<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 31, 2000
REGISTRATION NO. 333-
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- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------
PRECISION CASTPARTS CORP.
(Exact name of registrant as specified in its charter)
------------------------
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<S> <C> <C>
OREGON 3320 93-0460598
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification No.)
</TABLE>
4650 S.W. MACADAM AVE., SUITE 440
PORTLAND, OREGON 97201
(503) 417-4800
(Address, including zip code, and telephone number,
including area code, of registrant's principal executive offices)
WILLIAM D. LARSSON
Vice President and Chief Financial Officer
4650 S.W. Macadam Ave., Suite 400
Portland, Oregon 97201
(503) 417-4800
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPIES TO:
RUTH A. BEYER
Stoel Rives LLP
900 SW Fifth Avenue, Suite 2600
Portland, Oregon 97204
(503) 224-3380
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
AS PROMPTLY AS PRACTICABLE AFTER THE EFFECTIVE DATE OF THIS REGISTRATION
STATEMENT.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box.: [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering: [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act of 1933, check the following box and list the
Securities Act registration statement number of the earlier effective date
registration statement for the same offering. [ ]
CALCULATION OF REGISTRATION FEE
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<S> <C> <C> <C> <C>
PROPOSED PROPOSED
TITLE OF EACH CLASS OF MAXIMUM MAXIMUM
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE AGGREGATE AMOUNT OF
REGISTERED REGISTERED(1) PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
8.75% Senior Notes due
2005.................... $200,000,000 100% $200,000,000 $52,800
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(2) under the Securities Act of 1933.
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH A DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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<PAGE>
PROSPECTUS SUBJECT TO COMPLETION DATED MARCH 31, 2000
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT CONSUMMATE THE EXCHANGE OFFER UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN
OFFER TO SELL THESE SECURITIES AND IS NOT SOLICITING IS NOT AN OFFER TO BUY
THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PRECISION CASTPARTS CORP.
OFFER FOR ALL OUTSTANDING 8.75% SENIOR NOTES DUE 2005
IN EXCHANGE FOR 8.75% SENIOR NOTES DUE 2005
WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 2000, UNLESS WE EXTEND IT.
KEY TERMS OF THE EXCHANGE OFFER
------------------------
- We are offering to exchange registered 8.75% Senior Notes due 2005 for all
of our old unregistered 8.75% Senior Notes due 2005.
- The terms of the new notes will be identical in all material respects to
the terms of the old notes, except that the registration rights and
related liquidated damages provisions, and the transfer restrictions
applicable to the old notes, will not be applicable to the new notes.
- Subject to the satisfaction or waiver of specified conditions, we will
exchange the new notes for all old notes that are validly tendered and not
withdrawn prior to the expiration of the exchange offer.
- Bank One Trust Company, N.A. is serving as the exchange agent. If you wish
to tender your old notes, you must complete, execute and deliver, among
other things, a letter of transmittal to the exchange agent no later than
5:00 p.m., New York City time, on the expiration date.
- You may withdraw tenders of old notes at any time prior to the expiration
of the exchange offer.
- Any outstanding notes not validly tendered will remain subject to existing
transfer restrictions.
- The exchange of the old notes for the new notes pursuant to the exchange
offer will not be a taxable event for United States federal income tax
purposes. See "United States Federal Income Tax Considerations."
- We will not receive any proceeds from the exchange offer.
- The new notes will not be listed on any securities exchange or included in
any automated quotation system.
- The new notes will have the same financial terms and covenants as the old
notes, and will be subject to the same business and financial risks.
SEE "RISK FACTORS" ON PAGE 18 OF THIS PROSPECTUS FOR A DISCUSSION OF RISKS
THAT YOU SHOULD CONSIDER BEFORE PARTICIPATING IN THE EXCHANGE OFFER.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED THE NOTES TO BE DISTRIBUTED IN THE EXCHANGE OFFER, NOR
HAVE ANY OF THESE ORGANIZATIONS DETERMINED THAT THIS PROSPECTUS IS TRUTHFUL OR
COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2000
<PAGE>
TABLE OF CONTENTS
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PAGE
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Where You Can Find More Information......................... ii
Documents Incorporated By Reference......................... ii
Prospectus Summary.......................................... 1
Risk Factors................................................ 18
Forward Looking Statements.................................. 25
Use of Proceeds............................................. 25
Capitalization.............................................. 26
Unaudited Pro Forma Combined Financial Information.......... 27
The Exchange Offer.......................................... 32
Description of Certain Indebtedness......................... 42
Description of New Notes.................................... 45
United States Federal Income Tax Considerations............. 57
Plan of Distribution........................................ 59
Legal Matters............................................... 59
Experts..................................................... 59
</TABLE>
This prospectus incorporates business and financial information about our
company that is not included in or delivered with this prospectus. If you write
or call us, we will send you these documents, including exhibits, without
charge. You can contact us at:
Precision Castparts Corp.
4650 S.W. Macadam Ave., Suite 440
Portland, Oregon 97201
Attention: Director of Communications
Telephone: (503) 417-4850
IN ORDER TO RECEIVE TIMELY DELIVERY OF THE DOCUMENTS, YOU MUST REQUEST
INFORMATION NO LATER THAN , 2000 (FIVE BUSINESS DAYS BEFORE THE
EXPIRATION OF THE OFFER). IF YOU REQUEST ANY INCORPORATED DOCUMENTS, WE WILL
MAIL THEM TO YOU BY FIRST CLASS MAIL, OR ANOTHER EQUALLY PROMPT MEANS, BY THE
NEXT DAY AFTER WE RECEIVE YOUR REQUEST.
SEE "WHERE YOU CAN FIND MORE INFORMATION" AND "DOCUMENTS INCORPORATED BY
REFERENCE" FOR MORE INFORMATION ABOUT THE DOCUMENTS REFERRED TO IN THIS
PROSPECTUS.
i
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements, and other
documents with the Securities and Exchange Commission under the Securities
Exchange Act of 1934. Our SEC filings are available to the public at the SEC's
website at HTTP://WWW.SEC.GOV. You may also read and copy any document we file
at the following SEC public reference rooms:
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<S> <C> <C>
Judiciary Plaza Citicorp Center 7 World Trade Center
450 Fifth Street, N.W. 500 West Madison Street Suite 1300
Washington, D.C. 20549 Chicago, Illinois 60621 New York, New York 10048
</TABLE>
You may obtain information regarding the operation of the Public Reference
Room by calling the SEC at 1-800-SEC-0330.
In addition, because our common stock is listed on the New York Stock
Exchange, you may read our reports, proxy statements, and other documents at the
offices of the New York Stock Exchange at 20 Broad Street, New York, New York
10005.
We have filed with the SEC a registration statement on Form S-4 under the
Securities Act of 1933, and the rules and regulations promulgated under the
Securities Act, with respect to the new notes offered for exchange under this
prospectus. This prospectus, which constitutes part of the registration
statement, does not contain all of the information set forth in the registration
statement and the attached exhibits and schedules. The statements contained in
this prospectus as to the contents of any contract, agreement or other document
that is filed as an exhibit to the registration statement are not necessarily
complete. Accordingly, each such statement is qualified in all respects by
reference to the full text of such contract, agreement or document filed as an
exhibit to the registration statement or otherwise filed with the SEC.
DOCUMENTS INCORPORATED BY REFERENCE
The SEC allows us to "incorporate by reference" certain documents, which
means that we can disclose important information to you by referring you to
those documents. The information in the documents incorporated by reference is
considered to be part of this prospectus, and information in documents that we
file later with the SEC will automatically update and supersede this
information. We incorporate by reference the documents listed below and any
future filings we will make with the SEC under Sections 13(a), 13(c), 14 and
15(d) of the Exchange Act after the date of this prospectus and prior to the
date on which the exchange offer is consummated:
- Our Annual Report on Form 10-K for the fiscal year ended March 28, 1999,
including the portions incorporated by reference from our 1999 Annual
Report to Shareholders and Proxy Statement in connection with our 1999
Annual Meeting of Shareholders;
- Our Quarterly Reports on Form 10-Q for the quarters ended June 27, 1999,
September 26, 1999, and December 26, 1999; and
- Our Current Report on Form 8-K filed on December 8, 1999, as amended on
February 7, 2000, and our Current Report on Form 8-K filed on
February 18, 2000.
We will provide you, at no charge, a copy of the documents we incorporate by
reference in this prospectus. To request a copy of any or all of these
documents, you should write or telephone us at the following address and
telephone number:
Precision Castparts Corp.
4650 S.W. Macadam Ave., Suite 440
Portland, Oregon 97201
Attention: Director of Communications
Telephone: (503) 417-4850
ii
<PAGE>
PROSPECTUS SUMMARY
THE FOLLOWING SUMMARY HIGHLIGHTS THE INFORMATION CONTAINED ELSEWHERE IN OR
INCORPORATED BY REFERENCE INTO THIS PROSPECTUS. BECAUSE THIS IS ONLY A SUMMARY,
IT DOES NOT CONTAIN ALL OF THE INFORMATION THAT MAY BE IMPORTANT TO YOU. FOR A
MORE COMPLETE UNDERSTANDING OF THIS EXCHANGE OFFER, WE ENCOURAGE YOU TO READ
THIS ENTIRE PROSPECTUS AND THE DOCUMENTS TO WHICH WE REFER YOU. YOU SHOULD READ
THE FOLLOWING SUMMARY TOGETHER WITH THE MORE DETAILED INFORMATION AND
CONSOLIDATED FINANCIAL STATEMENTS AND THE NOTES TO THOSE STATEMENTS INCLUDED
ELSEWHERE IN OR INCORPORATED BY REFERENCE INTO THIS PROSPECTUS.
IN THIS PROSPECTUS, "PCC," "COMPANY," "WE," "OUR," AND "US" REFER TO
PRECISION CASTPARTS CORP. WITH RESPECT TO DESCRIPTIONS OF OUR BUSINESS CONTAINED
IN THIS PROSPECTUS, SUCH TERMS REFER TO PRECISION CASTPARTS CORP. AND OUR
SUBSIDIARIES.
PRECISION CASTPARTS CORP.
We are a worldwide manufacturer of complex metal components and products. We
are the market leader in manufacturing large, complex structural investment
castings and we are the leading manufacturer of airfoil investment castings used
in jet aircraft engines. In addition, we have expanded into the industrial gas
turbine ("IGT"), structural airframe, fluid management, industrial metalworking
tools and machines and other metal products markets. Wyman-Gordon Company
("Wyman-Gordon" or "WGC"), which we acquired in November 1999, is a market
leader in high-quality, technologically advanced forgings for aircraft engines
and a leading manufacturer of investment castings for the aerospace industry and
forgings for the IGT and energy markets.
Prior to our acquisition of Wyman-Gordon, our manufacturing of complex metal
components and products included operations in three principal business
segments: Precision Alloy Products, Fluid Management Products and Industrial
Products. The following charts set forth our total revenue and the percentage
revenue for each of these business segments for the periods shown:
<TABLE>
<CAPTION>
FISCAL YEAR ENDED
MARCH
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1999 1998 1997
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<S> <C> <C> <C>
PCC BY SEGMENT (IN MILLIONS)
Precision Alloy Products.................................... $ 961.4 $ 877.4 $691.4
Fluid Management Products................................... 306.4 260.6 161.8
Industrial Products......................................... 204.1 178.7 119.6
Total....................................................... $1,471.9 $1,316.7 $972.8
</TABLE>
[GRAPHIC MATERIAL OMITTED. THE GRAPHIC MATERIAL CONSISTS OF THREE PIE CHARTS
REFLECTING PCC'S REVENUES BY BUSINESS SEGMENT FOR THE FISCAL YEARS 1999, 1998
AND 1997. THE PIE CHARTS ARE DESCRIBED IN TABULAR FORM BELOW]
<TABLE>
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BUSINESS SEGMENT FY99 FY98 FY97
- ---------------------------- -------- -------- --------
<S> <C> <C> <C>
Precision Alloy Products: 65% 66% 71%
Fluid Management Products: 21% 20% 17%
Industrial Products: 14% 14% 12%
</TABLE>
1
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In November 1999, we acquired Wyman-Gordon. Unlike PCC, Wyman-Gordon
historically reported its results of operations for business segments classified
by markets, rather than by product characteristics. Wyman-Gordon historically
operated in two principal markets: Aerospace Products and Energy Products. The
following charts set forth Wyman-Gordon's total revenues and the percentage of
revenue for each of its markets for the periods shown. The data below includes
revenues from Wyman-Gordon's titanium and large parts casting operations, which
we were required to divest by the Federal Trade Commission.
<TABLE>
<CAPTION>
FISCAL YEAR ENDED MARCH
------------------------------
1999 1998 1997
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WGC BY MARKET (IN MILLIONS)
Aerospace Products.......................................... $705.8 $622.7 $475.1
Energy Products............................................. 117.2 101.4 97.1
Other Products.............................................. 26.3 28.8 36.5
Total....................................................... $849.3 $752.9 $608.7
</TABLE>
[GRAPHIC MATERIAL OMITTED. THE GRAPHIC MATERIAL CONSISTS OF THREE PIE CHARTS
REFLECTING WYMAN-GORDON'S REVENUES BY BUSINESS SEGMENT FOR THE FISCAL YEARS
1999, 1998 AND 1997. THE PIE CHARTS ARE DESCRIBED IN TABULAR FORM BELOW]
<TABLE>
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BUSINESS SEGMENT FY99 FY98 FY97
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Aerospace Products: 83% 83% 78%
Energy Products: 14% 13% 16%
Other Products: 3% 4% 6%
</TABLE>
Following the acquisition of Wyman-Gordon, we integrated Wyman-Gordon's
financial reporting with our financial reporting. We classified Wyman-Gordon's
operations into business segments according to product characteristics and
combined them with our existing business segments. As a result, we added Forged
Products as an additional business segment of our operations, and made certain
modifications to our other segments, including the transfer of a small portion
of our Precision Alloy Products segment to our Industrial Products Segment. In
light of these modifications, we relabeled our "Precision Alloy Products"
segment as "Investment Cast Products" to reflect the primary products produced
by that segment. Therefore, our operations now include four principal business
segments: Investment Cast Products, Forged Products, Fluid Management Products
and Industrial Products. Each of these four business segments is described
below.
INVESTMENT CAST PRODUCTS
Our Investment Cast Products segment includes our subsidiaries PCC
Structurals, Inc., PCC Airfoils, Inc. and Wyman-Gordon Investment
Castings, Inc. These three subsidiaries manufacture investment castings for
aircraft engines, IGT engines, airframes, medical prostheses and other
industrial applications. We primarily sell our Investment Cast Products to the
aerospace market.
INVESTMENT CASTINGS
We are the market leader in manufacturing large, complex structural
investment castings, and we are the leading manufacturer of airfoil investment
castings used in jet aircraft engines. We manufacture investment castings for
every available jet aircraft engine program in production or under development
2
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by our key customers. We are leveraging our experience and expertise in large,
complex structural and airfoil investment castings to manufacture castings for
IGT engines used for electric power generation and we have expanded into the
structural airframe market. In addition, we make investment castings for use in
the automotive, medical prosthesis, satellite launch vehicle and general
industrial markets.
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 begins with the
creation of a wax pattern of the part to be cast, along with pathways through
which molten metal flows into the ceramic mold. A ceramic shell is then formed
around the wax pattern followed by removal of the wax from the ceramic shell by
melting and draining the wax. Finally, molten metal is poured into the ceramic
shell, the shell is removed, and the part undergoes final processing and
inspection.
Because of the complexity of the manufacturing process and the application
of proprietary technologies, we believe we currently are the only manufacturer
that can consistently produce the largest complex structural investment castings
in quantities sufficient to meet our customers' quality and delivery
requirements. Our emphasis on low cost, high quality products and timely
delivery has enabled us to become one of the leading suppliers of structural and
airfoil castings for jet aircraft engines, to increase our market share of IGT
castings and to expand into the structural airframe market.
Trends in the commercial aerospace market are a critical determinant of
demand for our 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.
However, during fiscal 1999, demand decreased in the commercial aerospace market
as worldwide aircraft production reached its peak. The decrease in demand was
due in part to the decline in wide-body aircraft orders for the Asian market
where depressed economic conditions have curbed spending for new aircraft.
Large jet aircraft engines are manufactured by a small number of suppliers,
including General Electric, Pratt & Whitney, Rolls-Royce, and several joint
ventures. As a result, we believe a high level of customer service and strong
long-term customer relationships will continue to be important to achieving our
goals. We have been supplying castings for jet engines to GE for more than
25 years, and we have been supplying Pratt & Whitney (a division of United
Technologies) with castings for more than 20 years for its military jet engines
and more than 15 years for its commercial jet engines. In addition, we have
supplied small structural investment castings to Rolls Royce for more than
10 years and we have more recently begun supplying Rolls Royce with large,
structural castings for use in its new Trent series of aircraft jet engines. As
we have been able to cast larger and more complex parts, manufacturers of large
jet aircraft engines have made increasing use of our structural castings.
AEROSPACE STRUCTURAL CASTINGS
Our 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.
We believe that trends in the manufacturing of aircraft jet engines will
continue to increase our 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 extreme operating conditions and provide an
optimum strength-to-weight ratio. Many of
3
<PAGE>
these alloys are particularly suited for use in the investment castings we
manufacture. 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 its considerable weight savings. Titanium is an exceptionally
difficult metal to cast because of its reactivity to other elements. However, we
have developed the necessary technology and manufacturing processes to cast
large, complex investment castings in titanium alloys. Many new generation
engines, which are expected to be built through the next decade and beyond, make
significantly greater use of our products than did prior engine designs. We
manufacture structural investment castings for all three jet aircraft engines
used on the Boeing 777 aircraft, and we are the sole supplier of structural
investment castings for the GE90 jet engine. We also manufacture the
intermediate case and the tail bearing housing for the new Rolls Royce Trent
series of engines. These are the largest structural investment castings for jet
aircraft engines in the world.
We have also expanded into the structural airframes market. These airframe
components are manufactured primarily from titanium and aluminum alloys.
Aircraft manufacturers have begun to show substantial interest in using
investment castings for airframe applications such as aileron and flap hinges,
pylons (engine mounts) and wing spars and wing ribs.
AEROSPACE AIRFOIL CASTINGS
We manufacture 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.
We use various casting technologies to produce turbine airfoils. We employ
conventional casting processes to produce equiaxed airfoil castings, in which
the metal grains are oriented randomly throughout the casting. A more advanced
process enables us 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 us
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, the
turbine sections of these engines must work harder and burn hotter. As a result,
the major aircraft engine manufacturers have increasingly been designing their
engines with DS and SX blades. The DS and SX cast airfoils we build, with their
complex cooling passages, have been instrumental in enabling these engines to
operate at higher temperatures. 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 components have shorter useful lives than structural investment castings
and are replaced periodically during engine maintenance. As a result, our sales
of aerospace airfoil castings are less affected by the cyclical patterns of the
aerospace industry than are our sales of structural investment castings. The
timing for replacement of aerospace airfoil castings principally depends on the
engine's time in service and the expected life of the airfoil casting. Based
upon information from our major customers, we believe that approximately
50 percent of our sales of cast airfoils are used as replacement parts.
4
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IGT CASTINGS
In fiscal 1994, we began to focus on the manufacture of airfoil castings for
IGT engines. We targeted this market because we believe (1) the performance and
reliability standards we have developed in the manufacture of aerospace airfoil
castings are applicable to the manufacture of IGT airfoils, (2) the worldwide
market for IGT airfoils is large (approximately $500 million) and growing, and
(3) there are a small number of suppliers in this market. Our IGT products
consist of airfoil castings and high-temperature combustion hardware used in
large, land-based gas turbines designed for electrical power generation. In
addition, we manufacture structural and airfoil castings for aircraft-
derivative gas turbine engines which are also used for power generation as well
as other industrial and military land and marine-based applications.
IGT manufacturers have significantly improved the efficiency and reduced the
pollution profiles of industrial gas turbines, principally by incorporating
component-level advances that are included not only in new engines but also in
the refurbishing and upgrading of existing turbines. We have leveraged our DS
and SX airfoil casting knowledge from the aerospace market into the IGT market
to produce blades and vanes that are better able to withstand the extreme heat
and stresses of new higher-temperature gas turbines. IGT engines are built with
investment castings that are similar, but generally larger, than blades and
vanes manufactured by us 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, castings sales for new IGT 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. We believe these advantages have led to
increased demand for gas turbine engines.
OTHER INVESTMENT CASTING PRODUCTS
Our strategy for profitable growth also includes the pursuit of new
opportunities for our existing investment casting technology. We have been
expanding the application of our investment casting technology in the
automotive, medical prosthesis, 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.
FORGED PRODUCTS
We are among the leading manufacturers of forged products for the aerospace,
industrial gas turbine, and energy markets. Our Forged Products segment was
added as a result of our acquisition of Wyman-Gordon and consists of the forging
operations of Wyman-Gordon. Forged Products' aerospace and IGT sales primarily
derive from the same large engine customers served by the Investment Cast
Products segment, with additional aerospace sales going to manufacturers of
landing gear and other airframe components. Similarly, the dynamics of the
aerospace and IGT markets, as described in the Investment Cast Products section,
above, are virtually the same for Forged Products.
5
<PAGE>
We manufacture components from sophisticated titanium and nickel alloys for
jet engines including fan discs, compressor discs, turbine discs, seals,
spacers, shafts, hubs and cases. Our airframe structural components are used on
both commercial and military aircraft and include landing gear beams, bulkheads,
wing spans, engine mounts, struts, wing hinges, wing and rail flaps and
housings. These parts may be made of titanium, steel, aluminum or other alloys.
We provide products for use in power plants worldwide as well as in oil and gas
industry applications. We produce rotating components, such as discs and
spacers, and valve components for land-based steam turbine and gas turbine
generators, and in addition, also manufacture shafts, cases, and compressor and
turbine discs for marine gas engines. We produce a variety of mechanical and
structural tubular forged products, primarily in the form of extruded seamless
pipe, for the domestic and international energy markets, which include nuclear
and fossil-fueled power-plants, cogeneration projects and retrofit and life
extension applications. For naval defense applications, we supply components for
propulsion systems for nuclear submarines and aircraft carriers as well as pump,
valve, structural and non-nuclear propulsion forgings.
The forging process involves heating metal and shaping it through pressing
or extrusion. These forged products can be produced from titanium, steel, or
high-temperature nickel alloys. Forging is conducted on hydraulic presses with
capacities ranging up to 55,000 tons.
We believe that we are the world leader in producing forged rotating
components for use in jet aircraft engines. These parts are forged from
purchased ingots that are converted to billets in our cogging presses and from
metal powders (primarily nickel alloys) that are produced, consolidated, and
extruded into billet entirely in our own facilities.
Forging comprises one of five different manufacturing processes, depending
on the raw materials and the product application. In open die forging, the metal
is pressed between dies that never completely surround the metal, thus allowing
it to be observed during the process. This manufacturing method is used to
create relatively simple, preliminary shapes to be processed further by
closed-die forging. Closed-die forging involves pressing heated metal into
required shapes and sizes determined by machined impressions in specially
prepared dies that completely surround the metal. This process allows the metal
to flow more easily within the die cavity and, thus, produces forgings with
superior surface finish and tighter tolerances, with enhanced repeatability of
the part shape.
The conventional, closed die, multi-ram process, which is employed on our
20,000 and 30,000 ton presses, enables us to produce complex forgings with
multiple cavities, such as valve bodies, in a single heating and pressing cycle.
Dies may be split on either a vertical or a horizontal plane, and shaped punches
may be operated by side rams, piercing rams, or both. This process also
optimizes grain flow and uniformity of deformation, as well as reducing
machining requirements.
Isothermal forging is a closed-die process in which the dies are heated to
the same temperature as the metal being forged, typically in excess of 1,900
degrees Fahrenheit. Because the dies may oxidize at these elevated temperatures,
the forging process is done in a vacuum or inert gas atmosphere. Our isothermal
press produces near-net shape components, requiring less machining by our
customers.
Finally, the extrusion process is capable of producing thick-wall, seamless
pipe, with outside diameters of up to 48 inches and wall thicknesses from 0.5
inches up to seven inches for applications in the oil and gas industry,
including tension leg platforms, riser systems, and production manifolds. Our
35,000-ton vertical extrusion press is one of the largest and most advanced in
the world. In addition to solid metals, powdered materials can be compacted and
extruded into forging billets with this press.
FLUID MANAGEMENT PRODUCTS
The Fluid Management Products segment includes all of the businesses within
PCC Flow Technologies, Inc. We entered the fluid management market in July 1996
with the acquisition of the NEWFLO Corporation. Subsequent acquisitions, which
included Crown Pumps, OIC Valves, Baronshire
6
<PAGE>
Engineering, Environment/One, TBV, Sterom, Reiss Engineering and Valtaco have
enabled PCC Flow Technologies to further expand its product lines and markets.
Our Fluid Management products are sold primarily to the general industrial and
energy markets.
We design, manufacture, market and service a broad range of high-quality
fluid-handling industrial valves and pumps. Our finished fluid management
products are manufactured primarily from castings, forgings and fabricated steel
parts. We sell these products worldwide to a wide range of end-user markets
under well-established brand names.
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, materials management and traceability, and quality control
are also important aspects of our operations.
We use our substantial knowledge of fluid management technologies, complex
metal component manufacturing techniques and our end-user markets to develop,
produce and sell engineered valves and pumps that we believe provide customer
benefits superior to those of other manufacturers. Many of the products we offer
are customized to end-user requirements or designed for specialized
applications. Our maintenance, repair and service centers, extensive
distribution network and inventory of products enable us to provide responsive
service and timely deliveries to customers, thereby enhancing the marketability
of our products. We believe our brand names, quality products and responsive
service network also lead to repeat orders, stable demand and customer loyalty.
VALVES
We manufacture and market specialty industrial and general purpose valves,
fittings and flanges, principally for the chemical, refining, energy, pulp and
paper, and marine markets. Our 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. We believe our General Valve positive shut-off, double
block and bleed valve and our Technocheck hinged check valves are among the most
technologically advanced products of these types sold in the fluid control
market.
PUMPS
We manufacture and market 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. We also supply repair parts and service for pumps. Our pump
products consist primarily of single-suction and double-suction centrifugal
pumps, submersible and non-clog pumps, booster pump systems, vertical turbine,
mixed-flow and axial-flow pumps and grinder pumps. We believe our Johnston
vertical turbine pumps, our PACO booster systems and "Smart Pumps" and our E/One
low-pressure sewer systems are among the leading products sold in the fluid-
handling market.
SERVICES
We maintain 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 our 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 us higher margins and
is less dependent on industry economic conditions than the market for equipment
for new industrial facilities. We believe approximately 43 percent of our sales
of fluid management products are derived from after-market service and repair
activities.
7
<PAGE>
INDUSTRIAL PRODUCTS
The Industrial Products segment includes our subsidiaries PCC Specialty
Products, Inc., J&L Fiber Services, Inc. and Advanced Forming Technology, Inc.
("AFT"). PCC Specialty Products manufactures a broad range of cold-forming
header and threader tools and gundrills, and manufactures machines for vertical
and horizontal boring, fastener production and gundrilling, principally for
automotive and other machine tool applications. Our tooling business includes
product lines manufactured by Reed-Rico, Astro Punch and Eldorado. Our machines
business includes product lines manufactured by Olofsson, PCC Pittler, Reed-Rico
and Eldorado. J&L Fiber Services produces refiner plates and screen cylinders
for use in the pulp and paper industry. AFT manufactures metal-injection-molded,
metal-matrix-composite, and ThixoFormed components for numerous industrial
applications. Our Industrial Products are sold primarily to the general
industrial, automotive and pulp and paper markets.
We maintain the number one or two position in our served markets for
industrial metalworking tools, and we have strong market positions in the
manufacture of metalworking machines for general industrial markets. We entered
these markets in March 1995 with the acquisition of Quamco, Inc. Since that
time, we have increased our presence in the industrial metalworking tools and
machines markets with three additional acquisitions. The acquisitions of
Olofsson and Astro Punch, both acquired in fiscal 1997, and PCC Pittler,
acquired in fiscal 1998, complemented our capabilities as a leading manufacturer
of highly engineered industrial metalworking tools and machines. In fiscal 1998,
we acquired J&L Fiber Services, Inc., a manufacturer of metal refiner plates and
screen cylinders for the pulp and paper industry.
