
Obligations deposited pursuant to Section 1304 or the principal and interest
received in respect thereof.
Anything herein 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 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 an equivalent defeasance or covenant defeasance.
Section 1306. Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with Section 1305 by reason of any order or judgment or any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
this Article Thirteen until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 1305; provided,
however, that if the Company makes any payment of principal of (and premium, if
any) or interest on any such Security following the reinstatement of its
obligations, the Company shall be subrogated to the rights of the Holders of
such Securities to receive such payment from the money held by the Trustee or
the Paying Agent.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
PRECISION CASTPARTS CORP.
By /s/ WILLIAM D. LARSSON
--------------------------------------
Name: William D. Larsson
Title: Vice President and
Chief Financial Officer
(Corporate Seal)
Attest: /s/ RUTH A. BEYER
----------------------------
Name: Ruth A. Beyer
Title: Secretary
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ RICHARD D. MANELLA
--------------------------------------
Name: Richard D. Manella
Title: Vice President and
Senior Counsel
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STATE OF OREGON )
) ss.:
COUNTY OF MULTNOMAH )
On the 12th day of December, 1997, before me personally came William
D. Larsson and ______________________, to me known, who, being by me duly sworn,
did depose and say that he is Vice President and Chief Financial Officer, of
Precision Castparts Corp., one of the corporations described in and which
executed the foregoing instrument; and that he signed his name thereto by like
authority of the Board of Directors of said corporation.
/s/ SHERYL LEE STRATTON
---------------------------------------------
Notary Public
Official Seal
SHERYL LEE STRATTON
NOTARY PUBLIC-OREGON
COMMISSION 053955
MY COMMISSION EXPIRES MAY 25, 2000
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<PAGE>
STATE OF OREGON )
) ss.:
COUNTY OF MULTNOMAH )
On the 12th day of December, 1997, before me personally came Ruth A.
Beyer and _____________________ , to me known, who, being by me duly sworn, did
depose and say that she is Secretary, of Precision Castparts Corp., one of the
corporations described in and which executed the foregoing instrument; and that
she signed her name thereto by like authority of the Board of Directors of said
corporation.
/s/ SHERYL LEE STRATTON
---------------------------------------------
Notary Public
Official Seal
SHERYL LEE STRATTON
NOTARY PUBLIC-OREGON
COMMISSION 053955
MY COMMISSION EXPIRES MAY 25, 2000
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STATE OF ILLINOIS )
) ss.:
COUNTY OF COOK )
On the 15th day of December, 1997, before me personally came Richard
D. Manella, to me known, who, being by me duly sworn, did depose and say that he
is Vice President of The First National Bank of Chicago, one of the corporations
described herein and which executed the foregoing instrument; that he knows the
seal of said corporation; 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/ MARIA C. BIRRUETA
---------------------------------------------
Notary Public, State of Illinois
Official Seal
MARIA C. BIRRUETA
NOTARY PUBLIC, STATE OF ILLINOIS
MY COMMISSION EXPIRES: 11/13/00
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Exhibit 10(H)
Summary of compensation arrangement between Mr. Gregory M. Delaney and Precision
Castparts Corp. (PCC) contained in PCC's offer of employment:
- PCC will provide lump sum cash payments of $100,000, $100,000 and
$100,000 on the first, second and third anniversary dates of
employment, respectively.
- In the event of voluntarily resignation from PCC or termination for
cause during the first three (3) years of employment, the remaining
payments will be cancelled.
- "Cause" will be defined as any willful breach of duty by the employee
in the course of his employment, or in case of his habitual neglect of
his duty or continued incapacity to perform assigned tasks.
<PAGE>
CONFORMED COPY
PRECISION CASTPARTS CORP.
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM -
LEVEL ONE PLAN
1998 RESTATEMENT
JANUARY 1, 1998
Precision Castparts Corp.
an Oregon corporation
4650 SW Macadam, Suite 240
Portland, OR 97201 Company
<PAGE>
PRECISION CASTPARTS CORP.
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM -
LEVEL ONE PLAN
1998 RESTATEMENT
JANUARY 1, 1998
Precision Castparts Corp., an Oregon corporation (the Company) adopted
this Program effective February 1, 1989 to provide supplemental retirement
benefits for certain key employees as an incentive for them to develop
careers with the Company and to perform with a degree of excellence that will
promote the best interests of the Company. The Program is divided into two
plans, the Level One Plan, which this Restatement constitutes, and a second
plan called the Precision Castparts Corp. Supplemental Executive Retirement
Program - Level Two Plan (SERP - Level Two). The Company adopts the
following Restatement of the Supplemental Executive Retirement Program -
Level One Plan (the Plan) effective as of January 1, 1998 to enhance benefits
and to make technical, administrative and editorial changes.
1. ELIGIBILITY AND PARTICIPATION
1.1 ELIGIBLE EMPLOYEES. Participation shall be limited to a
select group of designated key employees of the Company and of its United
States Subsidiaries. "Subsidiary means a corporation more than 50 percent of
the outstanding voting stock of which is owned by the Company.
1.2 SELECTION OF PARTICIPANTS.
1.2-1 Participants shall be selected initially by the
Compensation Committee of the Board of Directors of the Company (the
Committee). The chief executive officer of the Company may recommend
additional participants for approval by the Compensation Committee. A key
employee may be selected for participation at any time. The Committee may
also remove a participant from the Plan on a prospective basis, with or
without cause. The Administrator shall notify the participant in writing
within 30 days after Committee action establishing the removal. The
effective date of removal shall be the date of adoption of the Committee
action.
1.2-2 Subject to 1.4, following any removal under 1.2-1,
the following shall apply:
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(a) The removal, in itself, shall not cause an immediate
forfeiture of benefits.
(b) No further Years of Benefit Service shall be counted
following the date of removal.
(c) The amounts described in 2.1-5(a) and (b) shall not
change after removal, but the amounts described in 2.1-5(c) may change
due to further accruals or other increases in the Retirement Plan
Benefit and Primary Social Security Benefit.
(d) A removed participant who continues to be employed by
the Company or a Subsidiary shall not earn additional Years of
Eligibility Service needed to qualify for retirement under Section 2
below and shall not qualify for accelerated vesting under 2.4 on
change of control occurring after removal from participation.
(e) The pre-retirement spousal death benefit if applicable
under 4.3 shall end 30 days after notice of removal is given under
1.2-1.
(f) If the participant is married at removal and remains
married until the benefit start date, the Company-paid survivor
annuity under 2.1-2, as well as any election under 3.2-2 to increase
the survivor annuity from 50% to 100%, shall continue to apply. If
the participant is married at removal and is unmarried or married to a
different spouse at the benefit start date, the Company-paid survivor
annuity under 2.1-2 shall not apply. If the participant is unmarried
at removal but becomes married prior to the benefit start date, the
Company-paid survivor annuity under 2.1-2 shall not apply, but the
participant may elect within 30 days after marriage an actuarially
equivalent spousal survivor annuity at 50% or 100% determined with
reference to the otherwise payable normal benefit for the participants
life only.
1.3 ENROLLMENT. When selected, the key employee shall be
notified and given a Statement of Participation signed by the Company. The
key employee shall enroll for participation by completing the Statement of
Participation, including all required benefit elections, signing it and
returning it to the Administrator of the Plan appointed by the Committee (the
Administrator). The Statement of Participation shall be effective on the
date signed by the key employee.
<PAGE>
1.4 TRANSFER TO LEVEL TWO.
1.4-1 If a participant in this Plan becomes a participant
under SERP - Level Two, the benefit obligations under this Plan shall be
transferred to SERP- Level Two as follows:
(a) The monthly benefit shall be calculated as described in
1.4-2.
(b) If the participant is married upon transfer and remains
married until the benefit start date, an election under 3.2-2 to
provide for a surviving spouse 100% contingent annuity shall continue
to apply to the transferred benefit obligations.
(c) The Company-paid survivor annuity under 2.1-2 shall
continue to apply only if the participant is married on the transfer
date and remains married until the benefit start date. If the
participant is not married on the transfer date and is married on the
benefit start date, or if the participant is married on the transfer
date and is married to a different spouse on the benefit start date,
the Company-paid survivor annuity under 2.1-2 shall not apply.
1.4-2 The benefit following the transfer will be the
greater of the following:
(a) The benefit determined under the SERP - Level Two
formula counting covered service and pay for the periods of coverage
under SERP - Level One and SERP - Level Two.
(b) The grandfathered SERP - Level One benefit, calculated
as follows:
(1) The benefit target shall be determined under
2.1-5(a) and (b) based on covered service and pay as of the
date of transfer.
(2) The offset portion under 2.1-5(c) may change
after the date of transfer due to further accruals or other
increases in the Retirement Plan Benefit and Primary Social
Security Benefit. In determining the offset for the
Retirement Plan Benefit, the monthly benefit shall be
calculated based on the following form of benefit:
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- If the participant is unmarried on the
transfer date, or if the participant is
married on the transfer date but is married
to a different spouse on the benefit start
date, in a straight life annuity.
- If the participant is married upon transfer
and remains married until the benefit start
date, in a contingent annuity with half
payments continued to the spouse for the
period of coverage under SERP - Level One and
in a straight life annuity for the period of
coverage under SERP - Level Two.
2. SUPPLEMENTAL BENEFITS
2.1 NORMAL RETIREMENT BENEFIT
2.1-1 Subject to 2.1-2, 2.1-3 and 2.1-6, the basic
supplemental benefit on normal retirement with 20 Years of Benefit Service
(YBS) shall be a monthly pension for life equal to 60 percent of Final
Average Pay (FAP) minus the Retirement Plan Benefit (RPB) and the Primary
Social Security Benefit (PSSB).
2.1-2 For a participant who is married at the time
retirement benefit payments start, the benefit shall include a survivor
annuity for the participant's spouse under which after the participant's
death, ongoing benefits shall be paid to the participant's surviving spouse
for life at a monthly rate equal to half the monthly rate paid to the
participant. The married participant's normal retirement benefit shall not
be reduced to provide for this survivor annuity. As provided in 3.2-2, a
married participant may elect to have the surviving spouse's survivor annuity
increased to provide for continuation of benefits in full after the
participant's death, in which case the participant's normal retirement
benefit shall be reduced on an actuarially equivalent basis to provide for
the increase in the survivor annuity amount. The survivor annuity, if
applicable, shall only be payable to the spouse to whom the participant is
married on the benefit starting date.
2.1-3 The basic supplemental benefit for any participant
who is a Five Percent Shareholder of the Company shall be half the amount
otherwise provided under 2.1-1 and related provisions. If a participant
stops being a Five Percent Shareholder, the foregoing restriction shall not
apply to additional benefits for Benefit Service after the Five Percent
Shareholder status ends. A participant shall be considered a Five Percent
Shareholder if:
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(a) The person owns, directly or indirectly, securities of
the Company representing 5 percent or more of the combined voting
power of the Company's then outstanding securities, and
(b) The person has owned securities meeting the
requirements of (a) for 20 or more years while an employee of the
Company.
2.1-4 For a participant with less than 20 Years of Benefit
Service at normal retirement, the 60 percent factor in 2.1-1 shall be reduced
by 1/20th for each year less than 20. The benefit for each Year of Benefit
Service over 20 shall be one-half of one percent (.5 percent) of Final
Average Pay, minus any portion of the Retirement Plan Benefit and Primary
Social Security Benefit that exceeds the basic benefit under 2.1-1 for the
first 20 Years of Benefit Service. The benefit for a partial year at the end
of a participant's period of service shall be prorated based on the number of
months in which the participant performs services during the year.
2.1-5 The basic supplemental benefit can be expressed as
follows:
(a) (60% of FAP) ((YBS up to 20)/20)
PLUS
(b) (.5% of FAP) (YBS over 20)
MINUS
(c) (RPB + PSSB)
2.1-6 If a participant has a period of Benefit Service
transferred to this Plan from SERP - Level Two, an election under 3.2-2 of
SERP - Level Two shall continue to apply to the transferred benefit
obligations as provided in this Plan.
2.2 DEFINITIONS
2.2-1 "Final Average Pay" means the participant's average
monthly compensation in the highest three calendar years of compensation out of
five consecutive calendar years of employment during a period of Eligibility
Service by the Company or a Subsidiary. Years separated by a period of one or
more calendar years when the participant has no such employment shall be treated
as consecutive. Additional compensation paid at retirement or other termination
of employment, such as for periods of unused vacation or sick leave, shall be
attributed to calendar years by assuming that employment continued during the
5
<PAGE>
period based on which the compensation is measured. Severance pay shall be
disregarded, except severance pay in lieu of service.
2.2-2 "Compensation" shall be determined as follows:
(a) Total direct pay reportable on Form W-2 under Internal
Revenue Code section 3401(a), disregarding limitations based on the
nature or location of employment, shall be counted, subject to the
following provisions:
(1) Bonuses shall be included in full.
(2) Commissions and cost-of-living allowances
shall be excluded.
(3) Any reimbursements or other expense
allowances, fringe benefits, moving expenses, severance or
disability pay and other deferred compensation (other than
as specified in (b) below) and welfare benefits shall be
excluded.
(4) Gains realized from the exercise of
nonqualified stock options shall be excluded.
(b) Total direct pay shall be determined without reduction
by elective deferral of otherwise currently taxable compensation under
any qualified cash or deferred arrangement under Internal Revenue Code
section 401(k), any elective welfare benefit arrangement under
Internal Revenue Code section 125 or a non-qualified deferred
compensation plan.
(c) During periods of reduced compensation because of such
causes as illness, disability or leave of absence, compensation shall
be figured at the last regular rate before the start of the period.
2.2-3 "Primary Social Security Benefit" means the primary
insurance amount estimated for the participant on retirement at or after age
65 under the federal Social Security Act determined as follows:
(a) The amount may be estimated from the regular pay rate
under rules established by the Administrator assuming a standard pay
progression over a full working career.
(b) The amount shall not be changed by amendments to the
Social Security Act or cost-of-living index adjustments after the
participant's actual termination date or age 65, whichever is first.
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<PAGE>
(c) If a participant retires early, the Primary Social
Security Benefit shall be the amount that would be received at age 65
assuming level earnings at the participants final rate of pay and no
change in the Social Security Act.
2.2-4 "Retirement Plan Benefit" means the sum of the
following amounts:
(a) The monthly benefit (excluding any Prior Profit Sharing
Plan Benefit) under the Precision Castparts Corp. Retirement Plan (the
Retirement Plan) for the participant upon normal retirement at age 65
in the form determined under 2.2-5.
(b) The monthly benefit for the participant under any
defined benefit pension plan other than the Retirement Plan from
service counted for benefits under this Plan as well as any service
following removal from participation, and disregarding any benefit
derived from rollovers to such plan derived from a source other than
employer contributions relating to the period of service counted for
benefits under this Plan. The benefit shall be expressed as a normal
retirement benefit at age 65 in the form determined under 2.2-5 using
the actuarial equivalency factors applicable under that plan. If
benefits are provided for a participant under the foregoing sentences
with respect to more than one plan, all such benefits shall be
combined.
(c) The monthly benefit for the participant under a defined
contribution retirement plan relating to service counted for benefits
under this Plan as well as any service following removal from
participation, and disregarding any benefit derived from employee
pre-tax or employee after-tax contributions to such plan or rollovers to
such plan derived from a source other than employer contributions
relating to the period of service counted for benefits under this Plan.
The amount of the benefit shall be based on each employer contribution
for the participant with respect to the relevant period of service, with
the contributions carried forward at an interest rate of eight percent.