We believe we have been able to maintain our leading market positions due to
the quality of our products, the continued development of new technologies,
brand name recognition and customer service.
METALWORKING TOOLS
We design, manufacture and distribute a wide variety of precision
metalworking tools to industrial companies that serve the automotive, appliance,
construction, farm equipment, medical and aerospace industries. Our industrial
metalworking tools consist primarily of heading, threading and gundrilling
tools. Our gundrilling tools 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
We design, manufacture and distribute several types of metalworking machines
primarily for the automotive industry. Our industrial metalworking machines
include threading machines and attachments, gundrilling machines and
computer-controlled specialized machine systems for boring and turning
applications. Our threading machines and attachments are used to form a variety
of threaded parts and fasteners.
REFINER PLATES AND SCREEN CYLINDERS
We are the world leader in the design, manufacture and sale of refiner
plates to the pulp and paper production markets. Refiner plates, which are
highly engineered metal castings, are an integral part of the wood pulping
process. Refiner plates separate wood chips into component fibers as pulp is
transported through the system, and affect the ultimate quality of the paper
produced. In addition, we manufacture conventional and rebuildable screen
cylinders which are metal filtering devices inside pressure vessels that
separate the usable wood fiber from undesirable elements in the pulp slurry mix.
More than 90 percent of J&L Fiber Services' sales are used as replacement parts.
8
<PAGE>
METAL-INJECTION-MOLDED, METAL-MATRIX-COMPOSITE, AND THIXOFORMED COMPONENTS
We are the largest producer of powdered metal parts manufactured by a
metal-injection-molding ("MIM") process. We are also a leading supplier of
tungsten carbide cutting tools and wear parts manufactured by a powdered metal
press and sinter process. In addition, we manufacture 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. We have also expanded
into ThixoForming, an advanced technology alternative to conventional die
casting in which materials such as magnesium, aluminum or zinc are injected in a
semi-solid (thixotropic) state into a mold under vacuum conditions. The result
is a high-density, complex component with superior materials properties and
precise dimensional tolerances as compared to a die-cast part. We believe these
businesses have the potential for rapid growth and complement our core
competencies in metals, precision metalworking and the management of complex
manufacturing processes.
The MIM process is particularly well-suited to high volume production of
small, complicated metal parts for numerous industries, including computer
peripherals, medical instruments, electronics, automotive, power tools and
firearms. We sell tungsten carbide parts to various industrial markets and we
use these parts internally in our gundrilling operations. Metal-matrix-composite
parts, which have high thermal conductivity and tightly controlled thermal
expansion characteristics, are used in electronic applications that require heat
dissipation and are used in automotive, telecommunication, aerospace and
computer products. ThixoFormed components are used in automotive, electronic and
other consumer products. We believe our broad range of products and highest
standards of craftsmanship offer growth opportunities in numerous industry
applications.
9
<PAGE>
SUMMARY OF THE TERMS OF THE EXCHANGE OFFER
<TABLE>
<S> <C>
OLD NOTES.................................... On March 3, 2000, we completed a private offering of
the old notes, which consist of $200,000,000
aggregate principal amount of 8.75% Senior Notes due
2005. In connection with the initial sale of the old
notes, we entered into a registration rights
agreement in which we agreed, among other things, to
deliver this prospectus to you and to complete an
exchange offer.
THE EXCHANGE OFFER........................... We are offering to issue up to $200,000,000 aggregate
principal amount of our 8.75% Notes due 2005, which
have been registered under the Securities Act, in
exchange for an equal aggregate principal amount of
our outstanding unregistered notes.
The terms of the new notes are identical in all
material respects to the terms of the old notes,
except that the registration rights and related
liquidated damages provisions, and the transfer
restrictions applicable to the old notes, are not
applicable to the new notes.
Old notes may be tendered only in $1,000 increments.
Subject to the satisfaction or waiver of specified
conditions, we will exchange the new notes for all
old notes that are validly tendered and not withdrawn
prior to the expiration of the exchange offer. We
will cause the exchange to be effected promptly after
the expiration of the exchange offer.
UPON COMPLETION OF THE EXCHANGE OFFER, THERE MAY BE
NO MARKET FOR THE OLD NOTES, AND IF YOU FAIL TO
EXCHANGE YOUR OLD NOTES, YOU MAY HAVE DIFFICULTY
RESELLING THEM.
RESALES OF THE NEW NOTES..................... Based upon interpretations by the staff of the SEC,
we believe that the new notes issued in the exchange
offer may be offered for sale, resold or otherwise
transferred by you, without compliance with the
registration and prospectus delivery requirements of
the Securities Act, if you:
- acquire the new notes in the ordinary course of
your business;
- are not engaging in and do not intend to engage in
a distribution of the new notes;
- do not have an arrangement or understanding with
any person to participate in a distribution of the
new notes;
- are not an affiliate of ours within the meaning of
Rule 405 under the Securities Act; and
- are not a broker-dealer that acquired the old
notes directly from us.
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
If any of these conditions is not satisfied and you
transfer any new notes without delivering a proper
prospectus or without qualifying for an exemption
from registration, you may incur liability under the
Securities Act.
In addition, if you are a broker-dealer seeking to
receive new notes for your own account in exchange
for old notes that you acquired as a result of
market-making or other trading activities, you must
acknowledge that you will deliver this prospectus in
connection with any offer to resell, or any resale or
other transfer of the new notes that you receive in
the exchange offer. See "Plan of Distribution."
EXPIRATION DATE.............................. The exchange offer will expire at 5:00 p.m., New York
City time, on , 2000, unless we extend
it.
WITHDRAWAL................................... You may withdraw the tender of your old notes at any
time prior to the expiration of the exchange offer.
We will return to you any of your old notes that are
not accepted for exchange for any reason, without
expense to you, promptly after the expiration or
termination of the exchange offer.
CONSEQUENCES OF FAILING TO EXCHANGE YOUR OLD
NOTES...................................... The exchange offer satisfies our obligations and your
rights under the registration rights agreement. After
the exchange offer is completed, you will not be
entitled to any registration rights with respect to
your old notes.
Therefore, if you do not exchange your old notes, you
will not be able to reoffer, resell or otherwise
dispose of your old notes unless:
- you comply with the registration and prospectus
delivery requirements of the Securities Act; or
- you qualify for an exemption from such Securities
Act registration requirements.
INTEREST ON THE NEW NOTES AND THE OLD
NOTES...................................... The new notes will bear interest at the rate of 8.75%
per annum from the most recent date on which interest
has been paid on the old notes or, if no interest has
been paid on the old notes, from March 3, 2000. Such
interest will be payable semi-annually on each March
15 and September 15, beginning September 15, 2000. No
interest will be paid on the old notes following
their acceptance for exchange. See "Description of
New Notes."
</TABLE>
11
<PAGE>
<TABLE>
<S> <C>
CONDITIONS TO THE EXCHANGE OFFER............. The exchange offer is subject to various conditions.
We reserve the right to terminate or amend the
exchange offer at any time before the expiration date
if various specified events occur. The exchange offer
is not conditioned upon any minimum principal amount
of outstanding old notes being tendered. See "The
Exchange Offer--Conditions of the Exchange Offer."
EXCHANGE AGENT............................... Bank One Trust Company, N.A. is serving as exchange
agent for the exchange offer. All executed letters of
transmittal should be directed to the exchange agent
at the following address:
By Mail or by Hand: Bank One Trust Company, N.A.
One North State Street, 9(th)
Floor
Chicago, Illinois 60602
Attention: Exchanges
By Facsimile for Eligible Institutions: (312)
407-8853
Questions and requests for assistance should be
directed to the exchange agent at (800) 524-9472
PROCEDURES FOR TENDERING OLD NOTES........... If you wish to tender your old notes, you must cause
the following to be transmitted to and received by
the exchange agent no later than 5:00 p.m., New York
City time, on the expiration date:
- a confirmation of the book-entry transfer of the
tendered old notes into the exchange agent's
account at The Depository Trust Company;
- a properly completed and duly executed letter of
transmittal in the form accompanying this
prospectus (with any required signature
guarantees) or, at the option of the tendering
holder in the case of a book entry tender, an
agent's message in lieu of such letter of
transmittal; and
- any other documents required by the letter of
transmittal.
GUARANTEED DELIVERY PROCEDURES............... If you wish to tender your old notes and you cannot
cause the old notes or any other required documents
to be transmitted to and received by the exchange
agent before 5:00 p.m., New York City time, on the
expiration date, you may tender your old notes
according to the guaranteed delivery procedures
described in this prospectus under the heading "The
Exchange Offer--Guaranteed Delivery Procedures."
</TABLE>
12
<PAGE>
<TABLE>
<S> <C>
SPECIAL PROCEDURES FOR BENEFICIAL OWNERS..... If you are the beneficial owner of old notes that are
registered in the name of your broker, dealer,
commercial bank, trust company, or other nominee, and
you wish to participate in the exchange offer, you
should promptly contact the person in whose name your
outstanding old notes are registered and instruct
that person to tender your old notes on your behalf.
See "The Exchange Offer--Procedures for Tendering."
REPRESENTATIONS OF TENDERING HOLDERS......... By tendering old notes pursuant to the exchange
offer, you will, in addition to other customary
representations, represent to us that you:
- are acquiring the new notes in the ordinary course
of business;
- are not engaging in a distribution of the new
notes;
- have no arrangement or understanding with any
person to participate in a distribution of the new
notes;
- are not an affiliate of ours, or if you are an
affiliate, you will comply with the registration
and prospectus delivery requirements of the
Securities Act; and
- are not a broker-dealer tendering old notes
acquired directly from us.
ACCEPTANCE OF OLD NOTES AND DELIVERY OF NEW
NOTES...................................... Subject to the satisfaction or waiver of the
conditions to the exchange offer, we will accept for
exchange any and all old notes that are properly
tendered and not withdrawn prior to 5:00 p.m., New
York City time, on the expiration date. We will cause
the exchange to be effected promptly after the
expiration of the exchange offer.
UNITED STATES FEDERAL INCOME TAX
CONSIDERATIONS............................. The exchange of old notes for new notes pursuant to
the exchange offer generally will not be a taxable
event for United States federal income tax purposes.
See "United States Federal Income Tax
Considerations."
APPRAISAL OR DISSENTERS' RIGHTS.............. You will have no appraisal or dissenters' rights in
connection with the exchange offer.
USE OF PROCEEDS.............................. We will not receive any proceeds from the issuance of
new notes pursuant to the exchange offer. We will pay
all expenses incident to the exchange offer.
</TABLE>
13
<PAGE>
SUMMARY OF THE TERMS OF THE NEW NOTES
The terms of the new notes will be identical in all material respects to the
terms of the old notes, except that the registration rights and related
liquidated damages provisions, and the transfer restrictions applicable to the
old notes, are not applicable to the new notes. The new notes will evidence the
same debt as the old notes. The new notes and the old notes will be governed by
the same indenture. For more complete information about the new notes, see the
"Description of New Notes" section of this prospectus.
<TABLE>
<S> <C>
ISSUER....................................... Precision Castparts Corp.
AGGREGATE AMOUNT............................. $200,000,000 principal amount of 8.75% Senior Notes
due 2005.
MATURITY..................................... The new notes will mature on March 15, 2005.
INTEREST RATE................................ The new notes will bear interest at the rate of 8.75%
per annum.
INTEREST PAYMENT DATES....................... We will pay interest on the new notes semi-annually
on March 15 and September 15, beginning
September 15, 2000.
REDEMPTION................................... The new notes are not subject to redemption.
RANKING...................................... The new notes will be our general unsecured
obligations. The new notes will rank PARI PASSU in
right of payment with all of our other unsubordinated
indebtedness and senior in right of payment to all of
our future subordinated indebtedness. The new notes
are not guaranteed by any of our subsidiaries. The
new notes will effectively be subordinated to
(1) any of our secured indebtedness to the extent of
the assets securing that indebtedness and (2) all
indebtedness for money borrowed and other liabilities
of our subsidiaries. As of December 26, 1999, we had
an aggregate amount of outstanding secured debt and
subsidiary debt of approximately $157 million and
$1,172 million of total consolidated indebtedness.
CERTAIN COVENANTS............................ We will issue the new notes under an indenture (the
"Indenture") with Bank One Trust Company, N.A.
(successor in interest to The First National Bank of
Chicago), as trustee. The Indenture among other
things, restricts our ability to:
- incur certain liens;
- enter into certain affiliate transactions;
- merge, consolidate or sell assets; and
- engage in sale and leaseback transactions.
See "Description of New Notes--Certain Covenants of
the Company"
</TABLE>
14
<PAGE>
<TABLE>
<S> <C>
USE OF PROCEEDS.............................. We will not receive any proceeds from the exchange
offer. For a description of the use of proceeds from
the offering of the old notes, see "Use of Proceeds."
FORM OF THE NEW NOTES........................ The new notes will be represented by one or more
permanent global securities in registered form
deposited with Bank One Trust Company, N.A., as
custodian, for the benefit of The Depository Trust
Company. You will not receive notes in registered
form unless one of the events set forth under the
heading "Description of New Notes--Book-Entry,
Delivery and Form" occurs. Instead, beneficial
interests in the new notes will be shown on, and
transfers of these interests will be effected only
through, records maintained in book-entry form by The
Depository Trust Company with respect to its
participants.
ABSENCE OF A PUBLIC MARKET FOR THE NEW
NOTES...................................... There has been no public market for the old notes,
and no active market for the new notes is currently
anticipated. We do not intend to apply for a listing
of the new notes on any securities exchange or
inclusion in any automated quotation system. We
cannot make any assurances regarding the liquidity of
the market for the new notes, the ability of holders
to sell their new notes or the price at which holders
may sell their new notes. See "Plan of Distribution."
TRUSTEE...................................... Bank One Trust Company, N.A. (successor in interest
to The First National Bank of Chicago) is serving as
the trustee under the Indenture.
</TABLE>
GENERAL
Precision Castparts Corp. is incorporated in Oregon. Our principal executive
offices are located at 4650 S. W. Macadam Ave., Suite 440, Portland, Oregon
97201. Our telephone number is (503) 417-4800.
15
<PAGE>
SUMMARY OF HISTORICAL CONSOLIDATED FINANCIAL DATA
We derived the following summary consolidated statements of operations data
and consolidated balance sheet data from both our audited and unaudited
consolidated financial statements and related notes. Our unaudited consolidated
statements of operations data for the nine months ended December 27, 1998 and
December 26, 1999 and consolidated balance sheet data as of December 26, 1999
include all adjustments, consisting only of normal recurring adjustments, which
management considers necessary for a fair presentation of results for these
unaudited periods. The results of operations for the nine months ended
December 26, 1999 are not necessarily indicative of the results of operations
that may be expected for the year ending April 2, 2000. The results of
operations for the nine months ended December 26, 1999 include approximately
five weeks of operations of Wyman-Gordon.
You should read the summary consolidated financial data presented below in
conjunction with the "Management's Discussion and Analysis of Financial
Condition and Results of Operations," our consolidated financial statements with
related notes and the other financial information contained or incorporated by
reference in our Annual Report on Form 10-K for the fiscal year ended March 28,
1999, our Quarterly Report on Form 10-Q for the quarter ended December 26, 1999
and our Current Report on Form 8-K filed on December 8, 1999, as amended on
February 7, 2000, which we incorporate by reference in this prospectus. See
"Documents Incorporated By Reference." In addition, you should read our
unaudited pro forma combined financial information with related notes included
elsewhere in this prospectus.
<TABLE>
<CAPTION>
NINE MONTHS ENDED
FISCAL YEARS ---------------------------
-------------------------------------------------------- DECEMBER 27 DECEMBER 26
1995 1996 1997 1998 1999 1998 1999
-------- -------- -------- ---------- ---------- ------------ ------------
(UNAUDITED)
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C> <C> <C>
Net sales................................ $436,400 $556,800 $972,800 $1,316,700 $1,471,900 $1,094,600 $1,121,600
Cost of goods sold....................... 359,500 446,100 765,500 1,025,100 1,134,000 838,900 872,300
Provision for restructuring and other.... -- -- 3,400 8,600 13,100 -- 11,000
Selling and administrative expenses...... 31,600 46,900 91,500 127,000 146,400 112,400 119,100
Interest (income) expense, net........... (1,500) 100 16,700 20,700 27,600 20,700 24,800
Provision for income taxes............... 17,800 22,600 39,200 49,200 47,500 47,200 36,100
-------- -------- -------- ---------- ---------- ---------- ----------
Net income............................... $ 29,000 $ 41,100 $ 56,500 $ 86,100 $ 103,300 $ 75,400 $ 58,300
======== ======== ======== ========== ========== ========== ==========
Net income per common share
Basic.................................. $ 1.45 $ 2.02 $ 2.59 $ 3.56 $ 4.23 $ 3.10 $ 2.38
Diluted................................ $ 1.44 $ 2.00 $ 2.57 $ 3.53 $ 4.22 $ 3.08 $ 2.37
Weighted average shares outstanding
Basic.................................. 20,000 20,400 21,800 24,200 24,400 24,300 24,500
Diluted................................ 20,100 20,600 22,000 24,400 24,500 24,500 24,600
Cash dividends declared per common
share.................................. $ 0.22 $ 0.24 $ 0.24 $ 0.24 $ 0.24 $ 0.18 $ 0.18
OTHER DATA:
EBIT(1).................................. $ 45,300 $ 63,800 $112,400 $ 156,000 $ 178,400 $ 143,300 $ 119,200
EBITDA(1)................................ $ 69,200 $ 86,700 $147,600 $ 199,500 $ 232,500 $ 183,100 $ 168,000
Adjusted EBIT(1)......................... $ 45,300 $ 63,800 $115,800 $ 164,600 $ 191,500 $ 143,300 $ 130,200
Adjusted EBITDA(1)....................... $ 69,200 $ 86,700 $151,000 $ 208,100 $ 245,600 $ 183,100 $ 179,000
Capital expenditures..................... $ 10,900 $ 19,700 $ 52,800 $ 82,900 $ 74,800 $ 56,100 $ 30,500
Ratio of earnings to fixed charges(2).... 25.6x 31.1x 5.7x 6.2x 5.6x 6.0x 4.3x
Percentage of debt to total capital,
including short-term debt.............. 9.1% 4.4% 37.3% 38.5% 37.9% 39.0% 61.0%
</TABLE>
16
<PAGE>
<TABLE>
<CAPTION>
DECEMBER 27,
FISCAL YEARS ---------------------------
---------------------------------------------------------- DECEMBER 27, DECEMBER 26,
1995 1996 1997 1998 1999 1998 1999
-------- -------- ---------- ---------- ---------- ------------ ------------
(UNAUDITED)
<S> <C> <C> <C> <C> <C> <C> <C>
BALANCE SHEET DATA (AT
PERIOD END):
Working capital(3).... $ 89,900 $125,800 $ 205,200 $ 246,000 $ 252,300 $ 258,500 $ (4,800)
Total assets.......... $406,700 $450,500 $1,070,100 $1,274,600 $1,449,600 $1,431,600 $2,461,200
Total debt............ $ 26,000 $ 13,900 $ 300,500 $ 372,200 $ 425,900 $ 426,600 $1,172,100
Shareholders'
investment.......... $258,400 $303,100 $ 504,400 $ 595,300 $ 697,400 $ 667,700 $ 749,700
</TABLE>
- ------------------------
(1) EBIT represents earnings before interest and income taxes. EBITDA represents
earnings before interest, income taxes, depreciation and amortization. Other
companies in our industry may calculate EBIT and EBITDA differently than we
do. Neither EBIT nor EBITDA is intended to represent cash flow or any other
measure of performance reported in accordance with generally accepted
accounting principles. We have included EBIT and EBITDA because we
understand that EBIT and EBITDA are used by certain investors as measures of
a company's ability to service debt. However, EBIT and EBITDA should not be
considered as an alternative to income from operations or to cash flows from
operating activities (as determined with generally accepted accounting
principles) and should not be construed as an indication of a company's
operating performance or as a measure of liquidity. Adjusted EBIT and
adjusted EBITDA are calculated by adding to EBIT and EBITDA the
restructuring and other non-recurring charges that we believe are not
indicative of our future operating performance.
(2) The ratio of earnings to fixed charges is computed by dividing earnings by
fixed charges. For this purpose, "earnings" include income before taxes and
fixed charges (adjusted for interest capitalized during the period). "Fixed
charges" include interest, whether expensed or capitalized, amortization of
debt expense and the portion of rental expense that is representative of the
interest factor in these rentals.
(3) At December 26, 1999, our balance sheet reflected negative working capital,
primarily due to the fact that the $300 million of outstanding borrowings
under the bridge credit agreement was classified as short-term borrowings.
17
<PAGE>
RISK FACTORS
THE NEW NOTES, LIKE THE OLD NOTES, ENTAIL RISK. IN DECIDING WHETHER TO
PARTICIPATE IN THE EXCHANGE OFFER, YOU SHOULD CONSIDER THE RISKS ASSOCIATED WITH
THE NATURE OF OUR BUSINESS AND THE RISK FACTORS RELATING TO THE EXCHANGE OFFER
IN ADDITION TO THE OTHER INFORMATION CONTAINED IN THIS PROSPECTUS. YOU SHOULD
CAREFULLY CONSIDER THE FOLLOWING FACTORS BEFORE MAKING A DECISION TO EXCHANGE
YOUR OLD NOTES FOR NEW NOTES. THE RISK FACTORS BELOW ARE NOT NECESSARILY
EXHAUSTIVE, AND WE ENCOURAGE YOU TO PERFORM YOUR OWN INVESTIGATION WITH RESPECT
TO THE NOTES AND OUR COMPANY.
IF YOU FAIL TO EXCHANGE YOUR OLD NOTES, YOU MAY BE UNABLE TO SELL THEM.
Because we did not register the old notes under the Securities Act or any
state securities laws, and we do not intend to register any remaining old notes
after the exchange offer, the old notes may only be transferred in limited
circumstances under the securities laws. If the holders of the old notes do not
exchange their notes in the exchange offer, they lose their right to have their
old notes registered under the Securities Act, subject to certain limitations. A
holder of old notes after the exchange offer may be unable to sell its old
notes.
THERE IS NO PUBLIC MARKET FOR THE NEW NOTES, SO YOU MAY BE UNABLE TO SELL THEM.
The new notes are new securities for which there is currently no market.
Consequently, the new notes will be relatively illiquid, and you may be unable
to sell them. We do not intend to apply for listing of the new notes on any
securities exchange or for the inclusion of the new notes in any automated
quotation system. Accordingly, we cannot assure you that a liquid market for the
new notes will develop.
YOU MUST TENDER THE OLD NOTES IN ACCORDANCE WITH PROPER PROCEDURES IN ORDER TO
ENSURE THE EXCHANGE WILL OCCUR.
The exchange of the old notes for the new notes can only occur if the proper
procedures, as detailed in this prospectus, are followed. The new notes will be
issued in exchange for the old notes only after timely receipt by the exchange
agent of the old notes or a book-entry confirmation, a properly completed and
executed letter of transmittal (or an agent's message in lieu thereof) and all
other required documentation. If you want to tender your old notes in exchange
for new notes, you should allow sufficient time to ensure timely delivery.
Neither we nor the exchange agent is under any duty to give you notification of
defects or irregularities with respect to tenders of old notes for exchange. Old
notes that are not tendered will continue to be subject to the existing transfer
restrictions. In addition, if you are an affiliate of ours or you tender the old
notes in the exchange offer in order to participate in a distribution of the new
notes, you will be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction. For additional information, please refer to the sections entitled
"The Exchange Offer" and "Plan of Distribution."
IF A MARKET DEVELOPS FOR THE NEW NOTES, THE NOTES MIGHT TRADE AT VOLATILE
PRICES.
If a market develops for the new notes, the notes might trade at prices
higher or lower than their initial public offering price. The trading price
would depend on many factors, such as prevailing interest rates, the market for
similar securities, general economic conditions and our financial condition,
performance and prospects.
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<PAGE>
OUR INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH AND MAKE IT MORE
DIFFICULT FOR US TO FULFILL OUR OBLIGATIONS UNDER THE NEW NOTES.
At December 26, 1999, our total consolidated indebtedness was approximately
$1,172 million. We used all of the net proceeds from the sale of the old notes
to repay borrowings under a bridge credit agreement, which we used to finance a
portion of the acquisition of Wyman-Gordon. We repaid the remaining balance of
the bridge credit agreement with proceeds from the issuance of approximately
$100 million of additional commercial paper. Consequently, our total
consolidated indebtedness did not change significantly as a result of the
issuance of the old notes. See "Description of Certain Indebtedness."
Our indebtedness could have important consequences to you. For example, it
could:
- make it more difficult for us to satisfy our obligations with respect to
the new notes;
- increase our vulnerability to general adverse economic and industry
conditions;
- require us to dedicate a substantial portion of our cash flow from
operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund acquisitions, working capital,
capital expenditures and other general corporate purposes;
- limit, along with the financial and other restrictive covenants in our
indebtedness, our ability to borrow a significant amount of additional
funds;
- limit, along with the financial and other restrictive covenants in our
indebtedness, our flexibility in planning for, or reacting to, changes in
our business and the industry in which we operate; and
- place us at a competitive disadvantage compared to our competitors that
have less debt.
We may be able to incur additional indebtedness in the future which could
intensify the risks listed above.
ALTHOUGH YOUR NEW NOTES ARE REFERRED TO AS "SENIOR NOTES," THEY WILL EFFECTIVELY
BE SUBORDINATED TO OUR SECURED DEBT AND THE DEBT OF OUR SUBSIDIARIES.
The new notes are unsecured and therefore will effectively be subordinated
to any secured debt we may incur to the extent of the value of the assets
securing such debt and to all indebtedness for money borrowed and other
liabilities of our subsidiaries. In the event of a bankruptcy or similar
proceeding involving us, our assets which serve as collateral will be available
to satisfy the obligations under any secured debt before any payments are made
on the new notes. We, and our creditors, may access the assets of our
subsidiaries only after adequate provision is made for the payment of our
subsidiaries' debts and liabilities. Assuming we had completed the offering of
the old notes on December 26, 1999, we would have had an aggregate amount of
outstanding secured debt and subsidiary debt of approximately $157 million and
$1,172 million of total consolidated indebtedness.
FAILURE TO SUCCESSFULLY INTEGRATE THE BUSINESSES OF WYMAN-GORDON INTO OUR
OPERATIONS COULD HARM OUR BUSINESS.
On November 24, 1999, we acquired approximately 98% of the outstanding
common stock of Wyman-Gordon Company pursuant to a cash tender offer. We
acquired the remaining common stock of Wyman-Gordon pursuant to a merger on
January 12, 2000. As a result of the merger, Wyman-Gordon became our wholly
owned subsidiary.
We cannot assure you that the Wyman-Gordon businesses will be integrated
successfully into our operations or prove profitable. In addition, due to the
nature of a public acquisition, our due diligence on Wyman-Gordon generally only
included a review of Wyman-Gordon's public filings and
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<PAGE>
representations of Wyman-Gordon, which did not include indemnification or
similar provisions from any other person or entity. As a result, any undisclosed
liabilities, inaccurate assessments of disclosed liabilities or other unforeseen
significant factors could have an adverse effect on our operating results.
WE MAY MAKE ACQUISITIONS THAT COULD SUBJECT US TO A NUMBER OF OPERATIONAL RISKS.
We expect that we will continue to make acquisitions of, investments in, and
strategic alliances with complementary businesses, products and technologies to
enable us to add products and services for our core customer base and for
adjacent markets, and to expand each of our businesses geographically. However,
implementation of this strategy entails a number of risks, including:
- inaccurate assessment of undisclosed liabilities;
- entry into markets in which we may have limited or no experience;
- diversion of management's attention from our core businesses;
- potential loss of key employees or customers of the acquired businesses;
- difficulties in assimilating the operations and products of an acquired
business or in realizing projected efficiencies and cost savings; and
- increase in our indebtedness and a limitation in our ability to access
additional capital when needed.