The actual rate of return in the plan and any interim distributions or
withdrawals shall be disregarded. The resulting benefit shall be
expressed as a normal retirement benefit at age 65 in the form
determined under 2.2-5 using the actuarial equivalency factors
applicable to the Retirement Plan for determining equivalent benefits
other than a lump sum. If benefits are provided for a participant under
the foregoing sentences with respect to more than one plan, all such
benefits shall be combined. If the defined contribution plan is a plan
under which employer contributions are made to match, wholly or partly,
7
<PAGE>
employee pre-tax or after-tax contributions under the plan, then the
offset for the defined contribution plan shall be calculated assuming
the employee's account has been credited with the maximum matching
contributions the employee could have had credited by making employee
contributions (without regard to any operational limitations imposed by
discrimination testing), carried forward at an interest rate of eight
percent.
2.2-5 In determining the Retirement Plan Benefit under
2.2-4, the monthly benefit shall be calculated based on the following form of
benefit:
(a) For a participant who is married when benefit payments
start under this Plan, in a contingent annuity with half payments
continued to the spouse.
(b) For a participant who is unmarried when benefit
payments start under this Plan, in a straight life annuity.
2.2-6 "Normal Retirement" means retirement under the
Retirement Plan at or after age 65 with 10 Years of Eligibility Service.
2.2-7 Subject to 1.2, "Year of Benefit Service" means a
period of 12 months based on the anniversary of the date the employee first
performs an hour of service as an employee of the Company or a Subsidiary. No
service for a business before the date it becomes a Subsidiary shall be
counted as Benefit Service. Except for periods of disability as described
below, periods of employment other than as a regular full-time employee shall
be disregarded and service credit shall be reduced accordingly. If a person
becomes totally and permanently disabled while a participant accruing Benefit
Service and qualifies for disability income payments under Social Security,
the participant shall continue to accrue Years of Benefit Service during
disability up to age 65 or earlier retirement if:
(a) The disability was directly related to and arose from
the participant's employment, or
(b) The participant had 10 Years of Eligibility Service
before the disability occurred.
2.2-8 "Years of Eligibility Service" means Years of
Benefit Service as defined in 2.2-7 plus Years of Service (as defined in the
Retirement Plan), if any, approved by the Committee performed for a business
before the date it became a Subsidiary.
2.3 EARLY RETIREMENT BENEFIT
8
<PAGE>
2.3-1 An early retirement supplemental benefit shall be
payable for a participant who terminates employment before normal retirement
but after age 55 with at least 10 Years of Eligibility Service. The benefit
shall be the normal retirement basic supplemental benefit, as adjusted under
2.1-4, if applicable, and reduced as described in 2.3-2 by 6 percent for each
year by which the early retirement date precedes the date the participant
would have first qualified for normal retirement as defined in 2.2. The
reduction for partial years shall be prorated monthly, based on calendar
months with a partial month at the beginning or end of the period disregarded
if the affected portion of the month is less than 15 days.
2.3-2 The early retirement reduction described in 2.3-1
shall be applied after calculating a participants benefit as for normal
retirement, based on service and compensation to actual retirement, as
follows:
(a) (60% of FAP) ((YBS up to 20)/20)
+ (.5% of FAP) (YBS over 20)-(RPB + PSSB)
TIMES
(b) (1-.06(65-age at actual retirement))
2.3-3 No benefit shall be paid with respect to a
participant whose employment terminates before early retirement except under
2.4 or 4.
2.3-4 A participant may not elect to defer the start of early
retirement benefits.
2.4 ACCELERATED VESTED BENEFIT. Subject to 2.5, an accelerated
vested benefit shall be payable for a participant whose employment is
terminated by the Company if the termination occurs both within two years
following a Change in Control of the Company as defined in 10 and before the
participant qualifies for normal or early retirement. The benefit shall be a
lump sum payment as of the first day of the month after termination of
employment. The amount shall be the actuarially determined present value of
the participants basic supplemental benefit on normal retirement, based on
Final Average Pay and Years of Benefit Service as of the date of termination,
an assumed interest rate of eight percent and the mortality table used for
equivalent benefits payable as lump sum payments under the Retirement Plan.
No cash-out value shall be attributed to any spousal survivor benefit for a
participant. If a participant qualifies for payment of a benefit under this
provision, but dies before payment of the benefit, the benefit shall be paid
to the participant's spouse under 4.4 if applicable, or to the participant's
estate if 4.4 is not applicable. A change in ownership of an affiliate of
the Company that does not occur as part of a Change in Control of the
Company, shall not trigger this section 2.4
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2.5 FORFEITURE OF BENEFIT
2.5-1 No benefit (other than a spouses death benefit under 4,
if applicable) shall be payable with respect to a participant who terminates
employment, regardless of cause, before qualifying for a normal retirement
benefit, an early retirement benefit or an accelerated vested benefit or to any
participant whose employment is terminated for misconduct during employment.
Moreover, no normal or early retirement benefit or spouse's death benefit shall
be payable with respect to any participant who, after termination, engages in
competition with the Company or a Subsidiary, as determined by the Committee in
accordance with 2.5-3.
2.5-2 "Misconduct during employment" means:
(a) Committing a fraudulent or otherwise dishonest act
related to employment;
(b) Making an unauthorized disclosure of confidential
information related to the Company or Subsidiary if the information
was obtained during employment; or
(c) Engaging in competition while employed. Competition is
defined in 2.5-3(a) and (b).
2.5-3 "Competition" means doing either of the following
within three years after termination of employment:
(a) Making an unauthorized disclosure of confidential
information related to the Company or any Subsidiary if the
information was obtained during employment; or
(b) Engaging either as an employee, partner, proprietor or
otherwise, in a business in competition with the Company or any
Subsidiary in the manufacture or sale of investment castings or any
other business conducted by the Company or a Subsidiary at any time
during the participant's period of employment.
2.5-4 No forfeiture or absence of a forfeiture shall
constitute a
2.5-5 waiver of or bar any other remedy that may be
available to the Company or a Subsidiary under
applicable law on account of the misconduct or
competition.
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2.6 DEFERRED RETIREMENT BENEFIT. If a participant's employment with
the Company or a Subsidiary continues past age 65, Years of Benefit Service
shall continue to accrue and Final Average Pay shall be adjusted to actual
retirement. The benefit shall be based on the regular formula for normal
retirement, and no actuarial adjustment shall be made for starting benefits
after age 65.
3. PAYMENT OF BENEFITS
3.1 START OF BENEFITS. Benefits shall start with the month that
begins after termination of employment, in the case of normal, deferred,
accelerated vested or early retirement benefits, and with the month that begins
after the participant's death in the case of a spouse's death benefit under 4.1
through 4.3. The benefit starting date shall be as of the first day of the
first month for which benefits are paid under this provision. Benefit payments
shall be made by the end of the month to which they apply in accordance with the
Company's regular payroll processing schedule.
3.2 FORM OF BENEFIT
3.2-1 Subject to 2.1-2, the normal form for payment of
benefits shall be a monthly annuity for the life of the participant.
3.2-2 A married participant may elect under 3.2-4 to receive
a reduced monthly benefit for life in order to have payments continued to the
participant's surviving spouse in full (rather than at one-half as provided in
2.1-2).
3.2-3 The reduction under 3.2-2 in the participant's monthly
benefit shall be the actuarial equivalent of the increase selected for the
spouse's survivor benefit. Actuarial equivalency shall be determined with
reference to the otherwise payable normal benefit and shall be based on the
assumptions applicable to determining comparable benefits under the Retirement
Plan.
3.2-4 A benefit election under 3.2-2 may be made upon
enrollment in this Plan or within 30 days following the marriage of a
participant that occurs before the participant's benefit starting date under
3.1. The election shall be by written notice mailed or delivered to the
Administrator. An election under 3.2-2 shall be void if the participant and
spouse do not stay married throughout the period from the election date to the
benefit starting date.
3.2-5 Accelerated vested benefits under 2.4 shall be paid in
a lump sum.
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4. DEATH BENEFITS FOR SPOUSE
4.1 Subject to 2.5, if a participant dies after starting to receive
benefits, or dies after retiring under 2.2-6 or 2.3-1 but before starting
benefits under 3.1, a death benefit shall be paid only as provided under the
spouses survivor benefit form. A spouse's post-retirement death benefit shall
only be paid to the spouse to whom the participant was married on the
participant's benefit starting date, even if the participant is married to
another spouse on the date of death.
4.2 Except as provided in 4.3 and 4.4, if a participant dies before
starting to receive benefits or qualifying under 4.1, no benefit shall be paid.
4.3 Subject to 1.2-2(e), the surviving spouse of a participant who
dies while employed and after meeting the age and service requirements for early
or normal retirement shall receive a death benefit as follows:
(a) The benefit shall be a monthly payment for the
surviving spouses life, starting on the first day of the month after
the participant's death.
(b) Subject to (c), the amount shall be determined as
though the participant had retired on the date of death with benefits
payable to the participant's spouse at one-half under the survivor
annuity in 2.1-2.
(c) If a participant elected under 3.2-2 to have payments
continued to the surviving spouse in full, then the amount under (b)
shall be determined using that benefit form.
4.4 If a participant dies after qualifying for an accelerated vested
benefit under 2.4 but before the date under 3.1 for payment of the benefit, the
surviving spouse shall receive the participant's accelerated vested benefit in a
lump sum on the date the payment otherwise would have been made to the
participant. If actual payment is delayed until after the date under 3.1 for
payment of the benefit to the surviving spouse under this provision, the benefit
shall be paid to the spouse as soon as practicable, or to the surviving spouse's
estate if the surviving spouse has died before the actual payment date. If a
participant dies after qualifying for an accelerated vested benefit under 2.4
but before the date under 3.1 for payment of the benefit, and there is no
surviving spouse, no benefit shall be paid under this provision.
5. NO ADVANCE FUNDING
Benefits shall be paid from the general assets of the Company. The
Company may, but shall not be required to set aside funds in advance for payment
of benefits under the
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Plan. Even if funds are set aside, that shall not cause this to be a funded
employee benefit plan. Participants' rights under this Plan shall be only as
general creditors of the Company.
6. AMENDMENT AND TERMINATION
6.1 REGULAR PROCEDURE. Subject to 6.3, the Board of Directors of the
Company may amend or terminate this Plan on the first day of any month by notice
to the participants, but may not revoke any participant's benefits (a) without
adequate compensation or (b) after the occurrence of a Change in Control of the
Company. If the Board of Directors decides to revoke benefits for some or all
participants, the benefits of all affected participants shall be revoked in
exchange for adequate compensation, and such participants shall have no right to
defer receipt of such compensation. "Adequate compensation" shall be determined
based upon the actuarially equivalent present value of the accrued straight life
normal retirement (age 65) benefit as of the plan termination date, using an
eight percent interest assumption and the mortality table then applicable under
the Retirement Plan to benefits payable as lump sum distributions. No cashout
value shall be attributed to any spousal survivor benefit for a participant who
has not already retired and commenced benefits. Subject to 6.2, the value of an
unvested benefit shall be zero.
6.2 TOTAL PLAN TERMINATION OR REDUCTION IN BENEFIT ACCRUAL RATE. In
the event of a total termination, the benefits of all participants shall be
fully vested immediately to the extent then accrued, and the participant shall
receive adequate compensation as described in 6.1 above. If ongoing benefit
accruals are slowed or stopped, the following shall apply:
(a) Automatic vesting shall not apply.
(b) Participants who remain employed by the Company or a
Subsidiary shall continue to accrue Eligibility Service and shall
become vested upon reaching age 55 and 10 Years of Eligibility
Service.
(c) The amounts described in 2.1-5(a) and (b) shall be
adjusted under the new accrual rate, or shall be frozen if accruals
are stopped, but shall not be reduced. The amounts described in 2.1-5(c)
may change as described in 1.2-2(c).
6.3 TECHNICAL, EDITORIAL OR OPERATIONAL CHANGES. The chief executive
officer of the Company may amend the Plan to make technical, editorial or
operational changes on advice of counsel to comply with applicable law or to
simplify or clarify the Plan. The chief executive officer may delegate this
amendment authority.
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7. NOT CONTRACT OF EMPLOYMENT
This Plan shall not be a contract of employment between the Company
or a Subsidiary and any participant. No participant may object to
termination of the Plan under paragraph 6 above. The Plan shall not prevent
the Company or a Subsidiary from discharging any participant from employment
at any time.
8. CLAIMS PROCEDURE
8.1 FILING PROCEDURE. Any person claiming a benefit, requesting
an interpretation or ruling under the Plan, or requesting information under
the Plan shall present the request to the Administrator who shall respond in
writing as soon as practicable. Verbal claims must be confirmed in writing
by the claimant within a reasonable time. If no written confirmation is
received within two weeks of a verbal claim, the Administrator may state the
claim in writing communicated to the claimant and then proceed on that basis.
8.2 NOTICE OF DENIAL. If the claim or request is denied, the
written notice of denial shall state:
(a) The reasons for the denial, with specific reference to
the Plan provisions on which the denial is based;
(b) A description of any additional material or information
required and an explanation of why it is necessary; and
(c) An explanation of the Plans claim review procedure.
8.3 REVIEW PROCEDURE. Any person whose claim or request is denied
or who has not received a response within 30 days may request review by
notice in writing to the Administrator, who shall inform the Committee. The
original decision shall be reviewed by the Committee, which may, but shall
not be required to, grant the claimant a hearing. On review, whether or not
there is a hearing, the claimant may have representation, examine pertinent
documents and submit issues and comments in writing.
8.4 DECISION ON REVIEW. The decision on review shall ordinarily
be made within 60 days. If an extension of time is required for a hearing or
other special circumstance, the claimant shall be so notified and the time
shall be 120 days. The decision shall be expressed in writing and shall
state the reasons and the relevant Plan provisions. All decisions on review
shall be final and bind all parties concerned.
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9. GENERAL PROVISIONS
9.1 If suit or action is instituted to enforce any rights under
the Plan, the prevailing party may recover from the other party reasonable
attorneys' fees at trial and on any appeal.
9.2 Any notice under this Plan shall be in writing and shall be
effective when actually delivered or, if mailed, when deposited as registered
or certified mail directed to the Company at the address stated in the
Statement of Participation or to such other address as either party may
specify by notice to the other party. Unless otherwise designated, notices
to the Committee or the Administrator shall be sent to the address specified
for the Company.
9.3 The rights of a participant under this agreement are personal.
Except for amounts owing to or claimed by the Company or a Subsidiary and
except for the limited provisions of 3.2 above, no interest of a participant
or spouse or representative of a participant may be directly or indirectly
transferred, encumbered, seized by legal process or in any other way
subjected to the claims of any creditor.
9.4 Following termination of employment, a participant shall not
be an employee of the Company or a Subsidiary for any purpose and payments
under Section 3 shall not constitute salary or wages. A participant shall
receive such payments as retirement benefits, not as compensation for
performance of any substantial services.
9.5 Except as provided in 9.3 above, this Plan shall be binding
upon and inure to the benefit of the parties, their successors and assigns.
If the Company or a Subsidiary merges, consolidates or otherwise reorganizes,
or its assets or business are acquired by another company, this Plan shall be
binding upon the successor company and shall apply to any employment of
participants by the successor company.
9.6 This Plan shall be construed according to the laws of Oregon
except as preempted by federal law.
10. DEFINITION OF CHANGE IN CONTROL
For purposes of this Plan, a change in control of the Company shall
be deemed to have occurred if:
(a) Any "person", as such term is used in Sections 13(d)
and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (other than the Company, any trustee or other
fiduciary holding securities under an employee benefit plan of the
Company, or any company owned, directly or indirectly, by the
stockholders of the Company in substantially the same
15
<PAGE>
proportions as their ownership of stock of the Company), is or becomes
the "beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Company representing 20
percent or more of the combined voting power of the Company's then
outstanding securities;
(b) During any period of two consecutive years (not
including any period prior to the execution of this Agreement),
individuals who at the beginning of such period constitute the Board
of Directors of the Company (the Board), and any new director (other
than a director designated by a person who has entered into an
agreement with the Company to effect a transaction described in clause
(a), (c) or (d) of this Section) whose election by the Board or
nomination for election by the Company's stockholders was approved by
a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors at the beginning of the period or
whose election or nomination for election was previously so approved,
cease for any reason to constitute at least a majority thereof;
(c) The stockholders of the Company approve a merger or
consolidation of the Company with any other company, other than (1) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50 percent of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as herein above defined) acquires more than 20 percent of
the combined voting power of the Company's then outstanding
securities; or
(d) The stockholders of the Company approve a plan of
complete liquidation of the Company or an agreement for the sale or
disposition by the Company of all or substantially all of the
Company's assets.
11. EFFECTIVE DATE
This Restatement shall be effective January 1, 1998, except that the
changes in 2.2-4 shall be effective as of January 1, 1989, the Plan's initial
effective date. The Company-provided spouse's survivor benefit under 2.1-2
shall be provided as follows:
(a) For a participant who had previously elected to receive
benefits in a straight life annuity, the 50% spouse's survivor benefit
is provided with no reduction of the participant's monthly benefit
amount. If the participant
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<PAGE>
was not married upon making the election, but is married on August 5,
1997, the participant may elect promptly after receiving written
announcement of this Restatement to have the Company-provided spouse's
survivor benefit supplemented with an additional 50% spouses survivor
benefit (with a related actuarial reduction in the participant's
benefit), resulting in a 100% spouse's survivor benefit. Actuarial
equivalency shall be determined in a manner consistent with 3.2-3.
(b) For a participant who had previously elected to reduce
the monthly retirement benefit in order to provide the 50% spouse's
survivor benefit, the participant may elect within 30 days of
receiving written announcement of this Restatement either to receive
the Company-provided spouses survivor benefit to increase the spouse's
survivor benefit to 100%, or to have the originally-selected 50%
spouse's survivor benefit provided with no actuarial reduction.
Actuarial equivalency shall be determined in a manner consistent with
3.2-3.
(c) For a participant who had previously elected to reduce
the monthly retirement benefit in order to provide the 100% spouse's
survivor benefit, the actuarial reduction of the participant's monthly
benefit shall be based on the difference between the Company-provided
spouse's survivor benefit and the 100% spouses survivor benefit as
selected. Actuarial equivalency shall be determined in a manner
consistent with 3.2-3.
Adopted: August 5, 1997
COMPANY PRECISION CASTPARTS CORP.
By W. C. MCCORMICK
---------------------------------
Executed: December 3, 1997
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CONFORMED COPY
PRECISION CASTPARTS CORP.
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM-
LEVEL TWO PLAN
1998 RESTATEMENT
JANUARY 1, 1998
Precision Castparts Corp.
an Oregon corporation
4650 SW Macadam, Suite 240
Portland, OR 97201 Company
<PAGE>
PRECISION CASTPARTS CORP.
SUPPLEMENTAL EXECUTIVE RETIREMENT PROGRAM -
LEVEL TWO PLAN
1998 RESTATEMENT
JANUARY 1, 1998
Precision Castparts Corp., an Oregon corporation (the Company) adopted
this Program effective February 1, 1989 to provide supplemental retirement
benefits for certain key employees as an incentive for them to develop
careers with the Company and to perform with a degree of excellence that will
promote the best interests of the Company. The Program is divided into two
plans, the Level Two Plan, which this Restatement constitutes, and a second
plan called the Precision Castparts Corp. Supplemental Executive Retirement
Program - Level One Plan (SERP - Level One). The Company adopts the
following Restatement of the Supplemental Executive Retirement Program -
Level Two Plan (the Plan) effective as of January 1, 1998 to change the
definition of Final Average Pay counted under the Plan and to make technical,
administrative and editorial changes.
1. ELIGIBILITY AND PARTICIPATION
1.1 ELIGIBLE EMPLOYEES. Participation shall be limited to a
select group of designated key employees of the Company and of its United
States Subsidiaries. "Subsidiary" means a corporation more than 50 percent
of the outstanding voting stock of which is owned by the Company.
1.2 SELECTION OF PARTICIPANTS.
1.2-1 Participants shall be selected initially by the
Compensation Committee of the Board of Directors of the Company (the
Committee). The chief executive officer of the Company may recommend
additional participants for approval by the Compensation Committee. A key
employee may be selected for participation at any time. The Committee may
also remove a participant from the Plan on a prospective basis, with or
without cause. The Administrator shall notify the participant in writing
within 30 days after Committee action establishing the removal. The
effective date of removal shall be the date of adoption of the Committee
action.
1.2-2 Subject to 1.4, following any removal under 1.2-1,
the following shall apply:
<PAGE>
(a) The removal, in itself, shall not cause an immediate
forfeiture of benefits.
(b) No further Years of Benefit Service shall be counted
following the date of removal.
(c) The amounts described in 2.1-4(a) and (b) shall not
change after removal, but the amounts described in 2.1-4(c) may change
due to further accruals or other increases in the Retirement Plan
Benefit and Primary Social Security Benefit.
(d) A removed participant who continues to be employed by
the Company or a Subsidiary shall not earn additional Years of
Eligibility Service needed to qualify for retirement under Section 2
below and shall not qualify for accelerated vesting under 2.4 on
change of control occurring after removal from participation.
(e) The pre-retirement spousal death benefit if applicable
under 4.3 shall end 30 days after notice of removal is given under
1.2-1.
(f) If the participant is married at removal, any election
under 3.2-2 to provide a spousal contingent annuity at 50% or 100%
shall continue to apply. If the participant is unmarried at removal
but becomes married prior to the benefit start date, the participant
may make an election under 3.2-2 within 30 days after marriage.
1.3 ENROLLMENT. When selected, the key employee shall be
notified and given a Statement of Participation signed by the Company. The
key employee shall enroll for participation by completing the Statement of
Participation, including all required benefit elections, signing it and
returning it to the Administrator of the Plan appointed by the Committee (the
Administrator). The Statement of Participation shall be effective on the
date signed by the key employee.
1.4 TRANSFER TO LEVEL ONE. If a participant in this Plan becomes
a participant under SERP - Level One, the benefit obligations under this Plan
shall be transferred to SERP- Level One. An election under 3.2-2 of this
Plan to provide for a surviving spouse contingent annuity at 50% or 100%
shall continue to apply to the transferred benefit obligations as provided in
this Plan.
<PAGE>
2. SUPPLEMENTAL BENEFITS
2.1 NORMAL RETIREMENT BENEFIT
2.1-1 Subject to 2.1-2 and 2.1-5, the basic supplemental
benefit on normal retirement with 25 Years of Benefit Service (YBS) shall be
a monthly pension for life equal to 55 percent of Final Average Pay (FAP)
minus the Retirement Plan Benefit (RPB) and the Primary Social Security
Benefit (PSSB).
2.1-2 The basic supplemental benefit for any participant
who is a Five Percent Shareholder of the Company shall be half the amount
otherwise provided under 2.1-1 and related provisions. If a participant
stops being a Five Percent Shareholder, the foregoing restriction shall not
apply to additional benefits for Benefit Service after the Five Percent
Shareholder status ends. A participant shall be considered a Five Percent
Shareholder if:
(a) The person owns, directly or indirectly, securities of
the Company representing 5 percent or more of the combined voting
power of the Companys then outstanding securities, and
(b) The person has owned securities meeting the
requirements of (a) for 20 or more years while an employee of the
Company.
2.1-3 For a participant with less than 25 Years of Benefit
Service at normal retirement, the 55 percent factor in 2.1-1 shall be reduced
by 1/25th for each year less than 25. The benefit for each Year of Benefit
Service over 25 shall be one-half of one percent (.5 percent) of Final
Average Pay, minus any portion of the Retirement Plan Benefit and Primary
Social Security Benefit that exceeds the basic benefit under 2.1-1 for the
first 25 Years of Benefit Service. The benefit for a partial year at the end
of a participants period of service shall be prorated based on the number of
months in which the participant performs services during the year.
2.1-4 The basic supplemental benefit can be expressed as
follows:
(a) (55% of FAP) ((YBS up to 25)/25)
PLUS
(b) (.5% of FAP) (YBS over 25)
MINUS
(c) (RPB + PSSB)
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<PAGE>
2.1-5 If a participant has a period of Benefit Service
transferred to this Plan from SERP - Level One, the benefit under this Plan
shall not be less than the SERP - Level One benefit transferred to this Plan
determined as follows:
(a) The benefit target under SERP - Level One 2.1-5(a) and
(b) shall not be less than the target as of the date of transfer.
(b) The offset portion under SERP - Level One 2.1-5(c) may
change due to further accruals or other increases in the Retirement
Plan Benefit and Primary Social Security Benefit.
(c) An election under 3.2-2 of SERP - Level One to provide
for a surviving spouse 100% contingent annuity shall continue to apply
to the transferred benefit obligations as provided in this Plan.
(d) The surviving spouse 50% contingent annuity
automatically provided under SERP - Level One shall continue to apply
under this Plan, but the participant's benefit shall be actuarially
reduced to provide for the spouse's annuity.
2.2 DEFINITIONS
2.2-1 "Final Average Pay" means the participant's average
monthly compensation in the highest three calendar years of compensation out
of five consecutive calendar years of employment during a period of
Eligibility Service by the Company or a Subsidiary. Years separated by a
period of one or more calendar years when the participant has no such
employment shall be treated as consecutive. Additional compensation paid at
retirement or other termination of employment, such as for periods of unused
vacation or sick leave, shall be attributed to calendar years by assuming
that employment continued during the period based on which the compensation
is measured. Severance pay shall be disregarded, except severance pay in
lieu of service.
2.2-2 "Compensation" shall be determined as follows:
(a) Total direct pay reportable on Form W-2 under Internal
Revenue Code section 3401(a), disregarding limitations based on the
nature or location of employment, shall be counted, subject to the
following provisions:
(1) Half of any bonuses shall be excluded.
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<PAGE>
(2) Commissions and cost-of-living allowances
shall be excluded.
(3) Any reimbursements or other expense
allowances, fringe benefits, moving expenses, severance or
disability pay and other deferred compensation (other than
as specified in (b) below) and welfare benefits shall be
excluded.
(4) Gains realized from the exercise of
nonqualified stock options shall be excluded.
(b) Total direct pay shall be determined without reduction
by elective deferral of otherwise currently taxable compensation under
any qualified cash or deferred arrangement under Internal Revenue Code
section 401(k), any elective welfare benefit arrangement under
Internal Revenue Code section 125 or a non-qualified deferred
compensation plan.
(c) During periods of reduced compensation because of such
causes as illness, disability or leave of absence, compensation shall
be figured at the last regular rate before the start of the period.
2.2-3 "Primary Social Security Benefit" means the primary
insurance amount estimated for the participant on retirement at or after age 65
under the federal Social Security Act determined as follows:
(a) The amount may be estimated from the regular pay rate
under rules established by the Administrator assuming a standard pay
progression over a full working career.
(b) The amount shall not be changed by amendments to the
Social Security Act or cost-of-living index adjustments after the
participant's actual termination date or age 65, whichever is first.
(c) If a participant retires early, the Primary Social
Security Benefit shall be the amount that would be received at age 65
assuming level earnings at the participant's final rate of pay and no
change in the Social Security Act.
2.2-4 "Retirement Plan Benefit" means the sum of the
following amounts:
5
<PAGE>
(a) The monthly benefits (excluding any Prior Profit
Sharing Plan Benefit) under the Precision Castparts Corp. Retirement
Plan (the Retirement Plan) for the participant upon normal retirement
at age 65 in the form of a straight life annuity.
(b) The monthly benefit for the participant under any
defined benefit pension plan other than the Retirement Plan from
service counted for benefits under this Plan as well as any service
following removal from participation, and disregarding any benefit
derived from rollovers to such plan derived from a source other than
employer contributions relating to the period of service counted for
benefits under this Plan. The benefit shall be expressed as a normal
retirement benefit at age 65 in the form of a straight life annuity
using the actuarial equivalency factors applicable under that plan.
If benefits are provided for a participant under the foregoing
sentences with respect to more than one plan, all such benefits shall
be combined.
(c) The monthly benefit for the participant under a defined
contribution retirement plan relating to service counted for benefits
under this Plan as well as any service following removal from
participation, and disregarding any benefit derived from employee
pre-tax or employee after-tax contributions to such plan or rollovers to
such plan derived from a source other than employer contributions
relating to the period of service counted for benefits under this
Plan. The amount of the benefit shall be based on each employer
contribution for the participant with respect to the relevant period
of service, with contributions carried forward at an interest rate of
eight percent. The actual rate of return in the plan and any interim
distributions or withdrawals shall be disregarded. The resulting
benefit shall be expressed as a normal retirement benefit at age 65
under 3.2-1 using the actuarial equivalency factors applicable to the
Retirement Plan for determining equivalent benefits other than a lump
sum. If benefits are provided for a participant under the foregoing
sentences with respect to more than one plan, all such benefits shall
be combined. If the defined contribution plan is a plan under which
employer contributions are made to match, wholly or partly, employee
pre-tax or after-tax contributions under the plan, then the offset for
the defined contribution plan shall be calculated assuming the
employee's account has been credited with the maximum matching
contributions the employee could have had credited by making employee
contributions (without regard to any operational limitations imposed
by discrimination testing), carried forward at an interest rate of
eight percent.
2.2-5 "Normal Retirement" means retirement under the
Retirement Plan at or after age 65 with 10 Years of Eligibility Service.
6
<PAGE>
2.2-6 Subject to 1.2, "Year of Benefit Service" means a
period of 12 months based on the anniversary of the date the employee first
performs an hour of service as an employee of the Company or a Subsidiary. No
service for a business before the date it becomes a Subsidiary shall be counted
as Benefit Service. Except for periods of disability as described below,
periods of employment other than as a regular full-time employee shall be
disregarded and service credit shall be reduced accordingly. If a person
becomes totally and permanently disabled while a participant accruing Benefit
Service and qualifies for disability income payments under Social Security, the
participant shall continue to accrue Years of Benefit Service during disability
up to age 65 or earlier retirement if:
(a) The disability was directly related to and arose from
the participants employment, or
(b) The participant had 10 Years of Eligibility Service
before the disability occurred.
2.2-7 "Years of Eligibility Service" means Years of Benefit
Service as defined in 2.2-6 plus Years of Service (as defined in the Retirement
Plan), if any, approved by the Committee performed for a business before the
date it became a Subsidiary.
2.3 EARLY RETIREMENT BENEFIT
2.3-1 An early retirement supplemental benefit shall be
payable for a participant who terminates employment before normal retirement but
after age 55 with at least 10 Years of Eligibility Service. The benefit shall
be the normal retirement basic supplemental benefit, as adjusted under 2.1-3, if
applicable, and reduced as described in 2.3-2 by 6 percent for each year by
which the early retirement date precedes the date the participant would have
first qualified for normal retirement as defined in 2.2. The reduction for
partial years shall be prorated monthly, based on calendar months with a partial
month at the beginning or end of the period disregarded if the affected portion
of the month is less than 15 days.
2.3-2 The early retirement reduction described in 2.3-1 shall
be applied after calculating a participant's benefit as for normal retirement,
based on service and compensation to actual retirement, as follows:
(a) (55% of FAP) ((YBS up to 25)/25)
+ (.5% of FAP) (YBS over 25)-(RPB + PSSB)
TIMES
(b) (1-.06(65-age at actual retirement))
7
<PAGE>
2.3-3 No benefit shall be paid with respect to a participant
whose employment terminates before early retirement except under 2.4 or 4.
2.3-4 A participant may not elect to defer the start of early
retirement benefits.