While our acquisition strategy places emphasis on the ability of existing
management of the acquired businesses to continue to operate autonomously,
certain changes may need to be made to integrate the acquired businesses into
our operations, to assimilate many new employees and to implement reporting,
monitoring and forecasting procedures. Obtaining anticipated revenue synergies
or cost reductions are also a risk in many acquisitions.
We are also seeking to expand into additional markets through the
development of new product applications based on our existing metalforming
technologies, including efforts to increase our presence in the industrial gas
turbine and structural airframe markets. These efforts have required, and will
continue to require, us to make substantial investments, including increased
levels of research and development expenditures and a significant amount of
capital expenditures for new, expanded or improved production facilities. We
cannot assure you that we will be able to successfully manage the expansion into
new markets and products or that these efforts will not have an adverse impact
on our business.
OUR BUSINESS IS AFFECTED BY THE CYCLICALITY OF THE AEROSPACE INDUSTRY AND OTHER
INDUSTRIES.
The commercial aerospace industry is cyclical in nature, and the demand by
commercial airlines for new aircraft historically has been closely related to
the state of the U.S. and world economies. For example, the large number of
aircraft delivered in the early 1990s and the aerospace industry's widespread
losses created excess capacity in the air carrier system. During this period,
airlines and leasing companies deferred existing new aircraft orders and to a
lesser degree canceled orders. These deferrals and cancellations adversely
affected the volume and price of orders placed with the manufacturers of
commercial aircraft engine components, including us. Although commercial
aircraft deliveries have increased since 1996 and the U.S. airline industry has
been relatively strong in recent years, we cannot assure you that the improved
operating performance of the commercial airlines will continue or that
deliveries of large commercial aircraft will not decline in the future.
Moreover, many industry analysts have forecasted deliveries of large commercial
aircraft to decrease over the near term. Any developments in the commercial
aerospace market resulting in a reduction in the rate of future aircraft
deliveries, including cancellations and deferrals of scheduled deliveries, could
have a material adverse effect on our business.
20
<PAGE>
OUR BUSINESS IS DEPENDENT ON A SMALL NUMBER OF CUSTOMERS.
A substantial portion of our business is conducted with a relatively small
number of large aerospace customers, including GE, United Technologies and Rolls
Royce. GE accounted for approximately 11% (17% pro forma) of our fiscal 1999 net
sales, United Technologies accounted for approximately 9% (9% pro forma) of our
fiscal 1999 net sales and Rolls Royce accounted for approximately 8% (7% pro
forma) of our fiscal 1999 net sales. We have made significant price concessions
to aerospace customers in recent years, and we expect customer pressure for
pricing concessions will continue.
Direct sales to the U.S. military and sales to defense contractors
constituted approximately 13% (14% pro forma) of our fiscal 1999 net sales. U.S.
defense spending in markets we serve has been declining since the 1980s, and
continued reductions in defense budgets or military aircraft procurement could
adversely affect our business.
OUR BUSINESS IS DEPENDENT ON CERTAIN RAW MATERIALS.
We do not have fixed price contracts or arrangements for some of the
supplies and raw materials that we purchase, including certain metals and steel.
Commercial deposits of certain metals, such as cobalt, nickel, titanium and
molybdenum, that are required for the alloys used in our precision castings and
forgings, are found in only a few parts of the world. The availability and
prices of these metals may be influenced by private or government cartels,
changes in world politics, unstable governments in exporting nations and
inflation. Similarly, supplies of tool grade steel used in our operations may
also be subject to variation in availability and pricing. Shortages of, and
price increases for, certain raw materials used in our operations 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 our business. We do not
generally hedge against price increases of metals or other raw materials;
however, we have historically hedged a portion of our nickel requirements.
OUR BUSINESS IS AFFECTED BY CERTAIN GOVERNMENTAL REGULATIONS.
Some of our products are manufactured and sold under U.S. government
contracts or subcontracts. Consequently, we are 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. In addition, government contracts or subcontracts may
be canceled.
OUR BUSINESS IS SUBJECT TO ENVIRONMENTAL REGULATIONS AND RELATED LIABILITIES.
We are subject to federal, state and local environmental laws and
regulations concerning, among other things, wastewater, air emissions, toxic use
reduction and hazardous materials disposal. We conduct our 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, we are subject to various
environmental laws that impose compliance obligations and can create liability
for historical releases of hazardous substances. Environmental legislation and
regulations and related administrative policies have changed rapidly in recent
years. It is likely that we will be subject to increasingly stringent
environmental standards in the future (including those under the Clean Air Act
Amendments of 1990, the Clean Water Act Amendments of 1990, stormwater permit
program and toxic use reduction programs) and that we will be required to make
additional expenditures, which could be significant, relating to environmental
matters on an ongoing basis. We own properties or conduct or have conducted
operations at properties,
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<PAGE>
including properties acquired in recent acquisitions, which have been
contaminated with hazardous substances and for which further investigation and
remediation is likely to be necessary.
Our financial statements include reserves for future costs arising from
environmental issues relating to these properties and our operations. Our actual
future expenditures, however, for installation of and improvements to
environmental control facilities, remediation of environmental conditions at our
properties and other similar matters cannot be conclusively determined. At
December 26, 1999, we had accrued aggregate environmental reserves of
$38.9 million, which included reserves for Wyman-Gordon environmental matters,
as well as our other subsidiaries. Although we have recorded these reserves for
environmental matters, we cannot assure you that these reserves are adequate to
cover the cost of remedial measures that may eventually be required by
environmental authorities with respect to known environmental matters or related
liabilities and the cost of claims that may be asserted by such authorities or
private parties in the future with respect to matters about which we are not yet
aware. Accordingly, the costs of environmental claims may exceed the amounts
reserved.
Our environmental reserves of $38.9 million at December 26, 1999 include
approximately $29.9 million of reserves accrued by Wyman-Gordon for cleanup
expenses and other costs associated with environmental issues. These reserves
include amounts for expected cleanup expenses for Wyman-Gordon's Worcester,
Massachusetts, facility which is substantially closed and is expected to be
sold, remediation projects at Wyman-Gordon's facilities in Houston, Texas, North
Grafton/Millbury, Massachusetts, Groton, Connecticut and Buffalo, New York, and
various Superfund sites. We cannot assure you that the actual costs of
remediation for Wyman-Gordon's environmental liabilities will not exceed the
amount presently accrued. The following paragraphs discuss the more significant
matters for which we have established reserves.
Pursuant to an agreement between Wyman-Gordon and the U.S. Air Force in
connection with Wyman-Gordon's acquisition of the North Grafton facility in
1982, Wyman-Gordon agreed to make expenditures totaling $20.8 million for
environmental management and remediation at that site, of which $3.3 million
remained as of May 31, 1999. Approximately one-half of the remaining Air Force
projects are capital in nature. These expenditures will not resolve all of
Wyman-Gordon's obligations to federal and state regulatory authorities, who are
not parties to the agreement. We expect to incur an additional amount to comply
with federal and state environmental requirements in connection with the
investigation and remediation of contamination at the North Grafton facility.
The North Grafton site is located in an area where regional groundwater has been
impacted with a number of contaminants, including chlorinated solvents. The
Massachusetts Department of Environmental Protection ("MADEP") also has asked
Wyman-Gordon to investigate contamination in a brook and pond near the facility.
Pursuant to a license from the Atomic Energy Commission, Wyman Gordon disposed
of magnesium thorium alloys, which are low-level radioactive waste, at the North
Grafton facility. At some point, further controls or remediation may be
necessary with respect to these wastes.
Wyman Gordon's Houston facility has used onsite landfills for the disposal
of various industrial wastes. It also operates a system of wastewater management
lagoons. As a result of onsite waste management and historic operations of the
facility, contamination has occurred in the soil and groundwater. We anticipate
substantial expenditures for remediation of contamination at the Houston
facility.
In 1998, we purchased Sterom, S.A., from the Romanian government. As part of
this acquisition, we committed to invest up to $3.6 million over five years to
investigate and cleanup contamination at the Sterom facility and to improve
environmental controls at the facility. We obtained a purchase price adjustment
to fund a substantial portion of these commitments.
Carmet Company is investigating the extent of chlorinated solvents
contamination discovered in the soil and groundwater at its plant in Bad Axe,
Michigan. Whether or not remediation will be necessary is not yet determined,
and Carmet may have defenses to liability for the contamination. We
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<PAGE>
have asserted an indemnity claim against the former shareholders of Carmet for
recovery from an escrow account of all or a portion of the costs associated with
this and certain other environmental matters. The former shareholders have
disputed this indemnity claim and the claim is unresolved.
In 1989, the Oregon Health Division (OHD) alleged that our facility in
Portland, Oregon, discharged low level radioactive material to the Portland city
sewer in violation of our radioactive materials license. The City of Portland
also has alleged that the discharges violated our wastewater discharge permit.
Although we contested the alleged violations, we undertook extensive cleaning of
portions of the sewer system under a consent agreement with the City and OHD.
The extent to which other investigation or remedial work may be necessary,
however, is unknown.
On January 10, 2000, the State of Connecticut filed a complaint against
Wyman-Gordon Investment Casting, Inc. in the Superior Court Judicial District of
Hartford, Connecticut. The complaint alleges various violations by the
Wyman-Gordon's Groton, Connecticut, facility of its wastewater discharge permit
during the years 1995 through 1998. The complaint does not allege any violations
after 1998 or that any of the violations are ongoing. The state has indicated
that it will propose a civil penalty of $200,000.
We, together with numerous other parties, have been named a potentially
responsible party under the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA") for the cleanup of the following Superfund sites:
Salco Disposal Site, Monroe, Michigan; Operating Industries, Monterey Park,
California; PSC Resources, Palmer, Massachusetts; Pasco County Landfill, Pasco,
Washington (for which our insurers have been paying defense costs); the Western
Processing Site, Kent, Washington; and the Gemme/Fournier site, Leicester,
Massachusetts (for which Wyman Gordon's insurers have been paying defense
costs). We have asserted indemnity and insurance claims for some of these sites
and expects to recover some portion of its losses for these sites. Except for
sites for which its insurer has acknowledged responsibility, we have not
recorded an asset for potential recoveries.
We or our subsidiaries also have potential liability associated with former
facilities. The Environmental Protection Agency has asserted a claim against
Wyman-Gordon for remedial action the agency has conducted at the former
Wyman-Gordon facility in Harvey, Illinois; EPA has proposed settlement of this
claim for $300,000. The current owner of a former Arwood facility in Rockleigh,
New Jersey has asserted claims for contamination at that property; Wyman-Gordon
is entitled to indemnity of one half the amount of this claim from an escrow
account established by Arwood Corporation from which Wyman-Gordon acquired
certain operations. In 1999, PCC Specialty Products, Inc. sold its former
Merriman facility in Hingham, Massachusetts. PCC Specialty Products, Inc. made
commitments to the new owner and the MADEP to undertake certain remedial action
with respect to contamination at this facility. In February, 2000, PCC Flow
Technologies, Inc. sold its Penberthy operations in Prophetstown, Illinois.
During the course of the transaction, Penberthy, Inc. discovered contamination
in the soil and groundwater. PCC Flow Technologies, Inc. is obligated to the
landlord and the new owner of the Penberthy business to undertake certain
investigation and remedial action at this former facility. We or our
subsidiaries also have potential liability for contamination at other former
facilities where we do not believe our liability will be material.
We have recorded reserves for each of the environmental matters described
above, as well as other less significant matters. Nevertheless, we cannot assure
you that these reserves are adequate to cover the cost of remedial measures that
may eventually be required by environmental authorities with respect to known
environmental matters or related liabilities and the cost of claims that may be
asserted by such authorities or private parties in the future with respect to
matters about which we are not yet aware. Accordingly, the costs of
environmental claims may exceed the amounts reserved.
Wyman-Gordon has notified its insurer of potential liabilities at its
Grafton and Worcester facilities and has asserted that it is entitled to recover
its costs under various historic insurance policies. We also have notified our
insurers of potential liabilities associated with the PCC Structurals facility
in Portland,
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Oregon. Although we believe we are entitled to coverage for a substantial
portion of our remediation costs at these sites, we do not yet know whether or
to what extent our insurer will contest the claims.
OUR BUSINESS IS SUBJECT TO RISKS ASSOCIATED WITH INTERNATIONAL OPERATIONS.
We are both a purchaser of products from, and a supplier to, businesses
located outside of the United States. We also have significant operations
located outside the United States. Certain risks are inherent in international
operations, including the risk of government financed competition, changes in
trade policies, tariff regulations, currency fluctuations and difficulties in
obtaining U.S. and other export and import licenses.
OUR BUSINESS INVOLVES RISKS ASSOCIATED WITH COMPLEX MANUFACTURING PROCESSES.
Our business involves complex manufacturing processes. Some of these
processes involve high pressures, hot metal and other materials and equipment
that present certain safety risks to workers employed at our manufacturing
facilities. Although we employ safety procedures in the design and operation of
our facilities, the potential exists for accidents involving death or serious
injury. The potential liability resulting from any such accident, to the extent
not covered by insurance, could have a material adverse effect on our business.
Any disruption of operations at any of our facilities could also have a material
adverse effect on our business.
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<PAGE>
FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate herein by reference contain
forward-looking statements. In addition, from time to time, we or our
representatives may make forward-looking statements orally or in writing. We
base these forward-looking statements on our expectations and projections about
future events, which we derive from the information currently available to us.
Such forward-looking statements relate to future events or our future
performance, including:
- our financial performance;
- our growth in revenue and earnings;
- our cash flows from operations;
- our ability to refinance and repay indebtedness; and
- the integration of the Wyman-Gordon acquisition.
You can identify forward-looking statements by those that are not historical
in nature, particularly those that utilize terminology such as "may," "will,"
"should," "expect," "anticipate," "contemplate," "estimate," "believe," "plan,"
"project," "predict," "potential" or "continue" or the negative of these or
similar terms. In evaluating these forward-looking statements, you should
consider various factors, including the risk factors described in this
prospectus. Such factors may cause our actual results to differ materially from
any forward-looking statement.
Forward-looking statements are only predictions. The forward-looking events
discussed in this prospectus may not occur, and actual events and results may
differ materially and are subject to risks, uncertainties and assumptions about
us. We are not obligated to publicly update or revise any forward-looking
statements, whether as a result of new information, future events or otherwise.
In light of these risks, uncertainties and assumptions, the forward-looking
events discussed in this prospectus might not occur.
USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the
registration rights agreement that we entered into in connection with the
private offering of the old notes. We will not receive any cash proceeds from
the issuance of the new notes. The old notes that are surrendered in exchange
for the new notes will be retired and canceled and cannot be reissued. As a
result, the issuance of the new notes will not result in any increase or
decrease in our indebtedness. We have agreed to bear the expenses of the
exchange offer. No underwriter is being used in connection with the exchange
offer.
The net proceeds from the issuance and sale of the old notes was
approximately $197,989,000 (after deduction of initial purchaser's discounts and
estimated offering expenses payable by us). We used those net proceeds to repay
a portion of our borrowings under a bridge credit agreement, which we used to
finance a portion of our acquisition of Wyman-Gordon. We repaid the remaining
balance under the bridge credit agreement with existing cash balances and the
proceeds from the issuance of additional commercial paper. At the time of such
repayment, the borrowings under the bridge credit agreement bore interest at the
rate of 7.1%.
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CAPITALIZATION
The following table sets forth our capitalization (1) on an actual basis as
of December 26, 1999 and (2) on an as adjusted basis to give effect to the sale
by us of the old notes and the application of the proceeds therefrom, and the
issuance by us of approximately $100 million of additional commercial paper to
repay the remaining balance of our bridge credit agreement. See "Use of
Proceeds."
This table should be read together with the consolidated financial
statements and notes thereto incorporated by reference into this prospectus and
the unaudited pro forma combined financial information and notes thereto
included elsewhere in this prospectus.
<TABLE>
<CAPTION>
DECEMBER 26, 1999
------------------------
ACTUAL AS ADJUSTED
---------- -----------
(IN THOUSANDS)
<S> <C> <C>
Short-term borrowings:
Notes payable (1)......................................... $ 2,500 $ 2,500
Accounts receivable securitization (1).................... 142,900 142,900
Bridge credit agreement (1)............................... 300,000 --
Current portion of long-term debt......................... 10,500 10,500
Total short-term borrowings............................. $ 455,900 $ 155,900
Long-term debt, excluding current portion:
Commercial paper (1)...................................... $ 165,500 $ 265,500
Term loan (1)............................................. 400,000 400,000
6.75% Notes due fiscal 2008............................... 150,000 150,000
Notes..................................................... -- 200,000
Other debt................................................ 700 700
---------- ----------
Total long-term debt.................................... 716,200 1,016,200
---------- ----------
Shareholders' investment:
Common stock.............................................. 24,500 24,500
Additional paid-in capital................................ 179,500 179,500
Retained earnings......................................... 551,000 551,000
Cumulative translation adjustments........................ (5,300) (5,300)
---------- ----------
Total shareholders' investment.......................... 749,700 749,700
---------- ----------
Total long-term debt and shareholders' investment....... $1,465,900 $1,465,900
========== ==========
</TABLE>
- ------------------------
(1) Represents debt, committed and uncommitted (in the case of notes payable),
of varying dates of maturity. As of December 26, 1999, the notes payable
bore an effective interest rate per annum of 4.4%, the accounts receivable
securitization bore an effective interest rate of 6.6%, the bridge credit
agreement bore an effective interest rate of 7.1% and the term loan bore an
effective interest rate of 7.6%. Our outstanding commercial paper bore an
effective interest rate of 7.0% at December 26, 1999.
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UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
The following unaudited pro forma combined financial information, including
the notes thereto, give effect to (1) the acquisition of Wyman-Gordon, (2) the
purchase of Wyman-Gordon's outstanding 8% notes due 2007, and (3) financing
referenced in Note 4(a) to the unaudited pro forma combined financial
information, and are qualified in their entirety by reference to, and should be
read in conjunction with, our historical consolidated financial statements and
Wyman-Gordon's historical consolidated financial statements incorporated by
reference into this prospectus. We report on the basis of a 52-53 week fiscal
year ending the Sunday closest to March 31, while Wyman-Gordon reported on the
basis of a 52-53 week fiscal year ending on the Saturday closest to May 31. The
unaudited pro forma combined statements of income data includes the fiscal year
ended March 28, 1999 for us and the fiscal year ended May 31, 1999 for
Wyman-Gordon and includes the nine months ended December 26, 1999 for us and
Wyman-Gordon. For the statements of income, the acquisition of Wyman-Gordon and
debt incurrences are treated as if they had taken place on the first day of the
periods presented. In combining the financial information, we have made certain
reclassifications to Wyman-Gordon's historical financial statements to conform
to our presentation. The unaudited pro forma combined statements of income data
do not reflect any adjustments for cost savings that may be realized as a result
of combining our operations with Wyman-Gordon's operations following the
acquisition of Wyman-Gordon.
We have prepared the unaudited pro forma combined financial statements based
upon currently available information and assumptions that we have deemed
appropriate. This pro forma information may not be indicative of what actual
results would have been, nor does such data purport to represent the combined
financial results of us and Wyman-Gordon for future periods. In addition, the
pro forma adjustments set forth in the following unaudited pro forma combined
financial information are estimated and may differ from final adjustments.
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UNAUDITED PRO FORMA COMBINED STATEMENTS OF INCOME DATA
<TABLE>
<CAPTION>
YEAR ENDED MARCH 28, 1999 FOR PCC AND
YEAR ENDED MAY 31, 1999 FOR WYMAN-GORDON
-----------------------------------------------------------
HISTORICAL PRO FORMA
--------------------- -----------------------------------
ADJUSTMENTS
WYMAN- INCREASE
PCC GORDON (DECREASE) NOTES COMBINED
---------- -------- ----------- -------- ----------
(DOLLARS AND SHARES IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales.................................. $1,471,900 $849,300 $(61,900) (1)(2) $2,259,300
Cost of goods sold......................... 1,134,000 715,900 (39,800) (1)(3) 1,810,100
Provision for restructuring charges and
other.................................... 13,100 13,800 (2,000) (1) 24,900
Selling and administrative expenses........ 146,400 57,900 (8,500) (1) 195,800
Interest expense, net...................... 27,600 14,200 48,300 (2)(4) 90,100
---------- -------- -------- ----------
Income before provision for income taxes... 150,800 47,500 (59,900) 138,400
Provision for income taxes................. 47,500 10,500 (9,400) (5) 48,600
---------- -------- -------- ----------
Net income................................. $ 103,300 $ 37,000 $(50,500) $ 89,800
========== ======== ======== ==========
Net income per share (basic)............... $ 4.23 $ 3.68
Net income per share (diluted)............. $ 4.22 $ 3.67
Weighted average shares outstanding
(basic).................................. 24,400 24,400
Weighted average shares outstanding
(diluted)................................ 24,500 24,500
OTHER FINANCIAL DATA:
EBIT....................................... $ 178,400 $ 61,700 $(11,600) (6) $ 228,500
EBITDA..................................... $ 232,500 $ 89,300 $ 900 (6) $ 322,700
Adjusted EBIT.............................. $ 191,500 $ 75,500 $(13,600) (6) $ 253,400
Adjusted EBITDA............................ $ 245,600 $103,100 $ (1,100) (6) $ 347,600
</TABLE>
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The following unaudited pro forma combined statements of income data for the
nine months ended December 26, 1999 includes the nine months ended December 26,
1999 for us and Wyman-Gordon. Because Wyman-Gordon's fiscal year ended on
May 31, 1999, two months of this nine-month period are also reflected in the
unaudited pro forma combined statements of income data for the companies' fiscal
years above. Wyman-Gordon's net sales and net income for this two-month period
were $142,900 and $13,500, respectively.
UNAUDITED PRO FORMA COMBINED STATEMENTS OF INCOME DATA
<TABLE>
<CAPTION>
NINE MONTHS ENDED DECEMBER 26, 1999 FOR PCC AND
NINE MONTHS ENDED DECEMBER 26, 1999 FOR WYMAN-GORDON
-----------------------------------------------------------
HISTORICAL PRO FORMA
--------------------- -----------------------------------
ADJUSTMENTS
WYMAN- INCREASE
PCC GORDON (DECREASE) NOTES COMBINED
---------- -------- ----------- -------- ----------
(DOLLARS AND SHARES IN THOUSANDS)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales.................................. $1,064,300 $510,500 $(39,500) (1)(2) $1,535,300
Cost of goods sold......................... 825,600 432,800 (20,900) (1)(3) 1,237,500
Provisions for restructuring charges and
other.................................... 11,000 (1,400) -- 9,600
Environmental charges...................... -- 14,700 -- 14,700
Selling and administrative expenses........ 114,800 38,600 (4,800) (1) 148,600
Interest expense, net...................... 19,300 9,800 38,500 (2)(4) 67,600
---------- -------- -------- ----------
Income before provision for income taxes... 93,600 16,000 (52,300) 57,300
Provision for income taxes................. 34,600 700 (10,300) (5) 25,000
---------- -------- -------- ----------
Net income................................. $ 59,000 $ 15,300 $(42,000) $ 32,300
========== ======== ======== ==========
Net income per share (basic)............... $ 2.41 $ 1.32
Net income per share (diluted)............. $ 2.40 $ 1.31
Weighted average shares outstanding
(basic).................................. 24,500 24,500
Weighted average shares outstanding
(diluted)................................ 24,600 24,600
OTHER FINANCIAL DATA:
EBIT....................................... $ 112,900 $ 25,800 $(13,800) (6) $ 124,900
EBITDA..................................... $ 158,400 $ 48,300 $ (4,900) (6) $ 201,800
Adjusted EBIT.............................. $ 123,900 $ 39,100 $(13,800) (6) $ 149,200
Adjusted EBITDA............................ $ 169,400 $ 61,600 $ (4,900) (6) $ 226,100
</TABLE>
29
<PAGE>
PRECISION CASTPARTS CORP.
NOTES TO PRO FORMA COMBINED STATEMENTS OF INCOME
(1) Adjustments to reflect only the ongoing operating results of Wyman-Gordon,
primarily as a result of the Agreement Containing Consent Orders requiring
divestiture of certain Wyman-Gordon operations:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
MAY 31, 1999 DECEMBER 26, 1999
---------------- -----------------
<S> <C> <C>
Net sales................................. $ (58,900) $(36,900)
Cost of goods sold........................ (53,600) (31,300)
Provision for restructuring and other..... (2,000) --
Selling and administrative expenses....... (8,500) (4,800)
</TABLE>
(2) Reclassification to Wyman-Gordon's historical financial statements to
conform to PCC's presentation:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
MAY 31, 1999 DECEMBER 26, 1999
--------------- -----------------
<S> <C> <C>
Net sales.................................. $ (3,000) $(2,600)
Interest expense, net...................... (3,000) (2,600)
</TABLE>
(3) Adjusted to eliminate Wyman-Gordon's historical goodwill amortization and to
include amortization of new goodwill over a period of 40 years.
(4) Interest expense was adjusted to reflect the following:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
MAY 31, 1999 DECEMBER 26, 1999
------------ -----------------
<S> <C> <C>
Interest expense on new debt (a)............... $76,400 $56,200
Commitment and other fees...................... 1,700 1,300
Amortization of financing cost................. 1,500 1,200
Elimination of Wyman-Gordon interest income.... 3,000 2,600
Elimination of interest expense on debt under
PCC's prior credit agreement................. (17,100) (9,700)
Elimination of interest expense on Wyman-Gordon
debt......................................... (14,200) (10,500)
------- -------
Total........................................ $51,300 $41,100
======= =======
</TABLE>
(a) Interest expense on new debt as follows:
<TABLE>
<CAPTION>
AVERAGE AVERAGE YEAR ENDED
DEBT INSTRUMENT PRINCIPAL RATE MAY 31, 1999
- --------------- --------- -------- ------------
<S> <C> <C> <C>
Bridge Loan................................... $300,000 6.9% $20,800
Term Loan..................................... 400,000 7.2% 28,700
Receivables Securitization.................... 150,000 6.2% 9,300
Commercial Paper.............................. 276,100 6.4% 17,600
-------
Total..................................... $76,400
=======
</TABLE>
<TABLE>
<CAPTION>
AVERAGE AVERAGE NINE MONTHS ENDED
DEBT INSTRUMENT PRINCIPAL RATE DECEMBER 26, 1999
- --------------- --------- -------- -----------------
<S> <C> <C> <C>
Bridge Loan.............................. $300,000 7.0% $15,800
Term Loan................................ 400,000 7.3% 21,800
Receivables Securitization............... 150,000 6.3% 7,000
Commercial Paper......................... 238,600 6.5% 11,600
-------
Total................................ $56,200
=======
</TABLE>
30
<PAGE>
The average interest rates were computed using average LIBOR rates for the
appropriate periods plus applicable spreads ranging from 25 to 125 basis
points, depending on the debt instruments. Additionally, two swaps were in
place to partially fix the interest rates of the debt. The first swap has an
annual average notional balance of $412,500 swapped at a fixed rate of 6.5%,
while the second swap has an annual average notional balance of $225,000
swapped at a fixed rate of 6.1%. The costs of these swaps were allocated to
the applicable debt instruments, thereby increasing the average interest
rates.
For the year ended March 28, 1999, a 1/8 of 1 percent change in the interest
rate would result in a change in interest expense of approximately $600.
Additionally, for the nine months ended December 26, 1999, a 1/8 of
1 percent change in the interest rate would result in a change in interest
expense of approximately $300.