2.4 ACCELERATED VESTED BENEFIT. Subject to 2.5, an accelerated
vested benefit shall be payable for a participant whose employment is terminated
by the Company if the termination occurs both within two years following a
Change in Control of the Company as defined in 10 and before the participant
qualifies for normal or early retirement. The benefit shall be a lump sum
payment as of the first day of the month after termination of employment. The
amount shall be the actuarially determined present value of the participant's
basic supplemental benefit on normal retirement, based on Final Average Pay and
Years of Benefit Service as of the date of termination, an assumed interest rate
of eight percent and the mortality table used for equivalent benefits payable as
lump sum payments under the Retirement Plan. If a participant qualifies for
payment of a benefit under this provision, but dies before payment of the
benefit, the benefit shall be paid to the participant's spouse under 4.4 if
applicable, or to the participant's estate if 4.4 is not applicable. A change
in ownership of an affiliate of the Company that does not occur as part of a
Change in Control of the Company, shall not trigger this section 2.4
2.5 FORFEITURE OF BENEFIT
2.5-1 No benefit (other than a spouse's death benefit under
4, if applicable) shall be payable with respect to a participant who terminates
employment, regardless of cause, before qualifying for a normal retirement
benefit, an early retirement benefit or an accelerated vested benefit or to any
participant whose employment is terminated for misconduct during employment.
Moreover, no normal or early retirement benefit or spouse's death benefit shall
be payable with respect to any participant who, after termination, engages in
competition with the Company or a Subsidiary, as determined by the Committee in
accordance with 2.5-3.
2.5-2 "Misconduct during employment" means:
(a) Committing a fraudulent or otherwise dishonest act
related to employment;
(b) Making an unauthorized disclosure of confidential
information related to the Company or Subsidiary if the information
was obtained during employment; or
8
<PAGE>
(c) Engaging in competition while employed. Competition is
defined in 2.5-3(a) and (b).
2.5-3 "Competition" means doing either of the following
within three years after termination of employment:
(a) Making an unauthorized disclosure of confidential
information related to the Company or any Subsidiary if the
information was obtained during employment; or
(b) Engaging either as an employee, partner, proprietor or
otherwise, in a business in competition with the Company or any
Subsidiary in the manufacture or sale of investment castings or any
other business conducted by the Company or a Subsidiary at any time
during the participant's period of employment.
2.5-4 No forfeiture or absence of a forfeiture shall
constitute a waiver of or bar any other remedy that may be available to the
Company or a Subsidiary under applicable law on account of the misconduct or
competition.
2.6 DEFERRED RETIREMENT BENEFIT. If a participant's employment with
the Company or a Subsidiary continues past age 65, Years of Benefit Service
shall continue to accrue and Final Average Pay shall be adjusted to actual
retirement. The benefit shall be based on the regular formula for normal
retirement, and no actuarial adjustment shall be made for starting benefits
after age 65.
3. PAYMENT OF BENEFITS
3.1 START OF BENEFITS. Benefits shall start with the month that
begins after termination of employment, in the case of normal, deferred,
accelerated vested or early retirement benefits, and with the month that begins
after the participant's death in the case of a spouse's death benefit under 4.1
through 4.3. The benefit starting date shall be as of the first day of the
first month for which benefits are paid under this provision. Benefit payments
shall be made by the end of the month to which they apply in accordance with the
Company's regular payroll processing schedule.
3.2 FORM OF BENEFIT
3.2-1 The normal form for payment of benefits shall be a
monthly annuity for the life of the participant.
9
<PAGE>
3.2-2 A married participant may elect to receive benefits
in the form of an actuarially equivalent contingent annuity with payment
continued to the participant's spouse in full or at one-half. Actuarial
equivalency shall be determined based on the assumptions applicable to
determining comparable benefits under the Retirement Plan.
3.2-3 A benefit election under 3.2-2 may be made upon
enrollment in this Plan or within 30 days following the marriage of a
participant that occurs before the participant's benefit starting date under
3.1. The election shall be by written notice mailed or delivered to the
Administrator. An election under 3.2-2 shall be void if the participant and
spouse do not stay married throughout the period from the election date to
the benefit starting date.
3.2-4 Accelerated vested benefits under 2.4 shall be paid
in a lump sum.
4. DEATH BENEFITS FOR SPOUSE
4.1 Subject to 2.5, if a participant dies after starting to
receive benefits, or dies after retiring under 2.2-5 or 2.3-1 but before
starting benefits under 3.1, no death benefit shall be paid except as may be
provided under the spouse's contingent annuity benefit form if selected by
the participant under 3.2 above. A spouse's post-retirement death benefit
shall only be paid to the spouse to whom the participant was married on the
participant's benefit starting date, even if the participant is married to
another spouse on the date of death.
4.2 Except as provided in 4.3 and 4.4, if a participant dies
before starting to receive benefits or qualifying under 4.1, no benefit shall
be paid.
4.3 Subject to 1.2-2(e), the surviving spouse of a participant who
dies while employed and after meeting the age and service requirements for
early or normal retirement shall receive a death benefit as follows:
(a) The benefit shall be a monthly payment for the
surviving spouses life, starting on the first day of the month after
the participant's death.
(b) Subject to (c), the amount shall be determined as
though the participant had retired on the date of death with benefits
payable in the form of a contingent annuity with payments continued to
the participant's spouse at one-half.
(c) If a participant elected under 3.2-2 to receive
benefits in the form of a contingent annuity with payments continued
to the surviving spouse in full, then the amount under (b) shall be
determined using that benefit form.
10
<PAGE>
4.4 If a participant dies after qualifying for an accelerated
vested benefit under 2.4 but before the date under 3.1 for payment of the
benefit, the surviving spouse shall receive the participant's accelerated
vested benefit in a lump sum on the date the payment otherwise would have
been made to the participant. If actual payment is delayed until after the
date under 3.1 for payment of the benefit to the surviving spouse under this
provision, the benefit shall be paid to the spouse as soon as practicable, or
to the surviving spouse's estate if the surviving spouse has died before the
actual payment date. If a participant dies after qualifying for an
accelerated vested benefit under 2.4 but before the date under 3.1 for
payment of the benefit, and there is no surviving spouse, no benefit shall be
paid under this provision.
5. NO ADVANCE FUNDING
Benefits shall be paid from the general assets of the Company. The
Company may, but shall not be required to set aside funds in advance for
payment of benefits under the Plan. Even if funds are set aside, that shall
not cause this to be a funded employee benefit plan. Participant's rights
under this Plan shall be only as general creditors of the Company.
6. AMENDMENT AND TERMINATION
6.1 REGULAR PROCEDURE. Subject to 6.3, the Board of Directors of
the Company may amend or terminate this Plan on the first day of any month by
notice to the participants, but may not revoke any participants benefits (a)
without adequate compensation or (b) after the occurrence of a Change in
Control of the Company. If the Board of Directors decides to revoke benefits
for some or all participants, the benefits of all affected participants shall
be revoked in exchange for adequate compensation, and such participants shall
have no right to defer receipt of such compensation. "Adequate compensation"
shall be determined based upon the actuarially equivalent present value of
the accrued straight life normal retirement (age 65) benefit as of the plan
termination date, using an eight percent interest assumption and the
mortality table then applicable under the Retirement Plan to benefits payable
as lump sum distributions. No cash-out value shall be attributed to any
spousal survivor benefit for a participant who has not already retired and
commenced benefits. Subject to 6.2, the value of an unvested benefit shall be
zero.
6.2 TOTAL PLAN TERMINATION OR REDUCTION IN BENEFIT ACCRUAL RATE.
In the event of a total termination, the benefits of all participants shall
be fully vested immediately to the extent then accrued, and the participant
shall receive adequate compensation as described in 6.1 above. If ongoing
benefit accruals are slowed or stopped, the following shall apply:
(a) Automatic vesting shall not apply.
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<PAGE>
(b) Participants who remain employed by the Company or a
Subsidiary shall continue to accrue Eligibility Service and shall
become vested upon reaching age 55 and 10 Years of Eligibility
Service.
(c) The amounts described in 2.1-4(a) and (b) shall be adjusted
under the new accrual rate, or shall be frozen if accruals are
stopped, but shall not be reduced. The amounts described in 2.1-4(c)
may change as described in 1.2-2(c).
6.3 TECHNICAL, EDITORIAL OR OPERATIONAL CHANGES. The chief
executive officer of the Company may amend the Plan to make technical,
editorial or operational changes on advice of counsel to comply with
applicable law or to simplify or clarify the Plan. The chief executive
officer may delegate this amendment authority.
7. NOT CONTRACT OF EMPLOYMENT
This Plan shall not be a contract of employment between the Company
or a Subsidiary and any participant. No participant may object to
termination of the Plan under paragraph 6 above. The Plan shall not prevent
the Company or a Subsidiary from discharging any participant from employment
at any time.
8. CLAIMS PROCEDURE
8.1 FILING PROCEDURE. Any person claiming a benefit, requesting
an interpretation or ruling under the Plan, or requesting information under
the Plan shall present the request to the Administrator who shall respond in
writing as soon as practicable. Verbal claims must be confirmed in writing
by the claimant within a reasonable time. If no written confirmation is
received within two weeks of a verbal claim, the Administrator may state the
claim in writing communicated to the claimant and then proceed on that basis.
8.2 NOTICE OF DENIAL. If the claim or request is denied, the
written notice of denial shall state:
(a) The reasons for the denial, with specific reference to the
Plan provisions on which the denial is based;
(b) A description of any additional material or information
required and an explanation of why it is necessary; and
(c) An explanation of the Plan's claim review procedure.
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<PAGE>
8.3 REVIEW PROCEDURE. Any person whose claim or request is denied or
who has not received a response within 30 days may request review by notice in
writing to the Administrator, who shall inform the Committee. The original
decision shall be reviewed by the Committee, which may, but shall not be
required to, grant the claimant a hearing. On review, whether or not there is a
hearing, the claimant may have representation, examine pertinent documents and
submit issues and comments in writing.
8.4 DECISION ON REVIEW. The decision on review shall ordinarily
be made within 60 days. If an extension of time is required for a hearing or
other special circumstance, the claimant shall be so notified and the time
shall be 120 days. The decision shall be expressed in writing and shall
state the reasons and the relevant Plan provisions. All decisions on review
shall be final and bind all parties concerned.
9. GENERAL PROVISIONS
9.1 If suit or action is instituted to enforce any rights under
the Plan, the prevailing party may recover from the other party reasonable
attorneys' fees at trial and on any appeal.
9.2 Any notice under this Plan shall be in writing and shall be
effective when actually delivered or, if mailed, when deposited as registered
or certified mail directed to the Company at the address stated in the
Statement of Participation or to such other address as either party may
specify by notice to the other party. Unless otherwise designated, notices
to the Committee or the Administrator shall be sent to the address specified
for the Company.
9.3 The rights of a participant under this agreement are personal.
Except for amounts owing to or claimed by the Company or a Subsidiary and
except for the limited provisions of 3.2 above, no interest of a participant
or spouse or representative of a participant may be directly or indirectly
transferred, encumbered, seized by legal process or in any other way
subjected to the claims of any creditor.
9.4 Following termination of employment, a participant shall not
be an employee of the Company or a Subsidiary for any purpose and payments
under Section 3 shall not constitute salary or wages. A participant shall
receive such payments as retirement benefits, not as compensation for
performance of any substantial services.
9.5 Except as provided in 9.3 above, this Plan shall be binding
upon and inure to the benefit of the parties, their successors and assigns.
If the Company or a Subsidiary merges, consolidates or otherwise reorganizes,
or its assets or business are acquired by another company, this Plan shall be
binding upon the successor company and shall apply to any employment of
participants by the successor company.
13
<PAGE>
9.6 This Plan shall be construed according to the laws of Oregon
except as preempted by federal law.
10. DEFINITION OF CHANGE IN CONTROL
For purposes of this Plan, a "change in control of the Company"
shall be deemed to have occurred if:
(a) Any "person", as such term is used in Sections 13(d) and 14(d)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
(other than the Company, any trustee or other fiduciary holding
securities under an employee benefit plan of the Company, or any company
owned, directly or indirectly, by the stockholders of the Company in
substantially the same proportions as their ownership of stock of the
Company), is or becomes the "beneficial owner" (as defined in Rule 13d-3
under the Exchange Act), directly or indirectly, of securities of the
Company representing 20 percent or more of the combined voting power of
the Companys then outstanding securities;
(b) During any period of two consecutive years (not including any
period prior to the execution of this Agreement), individuals who at the
beginning of such period constitute the Board of Directors of the
Company (the Board), and any new director (other than a director
designated by a person who has entered into an agreement with the
Company to effect a transaction described in clause (a), (c) or (d) of
this Section) whose election by the Board or nomination for election by
the Companys stockholders was approved by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at
the beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute at least
a majority thereof;
(c) The stockholders of the Company approve a merger or
consolidation of the Company with any other company, other than (1) a
merger or consolidation which would result in the voting securities of
the Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity) more than 50 percent of the
combined voting power of the voting securities of the Company or such
surviving entity outstanding immediately after such merger or
consolidation or (2) a merger or consolidation effected to implement a
recapitalization of the Company (or similar transaction) in which no
"person" (as hereinabove defined) acquires more than 20 percent of the
combined voting power of the Company's then outstanding securities; or
14
<PAGE>
(d) The stockholders of the Company approve a plan of complete
liquidation of the Company or an agreement for the sale or disposition
by the Company of all or substantially all of the Company's assets.
11. EFFECTIVE DATE
This Restatement shall be effective January 1, 1998, except that
the changes in 2.2-4 shall be effective as of January 1, 1989, the Plan's
initial effective date.
Adopted: August 5, 1997.
COMPANY PRECISION CASTPARTS CORP.
By W.C. MCCORMICK
------------------------------------
Executed: December 3, 1997
15
<PAGE>
EXHIBIT 11
PRECISION CASTPARTS CORP.
CALCULATION OF EARNINGS PER SHARE
FOR THE YEAR ENDED MARCH 29, 1998
<TABLE>
<CAPTION>
BASIC DILUTED
EARNINGS PER EARNINGS PER
SHARE SHARE
------------- -------------
<S> <C> <C>
Weighted average number of shares of common stock outstanding...................... 24,164,599 24,164,599
Common stock equivalents:
Application of the "treasury stock" method to stock option and purchase plans.... -- 209,886
------------- -------------
Weighted average number of shares outstanding...................................... 24,164,599 24,374,485
------------- -------------
------------- -------------
Rounded to......................................................................... 24,200,000 24,400,000
------------- -------------
------------- -------------
Net income......................................................................... $ 86,100,000 $ 86,100,000
------------- -------------
------------- -------------
Net income per share............................................................... $ 3.56 $ 3.53
------------- -------------
------------- -------------
</TABLE>
35
<PAGE>
EXHIBIT 12
PRECISION CASTPARTS CORP.
RATIO OF EARNINGS TO FIXED CHARGES
(000'S OMITTED)
<TABLE>
<CAPTION>
FISCAL YEARS
-------------------------------------------------------
1994 1995 1996 1997 1998
--------- --------- --------- ---------- ----------
<S> <C> <C> <C> <C> <C>
"Earnings"(1)........................................... $ 37,400 $ 46,800 $ 63,700 $ 95,700 $ 135,300
Plus: Interest and other financial charges
included in expense............................. 1,800 1,000 600 17,200 21,900
--------- --------- --------- ---------- ----------
Adjusted earnings....................................... $ 39,200 $ 47,800 $ 64,300 $ 112,900 $ 157,200
--------- --------- --------- ---------- ----------
--------- --------- --------- ---------- ----------
Fixed Charges:
Interest and other financial charges.................. $ 1,800 $ 1,000 $ 600 $ 17,200 $ 21,900
Interest capitalized.................................. 300 -- 500 1,100 1,500
One-third of rental expense(2)........................ 800 900 1,000 1,600 2,000
--------- --------- --------- ---------- ----------
Total fixed charges..................................... $ 2,900 $ 1,900 $ 2,100 $ 19,900 $ 25,400
--------- --------- --------- ---------- ----------
--------- --------- --------- ---------- ----------
Ratio of earnings to fixed charges...................... 13.5 25.2 30.6 5.7 6.2
--------- --------- --------- ---------- ----------
--------- --------- --------- ---------- ----------
</TABLE>
- ------------------------
(1) Earnings for all years consist of earnings from continuing operations before
income taxes. For 1994, earnings are before the cumulative effect of an
accounting change
(2) Considered to be representative of interest factor in rental expense.