(5) Income tax expense was adjusted to reflect the expected statutory tax rates
of PCC as follows:
<TABLE>
<CAPTION>
YEAR ENDED NINE MONTHS ENDED
MAY 31, 1999 DECEMBER 29, 1999
------------ -----------------
<S> <C> <C>
Effective tax rates............................ 35.1% 43.6%
</TABLE>
(6) EBIT represents earnings before interest and income taxes. EBITDA represents
earnings before interest, income taxes, depreciation and amortization. Other
companies in our industry may calculate EBIT and EBITDA differently than we
do. Neither EBIT nor EBITDA is intended to represent cash flow or any other
measure of performance reported in accordance with generally accepted
accounting principles. We have included EBIT and EBITDA because we
understand that EBIT and EBITDA are used by certain investors as measures of
a company's ability to service debt. However, EBIT and EBITDA should not be
considered as an alternative to income from operations or to cash flows from
operating activities (as determined with generally accepted accounting
principles) and should not be construed as an indication of a company's
operating performance or as a measure of liquidity.
Pro forma adjustments to EBIT represents the adjustments described in Notes
(1), (2) and (3). Pro forma adjustments to EBITDA represent the adjustments
described in Notes (1) and (2), the amortization of financing costs
described in Note (4) and the elimination of depreciation expense on
divested Wyman-Gordon operations.
Adjusted EBIT and adjusted EBITDA are calculated by adding to EBIT and
EBITDA the restructuring and other charges that we believe are non-recurring
and are not indicative of our future operating performance.
31
<PAGE>
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
We initially sold the old notes in a private offering on March 3, 2000 to
Banc of America Securities LLC, ABN AMRO Incorporated, Banc One Capital
Markets, Inc., BNY Capital Markets, Inc., First Union Securities, Inc. Scotia
Capital Inc., U.S. Bancorp Piper Jaffray Inc. and Wachovia Securities, Inc.
pursuant to a purchase agreement dated February 29, 2000 between us and them.
These initial purchasers of the old notes resold them to qualified institutional
buyers in reliance on, and subject to the restrictions imposed under, Rule 144A
under the Securities Act. As of the date of this prospectus, $200 million
aggregate principal amount of old notes are outstanding.
In connection with the private offering of the old notes, we entered into a
registration rights agreement dated March 3, 2000 (the "Registration Rights
Agreement"), with the initial purchasers, in which we agreed, among other
things, to:
(1) file with the SEC on or before May 31, 2000 an exchange offer
registration statement under the Securities Act relating to an exchange
offer for the old notes;
(2) use our best efforts to cause such exchange offer registration statement
to be declared effective under the Securities Act on or before
August 30, 2000;
(3) upon the effectiveness of the registration statement, commence the
exchange offer and offer the holders of the old notes the opportunity to
exchange their old notes for a like principal amount of new notes and to
keep the exchange offer open for not less than 30 days (or longer if
required by applicable federal and state securities laws) after the date
on which notice of the exchange offer is mailed to the holders of the old
notes; and
(4) use our best efforts to complete the exchange offer and issue the new
notes on or prior to the date that is 30 business days (or longer if
required by applicable federal and state securities laws) after the date
on which the exchange offer registration statement was declared effective
by the SEC.
We are making the exchange offer to satisfy our obligations and your
registration rights under the Registration Rights Agreement. A copy of the
Registration Rights Agreement has been filed as an exhibit to the registration
statement filed with the SEC in connection with the exchange offer. You may
request a copy of the Registration Rights Agreement at our address set forth
under "Documents Incorporated by Reference."
EFFECT OF THE EXCHANGE OFFER
Based on several no-action letters issued by the staff of the SEC to third
parties in unrelated transactions, we believe that you may offer for resale,
resell or otherwise transfer any new notes issued to you in the exchange offer
without further registration under the Securities Act or delivery of a
prospectus if you:
- are acquiring the new notes in the ordinary course of your business;
- are not participating, do not intend to participate and have no
arrangement or understanding with any person to participate, in a
distribution of the new notes;
- are not an affiliate of ours as defined in Rule 405 under the Securities
Act; and
- are not a broker-dealer who acquired old notes from us.
32
<PAGE>
If you do not satisfy these criteria:
- you will not be able to rely on the interpretations of the staff of the
SEC in connection with any offer for resale, resale or other transfer of
new notes; and
- you must comply with the registration and prospectus delivery requirements
of the Securities Act, or have an exemption available to you, in
connection with any offer for resale, resale or other transfer of the new
notes.
Each broker-dealer that receives new notes for its own account in exchange
for old notes it acquired as a result of market-making or other trading
activities, may be a statutory underwriter and must acknowledge that it will
deliver a prospectus in connection with any resale of its new notes. This will
not be an admission by the broker-dealer that it is an underwriter within the
meaning of the Securities Act. See "Plan of Distribution."
TERMS OF THE EXCHANGE OFFER
- We will accept all old notes validly tendered and not withdrawn prior to
5:00 p.m., New York City time, on the expiration date of the exchange
offer. You should read "--Expiration Date; Extensions; Amendments" below
for an explanation of how the expiration date may be amended.
- We will issue and deliver $1,000 principal amount of new notes in exchange
for each $1,000 principal amount of outstanding old notes accepted in the
exchange offer. Holders may exchange some or all of their old notes in
minimum denominations of $1,000 and integral multiples of $1,000 in excess
thereof.
- By tendering old notes in exchange for new notes and by signing the letter
of transmittal (or delivering an agent's message in lieu thereof), you
will be representing that, among other things:
(1) any new notes to be received by you will be acquired in the ordinary
course of your business;
(2) you are not engaged in, and do not intend to engage in, and you have no
arrangement or understanding with any person to participate in, a
distribution of the new notes;
(3) you acknowledge and agree that any person who is a broker-dealer or is
participating in the exchange offer for the purpose of distributing the
new notes must comply with the registration and prospectus delivery
requirements of the Securities Act;
(4) you understand that a secondary resale transaction described in
clause (3) above and any resales of new notes obtained by you in exchange
for old notes acquired by you directly from us or an affiliate of ours
should be covered by an effective registration statement containing the
selling securityholder information required by Item 507 or Item 508, as
applicable, of Regulation S-K promulgated by the SEC; and
(5) you are not an affiliate (as defined in Rule 405 under the Securities
Act) of ours.
- The terms of the new notes are identical in all material respects to the
terms of the old notes, except that the registration rights and related
liquidated damages provisions, and the transfer restrictions applicable to
the old notes are not applicable to the new notes. The new notes will
evidence the same debt as the old notes and will be entitled to the
benefits of the indenture governing the old notes.
- In connection with the exchange offer, holders of the old notes do not
have any appraisal or dissenters' rights under law or the indenture
governing the old notes.
- We are sending this prospectus and the letter of transmittal to all
registered holders of old notes as of the close of business on
, 2000.
33
<PAGE>
- We are not conditioning the exchange offer upon the tender of any minimum
amount of old notes.
- The exchange offer is subject to the condition that the exchange offer not
violate applicable law, rules or regulations or applicable interpretations
of the staff of the SEC. See "--Conditions of the Exchange Offer."
- We may accept tendered old notes by giving oral (promptly confirmed in
writing) or written notice to the exchange agent. The exchange agent will
act as your agent for the purpose of receiving the new notes from us and
delivering them to you.
- You will not be required to pay brokerage commissions or fees or, subject
to the instructions in the letter of transmittal, transfer taxes with
respect to the exchange of old notes. We will pay all charges and expenses
in connection with the exchange offer other than taxes specified under
"--Transfer Taxes."
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The exchange offer will expire at 5:00 p.m., New York City time, on,
, 2000, unless we, in our sole discretion, extend it. We may extend
the exchange offer at any time and from time to time by giving oral (promptly
confirmed in writing) or written notice to the exchange agent and by making a
public announcement of the extension before 9:00 a.m., New York City time, on
the next business day after the previously scheduled expiration date. We may
also accept all properly tendered old notes as of the expiration date and extend
the expiration date in respect of the remaining outstanding old notes. We may,
in our sole discretion:
- amend the terms of the exchange offer in any manner;
- delay acceptance of, or refuse to accept, any old notes not previously
accepted;
- extend the exchange offer; or
- terminate the exchange offer.
We will give prompt notice of any amendment to the registered holders of the
old notes. If we materially amend the exchange offer, we will promptly disclose
the amendment in a manner reasonably calculated to inform you of the amendment
and we will extend the exchange offer to the extent required by law.
PROCEDURES FOR TENDERING
Only a holder of old notes may tender them in the exchange offer. For
purposes of the exchange offer, the term "holder" or "registered holder"
includes any participant in The Depository Trust Company whose name appears on a
security position listing as a holder of old notes.
To tender in the exchange offer, you must cause the following to be
transmitted to and received by the exchange agent no later than 5:00 p.m., New
York City time, on the expiration date:
- a confirmation of the book-entry transfer of the tendered old notes into
the exchange agent's account at The Depository Trust Company;
- a properly completed and duly executed letter of transmittal in the form
accompanying this prospectus (with any required signature guarantees) or,
at the option of the tendering holder in the case of a book-entry tender,
an agent's message in lieu of such letter of transmittal; and
- any other documents required by the letter of transmittal.
34
<PAGE>
If you wish to tender your old notes and you cannot cause the old notes or
any other required documents to be transmitted to and received by the exchange
agent before 5:00 p.m., New York City time, on the expiration date, you may
tender your old notes according to the guaranteed delivery procedures described
in this section under the heading "--Guaranteed Delivery Procedures."
Any beneficial owner of old notes that are registered in the name of a
broker, dealer, commercial bank, trust company, or other nominee who wishes to
participate in the exchange offer should promptly contact the person through
which it beneficially owns such old notes and instruct that person to tender old
notes on behalf of such beneficial owner. See "Instructions Forming Part of the
Terms and Conditions of the Exchange Offer" included with the letter of
transmittal. If the beneficial owner wishes to tender on his or her own behalf,
such owner must, prior to completing and executing the letter of transmittal and
delivering such beneficial owner's old notes, either make appropriate
arrangements to register ownership of the old notes in such owner's name or
obtain a properly completed bond power from the registered holder. The transfer
of registered ownership may take considerable time.
The tender by a holder of old notes will constitute an agreement between
such holder, us and the exchange agent in accordance with the terms and subject
to the conditions specified in this prospectus and in the letter of transmittal.
If a holder tenders less than all the old notes held, the holder should fill in
the amount of old notes being tendered in the appropriate box on the letter of
transmittal. The exchange agent will deem the entire amount of old notes
delivered to it to have been tendered unless the holder has indicated otherwise.
The method of delivery of the letter of transmittal and all other required
documents to the exchange agent is at your election and risk. Instead of
delivery by mail, we recommend that you use an overnight or hand delivery
service. IN ALL CASES, YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE DELIVERY TO
THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE. DO NOT SEND YOUR LETTER OF
TRANSMITTAL OR OTHER REQUIRED DOCUMENTS TO US.
SIGNATURE REQUIREMENTS AND SIGNATURE GUARANTEE
You must arrange for an "eligible institution" to guarantee your signature
on the letter of transmittal or a notice of withdrawal, unless the old notes are
tendered:
- by a registered holder of such old notes; or
- for the account of an eligible guarantor institution.
The following are "eligible institutions":
- a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.;
- a commercial bank or trust company having an office or correspondent in
the United States; or--an "eligible guarantor institution" within the
meaning of Rule 17Ad-15 under the Exchange Act.
If a letter of transmittal is signed by a person other than the registered
holder of any old notes listed in the letter of transmittal, the old notes must
be endorsed or accompanied by a properly completed bond power and signed by the
registered holder as the registered holder's name appears on the old notes.
If trustees, executors, administrators, guardians, attorneys-in-fact,
officers of corporations or others acting in a fiduciary or representative
capacity, sign or endorse any required documents, they should so indicate when
signing, and unless waived by us, submit evidence satisfactory to us of their
authority to so act with the letter of transmittal.
35
<PAGE>
BOOK-ENTRY TRANSFER
The exchange agent will make a request promptly after the date of this
prospectus to establish an account with respect to the old notes. Subject to the
establishment of the account, any financial institution that is a participant in
The Depository Trust Company's system may make book-entry delivery of old notes
by causing The Depository Trust Company to transfer them into the exchange
agent's account with respect to the old notes. However, the exchange agent will
only exchange the old notes so tendered after a timely confirmation of their
book-entry transfer into the exchange agent's account, and timely receipt of an
agent's message and any other documents required by the letter of transmittal.
The term "agent's message" means a message, transmitted by The Depository
Trust Company to, and received by, the exchange agent and forming part of the
confirmation of a book-entry transfer, which states that:
- The Depository Trust Company has received an express acknowledgment from a
participant tendering old notes stating the aggregate principal amount of
old notes which have been tendered by such participant;
- the participant has received the letter of transmittal and agrees to be
bound by its terms; and
- we may enforce such agreement against the participant.
Although you may effect delivery of old notes through The Depository Trust
Company into the exchange agent's account at The Depository Trust Company, you
must provide the exchange agent a completed and executed letter of transmittal
with any required signature guarantee (or an agent's message in lieu thereof)
and all other required documents prior to the expiration date. If you comply
with the guaranteed delivery procedures described below, you must provide the
letter of transmittal (or an agent's message in lieu thereof) to the exchange
agent within the time period provided. DELIVERY OF DOCUMENTS TO THE DEPOSITORY
TRUST COMPANY DOES NOT CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
GUARANTEED DELIVERY PROCEDURES
If you wish to tender your old notes and (1) you cannot deliver the letter
of transmittal or any other required documents to the exchange agent prior to
the expiration date or (2) you cannot complete the procedure for book-entry
transfer on a timely basis, you may instead effect a tender if:
- you make the tender through an eligible guarantor institution;
- prior to the expiration date, the exchange agent receives from such
eligible guarantor institution a properly completed and duly executed
notice of guaranteed delivery (by facsimile transmittal, mail or hand
delivery) specifying the name and address of the holder and the principal
amount of such old notes tendered, stating that the tender is being made,
and guaranteeing that, within three New York Stock Exchange trading days
after the date of execution of the notice of guaranteed delivery, the old
notes being tendered, a properly completed and duly executed letter of
transmittal or a confirmation of a book-entry transfer into the exchange
agent's account at The Depository Trust Company and an agent's message and
any other documents required by the letter of transmittal, will be
deposited by the eligible guarantor institution with the exchange agent;
and
- the exchange agent receives such old notes and letter of transmittal or
confirmation of a book-entry transfer into its account at The Depository
Trust Company and an agent's message and all other documents required by
the letter of transmittal within three New York Stock Exchange trading
days after the date of execution of the notice of guaranteed delivery.
36
<PAGE>
WITHDRAWAL OF TENDERS
Except as otherwise provided in this prospectus, you may withdraw tendered
old notes at any time before 5:00 p.m., New York City time, on the expiration
date. To do so, you must provide the exchange agent with a written or facsimile
transmission notice of withdrawal before 5:00 p.m., New York City time, on the
expiration date.
Any notice of withdrawal must:
- identify the old notes to be withdrawn (including the principal amount of
the old notes and the name and number of the account at The Depository
Trust Company to be credited); and
- be signed by you in the same manner as the original signature on your
letter of transmittal (including any required signature guarantee) or be
accompanied by documents of transfer sufficient to permit the registrar to
register the transfer of the withdrawn old notes into your name.
We will determine all questions as to the validity, form and eligibility
(including time of receipt) of all withdrawal notices. Our determination shall
be final and binding on all parties. We will not deem any old notes so withdrawn
to be validly tendered for purposes of the exchange offer and will not issue new
notes with respect to them unless the holder of the old notes so withdrawn
validly retenders them. You may retender withdrawn old notes by following one of
the procedures described above under "--Procedures for Tendering" at any time
prior to the expiration date.
DETERMINATION OF VALIDITY
We will determine all questions as to the validity, form, eligibility
(including time of receipt), acceptance and withdrawal of the tendered old notes
in our sole discretion. Our determination will be final and binding. We may
reject any and all old notes that are not properly tendered or any old notes of
which our acceptance would, in the opinion of our counsel, be unlawful. We also
may waive any irregularities or conditions of tender as to particular old notes.
Our interpretation of the terms and conditions of the exchange offer (including
the instructions in the letter of transmittal) will be final and binding on all
parties. Unless waived, you must cure any defects or irregularities in
connection with tenders of old notes within such time as we shall determine.
Although we intend to notify tendering holders of defects or irregularities
with respect to tenders of old notes, neither we nor anyone else has any duty to
do so. Neither we nor anyone else shall incur any liability for failure to give
such notification. Your old notes will not be deemed tendered until you have
cured or we have waived any irregularities. As soon as practicable following the
expiration date, the exchange agent will return any old notes that we reject due
to improper tender or otherwise unless you cured all defects or irregularities
or we waive them.
We reserve the right in our sole discretion:
- to purchase or make offers for any old notes that remain outstanding
subsequent to the expiration date;
- to terminate the exchange offer, as set forth in "--Conditions of the
Exchange Offer"; and
- to the extent permitted by applicable law, to purchase old notes in the
open market, in privately negotiated transactions or otherwise.
The terms of any such purchases or offers may differ from the terms of the
exchange offer.
37
<PAGE>
CONDITIONS OF THE EXCHANGE OFFER
Notwithstanding any other term of the exchange offer, we will not be
required to accept for exchange, or to issue new notes for, any old notes, and
we may terminate or amend the exchange offer as provided herein before the
acceptance of old notes, if the exchange offer violates applicable law, rules or
regulations or an applicable interpretation of the staff of the SEC.
If we reasonably determine that such condition (that the exchange offer not
violate applicable law, rules, regulations or interpretation of the staff of the
SEC) is not satisfied, we may (1) refuse to accept any old notes and return all
tendered old notes to the tendering holders or (2) extend the exchange offer and
retain all old notes tendered prior to the expiration of the exchange offer,
subject, however, to the rights of holders to withdraw such old notes (see
"--Withdrawal of Tenders").
ACCEPTANCE OF OLD NOTES FOR EXCHANGE; DELIVERY OF NEW NOTES
Upon satisfaction or waiver of all of the conditions to the exchange offer,
we will accept, promptly after the expiration date, all old notes that have been
validly tendered and not withdrawn, and will issue the applicable new notes in
exchange for such old notes promptly after our acceptance of such old notes. For
purposes of the exchange offer, we will be deemed to have accepted validly
tendered old notes for exchange when, as, and if we have given written notice of
such acceptance to the exchange agent.
For each old note accepted for exchange, the holder of the old note will
receive a new note having a principal amount equal to that of the surrendered
old note. The new notes will bear interest from the most recent date to which
interest has been paid on the old notes or, if no interest has been paid on the
old notes, from March 3, 2000. Accordingly, registered holders of new notes on
the relevant record date for the first interest payment date following the
completion of the exchange offer will receive interest accruing from the most
recent date to which interest has been paid or, if no interest has been paid,
from March 3, 2000. Old notes accepted for exchange will cease to accrue
interest from and after the date on which they are accepted for exchange.
Holders whose old notes are accepted for exchange will not receive any payment
for accrued interest on the old notes otherwise payable on any interest payment
date if the record date occurs on or after date on which they are accepted for
exchange and will be deemed to have waived their rights to receive the accrued
interest on the old notes.
If any tendered old notes are not accepted for any reason or if old notes
are submitted for a greater principal amount than the holder desires to
exchange, such unaccepted or non-exchanged old notes will be returned without
expense to the tendering holder of the old notes or, if the old notes were
tendered by book-entry transfer, the non-exchanged old notes will be credited to
an account maintained with the book-entry transfer facility. In either case, the
return of such old notes will be effected promptly after the expiration or
termination of the exchange offer.
REGISTRATION RIGHTS; LIQUIDATED DAMAGES
Pursuant to the terms of the Registration Rights Agreement, we agreed to use
our best efforts to complete the exchange offer and issue the new notes in
exchange for the old notes. The following description is a summary of the
material provisions of the Registration Rights Agreement. It does not restate
that agreement in its entirety. We urge you to read the Registration Rights
Agreement. Certain defined terms used in this description but not defined herein
have the meanings assigned to them in the Registration Rights Agreement.
If:
(1) we are not permitted to consummate the exchange offer because the
exchange offer is not permitted by any applicable law or applicable
interpretation of the staff of the SEC; or
38
<PAGE>
(2) any holder of Transfer Restricted Securities notifies us prior to the
20(th) day following consummation of the exchange offer that:
(a) it is prohibited by law or SEC policy from participating in the
exchange offer; or
(b) that it may not resell the new notes acquired by it in the exchange
offer to the public without delivering a prospectus and the
prospectus contained in the Exchange Offer Registration Statement is
not appropriate or available for such resales; or
(c) that it is a broker-dealer and holds old notes acquired directly from
us or an affiliate of ours,
we will file with the SEC a Shelf Registration Statement to cover resales of the
Transfer Restricted Securities by the holders thereof who satisfy certain
conditions relating to the provision of information in connection with the Shelf
Registration Statement.
For purposes of the preceding, "Transfer Restricted Securities" means each
note until:
(1) the date on which such note has been exchanged by a person other than a
broker-dealer for a new note in the exchange offer;
(2) following the exchange by a broker-dealer in the exchange offer of an
old note for a new note, the date on which such new note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of this prospectus;
(3) the date on which such note has been effectively registered under the
Securities Act and disposed of in accordance with the Shelf Registration
Statement; or
(4) the date on which such note is distributed to the public pursuant to
Rule 144 under the Securities Act.
If:
(1) we fail to file any of the registration statements required by the
Registration Rights Agreement on or before the date specified for such
filing; or
(2) any of such registration statements is not declared effective by the SEC
on or prior to the date specified for such effectiveness (the
"Effectiveness Target Date"); or
(3) we fail to consummate the exchange offer within 30 business days of the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement; or
(4) the Shelf Registration Statement or the Exchange Offer Registration
Statement is declared effective but thereafter ceases to be effective or
usable in connection with resales of Transfer Restricted Securities
during the period specified in the Registration Rights Agreement (each
such event referred to in clauses (1) through (4) above, a "Registration
Default"),
then we will pay Liquidated Damages to each holder of Transfer Restricted
Securities with respect to the first 90-day period immediately following the
occurrence of the first Registration Default in an amount equal to $0.05 per
week per $1,000 principal amount of Transfer Restricted Securities held by such
holder for each week or portion thereof that the Registration Default continues.
The amount of Liquidated Damages will increase by an additional $0.05 per
week per $1,000 principal amount of Transfer Restricted Securities with respect
to each subsequent 90-day period until all Registration Defaults have been
cured, up to a maximum amount of Liquidated Damages for all Registration
Defaults of $0.50 per week per $1,000 principal amount of Transfer Restricted
Securities; provided that we shall in no event be required to pay Liquidated
Damages for more than one Registration Default at any given time. Following the
cure of all Registration Defaults, the accrual of Liquidated Damages will cease.
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Holders of Transfer Restricted Securities will be required to make certain
representations (as described in the Registration Rights Agreement) in order to
participate in the exchange offer and will be required to deliver certain
information to be used in connection with the Shelf Registration Statement and
to provide comments on the Shelf Registration Statement within the time periods
set forth in the Registration Rights Agreement in order to have their Transfer
Restricted Securities included in the Shelf Registration Statement and benefit
from the provisions regarding Liquidated Damages set forth above. By acquiring
Transfer Restricted Securities, a holder will be deemed to have agreed to
indemnify us against certain losses arising out of information furnished by such
holder in writing for inclusion in any Shelf Registration Statement. Holders of
Transfer Restricted Securities will also be required to suspend their use of the
prospectus included in the Shelf Registration Statement under certain
circumstances upon receipt of written notice from us to that effect.
EXCHANGE AGENT
We have appointed Bank One Trust Company, N.A. as the exchange agent for the
exchange offer. Bank One Trust Company, N.A. (as successor in interest to The
First National Bank of Chicago) also acts as trustee under the indenture. You
should send all executed letters of transmittal to the exchange agent and direct
all communications with the exchange agent, including requests for assistance or
for additional copies of this prospectus or of the letter of transmittal as
follows:
DELIVERY TO: BANK ONE TRUST COMPANY, N.A., EXCHANGE AGENT
By Mail or By Hand
Bank One Trust Company, N.A.
One North State Street, 9(th) Floor
Chicago, IL 60602
Attention: Exchanges
By Facsimile for Eligible Institutions:
(312) 407-8853
Facsimile Confirmation:
(800) 524-9472
For Information:
(800) 524-9472
IF YOU DELIVER THE LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMIT INSTRUCTIONS VIA FACSIMILE OTHER THAN AS SET FORTH
ABOVE, SUCH DELIVERY OR INSTRUCTIONS WILL NOT BE EFFECTIVE.
FEES AND EXPENSES
We will bear all expenses of the exchange offer. We are making the principal
solicitation pursuant to the exchange offer by mail. Our officers and employees
and our affiliates may also make solicitations in person, by telegraph,
telephone or facsimile transmission.
We have not retained any dealer-manager in connection with the exchange
offer and will not make any payments to brokers, dealers or other persons
soliciting acceptances of the exchange offer. We, however, will pay the exchange
agent reasonable and customary fees for its services and will reimburse its
reasonable out-of-pocket costs and expenses and will indemnify the exchange
agent for all losses and claims incurred by it as a result of the exchange
offer. We may also pay brokerage houses and other custodians, nominees and
fiduciaries the reasonable out-of-pocket expenses incurred by them in
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forwarding copies of this prospectus, letters of transmittal and related
documents to the beneficial owners of the old notes and in handling or
forwarding tenders for exchange.
TRANSFER TAXES
We will pay any transfer taxes applicable to the exchange of old notes
pursuant to the exchange offer. If, however, a transfer tax is imposed for any
reason other than the exchange of old notes pursuant to the exchange offer, then
the amount of any of these transfer taxes (whether imposed on the registered
holder thereof or any other person) will be payable by the tendering holder.
For example, the tendering holder will pay transfer taxes, if:
- new notes for principal amounts not tendered, or accepted for exchange are
to be registered or issued in the name of any person other than the
registered holder of the old notes tendered; or
- tendered old notes are registered in the name of any person other than the
person signing the letter of transmittal.
If you do not submit satisfactory evidence of payment of taxes for which you
are liable or exemption from them with your letter of transmittal, we will bill
you for the amount of these transfer taxes directly.
ACCOUNTING TREATMENT
We will record the new notes at the same carrying value as the old notes,
which is the principal amount as reflected in our accounting records on the date
of the exchange. Accordingly, we will not recognize any gain or loss for
accounting purposes. We will capitalize the expenses of the exchange offer for
accounting purposes. We will classify these expenses as prepaid expenses and
include them in other assets on our balance sheet. We will amortize these
expenses on a straight line basis over the life of the new notes.
CONSEQUENCES OF FAILURE TO EXCHANGE OLD NOTES
Holders of old notes who do not exchange their old notes for new notes
pursuant to the exchange offer will continue to be subject to the restrictions
on transfer of such old notes. The old notes were originally issued in a
transaction exempt from registration under the Securities Act, and may be
offered, sold, pledged, or otherwise transferred only:
- in the United States to a person whom the seller reasonably believes is a
qualified institutional buyer (as defined in Rule 144A under the
Securities Act);
- outside the United States in an offshore transaction in accordance with
Rule 904 under the Securities Act;
- pursuant to an exemption from registration under the Securities Act
provided by Rule 144, if available; or
- pursuant to an effective registration statement under the Securities Act.
The offer, sale, pledge or other transfer of old notes must also be made in
accordance with any applicable securities laws of any state of the United
States, and the seller must notify any purchaser of the old notes of the
restrictions on transfer described above. We do not currently anticipate that we
will register the old notes under the Securities Act.
APPRAISAL OR DISSENTERS' RIGHTS
Holders of the old notes will not have appraisal or dissenters' rights in
connection with the exchange offer.
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DESCRIPTION OF CERTAIN INDEBTEDNESS
The following is a summary of the important terms of our debt arrangements:
CREDIT AGREEMENTS.
Prior to our acquisition of Wyman-Gordon, we maintained an Amended and
Restated Credit Agreement with Bank of America, N.A., as agent, and other bank
lenders. In connection with the acquisition of Wyman-Gordon we negotiated two
new credit agreements with Bank of America, as agent, and other bank lenders
which replaced the prior credit agreement.
SYNDICATE CREDIT AGREEMENT.
We have executed a syndicate credit agreement with Bank of America, N.A., as
administrative agent and letter of credit issuing bank, and other bank lenders.
This unsecured credit agreement provides a term loan of $400 million and a
revolving loan commitment of $400 million, each of which matures on
November 26, 2005.
INTEREST RATE. Loans under the syndicate credit agreement bear interest, at
our option, at (A) a rate equal to the Offshore Rate, as defined in the
syndicate credit agreement, plus a margin of between .75% and 2.00%, or (B) the
higher of (i) the agent's reference rate or (ii) the federal funds rate plus
.50%, plus (iii) a margin of between 0% and 1.00%. The margins applicable to
loans under this credit agreement vary depending on our credit rating, subject
to certain minimum levels (1.50% for Offshore Rate loans and .50% for other
loans) for the first six months after the closing date under the credit
agreement. We will also pay fees for letters of credit issued and the unused
commitments under the syndicate credit agreement; these fees also vary depending
on our credit rating and are similarly subject to certain minimum levels for the
first six months after the closing date under the syndicate credit agreement. As
of December 26, 1999, the outstanding balance on the term loan was $400 million
and there was no outstanding balance on the revolving loan. The amount available
for borrowing under the revolving loan, however, is effectively reduced by the
amount of our outstanding commercial paper.
COVENANTS. The syndicate credit agreement includes a number of customary
financial, affirmative and negative covenants that regulate our operations. For
example, we are required to meet certain financial tests, including:
- a minimum net worth;
- a minimum fixed charge coverage ratio; and
- a maximum funded debt to EBITDA ratio.
In addition, negative covenants restrict, among other things, the incurrence
of indebtedness by our subsidiaries, liens, acquisitions, sales of assets and
other fundamental changes, investments, contingent obligations, changes in
business and accounting changes.
EVENTS OF DEFAULT. The syndicate credit agreement also includes customary
events of default, including payment defaults, covenant defaults, cross defaults
to other indebtedness of a minimum amount, bankruptcy and insolvency events,
certain events under the Employee Retirement Income Security Act of 1974,
defaults in satisfaction of judgments, and change of control.
BRIDGE CREDIT AGREEMENT
We executed a bridge credit agreement with Bank of America, N.A. that
provided for an unsecured 364-day term loan of up to $300 million. We repaid all
outstanding borrowings under the bridge credit agreement following the issuance
of the old notes. No additional amounts are available for borrowing under the
bridge credit agreement.
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COMMERCIAL PAPER.
We have issued commercial paper in the form of unsecured notes. At
December 26, 1999, $165.5 million of commercial paper was outstanding.
6.75% NOTES DUE DECEMBER 15, 2007.
We currently have outstanding $150,000,000 of 6.75% notes issued pursuant to
an Indenture dated December 17, 1997. These notes are our unsecured,
unsubordinated obligations and rank PARI PASSU with all of our other unsecured
and unsubordinated indebtedness, including the new notes. The 6.75% notes are
not guaranteed by any of our subsidiaries. The 6.75% notes, which mature
December 15, 2007, bear interest at the fixed rate of 6.75% per annum.
COVENANTS. The Indenture under which the 6.75% notes were issued contains
covenants restricting our ability to:
- incur certain liens;
- enter into certain affiliate transactions;
- merge, consolidate or sell assets; or
- engage in sale and leaseback transactions.
The Indenture also requires us to maintain our corporate existence, pay taxes
and certain other claims and pay principal and interest on the 6.75% notes.
EVENTS OF DEFAULT. The Indenture contains events of default, including
failure to pay principal of, interest on (subject to 30 days grace) or premium
on the 6.75% notes, covenant defaults, cross defaults to other indebtedness of a
minimum amount, certain bankruptcy and insolvency events and any specific
defaults provided in the securities issued pursuant to the Indenture.
The new notes will be issued pursuant to and benefit from the same
Indenture, but will be a separate series of securities outstanding under that
Indenture.
ACCOUNTS RECEIVABLE SECURITIZATION.
We and Precision Receivables Corp. a special purpose finance subsidiary that
we formed for this transaction have executed a Credit and Security Agreement
with Wachovia Bank, N.A. and Blue Ridge Asset Funding Corporation (a
multi-seller commercial paper conduit administered by Wachovia) that provides
for a 364-day revolving loan of up to $150 million (the "Accounts Receivable
Securitization"). This facility is secured by a portion of the accounts
receivable originated by our principal operating subsidiaries (including Wyman
Gordon and its principal operating subsidiaries), which the subsidiaries have
sold to us and we in turn have sold or contributed to Precision Receivables. We
structured the transaction as a loan, and, as such, it is reflected on our
consolidated balance sheet (but the assets of Precision Receivables are intended
to be available first to satisfy its obligations under the Credit and Security
Agreement). Borrowings under this facility can be made only once each month and
only in accordance with a borrowing base formula applicable to the accounts
receivable held by Precision Receivables. The maturity of the Accounts
Receivable Securitization can be extended with all parties' consent in
increments of up to 364 days at a time. At December 26, 1999, $142.9 million was
outstanding on the Accounts Receivable Securitization loan.
INTEREST RATE. Loans under the Accounts Receivable Securitization are
expected to bear interest at a rate equivalent to the rate paid by Blue Ridge
from time to time on its commercial paper having a like maturity, and taking
into account any placement agent or commercial paper dealer fees paid by Blue
Ridge. If selected by Precision Receivables, if Blue Ridge is unable to sell its
commercial paper,
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or if certain other events described in the Credit and Security Agreement occur,
loans under the Accounts Receivable Securitization will bear interest at a
Eurodollar rate plus a margin specified in the fee letter between the parties or
at an alternative base rate without any applicable margin. We also pay certain
fees relating to the Accounts Receivable Securitization pursuant to our
agreement with Wachovia and Blue Ridge.
COVENANTS. The agreements relating to the Accounts Receivable
Securitization include a number of customary affirmative and negative covenants
that regulate our operations and those of our subsidiaries that are party to the
transaction, but which do not materially add to the restrictions imposed on us
and our subsidiaries by the syndicate credit agreement or the Indenture for the
6.75% notes. In addition, such agreements include affirmative and negative
covenants relating to the accounts receivable sold and contributed to Precision
Receivables that are customary for accounts receivable secured financings and
covenants designed to protect the separate corporate existence and solvency of
Precision Receivables that are typical for securitization transactions. The
latter covenants include strict restrictions on the business that Precision
Receivables can engage in, the liabilities it can incur, and the manner in which
it is administered and governed.
EVENTS OF DEFAULT. The agreements relating to the Accounts Receivable
Securitization also include customary events of default, including payment
defaults, covenant defaults (including the covenants that relate to the accounts
receivable sold and contributed to Precision Receivables and that relate to the
separate corporate existence and solvency of Precision Receivables), cross
defaults to other indebtedness of a minimum amount, bankruptcy and insolvency
defaults, certain events under the Employee Retirement Income Security Act of
1974, defaults in satisfaction of judgments, and change of control. In addition,
it shall be an event of default if any event occurs that materially impairs the
ability of the originators of the accounts receivable sold and contributed to
Precision Receivables to originate accounts receivable, or if Precision
Receivables fails each month to meet certain three-month rolling average ratio
tests that relate to dilution of the amount (E.G., as a result of defective or
rejected goods, cash discounts, or tariffs), and delinquencies and defaults in
payment, of its accounts receivable.
SUBSIDIARY CREDIT FACILITIES.
Certain of our subsidiaries have credit agreements with financial
institutions in connection with working capital and letter of credit facilities.
We guarantee certain of these facilities. These facilities are not, individually
or in the aggregate, material in amount, and none contain covenants or other
restrictions which are material to our operations.
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DESCRIPTION OF NEW NOTES
The new Notes will be issued under an existing Indenture (as amended or
supplemented from time to time, the "Indenture") dated as of December 17, 1997
between the Company and Bank One Trust Company, N.A. (successor in interest to
The First National Bank of Chicago), as Trustee (the "Trustee"), a copy of which
may be obtained from the Company. The statements herein relating to the new
Notes and the following summaries of provisions of the Indenture do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to, all the provisions of the Indenture, including the definitions
therein of certain terms, and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). Wherever particular sections or defined terms of the
Indenture are referred to in this prospectus, such sections or defined terms are
incorporated herein by reference. Certain defined terms used in this description
but not defined below under "Certain Definitions" or otherwise herein have the
meanings assigned to them in the Indenture.
The following sets forth certain general terms and provisions of the new
Notes, which are identical in all material respects to the terms of the old
notes, except that the registration rights and related liquidated damages
provisions, and the transfer restrictions applicable to the old notes, are not
applicable to the new Notes. The new Notes will be a separate series of
securities under the Indenture, and certain covenants applicable to the new
Notes are less restrictive in certain respects than the covenants applicable to
the Company's outstanding 6.75% Notes due December 15, 2007. The more
restrictive covenants will continue to apply to the Company as long as the 6.75%
Notes are outstanding; however, the following discussion describes the covenants
that will apply only to the new Notes.
GENERAL
The new Notes will be issued as a series of Securities under the Indenture.
The Indenture does not limit the amount of notes, debentures or other evidences
of indebtedness ("Debt Securities") that may be issued under the Indenture, and
Debt Securities may be issued thereunder from time to time in one or more
series. On December 17, 1997, a series of Debt Securities aggregating
$150 million principal amount was issued under the Indenture. The old notes are
also a series of securities under the Indenture. The new Notes will be issued as
unsecured obligations of the Company. The aggregate principal amount of this
series of Debt Securities may be increased in the future at the option of the
Company in compliance with the covenants of the Indenture.
The new Notes will bear interest at the rate of 8.75% per annum from
March 3, 2000, payable semi-annually in arrears, on each March 15 and
September 15, commencing September 15, 2000, to the Persons in whose names the
new Notes are registered on the preceding March 1 and September 1, respectively.
The principal of, premium, if any, and interest on the new Notes will be
payable, the transfer of new Notes will be registrable and the new Notes may be
presented for exchange, at the office of the Trustee located at Mail Suite 0126,
1 Bank One Plaza, Chicago, Illinois 60670, Attention: Corporate Trust Services.
So long as the new Notes are represented by one or more Global Notes, the
interest payable on the new Notes will be paid to Cede & Co., the nominee of
DTC, or its registered assigns as the registered owner of the Global Notes, by
wire transfer of immediately available funds on each of the applicable interest
payment dates, no later than 2:30 p.m. Eastern Standard Time. If the new Notes
are no longer represented by Global Notes, payment of interest may, at the
option of the Company, be made by check mailed to the address of the Person
entitled thereto. See "Book-Entry, Delivery and Form Same Day Settlement and
Payment."
The Indenture does not limit the amount of Debt that may be incurred by the
Company or its Subsidiaries or contain covenants specifically designed to
protect holders of the new Notes in the event
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of a highly leveraged transaction, restructuring, change in control, merger or a
similar transaction involving the Company that may adversely affect holders the
new Notes.
No sinking fund is provided for the new Notes.
REDEMPTION
The new Notes are not subject to redemption by the Company.
CERTAIN COVENANTS OF THE COMPANY
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company may 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 is 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 any such
successor or purchaser expressly assumes the Company's obligations under
the Registration Rights Agreement and on the new Notes under a
supplemental indenture;
(2) immediately after giving effect to the transaction, no Event of Default,
and no event which, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing;
(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 the covenant described below under
"Limitation on Liens" without equally and ratably securing the new Notes,
the Company, or such Person, prior to such consolidation, merger,
conveyance, transfer or lease, will secure the new Notes then
Outstanding, 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 or lease, the Company has delivered to
the Trustee an officers' certificate and an opinion of counsel stating
compliance with these provisions.
LIMITATIONS ON LIENS
The Company will not, and will not permit any Restricted Subsidiary to,
create, incur, issue, assume or guarantee any 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 the Indenture
or thereafter acquired, without effectively providing concurrently that the Debt
Securities of each series then outstanding under the Indenture are 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.
The foregoing restriction shall not apply to, and there shall be excluded
from Debt in any computation under such restriction, Debt secured by:
(1) Mortgages on any 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
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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;
(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 no 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 the Indenture or any extension,
renewal, replacement or refunding of any Debt secured by a Mortgage
existing on the date of the Indenture or referred to in clauses (1) to
(3) or (5), PROVIDED that the principal amount of the 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.
Notwithstanding the restrictions described above, the Company and its
Restricted Subsidiaries may create, incur, issue, assume or guarantee Debt
secured by Mortgages without equally and ratably securing the Debt Securities of
each series then outstanding if, 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 as described in
clauses (1) through (7) of the immediately preceding paragraph) plus all
Attributable Debt in respect of Sale and Leaseback Transactions with respect to
Operating Properties (with the exception of such transactions which are
permitted under clauses (1) through (4) of the first sentence of the first
paragraph under "Limitation on Sale and Leaseback Transactions" below) does not
exceed 12% of Consolidated Net Assets.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Company will not, and 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;
(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 the second paragraph under the heading "Limitation on Liens,"
without equally and ratably securing the Debt Securities of each series
then outstanding under the Indenture, to create, incur, issue, assume
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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 (A) the net proceeds of the sale of such Operating Property or
(B) the fair market value of such Operating Property to (i) the
retirement of Debt Securities, other Funded Debt of the Company ranking
on a parity with the Debt Securities or Funded Debt of a Restricted
Subsidiary or (ii) 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 the Indenture
(other than any such Sale and Leaseback Transactions as would be
permitted as described in clauses (1) through (4) of this sentence), 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) though (7) of the second paragraph
under the heading "Limitation on Liens") which do not equally and ratably
secure such outstanding Debt Securities (or secure such outstanding Debt
Securities on a basis that is prior to other Debt secured thereby), would
not exceed 12% of Consolidated Net Assets.
LIMITATION ON DEBT OF RESTRICTED SUBSIDIARIES
The Company will not permit any Restricted Subsidiary to create, incur,
issue, assume or guaranty any Debt, except:
(1) Debt outstanding on the date of the Indenture;
(2) Debt issued to and held by the Company or a wholly owned Restricted
Subsidiary;
(3) Debt created, incurred, issued, assumed or guaranteed by a Person prior
to the time the Person became, merged into, or consolidated with such
Person and thereby such Person becomes a Restricted Subsidiary (which
Debt was not incurred in anticipation of such transaction and was
outstanding prior to such transaction);
(4) 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;
(5) 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 (1) through (4) 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
(6) Debt not otherwise permitted pursuant to clauses (1) through (5) above
that, together with any other outstanding Debt created, incurred, issued,
assumed or guaranteed pursuant to this clause (6), has an aggregate
principal amount at any time outstanding that does not exceed 12% of
Consolidated Net Assets.
EVENTS OF DEFAULT
Any one of the following events will constitute an Event of Default with
respect to the new Notes:
(1) failure to pay any interest on any new Note when due, continued for
30 days;
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(2) failure to pay principal of or any premium on any new Note when due;
(3) failure to perform, or breach of, any covenant or warranty of the
Company in the Indenture with respect to the new Notes continued for
60 days after written notice as provided in the Indenture;
(4) default under any indebtedness for money borrowed by the Company or any
Subsidiary if:
(A) such default either (i) results from the failure to pay the principal
of any such indebtedness at its stated maturity or (ii) relates to
any 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, together with the
principal amount of any other such indebtedness, 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 10 business days after written notice
as provided in the Indenture;
(5) certain events of bankruptcy, insolvency or reorganization of the
Company; or
(6) failure to pay Liquidated Damages payable on any new Notes when due,
continued for 30 days.
If an Event of Default (other than an event of Default described in
clause (5) of the preceding paragraph) with respect to the Notes at the time
Outstanding shall occur and be continuing, either the Trustee or the holders of
at least 25% in aggregate principal amount of the Notes that are Outstanding may
accelerate the maturity of all new Notes; PROVIDED, however, that after such
acceleration, but before a judgment or decree based on acceleration, the holders
of a majority in aggregate principle amount of the Notes that are Outstanding
may, under certain circumstances, rescind and annul such acceleration if all
Events of Default, other than the non-payment of accelerated principal, have
been cured or waived as provided in the Indenture. If an Event of Default
described in clause (5) of the immediately preceding paragraph occurs, the new
Notes that are Outstanding will IPSO FACTO become immediately due and payable
without any declaration or other act on the part of the Trustee or any holder.
Subject to the duty of the Trustee during default to act with the required
standard of care, the Trustee will be under no obligation to exercise any of its
rights or powers under the Indenture at the request or direction of any of the
holders of Notes, unless such holders shall have offered to the Trustee
reasonable indemnity. Subject to such provisions for the indemnification of the
Trustee and to certain other conditions, the holders of a majority in aggregate
principal amount of the Notes that are Outstanding will 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 new Notes.
No holder of new Notes will have any right to institute any proceeding with
respect to the Indenture or for any remedy thereunder, unless such holder shall
have previously given to the Trustee written notice of a continuing Event of
Default and unless the holders of at least 25% in principal amount of the Notes
that are Outstanding shall have made written request, and offered reasonable
indemnity, to the Trustee to institute such proceeding as Trustee, and the
Trustee shall not have received from the holders of a majority in aggregate
principal amount of the Notes that are Outstanding a direction inconsistent with
such request and shall have failed to institute such proceeding
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within 60 days. However, such limitations do not apply to a suit instituted by a
holder of new Notes for enforcement of payment of the principal of and premium
and Liquidated Damages, if any, or interest on such new Notes.
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of certain of its obligations under the Indenture
and as to any default in such performance.
DEFEASANCE OF NOTES OR CERTAIN COVENANTS IN CERTAIN CIRCUMSTANCES
DEFEASANCE AND DISCHARGE
The Company may, at the Company's option, be discharged from any and all
obligations in respect of the new Notes (except for certain obligations to
register the transfer or exchange of new Notes, to replace stolen, lost or
mutilated new Notes, to maintain paying agencies and to hold moneys for payment
in trust) upon the deposit with the Trustee, in trust, of money and/or U.S.
Government Obligations which, through the payment of interest and principal
thereof in accordance with their terms, will provide money in an amount
sufficient to pay any installment of principal (and premium and Liquidated
Damages, if any) and interest on, the new Notes on the Stated Maturity of such
payments in accordance with the terms of the Indenture and such new Notes. Such
discharge may occur only if, among other things, the Company has delivered to
the Trustee an opinion of counsel to the effect that the Company has received
from, or there has been published by, the United States Internal Revenue Service
a ruling, or there has been a change in tax law, in either case to the effect
that such discharge will not be deemed, or result in, a taxable event with
respect to holders of the new Notes.
DEFEASANCE OF CERTAIN COVENANTS
The Company may, at the Company's option, be released from certain
restrictive covenants described in this prospectus under "Certain Covenants of
the Company Limitations on Liens," "Certain Covenants of the Company Limitation
on Sale and Leaseback Transactions," "Certain Covenants of the Company
Consolidation, Merger and Sale of Assets" and certain other covenants made
applicable to the new Notes. The Company, in order to exercise such option, will
be required to deposit with the Trustee money and/or U.S. Government Obligations
which, through the payment of interest and principal thereof in accordance with
their terms, will provide money in an amount sufficient to pay principal (and
premium and Liquidated Damages, if any) and interest on, the new Notes on the
Stated Maturity of such payments in accordance with the terms of the Indenture
and such new Notes. The Company will also be required to deliver to the Trustee
an opinion of counsel to the effect that the deposit and related covenant
defeasance will not cause the holders of the new Notes to recognize income, gain
or loss for federal income tax purposes.
In the event the Company exercises this option and the new Notes are
declared due and payable because of the occurrence of any Event of Default, the
amount of money and/or U.S. Government Obligations on deposit with the Trustee
will be sufficient to pay amounts due on the Notes at the time of their Stated
Maturity but may not be sufficient to pay amounts due on the new Notes at the
time of the acceleration resulting from such Event of Default. However, the
Company shall remain liable for such payments.
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MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee without the consent of the holders of any of the Debt Securities
issued under the Indenture (including the new Notes) in order:
(1) to evidence the succession of another entity to the Company and the
assumption of the covenants and obligations of the Company under the Debt
Securities and Indenture by such successor to the Company;
(2) to add to the covenants of the Company for the benefit of the holders
of all or any series of Debt Securities or to surrender any right or
power conferred on the Company by the Indenture;
(3) to add additional Events of Default with respect to any series of Debt
Securities;
(4) to add to or change any provisions to such extent as may be necessary
to permit or facilitate the issuance of Debt Securities in bearer form or
to facilitate the issuance of Global Notes;
(5) to add to, change or eliminate any provision affecting only Debt
Securities not yet issued;
(6) to secure the Debt Securities;
(7) to establish the form or terms of Debt Securities of any series;
(8) to evidence and provide for successor Trustees or to add or change any
provisions to such extent as may be necessary to provide for or
facilitate the appointment of a separate Trustee or Trustees for specific
series of Debt Securities;
(9) to permit payment in respect of Debt Securities in bearer form in the
United States to the extent allowed by law;
(10) to cure any ambiguity, to correct or supplement any mistaken or
inconsistent provisions or to make any other provisions with respect to
matters or questions arising under the Indenture, PROVIDED that any such
action (other than in respect of a mistaken provision) does not adversely
affect in any material respect the interests of any holder of Debt
Securities of any series then outstanding.
Modifications and amendments of the Indenture also may be made by the
Company and the Trustee with the consent of the holders of not less than a
majority in aggregate principal amount of the Outstanding Debt Securities of
each series issued under the Indenture and affected by the modification or
amendments; PROVIDED, however, that no such modification or amendment may,
without the consent of the holders of all Debt Securities affected thereby:
(1) change the Stated Maturity of the principal amount of, or any
installment of principal of or interest on, any Debt Security;
(2) reduce the principal amount of, or the premium, if any, or (except as
otherwise provided in the Applicable Prospectus Supplement) interest on
any Debt Security (including in the case of an Original Issue Discount
Debt Security the amount payable upon acceleration of the maturity
thereof);
(3) change the place or currency of payment of principal or premium or
Liquidated Damages, if any, or interest on any Debt Security;
(4) impair the right to institute suit for the enforcement of any payment on
any Debt Security on or after the Stated Maturity thereof (or in the case
of redemption, on or after the Redemption Date); or
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(5) reduce the percentage in principal amount of Outstanding Debt Securities
of any series, the consent of whose holders is required for modification
or amendment of the Indenture or for waiver of compliance with certain
provisions of the Indenture or for waiver of certain defaults.
The holders of at least a majority in aggregate principal amount of the
Outstanding Debt Securities of any series may, on behalf of all holders of Debt
Securities of that series, waive compliance by the Company with certain
restrictive provisions of the Indenture. The holders of not less than a majority
in aggregate principal amount of the Outstanding Debt Securities of any series
may, on behalf of all holders of Debt Securities of that series, waive any past
default under the Indenture, except a default in the payment of principal,
premium or Liquidated Damages or interest or in respect of a covenant or
provision of the Indenture that cannot be modified or amended without the
consent of the holder of each Outstanding Debt Security of such series affected
thereby.
CONCERNING THE TRUSTEE
Bank One Trust Company, N.A. (formerly known as The First National Bank of
Chicago) is the Trustee under the Indenture. The Trustee may resign at any time
or may be removed by the holders of at least a majority in aggregate principal
amount of the Outstanding Notes. If the Trustee resigns, is removed or becomes
incapable of acting as Trustee or if a vacancy occurs in the office of the
Trustee for any cause, a successor Trustee shall be appointed in accordance with
the provisions of the Indenture.
ADDITIONAL INFORMATION
You may obtain a copy of the Indenture without charge by writing to
Precision Castparts Corp., 4650 S.W. Macadam Avenue, Suite 440, Portland, OR
97201-4254, Attention: Director of Communications.
BOOK-ENTRY, DELIVERY AND FORM
Except as set forth below, the new Notes will be issued in the form of
registered global notes (the "Global Notes") in minimum denominations of $1,000
and integral multiples of $1,000 in excess thereof. The Global Notes will be
deposited upon issuance with the Trustee as custodian for The Depository Trust
Company ("DTC"), in New York, New York, and registered in the name of DTC or its
nominee, in each case for credit to an account of a direct or indirect
participant in DTC as described below.
Except as set forth below, the Global Notes may be transferred, in whole and
not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Notes may not be exchanged for Notes
in certificated form except in the limited circumstances described below. See
"Exchange of Global Notes for Certificated Notes." Except in the limited
circumstances described below, owners of beneficial interests in the Global
Notes will not be entitled to receive physical delivery of new Notes in
certificated form. Transfers of beneficial interests in the Global Notes will be
subject to the applicable rules and procedures of DTC and its direct or indirect
participants, which may change from time to time.
DEPOSITORY PROCEDURES
The following description of the operations and procedures of DTC is
provided solely as a matter of convenience. These operations and procedures are
solely within the control of DTC and are subject to changes by DTC. The Company
takes no responsibility for these operations and procedures and urges investors
to contact DTC or their participants directly to discuss these matters.
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DTC has advised the Company that DTC is a limited-purpose trust company
created to hold securities for its participating organizations (collectively,
the "Participants") and to facilitate the clearance and settlement of
transactions in those securities between Participants through electronic
book-entry changes in accounts of its Participants. The Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either directly
or indirectly (collectively, the "Indirect Participants"). Persons who are not
Participants may beneficially own securities held by or on behalf of DTC only
through the Participants or the Indirect Participants. The ownership interests
in, and transfers of ownership interests in, each security held by or on behalf
of DTC are recorded on the records of the Participants and Indirect
Participants.
DTC has also advised the Company that, pursuant to procedures established by
it:
(1) upon deposit of the Global Notes, DTC will credit the accounts of
Participants with portions of the principal amount of the Global Notes; and
(2) ownership of these interests in the Global Notes will be shown on, and the
transfer of ownership thereof will be effected only through, records
maintained by DTC (with respect to the Participants) or by the Participants
and the Indirect Participants (with respect to other owners of beneficial
interests in the Global Notes).
Holders of new Notes, who are Participants in DTC's system may hold their
interests therein directly through DTC. Holders of new Notes who are not
Participants may hold their interests indirectly through organizations that are
Participants in DTC. The laws of some states require that certain Persons take
physical delivery in definitive form of securities that they own. Consequently,
the ability to transfer beneficial interests in a Global Note to such Persons
will be limited to that extent. Because DTC can act only on behalf of
Participants, which in turn act on behalf of Indirect Participants, the ability
of a Person having beneficial interests in a Global Note to pledge such
interests to Persons that do not participate in the DTC system, or otherwise
take actions in respect of such interests, may be affected by the lack of a
physical certificate evidencing such interests.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTES WILL NOT
HAVE NEW NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF
NEW NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS
OR "HOLDERS" THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, and interest and premium and
Liquidated Damages, if any, on a Global Note registered in the name of DTC or
its nominee will be payable to DTC in its capacity as the registered Holder
under the Indenture. Under the terms of the Indenture, the Company and the
Trustee will treat the Persons in whose names the new Notes, including the
Global Notes, are registered as the owners thereof for the purpose of receiving
payments and for all other purposes. Consequently, neither the Company, the
Trustee nor any agent of the Company or the Trustee has or will have any
responsibility or liability for:
(1) any aspect of DTC's records or any Participant's or Indirect Participant's
records relating to or payments made on account of beneficial ownership
interest in the Global Notes or for maintaining, supervising or reviewing
any of DTC's records or any Participant's or Indirect Participant's records
relating to the beneficial ownership interests in the Global Notes; or
(2) any other matter relating to the actions and practices of DTC or any of its
Participants or Indirect Participants.
DTC has advised the Company that its current practice, upon receipt of any
payment in respect of securities such as the new Notes (including principal and
interest), is to credit the accounts of the relevant Participants with the
payment on the payment date unless DTC has reason to believe it will
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not receive payment on such payment date. Each relevant Participant is credited
with an amount proportionate to its beneficial ownership of an interest in the
principal amount of the relevant security as shown on the records of DTC.
Payments by the Participants and the Indirect Participants to the beneficial
owners of Notes will be governed by standing instructions and customary
practices and will be the responsibility of the Participants or the Indirect
Participants and will not be the responsibility of DTC, the Trustee or the
Company. Neither the Company nor the Trustee will be liable for any delay by DTC
or any of its Participants in identifying the beneficial owners of the new
Notes, and the Company and the Trustee may conclusively rely on and will be
protected in relying on instructions from DTC or its nominee for all purposes.