36
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS
BUSINESS OVERVIEW AND OUTLOOK
In fiscal 1998, PCC continued to focus on profitable growth by increasing
operating efficiency and technological advantage, developing new products and
markets, and pursuing synergistic acquisitions. This has resulted in record
sales and earnings for the year.
Total sales for fiscal 1998 reached a record $1,316.7 million, an increase of 35
percent from fiscal 1997 sales of $972.8 million. Fiscal 1998 acquisitions
added $44.9 million of sales, while base business revenues increased by $299.0
million, or 31 percent from fiscal 1997. The continued strength of the
aerospace market helped fuel this growth, with sales to that market increasing
34 percent from the prior year. Aerospace sales as a percent of total sales
were 53 percent for both fiscal 1998 and 1997. During the past three years,
total sales have increased at a compound annual growth rate of 44 percent.
We completed four acquisitions during fiscal 1998, which not only complemented
our existing business lines, but also provided us with access to new domestic
and international markets. Pittler GmbH, a machine system manufacturer, located
in Germany, expanded the Company's current machine system business and provided
a European base of operations for PCC Specialty Products. Baronshire
Engineering Limited, located in Scotland, is a manufacturer of specialty valves
for the European industrial market. Its products complement the existing
product lines of PCC Flow Technologies. The acquisition of J&L Fiber Services,
which extends the Company's casting technology, manufactures highly engineered
refiner plates and screen filters for the pulp and paper industry. The
acquisition of Schlosser Casting Company by PCC Structurals provided added
investment casting capacity to support the division's entry into the high
potential airframe market. In addition, we entered into a joint venture in
India that will manufacture low-cost metal-injection-molded products for U.S.
and Asian markets.
Subsequent to year end, we completed two additional acquisitions,
Environment/One Corporation ("E/One") and TBV. Both acquisitions will be
operated as part of PCC Flow Technologies. E/One, a manufacturer of equipment
for low-pressure sewer systems, is well positioned to capitalize on a rapidly
growing industry, and TBV, a manufacturer of corrosion-resistant titanium ball
valves, complements existing product lines of PCC Flow Technologies. Both
acquisitions are expected to benefit from the division's existing distribution
channels.
These acquisitions all fit with the Company's strategy of targeting acquisitions
that (i) complement the Company's core competencies in metals, precision
metalworking and the management of complex manufacturing process, (ii) have
strong growth prospects and higher operating margins than the Company's
traditional product lines and (iii) have leading positions in established market
niches.
1
<PAGE>
During fiscal 1998, we completed record capital expenditures of $82.9 million,
principally for expansion of capacity at PCC Airfoils and PCC Structurals to
support expected growth in the IGT and aerospace markets. In addition, the
Company completed a new valve manufacturing facility in Italy and established a
new sales office in Asia for PCC Flow Technologies, and AFT started construction
on a new 120,000 square foot manufacturing facility, which is anticipated to be
completed in the second quarter of fiscal 1999. The Company also invested in a
number of capital projects designed to improve productivity and employee safety.
We continued to focus on improvements to profitability in fiscal 1998 by
implementing cost reduction programs, improving manufacturing processes and
leveraging higher sales. In addition, our acquisitions have been synergistic
and, in the aggregate, have provided strong operating results for the Company.
These efforts have culminated in the fifth consecutive year of improved gross
margins and operating profit margins. Gross margin has grown from 15 percent of
sales in fiscal 1993 to 22 percent in fiscal 1998 and operating profit has grown
over the same period from 8 percent to 13 percent. During the past three years,
operating profit has increased at a compound annual growth rate of 54 percent.
We currently expect fiscal 1999 will be another record year for the Company.
Sales are expected to reflect the continuation of a strong aerospace cycle and a
significant increase in IGT business, as well as the impact of a full year of
sales from acquisitions completed in fiscal 1998 and the first quarter of fiscal
1999 (E/One and TBV). Sales to the general industrial, energy and automotive
markets are expected to grow at rates higher than the underlying economic growth
of those markets as we plan to focus significant attention on additional market
penetration and continued development of new products. While we were not
materially impacted in fiscal 1998 by the decline in the Asian economy, the
Company could be adversely affected by this situation in the future.
We also expect to set new records for operating profit and earnings per share in
fiscal 1999 as we take advantage of leverage from higher sales and further
improvement in productivity. In addition, the restructuring activities at PCC
Specialty Products have placed us in a position to capitalize on significantly
reduced costs and improved operating margins at that division. We will also
have a full year of results from our fiscal 1998 acquisitions and are excited
about the earning potential of both E/One and TBV, which were acquired in early
fiscal 1999.
Our goal for fiscal 1999 is to stay focused on profitable growth and increasing
shareholder value. This will be accomplished by continuing to execute the
strategy that we have followed during the past two years.
FINANCIAL RESULTS
Fiscal 1998 Compared with Fiscal 1997
2
<PAGE>
Sales of $1,316.7 million represented a 35 percent increase from the prior
year. Excluding the effects of fiscal 1998 acquisitions, sales would have
increased $299.0 million, or 31 percent, from last year. The increase in sales
was primarily due to the continued strong upswing in the aerospace cycle along
with a full year of operations from fiscal 1997 acquisitions.
Cost of sales as a percent of sales improved to 78 percent in fiscal 1998 from
79 percent in fiscal 1997. This improvement came from leveraging higher sales,
the addition of acquisitions yielding higher margins, and continued development
of process improvements, partially offset by the impact of high development
costs associated with IGT products.
During the fourth quarter of fiscal 1998, a restructuring charge of $8.6 million
was established principally to provide for severance and other exit costs
associated with the consolidation of operations within PCC Specialty Products.
Through the consolidation, PCC Specialty Products expects to create a stronger,
more cost-effective platform for growth, while eliminating redundant overhead
expenses and leveraging its manufacturing know-how and technical expertise. The
Company also recorded certain non-recurring costs associated with the write-off
of inventory related to the machine tool business of PCC Specialty Products.
The impact of the provision reduced earnings by $0.25 per share (diluted).
Selling and administrative expenses as a percent of sales rose slightly to 9.6
percent from 9.4 percent in the prior year. This increase reflected a full year
of higher sales and marketing requirements associated with the fiscal 1997
acquisitions, partially offset by leverage from the higher sales volume and cost
savings initiatives throughout the Company.
Net interest expense in fiscal 1998 was $20.7 million, compared with $16.7
million in fiscal 1997. This increase reflected the higher level of debt
incurred and assumed during fiscal 1998 to finance acquisitions.
The effective tax rate for the year was 36 percent, compared with 41 percent in
the prior year. The reduction in the rate was principally due to a fourth
quarter adjustment related to tax benefits resulting from higher than
anticipated foreign sales in fiscal 1997 and 1998, as well as higher state tax
business incentives and other tax benefits. The impact from the reduction in
the effective tax rate increased earnings by $0.25 per share (diluted). The
effective tax rate in fiscal 1999 is expected to increase, reflecting
non-deductible goodwill amortization from acquisitions and the absence of
non-recurring adjustments which provided tax benefits in fiscal 1998.
Fiscal 1998 net income of $86.1 million was 52 percent higher than fiscal 1997
earnings of $56.5 million and resulted in diluted earnings per share of $3.53,
compared with $2.57 last year, a 37 percent increase. Basic earnings per share
for fiscal 1998 was $3.56, compared to $2.59 in fiscal 1997.
3
<PAGE>
Fiscal 1997 Compared with Fiscal 1996
Sales of $972.8 million were $416.0 million, or 75 percent, higher than the
prior year. Excluding the effects of fiscal 1997 acquisitions, sales would have
increased approximately 25 percent from fiscal 1996. The majority of the
improvement came from aerospace operations, which experienced significant
increases in demand during fiscal 1997.
Cost of sales as a percent of sales improved to 79 percent in fiscal 1997 from
80 percent in fiscal 1996. This improvement came from leveraging higher
aerospace sales, implementation of process improvements and the addition of
higher margin businesses as a result of the acquisitions, partially offset by
higher costs related to development of new IGT parts.
In the fourth quarter of fiscal 1997, the Company recorded a $3.4 million
restructuring charge to provide for the cost of moving people and equipment
from PCC Composites in Pennsylvania to AFT in Colorado. In addition, this
restructuring charge provided for the costs associated with closing the
Pennsylvania manufacturing facility. Combining the marketing capabilities,
technical expertise and manufacturing know-how of the two divisions is expected
to create a stronger, more cost-effective platform for growth in both
metal-matrix and metal-injection-molded products.
Selling and administrative expenses as a percent of sales rose to 9.4 percent
from 8.4 percent in the prior year. This increase reflected the higher
marketing requirements and costs associated with distributor channels,
commissioned sales and trade shows of the acquired businesses.
Net interest expense in fiscal 1997 was $16.7 million, compared with $0.1
million in fiscal 1996. This increase reflected the higher level of debt
incurred and assumed during fiscal 1997 to finance acquisitions.
The effective tax rate for the year was 41 percent, compared with 35 percent in
the prior year. Fiscal 1997's rate reflected the impact of non-deductible
goodwill resulting from the acquisitions, whereas the fiscal 1996 rate included
the favorable impact of $2.6 million of non-recurring tax adjustments.
Net income in fiscal 1997 was $56.5 million, or $2.57 per share (diluted), based
on 22.0 million average shares outstanding. Net income was 37 percent higher
than the $41.1 million reported in fiscal 1996, and earnings per share were up
28 percent, reflecting the impact of fiscal 1997's higher earnings from its base
businesses and accretion from acquisitions, partially offset by a greater number
of shares outstanding.
4
<PAGE>
LIQUIDITY AND CAPITAL RESOURCES
Total capitalization at March 29, 1998 was $967.5 million, consisting of $372.2
million of debt and $595.3 million of equity. The debt-to-capitalization ratio
at year-end was 38 percent compared with 37 percent at the end of fiscal 1997.
The higher debt-to-capitalization ratio reflected the debt incurred and assumed
during fiscal 1998 to finance acquisitions and fund capital spending projects.
Subsequent to year end, with the acquisitions of E/One and TBV, the Company's
debt-to-capitalization ratio increased to 43 percent.
Cash requirements in fiscal 1998 included $139.1 million for acquisitions, $82.9
million for capital expenditures and $5.8 million for dividends. Cash generated
from earnings of $133.7 million, $13.8 million of working capital reductions,
$11.9 million from the sale of common stock through the employee stock purchase
plan and stock option exercises and $16.3 million of other investing activity
contributed toward these cash requirements. Net borrowings of $69.1 million
satisfied the remainder of the Company's cash requirements and contributed
toward an increase to cash of $14.9 million from the fiscal 1997 ending balance.
An existing committed line of credit and the issuance of $150.0 million of notes
facilitated the net borrowings of $69.1 million in the year.
In December 1997, the Company completed the shelf registration of $300.0 million
of public notes and issued, through a public offering, $150.0 million of 6.75%
Notes due December 15, 2007 with interest to be paid semi-annually. Total debt
as of March 29, 1998 was $372.2 million and borrowing capacity under the
Company's line of credit was $159.2 million. Subsequent to year end, with the
acquisitions of E/One and TBV, borrowing capacity under existing credit
agreements was reduced to $77.8 million.
Capital spending in fiscal 1998 of $82.9 million principally provided for
increased aerospace and IGT capacity and for construction of a new manufacturing
facility for AFT. Fiscal 1999's capital spending, which is expected to be
higher than fiscal 1998's, principally provides for further increases in
aerospace and IGT capacity, completion of manufacturing facilities for AFT and
Barber, as well as other capital spending that will reduce costs and improve
employee safety.
Management believes that the Company can fund the requirements for capital
spending, cash dividends and potential acquisitions from cash balances,
borrowing from existing or new bank credit facilities, issuance of public notes
or the issuance of stock.
5
<PAGE>
YEAR 2000
Year 2000 compliance programs and information systems modifications have been
initiated in an attempt to ensure that these systems and key processes will
remain functional. These actions are necessary to ensure that the systems and
applications will recognize and process the Year 2000 and beyond. This
objective is expected to be achieved either by modifying present systems or
installing new systems. In addition, we are communicating with our suppliers,
customers, financial institutions and other third-party contacts to coordinate
any required modifications or changes with respect to our business dealings and
communications with them. While there can be no assurance that these actions
will be successful, the cost of system modifications will not have a material
adverse effect on the Company.
6
<PAGE>
Consolidated Statements of Income
Precision Castparts Corp. and Subsidiaries
(In thousands, except per share data)
<TABLE>
<CAPTION>
Fiscal Years Ended
- ----------------------------------------------------------------------------------------------
March 29, March 30, March 31,
1998 1997 1996
- ----------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Net Sales $1,316,700 $972,800 $556,800
Cost of Goods Sold 1,025,100 765,500 446,100
Provision for Restructuring and Other 8,600 3,400 -
Selling and Administrative Expenses 127,000 91,500 46,900
Interest Expense, net 20,700 16,700 100
- ----------------------------------------------------------------------------------------------
Income before Provision for Income Taxes 135,300 95,700 63,700
Provision for Income Taxes 49,200 39,200 22,600
- ----------------------------------------------------------------------------------------------
Net Income $ 86,100 $ 56,500 $ 41,100
- ----------------------------------------------------------------------------------------------
Net Income per Common Share (basic) $ 3.56 $ 2.59 $ 2.02
Net Income per Common Share (diluted) $ 3.53 $ 2.57 $ 2.00
- ----------------------------------------------------------------------------------------------
</TABLE>
See Notes to Consolidated Financial Statements on pages 14 through 46.
7
<PAGE>
Consolidated Balance Sheets
Precision Castparts Corp. and Subsidiaries
(In thousands, except share data)
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
March 29, March 30,
Assets 1998 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Current Assets:
Cash and cash equivalents $25,000 $ 10,100
Receivables, net of reserves of
$3,800 in 1998 and $2,600 in 1997 208,600 178,200
Inventories 240,900 235,800
Prepaid expenses 7,100 6,200
Deferred income taxes 29,200 23,800
- -------------------------------------------------------------------------------
Total current assets 510,800 454,100
- -------------------------------------------------------------------------------
Property, Plant and Equipment, at cost:
Land 16,400 14,400
Buildings and improvements 91,800 76,000
Machinery and equipment 338,000 277,700
Construction in progress 44,000 30,700
- -------------------------------------------------------------------------------
490,200 398,800
Less-Accumulated depreciation (197,500) (169,700)
- -------------------------------------------------------------------------------
Net property, plant and equipment 292,700 229,100
- -------------------------------------------------------------------------------
Goodwill, net of amortization
of $20,800 in 1998 and $10,900 in 1997 451,600 379,500
Other Assets 19,500 7,400
- -------------------------------------------------------------------------------
$1,274,600 $1,070,100
- -------------------------------------------------------------------------------
</TABLE>
8
<PAGE>
<TABLE>
<CAPTION>
Liabilities and Shareholders' Investment
________________________________________________________________________________
<S> <C> <C>
Current Liabilities:
Notes payable $ 800 $ 17,000
Current portion of long-term debt 24,400 22,500
Accounts payable 87,500 84,400
Accrued liabilities 123,700 101,900
Income taxes payable 28,400 23,100
________________________________________________________________________________
Total current liabilities 264,800 248,900
________________________________________________________________________________
Long-Term Debt, excluding current portion 347,000 261,000
Deferred Income Taxes 23,200 12,200
Accrued Retirement Benefits Obligation 34,000 26,000
Other Long-Term Liabilities 10,300 17,600
Shareholders' Investment:
Common stock, $1 stated value, shares
authorized 1998 and 1997
- 100,000,000; issued and
outstanding 1998 - 24,300,657;
1997 - 23,981,174 24,300 24,000
Paid-in capital 172,400 160,800
Retained earnings 399,700 319,400
Cumulative translation adjustments (1,100) 200
________________________________________________________________________________
Total shareholders' investment 595,300 504,400
________________________________________________________________________________
$1,274,600 $1,070,100
________________________________________________________________________________
See Notes to Consolidated Financial Statements on pages 44 through 63.
</TABLE>
9
<PAGE>
Consolidated Statements of Cash Flows
Precision Castparts Corp. and Subsidiaries
(In thousands)
<TABLE>
<CAPTION>
Fiscal Years Ended
_________________________________________________________________________________________
March 29, March 30, March 31,
1998 1997 1996
_________________________________________________________________________________________
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net income $ 86,100 $ 56,500 $ 41,100
Non-cash items included in income:
Depreciation and amortization 43,500 35,200 22,900
Deferred income taxes 4,100 (3,700) 1,100
Changes in operating working capital,
excluding effects of acquisitions:
Receivables (16,100) (37,100) 7,100
Inventories 19,100 (30,500) (4,600)
Payables, accruals and current taxes 16,500 36,600 3,100
Other operating activities, net (5,700) (11,100) 1,300
_________________________________________________________________________________________
Net cash provided by
operating activities 147,500 45,900 72,000
_________________________________________________________________________________________
Cash Flows from Investing Activities:
Business acquisitions, net of
cash acquired (139,100) (329,100) (21,200)
Acquisition of property,
plant and equipment (82,900) (52,800) (19,700)
Other investing activities, net 16,300 1,100 (500)
_________________________________________________________________________________________
Net cash used by investing
activities (205,700) (380,800) (41,400)
_________________________________________________________________________________________
Cash Flows from Financing Activities:
</TABLE>
10
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C> <C>
Proceeds of long-term debt 247,700 312,400 --
Payment of long-term debt (160,100) (153,800) (5,600)
Proceeds of notes payable 5,300 27,000 8,400
Payments of notes payable (23,800) (10,400) (14,900)
Sale of common stock 11,900 150,400 9,000
Cash dividends (5,800) (4,000) (4,900)
Other financing activities, net (2,100) (2,800) (300)
- -----------------------------------------------------------------------------------------------
Net cash provided by (used by)
financing activities 73,100 318,800 (8,300)
- -----------------------------------------------------------------------------------------------
Net Increase (Decrease) in Cash 14,900 (16,100) 22,300
Cash and Cash Equivalents at
Beginning of Year 10,100 26,200 3,900
- -----------------------------------------------------------------------------------------------
Cash and Cash Equivalents at
End of Year $25,000 $10,100 $26,200
- -----------------------------------------------------------------------------------------------
11
<PAGE>
Cash Paid During the Year for:
Interest $21,900 $23,700 $ 1,200
Income taxes, net of refunds
received $30,100 $29,000 $22,200
</TABLE>
See Notes to Consolidated Financial Statements on pages 14 through 46.
12
<PAGE>
Consolidated Statements of Shareholders' Investment
Precision Castparts Corp. and Subsidiaries
(In thousands)
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------
Common Stock Cumulative
Outstanding Paid-in Retained Translation
Shares Amount Capital Earnings Adjustments
- -----------------------------------------------------------------------------------------------------------------------------
Balance at April 2, 1995 20,200 $20,200 $5,200 $230,700 $2,300
Net income -- -- -- 41,100 --
Cash dividends -- -- -- (4,900) --
Sale of common stock 300 300 8,700 -- --
Translation adjustments -- -- -- -- (500)
- -----------------------------------------------------------------------------------------------------------------------------
Balance at March 31, 1996 20,500 20,500 13,900 266,900 1,800
Net income -- -- -- 56,500 --
Cash dividends -- -- -- (4,000) --
Sale of common stock 3,500 3,500 146,900 -- --
Translation adjustments -- -- -- -- (1,600)
- -----------------------------------------------------------------------------------------------------------------------------
Balance at March 30, 1997 24,000 24,000 160,800 319,400 200
Net income -- -- -- 86,100 --
Cash dividends -- -- -- (5,800) --
Sale of common stock 300 300 11,600 -- --
Translation adjustments -- -- -- -- (1,300)
- -----------------------------------------------------------------------------------------------------------------------------
Balance at March 29, 1998 24,300 $24,300 $172,400 $399,700 $(1,100)
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
See Notes to Consolidated Financial Statements on pages 14 through 46.
13
<PAGE>
Notes to Consolidated Financial Statements
(In thousands, except share and per share data)
SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES:
Principles of Consolidation
The consolidated financial statements include the accounts of Precision
Castparts Corp. ("PCC" or "the Company") and its wholly-owned subsidiaries
after elimination of intercompany accounts and transactions. PCC's fiscal
year is based on a 52-53 week year ending the Sunday closest to March 31.
Cash and Cash Equivalents
Cash and cash equivalents include short-term investments with an original
maturity of three months or less. These investments are available-for-sale
with market values approximating cost.
Valuation of Inventories
The LIFO inventory cost method is utilized for work in process and metal
inventories at the majority of domestic operations. The average inventory
cost method is utilized for all other inventories. Costs utilized for
inventory valuation purposes include labor, material and manufacturing
overhead. Inventories valued at the lower of current average cost or market
would have been $4,000, $4,300 and $5,200 higher than those reported at March
29, 1998, March 30, 1997 and March 31, 1996, respectively. PCC uses the
single pool dollar value method for computing LIFO inventories; therefore, it
is not possible to present the breakdown of inventories between work in
process and raw materials.
Depreciation and Capitalization
Depreciation of plant and equipment is computed on the straight-line or
declining balance method based on the estimated service lives. Estimated
lives used are 20-30 years for buildings and improvements and 5-10 years for
machinery and equipment.
14
<PAGE>
Additions are recorded at cost. Expenditures for maintenance, repairs and
minor improvements are charged to expense. Major improvements and additions
are added to the property accounts. When property is sold or retired, the
cost and accumulated depreciation are removed from the accounts and the
resulting gain or loss is included in income.
Goodwill
Goodwill is computed on the straight-line method and is amortized over 40
years. The future profitability and cash flow of the operations to which it
relates are reevaluated annually. These factors, along with management's
plans with respect to the operations, are considered in assessing the
recoverability of goodwill. Negative goodwill is amortized over five years.
Derivative Financial Instruments
At various times, the Company uses derivative financial instruments to limit
exposure to changes in foreign currency exchange rates, interest rates and
prices of strategic raw materials. Gains or losses on these contracts, which
are designed as hedge transactions, are measured upon settlement. The
Company has controls in place that limit the use of derivative financial
instruments and ensure that all such transactions receive appropriate
management attention.
As of March 29, 1998, three interest rate derivative instruments were in
place. As is discussed in the "LONG-TERM DEBT" note, the Company is committed
to an interest rate swap related to a term loan and an interest rate cap and
an interest rate swap related to a revolving credit facility. Other
immaterial instruments in place at year end included several foreign currency
hedges and no-cost collars for nickel metal, a commodity which is utilized in
production at the Company's aerospace facilities. At March 29, 1998, and
March 30, 1997, there was no material off-balance-sheet risk from derivative
financial instruments. The Company does not hold or issue financial
instruments for trading purposes.
Certain Risks and Uncertainties
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions
that affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Revenue Recognition
The Company recognizes revenues when product is shipped, or when title is
passed to the customer.
15
<PAGE>
Environmental Costs
Environmental liabilities are accrued when the Company determines its
responsibility for cleanup costs and such amounts are reasonably estimable.
When only a range of amounts is established, and no amount within the range
is better than another, the minimum amount of the range is recorded. The
Company does not anticipate and record recoveries from insurance or indemnity
agreements before collection is probable.
Foreign Currency Translation
Adjustments resulting from translating foreign functional currency financial
statements into U.S. dollars are included in the currency translation
adjustment in shareholders' investment.
ACQUISITIONS
The following acquisitions were accounted for by the purchase method of
accounting and, accordingly, the results have been included in the
consolidated financial statements since the acquisition dates. Pro forma
information is required for fiscal 1997 acquisitions only.
Fiscal 1998
On July 7, 1997, PCC acquired certain of the assets of Pittler GmbH ("PCC
Pittler"). PCC Pittler is a manufacturer of computer-controlled metalworking
machine systems that operates as part of PCC Specialty Products, Inc. The
purchase price of $5,300 yielded negative goodwill of $3,600.
On October 31, 1997, PCC acquired 100 percent of the stock of J&L Fiber
Services ("J&L"). J&L is a manufacturer of refiner plates and screen
cylinders for the pulp and paper industry. The purchase price of $109,400
resulted in the recognition of $78,800 of goodwill.
On December 31, 1997, PCC acquired the assets of Schlosser Casting Company
("PCC Schlosser"). PCC Schlosser is a titanium investment casting foundry
that operates as part of PCC Structurals, Inc. The purchase price of $19,400
resulted in the recognition of $11,700 of goodwill.
16
<PAGE>
On February 27, 1998, PCC acquired the stock of Baronshire Engineering,
Limited ("Baronshire") for $5,000 plus $2,000 of acquired debt. Baronshire,
which manufactures stainless steel butterfly valves for the food and
pharmaceutical industries, operates as part of PCC Flow Technologies, Inc.
The purchase price generated goodwill of $4,700.
Fiscal 1997
On May 31, 1996, PCC purchased the stock of The Olofsson Corporation, a
manufacturer of computer-controlled metalworking machine systems. The
purchase price of $52,200 included the assumption of debt. Goodwill of
$30,600 was recorded for the difference between the acquisition cost and the
fair value of net assets and liabilities assumed. The business operates as
part of PCC Specialty Products, Inc.
On July 19, 1996, PCC purchased substantially all of the assets of AE Turbine
Components Limited ("AETC"), which operates as part of PCC Airfoils, Inc.
AETC is a manufacturer of investment castings for the aircraft engine and
industrial gas turbine markets. The purchase price was $63,400, and resulted
in the recognition of $24,600 of goodwill and other intangible assets.
On July 31, 1996, PCC purchased the outstanding stock of the NEWFLO
Corporation ("NEWFLO"). NEWFLO, which is operated as PCC Flow Technologies,
Inc., is a designer and manufacturer of high quality niche-oriented
industrial fluid management products. The transaction, valued at $300,000,
included the assumption of $100,000 of registered subordinated notes and
resulted in the recognition of $227,800 of goodwill and other intangible
assets.
The following represents the pro forma results of operations of the Company
including the fiscal 1997 acquisitions of NEWFLO, AETC and Olofsson for the
years ended March 30, 1997 and March 31, 1996, assuming the acquisitions had
taken place at the beginning of each fiscal year.
<TABLE>
<CAPTION>
(Unaudited)
- --------------------------------------------------------------------------------
Fiscal 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C>
Net sales $1,085,800 $907,800
Net income $57,700 $44,200
Net income per common share (basic) $2.65 $2.17
Net income per common share (diluted) $2.62 $2.15
</TABLE>
17
<PAGE>
The pro forma presentation is not necessarily indicative of either the
results of operations that would have occurred had the acquisitions taken
place at the beginning of each fiscal year or of future results of the
combined companies. The Company had four additional immaterial acquisitions
during fiscal 1997 that are not included in the pro forma results presented
above.
Fiscal 1996
On February 21, 1996, PCC acquired the stock of the Carmet Company, a
manufacturer of tungsten carbide cutting tools and wear parts. The purchase
price of $21,200, which included the assumption or retirement of debt,
resulted in the recognition of $6,900 of goodwill. The business operates as
part of PCC Specialty Products, Inc.
PROVISION FOR RESTRUCTURING AND OTHER
During the fourth quarter of fiscal 1998, a restructuring charge of $8,600
was established principally to provide for severance and other exit costs
associated with the consolidation of operations within PCC Specialty
Products. The Company will close its machine tool manufacturing facility in
Oscoda, Michigan, and consolidate operations into its West Branch, Michigan,
facility. Tooling operations in Gaffney, South Carolina, and Santa Fe
Springs, California, will be relocated and consolidated into the header
tooling facilities in Bristol, Rhode Island. In addition, the Company will
close its tungsten carbide plant in Gainesville, Georgia, and consolidate
those operations into its Duncan, South Carolina, facility. Through the
consolidation of these facilities, PCC Specialty Products expects to create a
stronger, more cost-effective platform for growth, while eliminating
redundant overhead expenses and leveraging its manufacturing know-how and
technical expertise. The Company also recorded certain non-recurring costs
associated with the write-off of inventory related to the machine tool
business of PCC Specialty Products. The tax effected impact of the provision
totaled $6,100 or $0.25 per share (diluted).
During the fourth quarter of fiscal 1997, the Company recorded a provision
for restructuring of $3,400 related to the consolidation of PCC Composites
and AFT. The tax effected impact of the provision totaled $2,000 or $0.09 per
share (diluted).
18
<PAGE>
FAIR VALUE OF FINANCIAL INSTRUMENTS
Cash and cash equivalents, receivables, payables, accrued liabilities and
short-term borrowings are reflected in the financial statements at cost,
which equals fair value because of the short-term maturity of these
instruments.
The fair value of long-term debt was estimated using the Company's year-end
incremental borrowing rate for similar types of borrowing arrangements. The
amounts reported in the consolidated balance sheets for long-term debt
approximate fair value. The fair value of the interest rate protection related
to the long-term debt was immaterial.
CONCENTRATION OF CREDIT RISK
Approximately 53 percent of PCC's business activity in fiscal year 1998 was with
companies in the aerospace industry. Accordingly, PCC is exposed to a
concentration of credit risk for this portion of receivables. The Company
has long-standing relationships with its aerospace customers and management
considers the credit risk to be low.
ACCRUED LIABILITIES
Accrued liabilities consisted of the following:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
March 29, March 30,
1998 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Salaries and wages payable $60,800 $44,800
Accrued interest and call premium 3,600 15,800
Other accrued liabilities 59,300 41,300
- -------------------------------------------------------------------------------
$123,700 $101,900
- -------------------------------------------------------------------------------
</TABLE>
19
<PAGE>
LONG-TERM DEBT
Long-term debt consisted of the following:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
March 29, March 30,
1998 1997
<S> <C> <C>
- -------------------------------------------------------------------------------
Precision Castparts Corp. 6.75% Notes
due fiscal 2008 $150,000 $ --
Term Loan, fixed rate of 6.6% under a
swap agreement, payable quarterly
in various amounts through fiscal 2002 117,500 145,000
NEWFLO 13 1/4% Subordinated Notes
due fiscal 2003, recorded at PCC's
effective interest rate of 6.1%,
repaid in fiscal 1998. -- 100,000
Revolving Credit Facility, variable
interest rate based on LIBOR subject
to a 7.0% cap arrangement,
5.7% at March 29, 1998 and 6.1% at
March 30, 1997, payable fiscal 2002 90,000 22,800
Industrial Development Revenue Bonds,
variable interest rates, 3.1% to
4.0% at March 29, 1998, payable
annually through fiscal 2001 13,100 14,400
Other, 6.0% to 8.0%,
payable in various amounts
through fiscal 1999 800 1,300
- -------------------------------------------------------------------------------
371,400 283,500
Less-Current portion 24,400 22,500
- -------------------------------------------------------------------------------
$347,000 $261,000
- -------------------------------------------------------------------------------
</TABLE>
20
<PAGE>
In December 1997, the Company completed the shelf registration of $300,000 of
public notes and issued through a public offering $150,000 of 6.75% Notes due
December 15, 2007, with interest to be paid semi-annually. The 6.75% Notes
contain various standard financial covenants, in addition to the covenants
under preexisting debt.
In July 1996, the Company entered into a $400,000 amended and restated credit
agreement (the "Credit Agreement") that was syndicated to eleven banks. The
Credit Agreement includes two facilities: an amortizing term loan facility in
the principal amount of $150,000 (the "Term Loan") and a revolving credit
facility in the principal amount of $250,000 (the "Credit Line"). The Credit
Agreement contains various standard financial covenants, including
maintenance of minimum net worth, fixed charge coverage ratio and leverage
ratios.