Subject to the transfer restrictions set forth under "Notice to Investors,"
transfers between Participants in DTC will be effected in accordance with DTC's
procedures, and will be settled in same-day funds.
DTC has advised the Company that it will take any action permitted to be
taken by a holder of Notes only at the direction of one or more Participants to
whose account DTC has credited the interests in the Global Notes and only in
respect of such portion of the aggregate principal amount of the Notes as to
which such Participant or Participants has or have given such direction.
However, if there is an Event of Default under the Notes, DTC reserves the right
to exchange the Global Notes for legended Notes in certificated form, and to
distribute such Notes to its Participants.
EXCHANGE OF GLOBAL NOTES FOR CERTIFICATED NOTES
A Global Note is exchangeable for definitive Notes in registered
certificated form ("Certificated Notes") if:
(1) DTC (a) notifies the Company that it is unwilling or unable to continue as
depositary for the Global Notes and the Company fails to appoint a successor
depositary or (b) has ceased to be a clearing agency registered under the
Exchange Act;
(2) the Company, at its option, notifies the Trustee in writing that it elects
to cause the issuance of the Certificated Notes; or
(3) there shall have occurred and be continuing a Default or Event of Default
with respect to the Notes.
In addition, beneficial interests in a Global Note may be exchanged for
Certificated Notes upon prior written notice given to the Trustee by or on
behalf of DTC in accordance with the Indenture. In all cases, Certificated Notes
delivered in exchange for any Global Note or beneficial interests in Global
Notes will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depositary (in accordance with its customary
procedures).
SAME DAY SETTLEMENT AND PAYMENT
The Company will make payments in respect of the new Notes represented by
the Global Notes (including principal, premium, if any, interest and Liquidated
Damages, if any) by wire transfer of immediately available funds to the accounts
specified by the Global Note Holder. The Company will make all payments of
principal, interest and premium and Liquidated Damages, if any, with respect to
Certificated Notes by wire transfer of immediately available funds to the
accounts specified by the holders thereof or, if no such account is specified,
by mailing a check to each such Holder's registered address. The new Notes are
expected to be eligible to trade in DTC's Same-Day Funds Settlement System, and
any permitted secondary market trading activity in such new Notes will,
therefore, be required by DTC to be settled in immediately available funds. The
Company expects that secondary trading in any Certificated Notes will also be
settled in immediately available funds.
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CERTAIN DEFINITIONS
"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.
"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.
"CONSOLIDATED ASSETS" means the aggregate of all assets of the Company
(including the value of all existing Sale and Leaseback Transactions and any
assets resulting from the capitalization of other long-term lease obligations in
accordance with generally accepted accounting principals ("GAAP")), appearing on
the most recent available consolidated balance sheet of the Company at their net
book values, after deducting related depreciation, amortization and other
valuation reserves, all prepared in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" means the aggregate of the current
liabilities of the Company appearing on the most recent available consolidated
balance sheet of the Company, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of the Company or its
Subsidiaries issued under a revolving credit or similar agreement if the
obligation issued under such agreement matures by its terms within 12 months
from the date thereof but by the terms of such agreement such obligation may be
renewed or extended or the amount thereof reborrowed or refunded at the option
of the Company or any Subsidiary for a term in excess of 12 months from the date
of determination.
"CONSOLIDATED NET ASSETS" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
"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.
"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.
"MORTGAGE" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien,
encumbrance, or any 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).
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"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.
"PERSON" means any individual, corporation, partnership, joint venture,
trust, unincorporated organization or government or any agency or political
subdivision thereof.
"RESTRICTED SUBSIDIARY" means any Subsidiary of the Company that owns
Operating Property that has a market value in excess of 1.0% 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.
"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
Subsidiaries, or by the Company and one or more other Subsidiaries.
"UNRESTRICTED SUBSIDIARY" means any Subsidiary other than a Restricted
Subsidiary.
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UNITED STATES FEDERAL INCOME TAX CONSIDERATIONS
This section discusses the material U.S. federal income tax consequences
resulting from the ownership of the notes by an initial beneficial owner. This
section addresses only initial beneficial owners who hold the notes as capital
assets and does not address holders that may be subject to special tax rules,
such as financial institutions, insurance companies, dealers in securities,
persons that mark-to-market their securities, persons that hold notes as part of
a "straddle," "hedge" or "synthetic security transaction" (including a
"conversion" transaction), persons with a "functional currency" other than the
U.S. dollar, some retirement plans and tax-exempt organizations. This section is
based upon U.S. federal tax laws and Treasury regulations as now in effect and
as currently interpreted and does not take into account possible changes in
these tax laws or these interpretations, any of which may be applied
retroactively. It does not include any description of the tax laws of any state,
local or foreign government that may be applicable to the notes or a holder of
the notes.
THIS SECTION DOES NOT DISCUSS ALL ASPECTS OF U.S. FEDERAL INCOME TAXATION
THAT MAY BE RELEVANT TO A PARTICULAR HOLDER OF THE NOTES IN LIGHT OF THE
HOLDER'S PARTICULAR CIRCUMSTANCES AND INCOME TAX SITUATION. EACH HOLDER OF THE
NOTES SHOULD CONSULT ITS OWN TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES TO
THE HOLDER OF THE EXCHANGE OF OLD NOTES FOR NEW NOTES AND THE OWNERSHIP AND
DISPOSITION OF THE NOTES, INCLUDING THE APPLICATION AND EFFECT OF STATE, LOCAL,
FOREIGN AND OTHER TAX LAWS OR CHANGES TO THOSE LAWS.
THE EXCHANGE
The exchange of the old notes for new notes pursuant to the exchange offer
will not be treated as an "exchange" for U.S. federal income tax purposes
because the new notes will not differ materially either in kind or extent from
the old notes and because the exchange will occur by operation of the terms of
the old notes. Instead, the new notes received by a holder will be treated as a
continuation of the old notes in the hands of the holder. As a result, there
generally will be no U.S. federal income tax consequences to holders who
exchange old notes for the new notes pursuant to the exchange offer.
U.S. TAXATION OF NON-U.S. HOLDERS
The following summary is based upon existing United States federal income
tax law, which is subject to change, possibly retroactively. This summary does
not address non-U.S. holders that hold notes in connection with a U.S. trade or
business. This summary does not discuss all aspects of United States federal
income taxation which may be important to particular non-U.S. holders in light
of their individual circumstances, such as investors subject to special tax
rules (E.G., financial institutions, insurance companies, broker-dealers,
tax-exempt organizations and U.S. expatriates) or persons holding the notes as a
part of a straddle, hedge, or synthetic security transaction for United States
federal income tax purposes, or that have a functional currency other than the
United States dollar, all of whom may be subject to tax rules that differ
significantly from those described below. In addition, this summary does not
discuss any foreign, state, or local income tax considerations or any taxes
other than income taxes. This summary assumes that investors will hold their
notes as "capital assets" (generally, property held for investment) under the
United States Internal Revenue Code of 1986, as amended (the "Code"). You are
urged to consult with your tax advisor regarding the United States federal,
state, local, and foreign income and other tax considerations of the purchase,
ownership, and disposition of the notes.
INTEREST
Interest paid by us to a non-U.S. holder that is not engaged in trade or
business within the United States will not be subject to United States federal
income or withholding tax provided that
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(1) such holder does not actually or constructively own 10% or more of the total
combined voting power of all of our classes of stock entitled to vote,
(2) such holder is not a controlled foreign corporation that is related to us
through stock ownership, and
(3) the requirements of section 871(h)(5) of the Code are satisfied as described
below under the heading "Owner Statement Requirement."
A non-U.S. holder that does not qualify for the exemption from withholding
tax above generally will be subject to withholding of U.S. federal income tax at
the rate of 30% on payments of interest on the notes. An income tax treaty may
provide for an exemption from, or a lower rate of, withholding tax, if
applicable certification requirements are satisfied.
GAIN ON DISPOSITION
A non-U.S. holder who is not engaged in a U.S. trade or business generally
will not be subject to United States federal income tax on gain recognized on a
sale, redemption, or other disposition of a note unless the non-U.S. holder is a
nonresident alien individual, such holder is present in the United States for
183 or more days during the taxable year in which such gain is realized, and
certain other requirements are met.
OWNER STATEMENT REQUIREMENT
Section 871(h)(5) of the Code requires that either the beneficial owner of a
note or a securities clearing organization, bank or other financial institution
that holds customers' securities in the ordinary course of its trade or business
(a "Financial Institution") and that holds a note on behalf of such owner
file a statement with us or our agent to the effect that the beneficial owner is
a non-U.S. holder in order to avoid withholding of United States federal income
tax. Under current regulations, this requirement will be satisfied if we or our
agent receive (1) a properly executed Internal Revenue Service Form W-8 (or
suitable substitute form) (an "Owner's Statement") from the beneficial owner of
a note in which such owner certifies, under penalties of perjury, that such
owner is a non-U.S. holder and provides such owner's name and address, or (2) a
statement from the Financial Institution holding the note on behalf of the
beneficial owner in which the Financial Institution certifies, under penalties
of perjury, that it has received the Owner's Statement, together with a copy of
the Owner's Statement. The beneficial owner must inform us or our agent (or, in
the case of a statement described in clause (2) of the immediately preceding
sentence, the Financial Institution) within 30 days of any change in information
on the Owner's Statement. New regulations, generally effective for payments
after December 31, 2000, include additional certification procedures and special
rules for payments to foreign partnerships.
BACKUP WITHHOLDING AND INFORMATION REPORTING
Current United States federal income tax law provides that in the case of
payments of interest to non-U.S. holders, the 31% backup withholding tax and
information reporting will not apply to payments made outside the United States
by us or a paying agent on a note if an Owner's Statement is received or an
exemption has otherwise been established; provided in each case that we or the
paying agent, as the case may be, does not have actual knowledge that the payee
is not a non-U.S. holder. Special rules may apply with respect to the payment of
the proceeds from the sale of a note to or through foreign offices of certain
brokers. New Treasury regulations, generally effective for payments after
December 31, 2000, may alter the details of the certification procedures. Any
amounts withheld from payment under the backup withholding rules will be allowed
as a credit against a holder's U.S. federal income tax liability and may entitle
such holder to a refund, provided that the required information is furnished to
the Internal Revenue Service.
58
<PAGE>
PLAN OF DISTRIBUTION
Each broker-dealer that receives new notes for its own account in connection
with the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of such new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of new notes received in exchange for old notes where
such old notes were acquired as a result of market-making activities or other
trading activities. We have agreed that for a period ending on the earlier of
(1) 180 days after the date of this prospectus and
(2) the date on which a broker-dealer is no longer required to deliver a
prospectus in connection with market-making or other trading activities,
we will make available and provide promptly upon reasonable request this
prospectus, in a form meeting the requirements of the Securities Act, to any
broker-dealer for use in connection with any such resale.
We will receive no proceeds in connection with the exchange offer. Exchange
notes received by broker-dealers for their own account in the exchange offer may
be sold from time to time in one or more transactions in the over-the-counter
market, in negotiated transactions, through the writing of options on the new
notes or a combination of these methods of resale, at market prices prevailing
at the time of resale, at prices related to the prevailing market prices or
negotiated prices. A resale may be made directly to purchasers or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from the broker-dealer and/or the purchasers of new notes. Any
broker-dealer that resells new notes that were received by it for its own
account in the exchange offer and any broker or dealer that participates in a
distribution of the new notes may be an underwriter within the meaning of the
Securities Act, and any profit on the resale of exchange notes and any
commissions or concessions received by these persons may be underwriting
compensation under the Securities Act. The letter of transmittal states that by
acknowledging that it will deliver, and by delivering, a prospectus, a
broker-dealer will not be considered to admit that it is an underwriter.
We have agreed to pay all expenses incident to our performance of, or
compliance with, the Registration Rights Agreement and will indemnify the
holders of Transfer Restricted Securities (including any broker-dealers), and
certain parties related to such holders, against certain liabilities including
liabilities under the Securities Act.
LEGAL MATTERS
The validity of the issuance of the new notes will be passed upon for us by
Stoel Rives LLP, Portland, Oregon.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K of Precision Castparts Corp. and
subsidiaries as of March 28, 1999 and March 29, 1998 and for each of the three
years in the period ended March 28, 1999 have been audited by
PricewaterhouseCoopers LLP, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of Wyman-Gordon Company as of May 31, 1999 and 1998, and
for each of the three years in the period ended May 31, 1999, as set forth in
their report, which is included in our Current Report on Form 8-K filed
December 8, 1999, as amended February 7, 2000. Our Form 8-K is incorporated by
reference in this prospectus. The consolidated financial statements of
Wyman-Gordon Company are incorporated by reference in reliance on Ernst & Young
LLP's report, given on their authority as experts in accounting and auditing.
59
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. INDEMNIFICATION OF OFFICERS AND DIRECTORS
Article VI of the Company's Restated Articles of Incorporation (the
"Articles"), requires indemnification of directors and officers of the
Registrant to the fullest extent permitted by law. In addition, the Company has
entered into indemnity agreements with certain of its officers and directors.
The Bylaws of the Company permit indemnification of officers and directors to
the fullest extent permitted by the Oregon Business Corporation Act, as amended
(the "Act"). The effects of the Articles, the Bylaws, the Act, and the indemnity
agreements (the "Indemnification Provisions") are summarized as follows:
(a) The Indemnification Provisions grant a right of indemnification in
respect of any action, suit or proceeding (other than an action by or in the
right of the Company) against expenses (including attorney fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred, if
the person concerned acted in good faith and in a manner the person
reasonably believed to be in or not opposed to the best interests of the
Company, was not adjudged liable on the basis of receipt of an improper
personal benefit and, with respect to any criminal action or proceeding, had
no reasonable cause to believe the conduct was unlawful. The termination of
an action, suit or proceeding by judgment, order, settlement, conviction or
plea of nolo contendere is not, of itself, determinative that the person did
not meet the required standards of conduct.
(b) The Indemnification Provisions grant a right of indemnification in
respect of any action or suit by or in the right of the Company against the
expenses (including attorney fees) actually and reasonably incurred if the
person concerned acted in good faith and in a manner the person reasonably
believed to be in or not opposed to the best interests of the Company,
except that no right of indemnification will be granted if the person is
adjudged to be liable to the Company.
(c) Every person who has been wholly successful on the merits of a
controversy described in (a) or (b) above is entitled to indemnification as
a matter of right.
(d) Because the limits of permissible indemnification under Oregon law
are not clearly defined, the Indemnification Provisions may provide
indemnification broader than that described in (a) and (b).
(e) The Company may advance to a director or officer the expenses
incurred in defending any action, suit or proceeding in advance of its final
disposition if the director or officer furnishes the Company with a written
affirmation of such person's good faith belief that he or she has met the
standard of conduct to be entitled to indemnification as described in
(a) or (b) above and a written undertaking to repay any amount advanced if
it is determined that the person did not meet the required standard of
conduct.
The Company may obtain insurance for the protection of its directors and
officers against any liability asserted against them in their official
capacities.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers or persons controlling the
Company pursuant to the foregoing provisions, the Company has been informed that
in the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable.
II-1
<PAGE>
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
<TABLE>
<C> <S>
4.1......... Indenture dated December 17, 1997 between Bank One Trust
Company, N.A. (successor in interest to the First National
Bank of Chicago) as Trustee and Precision Castparts Corp.
(Incorporated herein by reference to Exhibit (4)A in the
Form 10-K dated June 26, 1998.) (File number 1-10348)
4.2......... Officers' Certificate dated March 3, 2000 pursuant to
Indenture dated December 17, 1997.
4.3......... Form of old 8.75% Senior Note due 2005
4.4......... Form of new 8.75% Senior Note due 2005
4.5......... Registration Rights Agreement, dated as of March 3, 2000, by
and among Precision Castparts Corp. and Banc of America
Securities LLC, ABN AMRO Incorporated, Banc One Capital
Markets, Inc., BNY Capital Markets, Inc., First Union
Securities, Inc., Scotia Capital Inc., U.S. Bancorp Piper
Jaffray Inc. and Wachovia Securities, Inc.
5.1......... Opinion of Stoel Rives LLP
12.1......... Statement re Computation of Ratios
23.1......... Consent of PricewaterhouseCoopers LLP
23.2......... Consent of Ernst & Young LLP
23.3......... Consent of Stoel Rives LLP (included in Exhibit 5.1)
24.1......... Powers of Attorney (included on page II-5 of this
Registration Statement)
25.1......... Statement of Eligibility of Trustee
99.1......... Form of Letter of Transmittal
99.2......... Form of Notice of Guaranteed Delivery
99.3......... Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees
99.4......... Form of Letter to Clients
</TABLE>
ITEM 22. UNDERTAKINGS
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made,
a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933, as amended (the "Securities Act");
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement.
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
II-2
<PAGE>
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(d) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
(e) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Portland, State of
Oregon, on March 31, 2000.
<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 Act of 1933, this
registration statement has been signed below by the following persons on
March 31, 2000 in the capacities indicated.
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below hereby constitutes and appoints William C. McCormick and William D.
Larsson or any one of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any amendments
(whether pre-effective or post-effective) to this Registration Statement and any
registration statement for the same offering that is to be effective upon filing
pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same
with all exhibits thereto and other documents in connection therewith with the
Securities and Exchange Commission, granting unto each of said attorneys-in-fact
and agents full power and authority to do and perform each and every act and
thing requisite and necessary to be done in and about the premises, as fully to
all intents and purposes as he might or could do in person, hereby ratifying and
confirming all that each of said attorneys-in-fact and agents, or their
substitute or substitutes, may do or cause to be done by virtue hereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ WILLIAM C. MCCORMICK
------------------------------------------ Chairman of the Board, Director and
William C. McCormick Chief Executive Officer
Vice President and Chief Financial
/s/ WILLIAM D. LARSSON Officer
------------------------------------------ (Principal Financial and Accounting
William D. Larsson Officer)
/s/ PETER R. BRIDENBAUGH
------------------------------------------ Director
Peter R. Bridenbaugh
/s/ DEAN T. DUCRAY
------------------------------------------ Director
Dean T. DuCray
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
/s/ DON R. GRABER
------------------------------------------ Director
Don R. Graber
/s/ VERNON E. OECHSLE
------------------------------------------ Director
Vernon E. Oechsle
/s/ BYRON O. POND, JR.
------------------------------------------ Director
Byron O. Pond, Jr.
/s/ STEVEN G. ROTHMEIER
------------------------------------------ Director
Steven G. Rothmeier
/s/ J. FRANK TRAVIS
------------------------------------------ Director
J. Frank Travis
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------------------- -----------
<C> <S>
4.1 Indenture dated December 17, 1997 between Bank One Trust
Company, N.A. (successor in interest to the First National
Bank of Chicago) as Trustee and Precision Castparts Corp.
(Incorporated herein by reference to Exhibit (4)A in the
Form 10-K dated June 26, 1998.) (File number 1-10348)
4.2 Officers' Certificate dated March 3, 2000 pursuant to
Indenture dated December 17, 1997.
4.3 Form of old 8.75% Senior Note due 2005
4.4 Form of new 8.75% Senior Note due 2005
4.5 Registration Rights Agreement, dated as of March 3, 2000, by
and among Precision Castparts Corp. and Banc of America
Securities LLC, ABN AMRO Incorporated, Banc One Capital
Markets, Inc., BNY Capital Markets, Inc., First Union
Securities, Inc., Scotia Capital Inc., U.S. Bancorp Piper
Jaffray Inc. and Wachovia Securities, Inc.
5.1 Opinion of Stoel Rives LLP
12.1 Statement re Computation of Ratios
23.1 Consent of PricewaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of Stoel Rives LLP (included in Exhibit 5.1)
24.1 Powers of Attorney (included on page II-5 of this
Registration Statement)
Statement of Eligibility of Trustee
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Letter to Brokers, Dealers, Commercial Banks, Trust
Companies and other Nominees
99.4 Form of Letter to Clients
</TABLE>
<PAGE>
PRECISION CASTPARTS CORP.
OFFICERS' CERTIFICATE PURSUANT TO
SECTION 301 OF THE INDENTURE
This Officers' Certificate (the "Certificate") is made pursuant to
Section 301 of the Indenture (the "Indenture") dated as of December 17, 1997 by
and between Precision Castparts Corp., an Oregon corporation (the "Company") and
Bank One Trust Company, N.A. (successor in interest to The First National Bank
of Chicago), a national banking association (the "Trustee"). Unless otherwise
defined herein, all terms used herein that are defined in the Indenture shall
have the meanings assigned them in the Indenture. Bank One Trust Company, N.A.
as Trustee, Paying Agent, Security Registrar and Transfer Agent under the
Indenture shall also hold such positions for each series of Securities evidenced
by this Certificate. The undersigned, William D. Larsson and Geoff Hawkes, do
hereby certify that they are the Vice President and Chief Financial Officer, and
Treasurer and Assistant Secretary, respectively of the Company, and that as
such, they are authorized to execute this Certificate on behalf of the Company
and do further certify that:
A. Attached hereto as EXHIBIT E are true copies of resolutions relating
to the issuance and sale of a series of Securities and a series of exchange
Securities under the Indenture adopted by the Board of Directors of the Company
at a meeting duly called and held on May 6, 1999 (the "Resolutions"); at such
meeting a quorum was present and acting throughout; and such Resolutions have
not been amended or revoked and are in full force and effect on the date hereof.
B. The series of Securities to be issued under the Indenture are
established as follows:
1. The title of the securities shall be the "8.75% Senior Notes due
2005" (the "Initial Notes") and the title of the securities issued in
exchange for such securities pursuant to the Exchange Offer and Section
305(B)(f) hereof shall be the "8.75% Senior Notes due 2005" (the "Exchange
Notes"). The term Note or Notes shall mean the Initial Notes and the
Exchange Notes.
2. The initial principal amount of the Initial Notes which may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other notes pursuant to Section 304, 305, 306,
906 or 1107 of the Indenture and except for Notes which, pursuant to
Section 303 of the Indenture, are deemed never to have been authenticated
and delivered under the Indenture) shall be $200,000,000, but the aggregate
amount of Exchange Notes that may be authenticated and delivered in
compliance with the Indenture evidenced hereby shall be unlimited.
3. The date on which the principal of the Notes is payable is March
15, 2005.
4. The rate at which the Notes will bear interest is 8.75% and the
date from which interest accrues is March 3, 2000 or from the last Interest
Payment Date on which
<PAGE>
interest on the Notes was paid. The Interest Payment Dates on which any
such interest shall be payable are March 15 and September 15 commencing
with September 15, 2000 and the Regular Record Date for any interest
payable on any Interest Payment Date is the next preceding March 1 or
September 1, respectively (whether or not a Business Day).
5. The principal of and interest on the Notes are payable and the
Notes may be surrendered for registration of transfer or exchange at Bank
One Trust Company, N.A., 1 Bank One Plaza, Suite 0126, Chicago, Illinois
60670 or at such other offices or agencies as the Company may designate,
and notices and demands to or upon the Company in respect of the Notes may
be served at the place described in Section 105 of the Indenture.
6. The Notes are not subject to any sinking fund or analogous
provisions.
7. Sections 1302 and 1303 of the Indenture shall apply to the Notes.
8. The Depositary Trust Company ("DTC") shall be the Depositary for
the Notes.
9. In addition to the definitions set forth in Section 101 of the
Indenture, the following definitions shall apply to the Notes:
"144A GLOBAL NOTE" means a global note substantially in the form of
EXHIBIT A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of, and registered in the name of, the
Depositary or its nominee that will be issued in a denomination equal to the
outstanding principal amount of the Notes sold in reliance on Rule 144A.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Note, the rules and
procedures of the Depositary, Euroclear and Cedel that apply to such transfer or
exchange.
"BROKER-DEALER" has the meaning set forth in the Registration Rights
Agreement.
"CEDEL" means Clearstream Banking.
"CONSOLIDATED ASSETS" means the aggregate of all assets of the Company
(including the value of all existing Sale and Leaseback Transactions and any
assets resulting from the capitalization of other long-term lease obligations in
accordance with generally accepted accounting principals ("GAAP")) appearing on
the most recent available consolidated balance sheet of the Company at their net
book values, after deducting related depreciation, amortization and other
valuation reserves, all prepared in accordance with GAAP.
"CONSOLIDATED CURRENT LIABILITIES" means the aggregate of the current
liabilities of the Company appearing on the most recent available consolidated
balance sheet of the Company, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of the Company or its
Subsidiaries issued under a revolving credit or similar
2
<PAGE>
agreement if the obligation issued under such agreement matures by its terms
within 12 months from the date thereof but by the terms of such agreement such
obligation may be renewed or extended or the amount thereof reborrowed or
refunded at the option of the Company or any Subsidiary for a term in excess of
12 months from the date of determination.
"CONSOLIDATED NET ASSETS" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
"CUSTODIAN" means the Trustee, as custodian with respect to the Notes
in global form, or any successor entity thereto.
"DEFINITIVE NOTE" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 305(B) hereof,
substantially in the form of EXHIBIT A hereto except that such Note shall not
bear the Global Note Legend and shall not have the "Schedule of Exchanges of
Interests in the Global Note" attached thereto.
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
office, as operator of the Euroclear system.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXCHANGE OFFER" has the meaning set forth in the Registration Rights
Agreement.
"EXCHANGE OFFER REGISTRATION STATEMENT" has the meaning set forth in
the Registration Rights Agreement.
"GLOBAL NOTES" means, individually and collectively, each of the
Restricted Global Notes and the Unrestricted Global Notes, substantially in the
form of EXHIBIT A hereto issued in accordance with Section 303, 305(B)(b)(iv),
305(B)(d)(ii) or 305(B)(f) hereof.
"GLOBAL NOTE LEGEND" means the legend set forth in Section
305(B)(g)(ii), which is required to be placed on all Global Notes issued under
this Indenture.
"IAI GLOBAL NOTE" means the global Note substantially in the form of
EXHIBIT A hereto bearing the Global Note Legend and the Private Placement Legend
and deposited with or on behalf of and registered in the name of the Depositary
or its nominee that will be issued in a denomination equal to the outstanding
principal amount of the Notes sold or transferred to Institutional Accredited
Investors.
"INDIRECT PARTICIPANT" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"INITIAL PURCHASER" has the meaning set forth in the Registration
Rights Agreement.
3
<PAGE>
"INSTITUTIONAL ACCREDITED INVESTOR" means an institution that is an
"accredited investor" as defined in Rule 501(a)(1), (2), (3) or (7) under the
Securities Act, who are not also QIBs.
"LETTER OF TRANSMITTAL" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"LIQUIDATED DAMAGES" means all liquidated damages then owing pursuant
to Section 5 of the Registration Rights Agreement.
"NON-U.S. PERSON" means a Person who is not a U.S. Person.
"OFFICER" means, with respect to any Person, the Chairman of the
Board, any Vice Chairman of the Board, the President, any Vice President, the
Treasurer, any Assistant Treasurer, the Controller, any Assistant Controller,
the Secretary or any Assistant Secretary of such Person.
"PARTICIPANT" means, with respect to the Depositary, Euroclear or
Cedel, a Person who has an account with the Depositary, Euroclear or Cedel,
respectively (and, with respect to DTC, shall include Euroclear and Cedel).
"PRIVATE PLACEMENT LEGEND" means the legend set forth in Section
305(B)(g)(i) to be placed on all Notes issued under this Indenture except where
otherwise permitted by the provisions of this Indenture.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of March 3, 2000, by and among the Company and the other
parties named on the signature pages thereof, as such agreement may be amended,
modified or supplemented from time to time.
"REGULATION S" means Regulation S promulgated under the Securities
Act.
"REGULATION S GLOBAL NOTE" means a global Note bearing the Private
Placement Legend and deposited with or on behalf of the Depositary and
registered in the name of the Depositary or its nominee, issued in a
denomination equal to the outstanding principal amount of the Notes initially
sold in reliance on Rule 903 of Regulation S.
"RESTRICTED DEFINITIVE NOTE" means a Definitive Note bearing the
Private Placement Legend.
"RESTRICTED GLOBAL NOTE" means a Global Note bearing the Private
Placement Legend.