In July 1996, the full $150,000 was borrowed under the Term Loan, and the
Company entered into a fixed rate swap agreement for the entire term of the
loan, resulting in an interest rate of 6.6 percent per annum plus a margin
based on the Company's leverage ratio. The Term Loan has a five-year
maturity, and the principal amount is repayable quarterly with the first
payment made in March 1997 of $5,000. The Term Loan may be prepaid, in whole
or in part, at any time.
The Company may borrow up to $250,000 under the Credit Line and amounts
outstanding bear interest at interest rates of a) offshore rate equal to the
effective LIBOR, as defined, plus applicable margin of 0.30 percent to 0.875
percent based on the consolidated leverage ratio, as defined, b) an overnight
base rate equal to the higher of the federal funds rate or the prime rate of
the agent bank plus 0.50 percent, or c) a rate negotiable between each bank
and the Company, as applicable. The Company is required to pay a commitment
fee of 0.10 percent to 0.25 percent, based on the leverage ratio, on
unborrowed amounts. The Credit Line matures in July 2001.
21
<PAGE>
The Company has obtained interest rate protection through a cap arrangement
covering $160,000, declining to $135,000 of borrowings under the Credit Line
through July 31, 1998. LIBOR is capped at 7.0 percent under this
arrangement. The cost of the cap arrangement is being amortized over the life
of the cap arrangement. The Company has entered into a fixed rate swap
agreement for the period August 1, 1998 to July 31, 2000 covering $175,000,
declining to $75,000 of borrowings under the Credit Line, resulting in an
interest rate of 6.1 percent per annum plus a margin based on the Company's
leverage rate.
PCC Flow Technologies, Inc., acquired by the Company in July 1996, had
outstanding, $100,000 principal amount of NEWFLO 13 1/4% Subordinated Notes
due 2002 (the "Notes"). The Notes were redeemed on November 15, 1997 at a
redemption price of $105,250. Interest on the Notes was recorded at PCC's
effective interest rate of 6.1 percent. An accrual for the rate differential
and the call premium was established under purchase accounting at the date of
acquisition.
The Company's debt agreements contain cross default provisions. At March 29,
1998, the Company was in compliance with all restrictive provisions of its
loan agreements.
Long-term debt is payable in each fiscal year as follows: $24,400 in 1999,
$39,100 in 2000, $55,400 in 2001, $102,500 in 2002, $0 in 2003 and $150,000
thereafter.
22
<PAGE>
INCOME TAXES
Income before provision for income taxes was:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Fiscal 1998 1997 1996
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Domestic $104,100 $80,300 $66,400
Foreign 31,200 15,400 (2,700)
- -------------------------------------------------------------------------------
Total pretax income $135,300 $95,700 $63,700
- -------------------------------------------------------------------------------
</TABLE>
The provision for income taxes consisted of the following:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
Fiscal 1998 1997 1996
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Currently payable:
Federal income taxes, net of tax
credits $38,200 $32,000 $19,100
State income taxes 7,000 7,000 3,600
Foreign 8,900 4,600 -
- -------------------------------------------------------------------------------
54,100 43,600 22,700
Change in deferred income taxes (4,900) (4,400) (100)
- -------------------------------------------------------------------------------
Provision for income taxes $49,200 $39,200 $22,600
- -------------------------------------------------------------------------------
</TABLE>
23
<PAGE>
Except for certain earnings that the Company intends to invest indefinitely,
provision has been made for the estimated United States Federal income tax
liability applicable to undistributed earnings of affiliated companies.
Fiscal 1997 acquisitions yielded nondeductible goodwill which is reflected in
the tax rate reconciliation below and the tax impact of purchase accounting
adjustments is reflected in deferred taxes.
During the fourth quarter of fiscal 1998, the effective tax rate was
significantly reduced from a normal rate of approximately 40.0 percent to
24.1 percent as a result of revised estimates of tax benefits relating to
higher than anticipated international sales in fiscal 1997 and 1998. In
addition, higher state tax business incentives and other tax benefits
contributed to the reduction in the quarter's effective tax rate. The tax
effected impact of the aforementioned items totaled $6,100 or $0.25 per share
(diluted).
During the third quarter of fiscal 1996, PCC recorded a $2,600 benefit, equal
to $0.13 per share, for the settlement of a state tax issue and research and
development tax credits claimed in 1992.
24
<PAGE>
The income tax provision in certain years is different from the amount computed
by applying the federal statutory income tax rate of 35 percent to income before
income taxes. The reasons for this difference are as follows:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------
Fiscal 1998 1997 1996
- ----------------------------------------------------------------------
<S> <C> <C> <C>
Statutory federal tax on income 35% 35% 35%
Increase (decrease) as a result of:
State income taxes, net of federal
tax benefit 4 4 3
State settlement - - (3)
Research and development tax
credits - - (1)
Valuation allowance (2) (1) 2
Foreign Sales Corporation tax benefit (4) (1) (2)
Amortization of goodwill 3 3 1
Other, net - 1 -
- ----------------------------------------------------------------------
Provision for income taxes 36% 41% 35%
- ----------------------------------------------------------------------
</TABLE>
Deferred income taxes result from temporary differences in the recognition of
income and expenses for financial and income tax reporting purposes, and
differences between the fair value of assets acquired in business
combinations accounted for as purchases for financial reporting purposes and
their corresponding tax bases. Deferred income taxes represent future tax
benefits or costs to be recognized when those temporary differences reverse.
25
<PAGE>
Significant components of PCC's deferred tax assets and liabilities were as
follows:
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------
March 29, March 30,
1998 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Deferred tax assets arising from:
Expense accruals $35,900 $35,800
Inventory reserves 8,500 8,000
Post-retirement benefits other
than pensions 5,100 2,300
Interest accruals -- 4,600
Domestic and foreign net operating
and capital loss carryforwards -- 2,200
Foreign operations 500 1,600
Other 1,100 4,500
Valuation allowances (1,500) (3,500)
- -------------------------------------------------------------------------------
Gross deferred tax assets 49,600 55,500
- -------------------------------------------------------------------------------
Deferred tax liabilities arising from:
Depreciation/amortization 30,200 24,300
Inventory basis differences 11,400 12,600
Foreign operations 2,000 2,000
Other -- 5,000
- -------------------------------------------------------------------------------
26
<PAGE>
Gross deferred tax liabilities 43,600 43,900
- -------------------------------------------------------------------------------
Net deferred tax asset $ 6,000 $ 11,600
- -------------------------------------------------------------------------------
</TABLE>
The Company has provided valuation allowances for domestic and foreign net
operating and capital loss carryforwards to reduce the related future income
tax benefits to zero.
27
<PAGE>
EARNINGS PER SHARE
Earnings per share have been computed based on the weighted average number of
shares of common stock and common stock equivalents outstanding during the
periods. In fiscal 1998, the Company adopted SFAS No. 128, Earnings per Share.
This statement requires the Company to disclose the diluted earnings per share,
which includes the dilutive effect of stock options ("options") and the
Company's Employee Stock Purchase Plan ("ESPP"), in addition to previously
reported basic earnings per share. All earnings per share amounts have been
presented to conform to the SFAS 128 requirements. The following represents the
number of shares used for basic and diluted EPS calculations and a
reconciliation from basic EPS to diluted EPS (income and shares in thousands):
<TABLE>
<CAPTION>
Fiscal 1998 1997 1996
- -----------------------------------------------------------------------------------------------------------------------------
Basic Diluted Basic Diluted Basic Diluted
- -----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net Income $86,100 $86,100 $56,500 $56,500 $41,100 $41,100
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Average equivalent shares:
Average shares of common stock outstanding 24,200 24,200 21,800 21,800 20,400 20,400
Options and ESPP - 200 - 200 - 200
- -----------------------------------------------------------------------------------------------------------------------------
Total average equivalent shares 24,200 24,400 21,800 22,000 20,400 20,600
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
Net income per common share $3.56 $3.53 $2.59 $2.57 $2.02 $2.00
- -----------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------------------------------------
</TABLE>
28
<PAGE>
EMPLOYEE BENEFIT PLANS
Employee Pension Benefits
PCC has defined benefit pension plans covering substantially all domestic
employees. Benefits generally are based on years of service and
compensation. PCC's funding policy is to satisfy the funding requirements of
the Employee Retirement Income Security Act.
In determining the actuarial present value of the projected benefit
obligation, the following assumptions were used: a discount rate of 7.25
percent in 1998, and 7.50 percent in 1997; and a future compensation increase
rate of 5.00 percent and an expected long-term rate of return on assets of
9.00 percent in all years. The year-to-year fluctuations in the discount
rate assumptions primarily reflect changes in external interest rates. The
discount rates represent the expected yield on a portfolio of high-grade (AA
rated or equivalent) fixed-income investments with cash flow streams
sufficient to satisfy benefit obligations under the plans when due. All
significant plans of the Company are funded and are included below.
29
<PAGE>
Net pension cost for each of the last three fiscal years was as follows:
<TABLE>
<CAPTION>
Fiscal 1998 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Service costs of benefits earned $ 6,800 $ 6,800 $ 4,500
Interest cost on the projected
benefit obligation 10,800 10,000 7,500
Actual return on plan assets (22,700) (14,800) (14,900)
Net amortization and deferral of items
not reflected in earnings 10,300 3,300 6,300
- --------------------------------------------------------------------------------
Net pension cost $ 5,200 $ 5,300 $ 3,400
- --------------------------------------------------------------------------------
</TABLE>
The accrued pension liability includes the assumption of liability related to
pension plans of acquisitions. A reconciliation of the funded status of the
plans to the accrued pension liability is presented below.
30
<PAGE>
<TABLE>
<CAPTION>
- --------------------------------------------------------------------
March 29, 1998 March 30, 1997
- --------------------------------------------------------------------
<S> <C> <C>
Actuarial present value of
benefit obligations:
Vested benefit obligation $131,200 $113,200
- -----------------------------------------------------------------
Accumulated benefit obligation $136,600 $118,000
Effects of estimated future
pay increases 37,000 29,000
- -----------------------------------------------------------------
Projected benefit obligation 173,600 147,000
Plan assets at fair value 156,500 136,700
- -----------------------------------------------------------------
Funded status (17,100) (10,300)
Unrecognized asset at
transition (1,500) (1,800)
Prior service cost not yet
recognized 4,400 (400)
Unrecognized net (gain)loss (600) 2,300
- -----------------------------------------------------------------
Accrued pension liability $(14,800) $(10,200)
- -----------------------------------------------------------------
</TABLE>
31
<PAGE>
Postretirement Benefits Other Than Pensions
PCC provides postretirement medical benefits for certain eligible employees
who have satisfied plan eligibility provisions, which include age and/or
service requirements.
Assumptions used in determining the accrued postretirement benefit obligation
included a discount rate of 7.25 percent in 1998 and 7.50 percent in 1997,
and a medical inflation rate of 7.00 percent in 1998 (grading down to 5.00
percent after two years) and 8.00 percent in 1997 (grading down to 5.00
percent after three years). All significant plans of the Company are
unfunded and are included below.
The components of postretirement benefits cost were as follows:
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
Fiscal 1998 1997 1996
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Service cost $ 300 $ 300 $ 100
Interest cost 1,200 1,000 600
- --------------------------------------------------------------------------------
Postretirement benefits cost $ 1,500 $1,300 $ 700
- --------------------------------------------------------------------------------
</TABLE>
32
<PAGE>
The accumulated postretirement benefits obligation at March 29, 1998 and
March 30, 1997 was as follows:
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------
March 29, March 30,
1998 1997
- ----------------------------------------------------------------------
<S> <C> <C>
Accumulated postretirement benefits
obligation:
Retirees $ 8,900 $ 8,800
Eligible active plan participants 2,400 2,100
Other active plan participants 5,400 4,800
- ----------------------------------------------------------------------
16,700 15,700
Unrecognized net loss (gain) 300 (400)
- ----------------------------------------------------------------------
Accrued postretirement benefits
liability $16,400 $16,100
- ----------------------------------------------------------------------
</TABLE>
33
<PAGE>
A one percent increase in the annual health care trend rates would have
increased the accumulated postretirement benefits obligation at March 29,
1998 by $1,700 and at March 30, 1997 by $1,500 and increased the
postretirement benefits cost by $200 in 1998 and 1997, and by $100 in 1996.
COMMITMENTS AND CONTINGENCIES
Various lawsuits arising during the normal course of business are pending
against PCC. In the opinion of management, the outcome of these lawsuits
will have no material effect on PCC's consolidated financial position.
SHAREHOLDERS' INVESTMENT
Authorized shares of common stock without par value consisted of 100,000,000
shares at March 29, 1998, and March 30, 1997, and 50,000,000 shares at March
31, 1996. Authorized and unissued series A no par serial preferred stock
consisted of 1,000,000 shares at March 29, 1998, March 30, 1997, and March
31, 1996.
In November 1996, the Company sold 3,300,000 shares of common stock in a
secondary stock offering at a price of $46.50 per share. The net proceeds to
the Company totaled $146,100.
PCC translates the balance sheets of its foreign subsidiaries using the
exchange rate at the end of the year. The statements of income are
translated using the average exchange rate for the year. The effects of such
translations are included in the shareholders' investment account "cumulative
translation adjustments."
34
<PAGE>
STOCK-BASED COMPENSATION PLANS
PCC has stock incentive plans for certain officers, key salaried employees
and directors. The officer and employee stock incentive plans allow for the
grant of stock options, stock bonuses, stock appreciation rights, cash bonus
rights and sale of restricted stock. Awards under the officer and employee
stock incentive plans are determined by the Compensation Committee of the
Board of Directors. The time limit within which options may be exercised,
and other exercise terms are fixed by the Committee. The directors' plan
grants options for 1,000 shares annually to each outside director. Option
prices of the plans to date have been at the fair market value on the date of
grant. The options become exercisable in installments from one to four years
from the date of grant and generally expire seven to ten years from the date
of grant. The outstanding options for stock incentive plan shares have
expiration dates ranging from fiscal 1999 to fiscal 2008. At March 29, 1998,
668,000 stock incentive plan shares were available for future grants.
Changes during 1998, 1997 and 1996 in stock incentive plan shares outstanding
were as follows:
35
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------
Weighted
Average
Shares Exercise Price
- ----------------------------------------------------------------------
<S> <C> <C>
Outstanding at April 2, 1995 1,032,000 $ 18.89
Granted 189,000 34.91
Exercised (357,000) 19.54
Expired or cancelled (38,000) 18.90
- ----------------------------------------------------------------------
Outstanding at March 31, 1996 826,000 22.31
Granted 251,000 45.91
Exercised (152,000) 19.19
Expired or cancelled (20,000) 32.88
- ----------------------------------------------------------------------
Outstanding at March 30, 1997 905,000 29.20
Granted 419,000 59.46
Exercised (231,000) 19.80
Expired or cancelled (58,000) 43.89
- ----------------------------------------------------------------------
Outstanding at March 29, 1998 1,035,000 $42.81
- ----------------------------------------------------------------------
Exercisable at March 31,1996 326,000 $18.45
Exercisable at March 30,1997 393,000 $19.61
Exercisable at March 29,1998 349,000 $25.84
- ----------------------------------------------------------------------
</TABLE>
36
7<PAGE>
PCC also has an employee stock purchase plan whereby the Company is authorized
to issue shares of common stock to its full-time employees, nearly all of whom
are eligible to participate. Under the terms of the plan, employees can choose
to have up to 10 percent of their annual base earnings withheld to purchase the
Company's common stock. The purchase price of the stock is the lower of 85
percent of the fair market value of the stock on the date of grant or on the
date purchased.