"RESTRICTED PERIOD" means the 40-day restricted period as defined in
Regulation S.
4
<PAGE>
"RULE 144" means Rule 144 promulgated under the Securities Act.
"RULE 144A" means Rule 144A promulgated under the Securities Act.
"RULE 903" means Rule 903 promulgated under the Securities Act.
"RULE 904" means Rule 904 promulgated the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SHELF REGISTRATION STATEMENT" means the Shelf Registration Statement
as defined in the Registration Rights Agreement.
"STATISTICAL RELEASE" means the statistical release designated "H.15
(519)" or any successor publication which is published weekly by the Federal
Reserve System and which established yields on actively-traded United States
government securities adjusted to constant maturities, or, if such statistical
release is not published at the time of any determination under the terms of the
Notes, then such other reasonably comparable index which shall be designated by
the Company.
"UNRESTRICTED GLOBAL NOTE" means a permanent global Note substantially
in the form of EXHIBIT A attached hereto that bears the Global Note Legend and
that has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"UNRESTRICTED DEFINITIVE NOTE" means one or more Definitive Notes that
do not bear and are not required to bear the Private Placement Legend.
"U.S. PERSON" means a U.S. person as defined in Rule 902(k) under the
Securities Act.
10. With respect to the Notes, the definition of "Book-Entry
Security" in Section 101 of the Indenture is hereby deleted in its entirety
and replaced with the following: "'Book-Entry Security' means Global Notes
as defined in this Certificate."
11. With respect to the Notes, sections 201 through 205 of the
Indenture are hereby deleted in their entirety and replaced with the
following:
"Section 201. Form.
(a) GENERAL. The Notes and the Trustee's certificate of
authentication shall be substantially in the form of EXHIBIT A hereto. The
Notes may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Notes shall be in denominations of $1,000 and
integral multiples thereof. The Trustee shall authenticate Exchange Notes from
time to time for issue in exchange for a like principal amount of Initial Notes
on written order of the Company in accordance with the Indenture as amended by
this Certificate.
5
<PAGE>
The written order of the Company shall specify the amount of Notes to be
authenticated and the date on which the Notes are to be authenticated, whether
the Notes are to be Initial Notes or Exchange Notes and such other information
as the Trustee may reasonably request or as is required by the Indenture.
(b) GLOBAL NOTES. Notes issued in global form shall be substantially
in the form of EXHIBIT A attached hereto (including the Global Note Legend
thereon and the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Notes issued in definitive form shall be substantially in the form of
EXHIBIT A attached hereto (but without the Global Note Legend thereon and
without the "Schedule of Exchanges of Interests in the Global Note" attached
thereto). Each Global Note shall represent such of the outstanding Notes as
shall be specified therein and each shall provide that it shall represent the
aggregate principal amount of outstanding Notes from time to time endorsed
thereon and that the aggregate principal amount of outstanding Notes represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges. Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the aggregate principal amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in accordance with instructions given by the Holder
thereof as required by Section 305(B) hereof.
(c) EUROCLEAR AND CEDEL PROCEDURES APPLICABLE. The provisions of the
"Operating Procedures of the Euroclear System" and "Terms and Conditions
Governing Use of Euroclear" and the "General Terms and Conditions" and "Customer
Handbook" of Cedel shall be applicable to transfers of beneficial interests in
the Regulation S Global Notes that are held by Participants through Euroclear or
Cedel."
12. The last line of the fifth paragraph of Section 303 of the
Indenture is hereby amended with respect to the Notes by deleting "Section
204" and replacing it with "Section 305(B)(g)(ii)."
13. With respect to the Notes, Section 305 of the Indenture is hereby
deleted in its entirety and replaced with the following:
"Section 305. Registration, Registration of Transfer and Exchange.
(A) SECURITY REGISTRAR AND PAYING AGENT. The Company shall maintain
an office or agency where Notes may be presented for registration of transfer or
for exchange ("SECURITY REGISTER" or "SECURITY REGISTRAR") and an office or
agency where Notes may be presented for payment. The Security Registrar shall
keep a register of the Notes and of their transfer and exchange. The Company
may appoint one or more co-registrars and one or more additional paying agents.
The term "Security Registrar" includes any co-registrar and the term "Paying
Agent" includes any additional paying agent. The Company may change any Paying
Agent or Security Registrar without notice to any Holder. The Company shall
notify the Trustee in writing of the name and address of any Paying Agent or
Security Registrar not a party to the Indenture. If the Company fails to
appoint or maintain another entity as Security Registrar or Paying Agent, the
Trustee shall act as such. The Company or any of its Subsidiaries may act as
Paying Agent or Security Registrar.
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(B) TRANSFER AND EXCHANGE.
(a) TRANSFER AND EXCHANGE OF GLOBAL NOTES. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged
by the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 306 and
304. Every Note authenticated and delivered in exchange for, or in lieu of, a
Global Note or any portion thereof, pursuant to this Section 305(B) or Section
306 or 304, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 305(B)(a), however, beneficial interests in a Global
Note may be transferred and exchanged as provided in Section 305(B)(b), (c) or
(f) hereof.
(b) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN THE GLOBAL
NOTES. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Indenture and the Applicable Procedures. Beneficial interests in the
Restricted Global Notes shall be subject to restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
Transfers of beneficial interests in the Global Notes also shall require
compliance with either subparagraph (i) or (ii) below, as applicable, as well as
one or more of the other following subparagraphs, as applicable:
(i) TRANSFER OF BENEFICIAL INTERESTS IN THE SAME GLOBAL NOTE.
Beneficial interests in any Restricted Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in
the same Restricted Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend; provided, however,
that prior to the expiration of the Restricted Period, transfers of
beneficial interests in the Regulation S Global Note may not be made to a
U.S. Person or for the account or benefit of a U.S. Person (other than an
Initial Purchaser). Beneficial interests in any Unrestricted Global Note
may be transferred to Persons who take delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note. No written orders or
instructions shall be required to be delivered to the Security Registrar to
effect the transfers described in this Section 305(B)(b)(i).
(ii) ALL OTHER TRANSFERS AND EXCHANGES OF BENEFICIAL INTERESTS IN GLOBAL
NOTES. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 305(B)(b)(i) above, the
transferor of such beneficial interest must deliver to the
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Security Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given in accordance with the Applicable Procedures containing information
regarding the Participant account to be credited with such increase or (B)
(1) a written order from a Participant or an Indirect Participant given to
the Depositary in accordance with the Applicable Procedures directing the
Depositary to cause to be issued a Definitive Note in an amount equal to
the beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Security Registrar containing information
regarding the Person in whose name such Definitive Note shall be registered
to effect the transfer or exchange referred to in (1) above. Upon
consummation of an Exchange Offer by the Company in accordance with Section
305(B)(f) hereof, the requirements of this Section 305(B)(b)(ii) shall be
deemed to have been satisfied upon receipt by the Security Registrar of the
instructions contained in the Letter of Transmittal delivered by the Holder
of such beneficial interests in the Restricted Global Notes. Upon
satisfaction of all of the requirements for transfer or exchange of
beneficial interests in Global Notes contained in this Indenture and the
Notes or otherwise applicable under the Securities Act, the Trustee shall
adjust the principal amount of the relevant Global Note(s) pursuant to
Section 305(B)(h) hereof.
(iii) TRANSFER OF BENEFICIAL INTERESTS TO ANOTHER RESTRICTED GLOBAL NOTE.
A beneficial interest in any Restricted Global Note may be transferred to a
Person who takes delivery thereof in the form of a beneficial interest in
another Restricted Global Note if the transfer complies with the
requirements of Section 305(B)(b)(ii) above and the Security Registrar
receives the following:
(A) if the transferee will take delivery in the form of a beneficial
interest in the 144A Global Note, then the transferor must deliver a
certificate in the form of EXHIBIT B hereto, including the certifications
in item (1) thereof;
(B) if the transferee will take delivery in the form of a beneficial
interest in the Regulation S Global Note, then the transferor must deliver
a certificate in the form of EXHIBIT B hereto, including the
certifications in item (2) thereof; and
(C) if the transferee will take delivery in the form of a beneficial
interest in the IAI Global Note, then the transferor must deliver a
certificate in the form of EXHIBIT B hereto, including the certifications
and certificates and Opinion of Counsel required by item (3) thereof, if
applicable.
(iv) TRANSFER AND EXCHANGE OF BENEFICIAL INTERESTS IN A RESTRICTED
GLOBAL NOTE FOR BENEFICIAL INTERESTS IN THE UNRESTRICTED GLOBAL NOTE. A
beneficial interest in any Restricted Global Note may be exchanged by any
holder thereof for a beneficial interest in an Unrestricted Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in an Unrestricted Global Note if the exchange or
transfer complies with the requirements of Section 305(B)(b)(ii) above and:
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(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of the beneficial interest to be transferred, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
beneficial interest in an Unrestricted Global Note, a certificate from
such holder in the form of EXHIBIT C hereto, including the
certifications in item (1)(a) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a beneficial interest in
an Unrestricted Global Note, a certificate from such holder in the form
of EXHIBIT B hereto, including the certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (D) above
at a time when an Unrestricted Global Note has not yet been issued, the
Company shall issue and, upon receipt of a Company Order in accordance with
Section 303 of the Indenture, the Trustee shall authenticate one or more
Unrestricted Global Notes in an aggregate principal amount equal to the
aggregate principal amount of beneficial interests transferred pursuant to
subparagraph (B) or (D) above.
Beneficial interests in an Unrestricted Global Note cannot be exchanged
for, or transferred to Persons who take delivery thereof in the form of, a
beneficial interest in a Restricted Global Note.
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(c) TRANSFER OR EXCHANGE OF BENEFICIAL INTERESTS FOR DEFINITIVE NOTES.
(i) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO RESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a Restricted
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Restricted Definitive Note, then,
upon receipt by the Security Registrar of the following documentation:
(A) if the holder of such beneficial interest in a Restricted Global
Note proposes to exchange such beneficial interest for a Restricted
Definitive Note, a certificate from such holder in the form of EXHIBIT C
hereto, including the certifications in item (2)(a) thereof;
(B) if such beneficial interest is being transferred to a QIB in
accordance with Rule 144A under the Securities Act, a certificate to the
effect set forth in EXHIBIT B hereto, including the certifications in item
(1) thereof;
(C) if such beneficial interest is being transferred to a Non-U.S.
Person in an offshore transaction in accordance with Rule 903 or Rule 904
under the Securities Act, a certificate to the effect set forth in EXHIBIT
B hereto, including the certifications in item (2) thereof;
(D) if such beneficial interest is being transferred pursuant to an
exemption from the registration requirements of the Securities Act in
accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in EXHIBIT B hereto, including the certifications in item
(3)(a) thereof;
(E) if such beneficial interest is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such beneficial interest is being transferred to the Company
or any of its Subsidiaries, a certificate to the effect set forth in
EXHIBIT B hereto, including the certifications in item (3)(b) thereof; or
(G) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certificate
to the effect set forth in EXHIBIT B hereto, including the certifications
in item (3)(c) thereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 305(B)(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest in a Restricted Global Note pursuant to this
Section 305(B)(c) shall be registered in such name or names and in such
authorized
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denomination or denominations as the holder of such beneficial interest
shall instruct the Security Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee shall
deliver such Definitive Notes to the Persons in whose names such Notes are
so registered. Any Definitive Note issued in exchange for a beneficial
interest in a Restricted Global Note pursuant to this Section 305(B)(c)(i)
shall bear the Private Placement Legend and shall be subject to all
restrictions on transfer contained therein.
(ii) BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. A holder of a beneficial interest in a Restricted Global
Note may exchange such beneficial interest for an Unrestricted Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of an Unrestricted Definitive Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the holder
of such beneficial interest, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable Letter
of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the holder of such beneficial interest in a Restricted
Global Note proposes to exchange such beneficial interest for a
Definitive Note that does not bear the Private Placement Legend, a
certificate from such holder in the form of EXHIBIT C hereto, including
the certifications in item (1)(b) thereof; or
(2) if the holder of such beneficial interest in a Restricted
Global Note proposes to transfer such beneficial interest to a Person
who shall take delivery thereof in the form of a Definitive Note that
does not bear the Private Placement Legend, a certificate from such
holder in the form of EXHIBIT B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
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(iii) BENEFICIAL INTERESTS IN UNRESTRICTED GLOBAL NOTES TO UNRESTRICTED
DEFINITIVE NOTES. If any holder of a beneficial interest in an
Unrestricted Global Note proposes to exchange such beneficial interest for
a Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 305(B)(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 305(B)(h) hereof,
and the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note in
the appropriate principal amount. Any Definitive Note issued in exchange
for a beneficial interest pursuant to this Section 305(B)(c)(iii) shall be
registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Security Registrar through instructions from the Depositary and the
Participant or Indirect Participant. The Trustee shall deliver such
Definitive Notes to the Persons in whose names such Notes are so
registered. Any Definitive Note issued in exchange for a beneficial
interest pursuant to this Section 305(B)(c)(iii) shall not bear the Private
Placement Legend.
(d) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR BENEFICIAL
INTERESTS.
(i) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN RESTRICTED
GLOBAL NOTES. If any Holder of a Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note or
to transfer such Restricted Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Restricted Global Note,
then, upon receipt by the Security Registrar of the following
documentation:
(A) if the Holder of such Restricted Definitive Note proposes to
exchange such Note for a beneficial interest in a Restricted Global Note,
a certificate from such Holder in the form of EXHIBIT C hereto, including
the certifications in item (2)(b) thereof;
(B) if such Restricted Definitive Note is being transferred to a QIB
in accordance with Rule 144A under the Securities Act, a certificate to
the effect set forth in EXHIBIT B hereto, including the certifications in
item (1) thereof;
(C) if such Restricted Definitive Note is being transferred to a
Non-U.S. Person in an offshore transaction in accordance with Rule 903 or
Rule 904 under the Securities Act, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications in item (2) thereof;
(D) if such Restricted Definitive Note is being transferred pursuant
to an exemption from the registration requirements of the Securities Act
in accordance with Rule 144 under the Securities Act, a certificate to the
effect set forth in EXHIBIT B hereto, including the certifications in item
(3)(a) thereof;
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(E) if such Restricted Definitive Note is being transferred to an
Institutional Accredited Investor in reliance on an exemption from the
registration requirements of the Securities Act other than those listed in
subparagraphs (B) through (D) above, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications, certificates and
Opinion of Counsel required by item (3) thereof, if applicable;
(F) if such Restricted Definitive Note is being transferred to the
Company or any of its Subsidiaries, a certificate to the effect set forth
in EXHIBIT B hereto, including the certifications in item (3)(b) thereof;
or
(G) if such Restricted Definitive Note is being transferred pursuant
to an effective registration statement under the Securities Act, a
certificate to the effect set forth in EXHIBIT B hereto, including the
certifications in item (3)(c) thereof,
the Trustee shall cancel the Restricted Definitive Note, increase or cause
to be increased the aggregate principal amount of, in the case of clause
(A) above, the appropriate Restricted Global Note, in the case of clause
(B) above, the 144A Global Note, in the case of clause (C) above, the
Regulation S Global Note, and in all other cases, the IAI Global Note.
(ii) RESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN UNRESTRICTED
GLOBAL NOTES. A Holder of a Restricted Definitive Note may exchange such
Note for a beneficial interest in an Unrestricted Global Note or transfer
such Restricted Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note only if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the Holder of such Definitive Notes proposes to exchange
such Notes for a beneficial interest in the Unrestricted Global Note, a
certificate from such Holder in the form of EXHIBIT C hereto, including
the certifications in item (1)(c) thereof; or
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(2) if the Holder of such Definitive Notes proposes to transfer
such Notes to a Person who shall take delivery thereof in the form of a
beneficial interest in the Unrestricted Global Note, a certificate from
such Holder in the form of EXHIBIT B hereto, including the
certifications in item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests or if the Applicable Procedures so require, an
Opinion of Counsel in form reasonably acceptable to the Security Registrar
to the effect that such exchange or transfer is in compliance with the
Securities Act and that the restrictions on transfer contained herein and
in the Private Placement Legend are no longer required in order to
maintain compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 305(B)(d)(ii), the Trustee shall cancel the Definitive Notes and
increase or cause to be increased the aggregate principal amount of the
Unrestricted Global Note.
(iii) UNRESTRICTED DEFINITIVE NOTES TO BENEFICIAL INTERESTS IN
UNRESTRICTED GLOBAL NOTES. A Holder of an Unrestricted Definitive Note may
exchange such Note for a beneficial interest in an Unrestricted Global Note
or transfer such Definitive Notes to a Person who takes delivery thereof in
the form of a beneficial interest in an Unrestricted Global Note at any
time. Upon receipt of a request for such an exchange or transfer, the
Trustee shall cancel the applicable Unrestricted Definitive Note and
increase or cause to be increased the aggregate principal amount of one of
the Unrestricted Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(B), (ii)(D) or (iii)
above at a time when an Unrestricted Global Note has not yet been issued,
the Company shall issue and, upon receipt of a Company Order in accordance
with Section 303 of the Indenture, the Trustee shall authenticate one or
more Unrestricted Global Notes in an aggregate principal amount equal to
the principal amount of Definitive Notes so transferred.
(e) TRANSFER AND EXCHANGE OF DEFINITIVE NOTES FOR DEFINITIVE
NOTES. Upon request by a Holder of Definitive Notes and such Holder's
compliance with the provisions of this Section 305(B)(e), the Security Registrar
shall register the transfer or exchange of Definitive Notes. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Security Registrar the Definitive Notes duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Security Registrar duly executed by such Holder or by its attorney, duly
authorized in writing. In addition, the requesting Holder shall provide any
additional certifications, documents and information, as applicable, required
pursuant to the following provisions of this Section 305(B)(e).
(i) RESTRICTED DEFINITIVE NOTES TO RESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be transferred to and registered in the name
of Persons who take delivery thereof in the form of a Restricted Definitive
Note if the Security Registrar receives the following:
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(A) if the transfer will be made pursuant to Rule 144A under the
Securities Act, then the transferor must deliver a certificate in the form
of EXHIBIT B hereto, including the certifications in item (1) thereof;
(B) if the transfer will be made pursuant to Rule 903 or Rule 904,
then the transferor must deliver a certificate in the form of EXHIBIT B
hereto, including the certifications in item (2) thereof; and
(C) if the transfer will be made pursuant to any other exemption
from the registration requirements of the Securities Act, then the
transferor must deliver a certificate in the form of EXHIBIT B hereto,
including the certifications, certificates and Opinion of Counsel required
by item (3) thereof, if applicable.
(ii) RESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. Any
Restricted Definitive Note may be exchanged by the Holder thereof for an
Unrestricted Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of an Unrestricted Definitive Note if:
(A) such exchange or transfer is effected pursuant to the Exchange
Offer in accordance with the Registration Rights Agreement and the Holder,
in the case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(B) any such transfer is effected pursuant to the Shelf Registration
Statement in accordance with the Registration Rights Agreement;
(C) any such transfer is effected by a Broker-Dealer pursuant to the
Exchange Offer Registration Statement in accordance with the Registration
Rights Agreement; or
(D) the Security Registrar receives the following:
(1) if the Holder of such Restricted Definitive Notes proposes
to exchange such Restricted Definitive Notes for an Unrestricted
Definitive Note, a certificate from such Holder in the form of EXHIBIT C
hereto, including the certifications in item (1)(d) thereof; or
(2) if the Holder of such Restricted Definitive Notes proposes
to transfer such Notes to a Person who shall take delivery thereof in
the form of an Unrestricted Definitive Note, a certificate from such
Holder in the form of EXHIBIT B hereto, including the certifications in
item (4) thereof;
and, in each such case set forth in this subparagraph (D), if the Security
Registrar so requests, an Opinion of Counsel in form reasonably acceptable
to the Company to the effect that such exchange or transfer is in
compliance with the Securities Act and that
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the restrictions on transfer contained herein and in the Private Placement
Legend are no longer required in order to maintain compliance with the
Securities Act.
(iii) UNRESTRICTED DEFINITIVE NOTES TO UNRESTRICTED DEFINITIVE NOTES. A
Holder of Unrestricted Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of an Unrestricted Definitive Note.
Upon receipt of a request to register such a transfer, the Security
Registrar shall register the Unrestricted Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) EXCHANGE OFFER. Upon the occurrence of the Exchange Offer
in accordance with the Registration Rights Agreement, the Company shall issue
and, upon receipt of a Company Order in accordance with Section 303 of the
Indenture, the Trustee shall authenticate (i) one or more Unrestricted Global
Notes in an aggregate principal amount equal to the principal amount of the
beneficial interests in the Restricted Global Notes tendered for acceptance by
Persons that certify in the applicable Letters of Transmittal that (x) they are
not Broker-Dealers, (y) they are not participating in a distribution of the
Exchange Notes and (z) they are not affiliates (as defined in Rule 144) of the
Company, and accepted for exchange in the Exchange Offer and (ii) Definitive
Notes in an aggregate principal amount equal to the principal amount of the
Restricted Definitive Notes accepted for exchange in the Exchange Offer.
Concurrently with the issuance of such Notes, the Trustee shall cause the
aggregate principal amount of the applicable Restricted Global Notes to be
reduced accordingly, and the Company shall execute and the Trustee shall
authenticate and deliver to the Persons designated by the Holders of Definitive
Notes so accepted Definitive Notes in the appropriate principal amount.
(g) LEGENDS. The following legends shall appear on the face of
all Global Notes and Definitive Notes issued under this Indenture unless
specifically stated otherwise in the applicable provisions of this Indenture.
(i) PRIVATE PLACEMENT LEGEND.
(A) Except as permitted by subparagraph (B) below, each Global Note
and each Definitive Note (and all Notes issued in exchange therefor or
substitution thereof) shall bear the legend in substantially the following
form
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN
ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER
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<PAGE>
THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY AGREES FOR THE
BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED ONLY (1) (A) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (B) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE SECURITIES ACT, (C)
OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D) IN ACCORDANCE WITH
ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT (AND
BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO REQUESTS), AS LONG AS THE
SECURITY REGISTRAR RECEIVES A CERTIFICATION OF THE TRANSFEROR AND AN OPINION OF
COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH THE SECURITIES ACT, (2) TO THE
COMPANY OR (3) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT AND, IN EACH
CASE, IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE
UNITED STATES OR ANY OTHER APPLICABLE JURISDICTION AND (B) THE HOLDER WILL AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO NOTIFY ANY PURCHASER FROM IT OF THE
SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTION SET FORTH IN (A) ABOVE."
(B) Notwithstanding the foregoing, any Global Note or Definitive
Note issued pursuant to subparagraphs (b)(iv), (c)(ii), (c)(iii), (d)(ii),
(d)(iii), (e)(ii), (e)(iii) or (f) to this Section 305(B) (and all Notes
issued in exchange therefor or substitution thereof) shall not bear the
Private Placement Legend.
(ii) GLOBAL NOTE LEGEND. Each Global Note shall bear a legend in
substantially the following form:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 201(b) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTIONS 305(B)(a) OR 306 OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
PRECISION CASTPARTS CORP."
(h) CANCELLATION AND/OR ADJUSTMENT OF GLOBAL NOTES. At such
time as all beneficial interests in a particular Global Note have been exchanged
for Definitive Notes or a particular Global Note has been repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with
17
<PAGE>
Section 309. At any time prior to such cancellation, if any beneficial interest
in a Global Note is exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global Note or
for Definitive Notes, the principal amount of Notes represented by such Global
Note shall be reduced accordingly and an endorsement shall be made on such
Global Note by the Trustee or by the Depositary at the direction of the Trustee
to reflect such reduction; and if the beneficial interest is being exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Note, such other Global Note shall be
increased accordingly and an endorsement shall be made on such Global Note by
the Trustee or by the Depositary at the direction of the Trustee to reflect such
increase.
(i) GENERAL PROVISIONS RELATING TO TRANSFERS AND EXCHANGES.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Notes and
Definitive Notes upon the Company's order or at the Security Registrar's
request.
(ii) No service charge shall be made to a holder of a beneficial
interest in a Global Note or to a Holder of a Definitive Note for any
registration of transfer or exchange, but the Company may require payment
of a sum sufficient to cover any transfer tax or similar governmental
charge payable in connection therewith (other than any such transfer taxes
or similar governmental charge payable upon exchange or transfer pursuant
to Sections 304, 1107 and 906 hereof).
(iii) All Global Notes and Definitive Notes issued upon any registration
of transfer or exchange of Global Notes or Definitive Notes shall be the
valid obligations of the Company, evidencing the same debt, and entitled to
the same benefits under this Indenture, as the Global Notes or Definitive
Notes surrendered upon such registration of transfer or exchange.
(iv) The Company shall not be required to register the transfer of or to
exchange a Note between a record date and the next succeeding Interest
Payment Date.
(v) The Trustee shall authenticate Global Notes and Definitive Notes in
accordance with the provisions of Section 303 of the Indenture.
(vi) All certifications, certificates and Opinions of Counsel required
to be submitted to the Security Registrar pursuant to this Section 305(B)
to effect a registration of transfer or exchange may be submitted by
facsimile."
14. With respect to the Notes, in Section 401, the words "and
any Liquidated Damages" shall be added immediately following the word
"premium" in the sixth line of the carryover paragraph on page 38 of the
Indenture.
15. With respect to the Notes, the words "and any Liquidated
Damages" shall be added immediately following the word "premium" in the
sixth line of the paragraph under Section 402.
18
<PAGE>
16. In addition to the Events of Default set forth in Section
501 of the Indenture, any default in the payment of any Liquidated Damages
payable on the Notes when due, and the continuance of such default for a
period of 30 days, shall constitute an additional Event of Default under
the Notes.
17. With respect to the Notes, Section 502(1)(B) is hereby
deleted in its entirety and replaced with the following:
"(B) the principal of (and premium and Liquidated Damages on, if
any,) 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,"
18. With respect to the Notes, the first paragraph of Section
503 of the Indenture is hereby deleted in its entirety and replaced with
the following:
"The Company covenants that if
(1) default is made in the payment of any interest on, or
Liquidated Damages with respect to, any Security when such interest or
Liquidated Damages become due and payable and such default continues for a
period of 30 days, or
(2) default is made in the payment of the principal of (or 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 amount then due and payable
on such Securities for principal and premium and Liquidated Damages, if any, and
interest and, to the extent that payment of such interest shall be legally
enforceable, interest on any overdue principal and premium and Liquidated
Damages, if any, 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."
19. With respect to the Notes, Section 506 is hereby amended to
add "or any Liquidated Damages" immediately following the word "premium" in
the third sentence of the first paragraph thereunder.
20. With respect to the Notes, Section 506 of the Indenture is
hereby amended to replace the clause beginning with the word "SECOND" with
the following:
"SECOND: To the payment of amounts then due and unpaid for
principal of and premium and Liquidated Damages, if any, 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 premium and
Liquidated Damages, if any, and interest respectively; and"
19
<PAGE>
21. With respect to the Notes, Section 508 of the Indenture is
hereby deleted in its entirety and replaced with the following:
"Section 508. Unconditional Right of Holders to Receive
Payment.
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 Liquidated Damages, if
any, 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."
22. With respect to the Notes, Section 513 of the Indenture is
hereby amended by deleting 513(1) in its entirety and replacing it with the
following:
"(1) in the payment of the principal of, premium and Liquidated
Damages, if any, or interest on any Security of such series, or"
23. With respect to the Notes, Section 704 is hereby amended by
adding the following sentence at the end of Section 704:
"For so long as any Notes remain outstanding, the Company shall
furnish to Holders and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule
144A(d)(4) under the Securities Act."
24. With respect to the Notes, Section 801 of the Indenture is
hereby amended by deleting clause (1) in its entirety and replacing it with
the following:
"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, the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed, and the obligations of the Company under the Registration
Rights Agreement;"
25. With respect to the Notes, Section 1001 of the Indenture is
hereby amended by adding the following sentence at the end of the
paragraph: "The Company shall pay all Liquidated Damages, if any, in the
same manner, on the dates and in the amounts set forth in the Registration
Rights Agreement."