Disclosures required by SFAS No. 123, Accounting for Stock-based Compensation,
are as follows:
<TABLE>
<CAPTION>
Fiscal 1998 1997 1996
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
Weighted average fair value
- Per option (a) $19.29 $15.10 $11.21
- Per purchase right (a)(b) $11.87 $10.64 --
Valuation assumptions
Risk-free interest rates 5.2%-6.7% 6.0%-6.3% 5.8%-6.4%
Dividend 0.6% 0.6% 0.6%
Expected life 5 years 5 years 5 years
Expected volatility 25.5% 25.5% 26.0%
Pro forma effects (c)
Net income $83,900 $55,900 $40,900
Net income per common share (basic) $3.47 $ 2.56 $ 2.01
Net income per common share (diluted) $3.44 $ 2.54 $ 1.99
- -------------------------------------------------------------------------------
</TABLE>
(a) Estimated using Black-Scholes option pricing model
(b) Purchase rights granted under employee stock purchase plan
(c) Net income in thousands; per-share amounts in dollars
37
<PAGE>
- -------------------------------------------------------------------------------
The following table summarizes information about stock options outstanding at
March 29, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------- -------------------------
Weighted
Average Weighted
Remaining Weighted Average
Range of Contractual Average Exercise
Exercise Prices Shares Life (Years) Exercise Price Shares Price
- ---------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
$11.58 to $22.88 249,000 4.2 $18.80 211,000 $18.07
23.17 to 46.38 368,000 7.8 40.50 135,000 37.49
48.25 to 59.50 68,000 9.2 53.67 3,000 49.39
59.81 to 59.81 263,000 9.6 59.81 0 0.00
60.13 to 64.63 87,000 9.2 61.43 0 0.00
- ---------------------------------------------------------------------------------------------
$11.58 to $64.63 1,035,000 7.6 $42.81 349,000 $25.84
- ---------------------------------------------------------------------------------------------
- ---------------------------------------------------------------------------------------------
</TABLE>
38
<PAGE>
SHAREHOLDER RIGHTS PLAN
In 1988, PCC adopted a shareholder rights plan and declared a dividend
distribution of one right for each outstanding share of common stock. Under
certain conditions, each right may be exercised to purchase 1/100 of a share
of series A no par serial preferred stock at a purchase price of $135,
subject to adjustment. The rights will be exercisable only (i) if a person
or group has acquired, or obtained the right to acquire, 20 percent or more
of the outstanding shares of common stock, (ii) following the commencement of
a tender or exchange offer for 20 percent or more of the outstanding shares
of common stock, or (iii) after the Board of Directors of PCC declares any
person who owns more than 10 percent of the outstanding common stock to be an
Adverse Person. Each right will entitle its holder to receive, upon exercise,
common stock (or, in certain circumstances, cash, property or other security
of PCC) having a value equal to two times the exercise price of the right.
If, after a person acquires 20 percent or more of the outstanding shares of
common stock, PCC is acquired in a merger or other business combination in
which PCC does not survive or in which its common stock is exchanged, each
right will be adjusted to entitle its holder to receive, upon exercise,
common stock of the acquiring company having a value equal to two times the
exercise price of the right. The rights expire on December 16, 1998, and may
be redeemed by PCC for $0.01 per right at any time until a determination is
made that any person is an Adverse Person, or 10 days following the time that
a person has acquired 20 percent or more of the outstanding common stock, or
in connection with certain transactions approved by the Board of Directors.
The rights do not have voting or dividend rights and, until they become
exercisable, have no dilutive effect on the earnings of PCC.
SEGMENT INFORMATION
PCC manufactures and markets complex metal components and products in one
industry segment. Principal customers are manufacturers in the aerospace and
industrial products markets.
Net sales included sales to General Electric in the amounts of $159,200 in 1998,
$150,500 in 1997 and $121,600 in 1996 and sales to Pratt & Whitney in the
amounts of $152,800 in 1998, $125,200 in 1997 and $90,800 in 1996. No other
customer accounted for more than 10 percent of net sales.
The geographic distribution of net sales and earnings from operations and
identifiable assets for fiscal 1998 are summarized as follows:
<TABLE>
<CAPTION>
1998 1997
- -------------------------------------------------------------------------------
<S> <C> <C>
Net sales to unrelated entities:
39
<PAGE>
United States $1,106,600 $ 842,800
Europe 170,900 104,700
Other 39,200 25,300
- -------------------------------------------------------------------------------
$1,316,700 $ 972,800
- -------------------------------------------------------------------------------
Earnings from operations:
United States $ 136,600 $ 99,100
Europe 22,900 14,000
Other 5,100 2,700
- -------------------------------------------------------------------------------
164,600 115,800
Less:
Provision for restructuring and other 8,600 3,400
Interest expense, net 20,700 16,700
- -------------------------------------------------------------------------------
Income before provision for
income taxes $ 135,300 $ 95,700
- -------------------------------------------------------------------------------
Assets:
United States $1,037,700 $ 915,400
Europe 145,500 113,000
Other 32,200 32,700
Corporate, cash and eliminations 59,200 9,000
- -------------------------------------------------------------------------------
$1,274,600 $1,070,100
- -------------------------------------------------------------------------------
</TABLE>
Total net sales and identifiable assets of PCC's foreign subsidiaries
represented less than 10 percent of consolidated totals in 1996.
Export sales originating from the United States of $325,900 in 1998, $216,800
in 1997 and $134,800 in 1996 were made principally to customers in Europe.
Total net sales to customers outside the United States were $527,900 in 1998,
$346,800 in 1997 and $156,200 in 1996 or 40 percent, 36 percent and 28
percent of the Company's sales in those years.
40
<PAGE>
Subsequent Events
On February 24, 1998, PCC entered into an Agreement and Plan of Merger to
acquire all shares of common stock of Environment/One Corporation ("E/ONE")
for $15.25 per share, subject to the tender of two-thirds of E/ONE's
outstanding shares on a fully diluted basis. E/ONE is a manufacturer of
highly engineered equipment for low-pressure sewer systems and other
applications. At the close of the tender offer on March 30, 1998, 78 percent
of E/ONE's outstanding shares on a fully diluted basis had been tendered (86
percent of the total outstanding shares), and all tendered shares have been
accepted for payment. PCC expects to complete the acquisition of the
remaining outstanding shares during the first quarter of fiscal 1999 for a
total purchase price of approximately $72,000. Upon completion of the
acquisition, E/ONE will operate as part of PCC Flow Technologies.
On May 28, 1998, PCC acquired TBV, a manufacturer of ball valves and pipeline
instrumentation, which will operate as part of PCC Flow Technologies. The
purchase price of $9,800 resulted in the recognition of $4,400 of goodwill.
41
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Board of Directors of Precision Castparts Corp.:
In our opinion, the accompanying consolidated balance sheets and the related
consolidated statements of income, cash flows and shareholders' investment
present fairly, in all material respects, the financial position of Precision
Castparts Corp. and its subsidiaries at March 29, 1998 and March 30, 1997,
and the results of their operations and their cash flows for each of the
three years in the period ended March 29, 1998, in conformity with generally
accepted accounting principles. These financial statements are the
responsibility of the Company's management; our responsibility is to express
an opinion on these financial statements based on our audits. We conducted
our audits of these statements in accordance with generally accepted auditing
standards which require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
/s/ Price Waterhouse LLP
- -----------------------------
Price Waterhouse LLP
Portland, Oregon
April 29, 1998
42
<PAGE>
REPORT OF MANAGEMENT
The management of PCC has prepared the consolidated financial statements and
related financial data contained in this Annual Report. The financial
statements were prepared in accordance with generally accepted accounting
principles appropriate in the circumstances and reflect judgments and
estimates with appropriate consideration to materiality. Management is
responsible for the integrity and objectivity of the financial statements and
other financial data included in the report.
PCC maintains a system of internal accounting controls to provide reasonable
assurance that assets are safeguarded and that transactions are properly
executed and recorded. The system includes policies and procedures, internal
audits and reviews by Company officers.
Price Waterhouse LLP, independent accountants, provide an objective,
independent review of management's discharge of its obligation related to the
fairness of reporting operating results and financial condition. Price
Waterhouse LLP performs auditing procedures necessary in the circumstances to
render an opinion on the financial statements contained in this report.
The Audit Committee of the Board of Directors is composed solely of outside
directors. The Committee meets periodically and, when appropriate,
separately with representatives of the independent accountants and the
internal auditors to monitor the activities of each.
/s/ William C. McCormick /s/ William D. Larsson
- ----------------------------- -----------------------------
William C. McCormick William D. Larsson
Chairman, and Vice President and
Chief Executive Chief Financial
Officer Officer
43
<PAGE>
Five-Year Summary of Selected Financial Data
The Selected Financial Data have been restated, as appropriate, to reflect the
three-for-two stock split, effective August, 1994.
<TABLE>
<CAPTION>
(Unaudited)
(In thousands, except employee and per share data)
- ---------------------------------------------------------------------------------------------------
1998 1997 1996 1995 1994
- ---------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $1,316,700 $ 972,800 $556,800 $436,400 $420,400
Net income $ 86,100 $ 56,500 $ 41,100 $ 29,000 $ 22,200
Return on sales 6.5% 5.8% 7.4% 6.6% 5.3%
Return on beginning
shareholders' investment 17.1% 18.6% 15.9% 13.0% 11.1%
Net income per common share (basic) $ 3.56 $ 2.59 $ 2.02 $ 1.45 $ 1.14
Net income per common share (diluted) $ 3.53 $ 2.57 $ 2.00 $ 1.44 $ 1.14
Cash dividends declared
per common share $ 0.24 $ 0.24 $ 0.24 $ 0.22 $ 0.12
Average shares of common
stock outstanding 24,200 21,800 20,400 20,000 19,500
Working capital $ 246,000 $ 205,200 $125,800 $ 89,900 $125,700
Total assets $1,274,600 $1,070,100 $450,500 $406,700 $342,900
Total debt $ 372,200 $ 300,500 $ 13,900 $ 26,000 $ 15,700
Total equity $ 595,300 $ 504,400 $303,100 $258,400 $222,800
Total debt as a percent of total
debt and equity 38.5% 37.3% 4.4% 9.1% 6.6%
Book value per share $ 24.50 $ 21.03 $ 14.76 $ 12.80 $ 11.31
Capital expenditures $ 82,900 $ 52,800 $ 19,700 $ 10,900 $ 7,400
Number of employees 10,367 9,280 5,646 5,166 3,993
Number of shareholders of record 3,715 2,267 2,327 2,480 2,750
- ---------------------------------------------------------------------------------------------------
</TABLE>
44
<PAGE>
Quarterly Financial Information
(Unaudited)
(In thousands, except per share data)
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
1998
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter(1)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $317,000 $318,100 $326,400 $355,200
Gross profit $ 67,900 $ 69,900 $ 71,400 $ 82,400
Net income $ 19,500 $ 20,700 $ 21,600 $ 24,300
Net income per share (basic) $ 0.81 $ 0.86 $ 0.89 $ 1.00
Net income per share (diluted) $ 0.80 $ 0.86 $ 0.88 $ 0.99
Cash dividends per share $ 0.06 $ 0.06 $ 0.06 $ 0.06
Common stock prices:
High $ 63.88 $ 67.69 $ 67.50 $ 61.69
Low $ 51.00 $ 59.63 $ 57.00 $ 47.63
End $ 60.00 $ 66.75 $ 58.75 $ 57.50
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
45
<PAGE>
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------
1997
1st Quarter 2nd Quarter 3rd Quarter 4th Quarter(2)
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Net sales $166,000 $244,900 $274,600 $287,300
Gross profit $ 31,900 $ 51,700 $ 59,300 $ 64,400
Net income $ 11,300 $ 13,300 $ 15,300 $ 16,600
Net income per share (basic) $ 0.55 $ 0.64 $ 0.70 $ 0.70
Net income per share (diluted) $ 0.54 $ 0.64 $ 0.69 $ 0.70
Cash dividends per share $ 0.06 $ 0.06 $ 0.06 $ 0.06
Common stock prices:
High $ 44.50 $ 51.25 $ 50.63 $ 54.63
Low $ 38.50 $ 33.38 $ 45.38 $ 48.00
End $ 42.00 $ 50.88 $ 49.25 $ 52.00
- ----------------------------------------------------------------------------------------------------------------
</TABLE>
(1) During the fourth quarter of fiscal 1998, the Company recorded charges
related to restructuring and other non-recurring items. The restructuring
charge was principally established to provide for costs associated with the
consolidation of operations within PCC Specialty Products. The non-recurring
charge related principally to the write-off of inventory of the machine tool
business of PCC Specialty Products. The tax effected impact of these charges
totaled $6,100, or $0.25 (diluted) per share. Reduction in the Company's
effective tax rate in the fourth quarter was principally due to revised
estimates of tax benefits relating to higher than anticipated foreign sales
in fiscal 1997 and 1998. The impact of reduction in the effective tax rate
increased earnings by $0.25 (diluted) per share.
(2) During the fourth quarter of fiscal 1997, the Company recorded a provision
for restructuring of $3,400 for the relocation of PCC Composites and its
consolidation with AFT. The tax effected impact of the provision totaled
$2,000, or $0.09 (diluted), per share.
46
<PAGE>
EXHIBIT 21
SUBSIDIARIES OF PRECISION CASTPARTS CORP.
<TABLE>
<CAPTION>
STATE OR
APPROXIMATE PERCENTAGE JURISDICTION OF
OF VOTING SECURITIES INCORPORATION
NAME OF SUBSIDIARY OWNED OR ORGANIZATION
- --------------------------------------------------------------------- ------------------------- -------------------
<S> <C> <C>
PCC Structurals, Inc................................................. 100% Oregon
PCC Airfoils, Inc.................................................... 100% Ohio
PCC Flow Technologies, Inc........................................... 100% Delaware
PCC Specialty Products, Inc.......................................... 100% Delaware
J&L Fiber Services, Inc.............................................. 100% Wisconsin
Advanced Forming Technology, Inc..................................... 100% Colorado
AETC Limited......................................................... 100% United Kingdom
PCC France, S.A...................................................... 100% France
PCC Exports, Inc..................................................... 100% Barbados
</TABLE>
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 No. 333-41275, to
the incorporation by reference in the Prospectus constituting part of the
Registration Statement on Form S-8 No. 333-42899, to the incorporation by
reference in the Registration Statement on Form S-8 No. 333-14577, to the
incorporation by reference in the Registration Statement on Form S-3 No.
33-32367, and to the incorporation by reference in the Registration Statement on
Form S-8, No. 33-40559 of Precision Castparts Corp. of our report dated April
29, 1998 appearing on page 33 of the Annual Report to Shareholders, which is
incorporated in this Annual Report on Form 10-K. We also consent to the
incorporation by reference of our report on the Financial Statement Schedule,
which appears in Item 14(a)2 of this Form 10-K.
<TABLE>
<S> <C>
/s/ PRICE WATERHOUSE LLP
--------------------------------------
PRICE WATERHOUSE LLP
Portland, Oregon
June 26, 1998
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> MAR-29-1998
<PERIOD-START> MAR-31-1997
<PERIOD-END> MAR-29-1998
<CASH> 25,000
<SECURITIES> 0
<RECEIVABLES> 212,400
<ALLOWANCES> 3,800
<INVENTORY> 240,900
<CURRENT-ASSETS> 510,800
<PP&E> 490,200
<DEPRECIATION> 197,500
<TOTAL-ASSETS> 1,274,600
<CURRENT-LIABILITIES> 264,800
<BONDS> 347,000
0
0
<COMMON> 24,300
<OTHER-SE> 571,000
<TOTAL-LIABILITY-AND-EQUITY> 1,274,600
<SALES> 1,316,700
<TOTAL-REVENUES> 1,316,700
<CGS> 1,025,100
<TOTAL-COSTS> 1,025,100
<OTHER-EXPENSES> 8,600
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 20,700
<INCOME-PRETAX> 135,300
<INCOME-TAX> 49,200
<INCOME-CONTINUING> 86,100
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 86,100
<EPS-PRIMARY> 3.56
<EPS-DILUTED> 3.53
</TABLE>