26. With respect to the Notes, Section 1003 of the Indenture is
hereby amended by deleting the first and second paragraphs and replacing
them with the following:
20
<PAGE>
"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 premium or Liquidated Damages, if any, 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 premium and
Liquidated Damages, if any, 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
premium or Liquidated Damages, if any, 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."
27. With respect to the Notes, Section 1003 of the Indenture is
further amended by deleting the first phrase of the fifth paragraph of
Section 1003 up to and including the first semi-colon and replacing it with
the following:
"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 premium or
Liquidated Damages, if any, or interest on any Security of any series and
remaining unclaimed for two years after such principal, premium, Liquidated
Damages 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;"
28. With respect to the Notes, the first sentence of the first
paragraph of Section 1008 of the Indenture is hereby amended by deleting
"10% of Consolidated Net Tangible Assets" and replacing it with "12% of
Consolidated Net Assets".
29. With respect to the Notes, the last line of clause (5) of
Section 1009 of the Indenture is hereby amended by deleting "10% of
Consolidated Net Tangible Assets" and replacing it with "12% of
Consolidated Net Assets".
30. With respect to the Notes, the clause immediately following
Section 1302(A) shall be deleted and replaced with the following:
"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 and Liquidated
Damages, if any) and interest on such Securities when such payments are due,"
31. With respect to the Notes, the clause immediately following
Section 1304(1)(C)(i) shall be deleted and replaced with the following:
21
<PAGE>
"the principal of (and premium and Liquidated Damages, if any) and
interest on the Outstanding Securities of such series on the Maturity of such
principal, premium and Liquidated Damages, if any, or interest and"
22
<PAGE>
Dated as of the 3rd day of March, 2000.
PRECISION CASTPARTS CORP.
By:
-------------------------------------
Name:
Title:
By:
-------------------------------------
Name:
Title:
23
<PAGE>
Exhibit A
[Face of Note]
- --------------------------------------------------------------------------------
CUSIP/CINS ____________
[8.75% Senior Notes due 2005] [8.75% Exchange Notes due 2005]
No. ___ $_____________
PRECISION CASTPARTS CORP.
promises to pay to ______________
or registered assigns,
the principal sum of ______________________
Dollars on _____________, _____.
Interest Payment Dates: ____________ and ____________
Record Dates: ____________ and ____________
Dated: _______________, ____ PRECISION CASTPARTS CORP.
By:_____________________________________
Name: William D. Larsson
Title: Vice President and Chief
Financial Officer
Attest:
By:_________________________________________ (SEAL)
Name: Ruth A. Beyer
Title: Secretary
Dated: March 3, 2000
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: ___________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
A-1
<PAGE>
[Back of Note]
[8.75% Senior Notes due 2005] [8.75% Exchange Notes due 2005]
[INSERT THE GLOBAL NOTE LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS OF THE
INDENTURE]
[INSERT THE PRIVATE PLACEMENT LEGEND, IF APPLICABLE PURSUANT TO THE PROVISIONS
OF THE INDENTURE]
Precision Castparts Corp., a corporation duly organized and
existing under the laws of Oregon (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to ___________, or registered assigns,
the principal sum of _______________ Dollars on _____________, ______, 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 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 and shall pay Liquidated
Damages payable pursuant to Section 5 of the Registration Rights Agreement
referred to below. The interest and Liquidated Damages so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note 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 and Liquidated Damages not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder on such Regular Record Date
and may either be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Notes 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 Notes of this series may be listed, and upon such notice
as may be required bysuch exchange, all as more fully provided in said
Indenture.
Payment of the principal of (and premium, if any) and interest on
this Note will be made at the office or agency of the Company maintained for
that purpose in New York, New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER that at the option of the Company
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.
Unless the certificate of authentication hereon has been executed
by the Trustee by manual signature, this Note shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of securities of the
Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of
A-2
<PAGE>
December 17, 1997 (herein, together with the Officers' Certificate creating such
series, called the "Indenture"), between the Company and Bank One Trust Company,
N.A. (successor in interest to The First National Bank of Chicago), as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the Trustee and the
Holders of the Notes and of the terms upon which the Notes are, and are to be,
authenticated and delivered. This Note is one of the series designated on the
face hereof, the initial principal amount of which is $200,000,000, but the
aggregate amount of which is unlimited.
The Indenture contains provisions for defeasance at any time of the
entire Indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall
occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes 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 Notes 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 Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
The transfer of the Notes may be registered and the Notes may be exchanged as
provided in the Indenture. The Security Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
A-3
<PAGE>
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
A-4
<PAGE>
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_______________________
Your Signature:______________________________
(Sign exactly as your name appears on the face of this Note)
Signature Guarantee*:________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-5
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE
The following exchanges of a part of this Global Note for an
interest in another Global Note or for a Definitive Note, or exchanges of a part
of another Global Note or Definitive Note for an interest in this Global Note,
have been made:
<TABLE>
<CAPTION>
Principal Amount
of Signature of
this Global Note authorized
Date of Amount of decrease in Amount of increase following such officer of
-------- Principal Amount in Principal Amount decrease (or Trustee or Note
Exchange of this Global Note of this Global Note increase) Custodian
-------- ------------------- ------------------- --------- ---------
<S> <C> <C> <C> <C> <C>
</TABLE>
A-6
<PAGE>
EXHIBIT B
FORM OF CERTIFICATE OF TRANSFER
Precision Castparts Corp.
4650 S.W. Macadam Avenue, Suite 240
Portland, Oregon 97201-4254
[REGISTRAR ADDRESS BLOCK]
Re: 8.75% SENIOR NOTES DUE 2005
Reference is hereby made to the Indenture, dated as of December 17,
1997, as supplemented by the Officer's Certificate dated March 3, 2000 (the
"INDENTURE"), between Precision Castparts Corp., as issuer (the "COMPANY"), and
Bank One Trust Company, N.A. (successor in interest to The First National Bank
of Chicago), as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
___________________, (the "TRANSFEROR") owns and proposes to
transfer the Note[s] or interest in such Note[s] specified in Annex A hereto,
in the principal amount of $___________ in such Note[s] or interests (the
"TRANSFER"), to ___________________________ (the "TRANSFEREE"), as further
specified in Annex A hereto. In connection with the Transfer, the Transferor
hereby certifies that:
[CHECK ALL THAT APPLY]
1. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE 144A GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO RULE 144A.
The Transfer is being effected pursuant to and in accordance with Rule 144A
under the United States Securities Act of 1933, as amended (the "Securities
Act"), and, accordingly, the Transferor hereby further certifies that the
beneficial interest or Definitive Note is being transferred to a Person that
the Transferor reasonably believed and believes is purchasing the beneficial
interest or Definitive Note for its own account, or for one or more accounts
with respect to which such Person exercises sole investment discretion, and
such Person and each such account is a "qualified institutional buyer" within
the meaning of Rule 144A in a transaction meeting the requirements of Rule 144A
and such Transfer is in compliance with any applicable blue sky securities laws
of any state of the United States. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the 144A Global Note
and/or the Definitive Note and in the Indenture and the Securities Act.
2. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN THE REGULATION S GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO
REGULATION S. The Transfer is being effected pursuant to and in accordance
with Rule 903 or Rule 904 under the Securities Act and, accordingly, the
Transferor hereby further certifies that (i) the Transfer is not being made to
a person in the United States and (x) at the time the buy order was originated,
the Transferee was
<PAGE>
outside the United States or such Transferor and any Person acting on its behalf
reasonably believed and believes that the Transferee was outside the United
States or (y) the transaction was executed in, on or through the facilities of a
designated offshore securities market and neither such Transferor nor any Person
acting on its behalf knows that the transaction was prearranged with a buyer in
the United States, (ii) no directed selling efforts have been made in
contravention of the requirements of Rule 903(b) or Rule 904(b) of Regulation S
under the Securities Act, (iii) the transaction is not part of a plan or scheme
to evade the registration requirements of the Securities Act and (iv) if the
proposed transfer is being made prior to the expiration of the Restricted
Period, the transfer is not being made to a U.S. Person or for the account or
benefit of a U.S. Person (other than an initial purchaser). Upon consummation of
the proposed transfer in accordance with the terms of the Indenture, the
transferred beneficial interest or Definitive Note will be subject to the
restrictions on Transfer enumerated in the Private Placement Legend printed on
the Regulation S Global Note and/or the Definitive Note and in the Indenture and
the Securities Act.
3. / / CHECK AND COMPLETE IF TRANSFEREE WILL TAKE DELIVERY OF A
BENEFICIAL INTEREST IN THE IAI GLOBAL NOTE OR A DEFINITIVE NOTE PURSUANT TO ANY
PROVISION OF THE SECURITIES ACT OTHER THAN RULE 144A OR REGULATION S. The
Transfer is being effected in compliance with the transfer restrictions
applicable to beneficial interests in Restricted Global Notes and Restricted
Definitive Notes and pursuant to and in accordance with the Securities Act and
any applicable blue sky securities laws of any state of the United States, and
accordingly the Transferor hereby further certifies that (check one):
(a) / / such Transfer is being effected pursuant to and in
accordance with Rule 144 under the Securities Act;
or
(b) / / such Transfer is being effected to the Company or a
subsidiary thereof;
or
(c) / / such Transfer is being effected pursuant to an effective
registration statement under the Securities Act and in compliance with the
prospectus delivery requirements of the Securities Act;
or
(d) / / such Transfer is being effected to an Institutional
Accredited Investor and pursuant to an exemption from the registration
requirements of the Securities Act other than Rule 144A, Rule 144 or Rule
904, and the Transferor hereby further certifies that it has not engaged
in any general solicitation within the meaning of Regulation D under the
Securities Act and the Transfer complies with the transfer restrictions
applicable to beneficial interests in a Restricted Global Note or
Restricted Definitive Notes and the requirements of the exemption claimed,
which certification is supported by (1) a certificate executed by the
Transferee in the form of EXHIBIT D to the Indenture and (2) if such
Transfer is in respect of a principal amount of Notes at the time of
transfer of less
B-2
<PAGE>
than $250,000, an Opinion of Counsel provided by the Transferor or the
Transferee (a copy of which the Transferor has attached to this
certification), to the effect that such Transfer is in compliance with the
Securities Act. Upon consummation of the proposed transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the IAI Global Note and/or the
Definitive Notes and in the Indenture and the Securities Act.
4. / / CHECK IF TRANSFEREE WILL TAKE DELIVERY OF A BENEFICIAL
INTEREST IN AN UNRESTRICTED GLOBAL NOTE OR OF AN UNRESTRICTED DEFINITIVE NOTE.
(a) / / CHECK IF TRANSFER IS PURSUANT TO RULE 144. (i) The
Transfer is being effected pursuant to and in accordance with Rule 144 under the
Securities Act and in compliance with the transfer restrictions contained in the
Indenture and any applicable blue sky securities laws of any state of the United
States and (ii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act. Upon consummation of the proposed Transfer in accordance
with the terms of the Indenture, the transferred beneficial interest or
Definitive Note will no longer be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes, on Restricted Definitive Notes and in the Indenture.
(b) / / CHECK IF TRANSFER IS PURSUANT TO REGULATION S. (i) The
Transfer is being effected pursuant to and in accordance with Rule 903 or Rule
904 under the Securities Act and in compliance with the transfer restrictions
contained in the Indenture and any applicable blue sky securities laws of any
state of the United States and (ii) the restrictions on transfer contained in
the Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act. Upon consummation of the proposed
Transfer in accordance with the terms of the Indenture, the transferred
beneficial interest or Definitive Note will no longer be subject to the
restrictions on transfer enumerated in the Private Placement Legend printed on
the Restricted Global Notes, on Restricted Definitive Notes and in the
Indenture.
(c) / / CHECK IF TRANSFER IS PURSUANT TO OTHER EXEMPTION. (i)
The Transfer is being effected pursuant to and in compliance with an exemption
from the registration requirements of the Securities Act other than Rule 144,
Rule 903 or Rule 904 and in compliance with the transfer restrictions contained
in the Indenture and any applicable blue sky securities laws of any State of the
United States and (ii) the restrictions on transfer contained in the Indenture
and the Private Placement Legend are not required in order to maintain
compliance with the Securities Act. Upon consummation of the proposed Transfer
in accordance with the terms of the Indenture, the transferred beneficial
interest or Definitive Note will not be subject to the restrictions on transfer
enumerated in the Private Placement Legend printed on the Restricted Global
Notes or Restricted Definitive Notes and in the Indenture.
B-3
<PAGE>
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated:___________________
B-4
<PAGE>
ANNEX A TO CERTIFICATE OF TRANSFER
1. The Transferor owns and proposes to transfer the following:
[CHECK ONE OF (a) OR (b)]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note.
2. After the Transfer the Transferee will hold:
[CHECK ONE]
(a) / / a beneficial interest in the:
(i) / / 144A Global Note (CUSIP ), or
(ii) / / Regulation S Global Note (CUSIP ), or
(iii) / / IAI Global Note (CUSIP ); or
(iv) / / Unrestricted Global Note (CUSIP ); or
(b) / / a Restricted Definitive Note; or
(c) / / an Unrestricted Definitive Note,
in accordance with the terms of the Indenture.
B-5
<PAGE>
EXHIBIT C
FORM OF CERTIFICATE OF EXCHANGE
Precision Castparts Corp.
4650 S.W. Macadam Avenue, Suite 240
Portland, Oregon 97201-4254
[REGISTRAR ADDRESS BLOCK]
Re: 8.75% Senior Notes Due 2005
---------------------------
(CUSIP ____________)
Reference is hereby made to the Indenture, dated as of December
17, 1997 as supplemented by the Officer's Certificate dated March 3, 2000 (the
"INDENTURE"), between Precision Castparts Corp., as issuer (the "COMPANY"), and
Bank One Trust Company, N.A. (successor in interest to The First National Bank
of Chicago), as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
__________________________, (the "OWNER") owns and proposes to
exchange the Note[s] or interest in such Note[s] specified herein, in the
principal amount of $____________ in such Note[s] or interests (the
"EXCHANGE"). In connection with the Exchange, the Owner hereby certifies that:
1. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN A RESTRICTED GLOBAL NOTE FOR UNRESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN AN UNRESTRICTED GLOBAL NOTE
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE.
In connection with the Exchange of the Owner's beneficial interest in a
Restricted Global Note for a beneficial interest in an Unrestricted Global Note
in an equal principal amount, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to the Global Notes and pursuant to and in accordance with the
United States Securities Act of 1933, as amended (the "SECURITIES ACT"), (iii)
the restrictions on transfer contained in the Indenture and the Private
Placement Legend are not required in order to maintain compliance with the
Securities Act and (iv) the beneficial interest in an Unrestricted Global Note
is being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(b) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO UNRESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for an
Unrestricted Definitive Note, the Owner hereby certifies (i) the Definitive
Note is being acquired for the Owner's own account without transfer, (ii) such
Exchange has been effected in compliance with the transfer restrictions
applicable to the Restricted Global Notes and pursuant to and in accordance
with the Securities
C-1
<PAGE>
Act, (iii) the restrictions on transfer contained in the Indenture and the
Private Placement Legend are not required in order to maintain compliance with
the Securities Act and (iv) the Definitive Note is being acquired in compliance
with any applicable blue sky securities laws of any state of the United States.
(c) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL NOTE. In connection with the
Owner's Exchange of a Restricted Definitive Note for a beneficial interest in
an Unrestricted Global Note, the Owner hereby certifies (i) the beneficial
interest is being acquired for the Owner's own account without transfer, (ii)
such Exchange has been effected in compliance with the transfer restrictions
applicable to Restricted Definitive Notes and pursuant to and in accordance
with the Securities Act, (iii) the restrictions on transfer contained in the
Indenture and the Private Placement Legend are not required in order to
maintain compliance with the Securities Act and (iv) the beneficial interest is
being acquired in compliance with any applicable blue sky securities laws of
any state of the United States.
(d) / / CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE
TO UNRESTRICTED DEFINITIVE NOTE. In connection with the Owner's Exchange of a
Restricted Definitive Note for an Unrestricted Definitive Note, the Owner
hereby certifies (i) the Unrestricted Definitive Note is being acquired for the
Owner's own account without transfer, (ii) such Exchange has been effected in
compliance with the transfer restrictions applicable to Restricted Definitive
Notes and pursuant to and in accordance with the Securities Act, (iii) the
restrictions on transfer contained in the Indenture and the Private Placement
Legend are not required in order to maintain compliance with the Securities Act
and (iv) the Unrestricted Definitive Note is being acquired in compliance with
any applicable blue sky securities laws of any state of the United States.
2. EXCHANGE OF RESTRICTED DEFINITIVE NOTES OR BENEFICIAL
INTERESTS IN RESTRICTED GLOBAL NOTES FOR RESTRICTED DEFINITIVE NOTES OR
BENEFICIAL INTERESTS IN RESTRICTED GLOBAL NOTES
(a) / / CHECK IF EXCHANGE IS FROM BENEFICIAL INTEREST IN A
RESTRICTED GLOBAL NOTE TO RESTRICTED DEFINITIVE NOTE. In connection with the
Exchange of the Owner's beneficial interest in a Restricted Global Note for a
Restricted Definitive Note with an equal principal amount, the Owner hereby
certifies that the Restricted Definitive Note is being acquired for the Owner's
own account without transfer. Upon consummation of the proposed Exchange in
accordance with the terms of the Indenture, the Restricted Definitive Note
issued will continue to be subject to the restrictions on transfer enumerated
in the Private Placement Legend printed on the Restricted Definitive Note and
in the Indenture and the Securities Act.
(b) CHECK IF EXCHANGE IS FROM RESTRICTED DEFINITIVE NOTE TO
BENEFICIAL INTEREST IN A RESTRICTED GLOBAL NOTE. In connection with the
Exchange of the Owner's Restricted Definitive Note for a beneficial interest in
the [CHECK ONE] / / 144A Global Note, / / Regulation S Global Note, / / IAI
Global Note with an equal principal amount, the Owner hereby certifies (i) the
beneficial interest is being acquired for the Owner's own account without
transfer and (ii) such Exchange has been effected in compliance with the
transfer restrictions applicable to the Restricted Global Notes and pursuant to
and in accordance with the Securities
C-2
<PAGE>
Act, and in compliance with any applicable blue sky securities laws of any state
of the United States. Upon consummation of the proposed Exchange in accordance
with the terms of the Indenture, the beneficial interest issued will be subject
to the restrictions on transfer enumerated in the Private Placement Legend
printed on the relevant Restricted Global Note and in the Indenture and the
Securities Act.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company.
________________________________________
[Insert Name of Transferor]
By:_____________________________________
Name:
Title:
Dated:____________________
C-3
<PAGE>
EXHIBIT D
FORM OF CERTIFICATE FROM
ACQUIRING INSTITUTIONAL ACCREDITED INVESTOR
Precision Castparts Corp.
4650 S.W. Macadam Avenue, Suite 240
Portland, Oregon 97201-4254
[REGISTRAR ADDRESS BLOCK]
Re: 8.75% SENIOR NOTES DUE 2005
Reference is hereby made to the Indenture, dated as of December 17,
1997 as supplemented by the Officer's Certificate dated March 3, 2000 (the
"INDENTURE"), between Precision Castparts Corp., as issuer (the "COMPANY"), and
Bank One Trust Company, N.A. (successor in interest to The First National Bank
of Chicago), as trustee. Capitalized terms used but not defined herein shall
have the meanings given to them in the Indenture.
In connection with our proposed purchase of $____________ aggregate
principal amount of:
(a) / / a beneficial interest in a Global Note, or
(b) / / a Definitive Note,
we confirm that:
1. We understand that any subsequent transfer of the Notes or
any interest therein is subject to certain restrictions and conditions set
forth in the Indenture and the undersigned agrees to be bound by, and not to
resell, pledge or otherwise transfer the Notes or any interest therein except
in compliance with, such restrictions and conditions and the United States
Securities Act of 1933, as amended (the "SECURITIES ACT").
2. We understand that the offer and sale of the Notes have not
been registered under the Securities Act, and that the Notes and any interest
therein may not be offered or sold except as permitted in the following
sentence. We agree, on our own behalf and on behalf of any accounts for which
we are acting as hereinafter stated, that if we should sell the Notes or any
interest therein, we will do so only (A) to the Company or any subsidiary
thereof, (B) in accordance with Rule 144A under the Securities Act to a
"qualified institutional buyer" (as defined therein), (C) to an institutional
"accredited investor" (as defined below) that, prior to such transfer,
furnishes (or has furnished on its behalf by a U.S. broker-dealer) to you and
to the Company a signed letter substantially in the form of this letter and [,
if such transfer is in respect of a principal amount of Notes, at the time of
transfer of less than $250,000,] an Opinion of Counsel in form reasonably
acceptable to the Company to the effect that such transfer is in compliance
with the Securities Act, (D) outside the United States in accordance with Rule
904 of
D-1
<PAGE>
Regulation S under the Securities Act, (E) pursuant to the provisions of Rule
144(k) under the Securities Act or (F) pursuant to an effective registration
statement under the Securities Act, and we further agree to provide to any
person purchasing the Definitive Note or beneficial interest in a Global Note
from us in a transaction meeting the requirements of clauses (A) through (E) of
this paragraph a notice advising such purchaser that resales thereof are
restricted as stated herein.
3. We understand that, on any proposed resale of the Notes or
beneficial interest therein, we will be required to furnish to you and the
Company such certifications, legal opinions and other information as you and
the Company may reasonably require to confirm that the proposed sale complies
with the foregoing restrictions. We further understand that the Notes
purchased by us will bear a legend to the foregoing effect.
4. We are an institutional "accredited investor" (as defined
in Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act)
and have such knowledge and experience in financial and business matters as to
be capable of evaluating the merits and risks of our investment in the Notes,
and we and any accounts for which we are acting are each able to bear the
economic risk of our or its investment.
5. We are acquiring the Notes or beneficial interest therein
purchased by us for our own account or for one or more accounts (each of which
is an institutional "accredited investor") as to each of which we exercise sole
investment discretion.
You and the Company are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any
interested party in any administrative or legal proceedings or official inquiry
with respect to the matters covered hereby.
________________________________________
[Insert Name of Accredited Investor]
By:_____________________________________
Name:
Title:
Dated:__________________
D-2
<PAGE>
[Face of Rule 144A Note]
- --------------------------------------------------------------------------------
CUSIP 740189AB1
8.75% Senior Notes due 2005
No. 1 $200,000,000
PRECISION CASTPARTS CORP. promises to pay to Cede & Co. or registered assigns,
the principal sum of Two Hundred Million Dollars on March 15, 2005.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Dated: March 3, 2000
PRECISION CASTPARTS CORP.
By:_____________________________________________
Name: William D. Larsson
Title: Vice President and Chief Financial Officer
Attest:
By:_____________________________________
Name: Ruth A. Beyer
Title: Secretary
Dated: March 3, 2000
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: __________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
<PAGE>
[Back of Note]
8.75% Senior Notes due 2005
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 201(b) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTIONS 305(B)(a) OR 306 OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
PRECISION CASTPARTS CORP.
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE
"SECURITIES ACT"), AND THIS NOTE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR IN
ACCORDANCE WITH AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT (SUBJECT TO THE DELIVERY OF SUCH EVIDENCE, IF ANY, REQUIRED
UNDER THE INDENTURE PURSUANT TO WHICH THIS NOTE IS ISSUED) AND IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
OTHER JURISDICTION. EACH PURCHASER OF THE SECURITY EVIDENCED HEREBY IS HEREBY
NOTIFIED THAT THE SELLER MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER OR ANOTHER
EXEMPTION UNDER THE SECURITIES ACT. THE HOLDER OF THE SECURITY EVIDENCED HEREBY
AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) SUCH SECURITY MAY BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) (A) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (B) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144 UNDER THE
SECURITIES ACT, (C) OUTSIDE THE UNITED STATES TO A FOREIGN PERSON IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 904 UNDER THE SECURITIES ACT OR (D)
IN ACCORDANCE WITH ANOTHER EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT (AND BASED UPON AN OPINION OF COUNSEL IF THE COMPANY SO
REQUESTS), AS LONG AS THE SECURITY REGISTRAR RECEIVES A CERTIFICATION OF THE
TRANSFEROR AND AN OPINION OF COUNSEL THAT SUCH TRANSFER IS IN COMPLIANCE WITH
THE SECURITIES ACT, (2) TO THE COMPANY OR (3) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT AND, IN EACH CASE, IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER APPLICABLE
JURISDICTION AND (B) THE HOLDER WILL AND EACH SUBSEQUENT HOLDER IS REQUIRED TO
NOTIFY ANY PURCHASER FROM IT OF
<PAGE>
THE SECURITY EVIDENCED HEREBY OF THE RESALE RESTRICTION SET FORTH IN (A) ABOVE.
Precision Castparts Corp., a corporation duly organized and existing
under the laws of Oregon (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of Two Hundred Million Dollars on March 15, 2005, and to pay
interest thereon from March 3, 2000 or from the most recent Interest Payment
Date to which interest has been paid or duly provided for, semi-annually on
March 15 and September 15 in each year, commencing September 15, 2000, at the
rate of 8.75% per annum, until the principal hereof is paid or made available
for payment and (to the extent that the payment of such interest shall be
legally enforceable) at the rate of 8.75% per annum on any overdue principal and
premium and on any overdue installment of interest and shall pay Liquidated
Damages payable pursuant to Section 5 of the Registration Rights Agreement
referred to below. The interest and Liquidated Damages so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Note is
registered at the close of business on the Regular Record Date for such
interest, which shall be the March 1 or September 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest and Liquidated Damages not so punctually paid or duly provided for will
forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Note (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes 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 Notes 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.
Payment of the principal of (and premium, if any) and interest on this
Note will be made at the office or agency of the Company maintained for that
purpose in New York, New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of public and
private debts; PROVIDED, HOWEVER that at the option of the Company 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.
Unless the certificate of authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of securities of the Company
(herein called the "Notes"), issued and to be issued in one or more series under
an Indenture, dated as of December 17, 1997 (herein, together with the Officers'
Certificate creating such series, called the "Indenture"), between the Company
and Bank One Trust Company, N.A. (successor in interest to 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
<PAGE>
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Notes and of the terms upon which the Notes
are, and are to be, authenticated and delivered. This Note is one of the series
designated on the face hereof, the initial principal amount of which is
$200,000,000, but the aggregate amount of which is unlimited.
The Indenture contains provisions for defeasance at any time of the
entire Indebtedness of this Note or certain restrictive covenants and Events of
Default with respect to this Note, in each case upon compliance with certain
conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series shall occur
and be continuing, the principal of the Notes of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Notes 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 Notes 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 Notes of each series at the time Outstanding, on behalf of the Holders of
all Notes of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
The Notes of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. The
transfer of the Notes may be registered and the Notes may be exchanged as
provided in the Indenture. The Security Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Note is registered as the owner hereof for all
purposes, and neither the Company, the Trustee nor any such agent shall be
affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
[Face of Note]
- --------------------------------------------------------------------------------
CUSIP 740189AD7
8.75% Senior Notes due 2005
No. 1 $_________
PRECISION CASTPARTS CORP. promises to pay to Cede & Co. or registered assigns,
the principal sum of Two Hundred Million Dollars on March 15, 2005.
Interest Payment Dates: March 15 and September 15
Record Dates: March 1 and September 1
Dated: ________, 2000
PRECISION CASTPARTS CORP.
By:_____________________________________________
Name: William D. Larsson
Title: Vice President and Chief Financial Officer
Attest:
By:________________________________
Name: Ruth A. Beyer
Title: Secretary
Dated: __________, 2000
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: __________________________________
Authorized Signatory
- --------------------------------------------------------------------------------
<PAGE>
[Back of Note]
8.75% Senior Notes due 2005
THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE INDENTURE
GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR THE BENEFIT OF THE BENEFICIAL
OWNERS HEREOF, AND IS NOT TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES
EXCEPT THAT (I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE REQUIRED
PURSUANT TO SECTION 201(b) OF THE INDENTURE, (II) THIS GLOBAL NOTE MAY BE
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTIONS 305(B)(a) OR 306 OF THE
INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO THE TRUSTEE FOR
CANCELLATION PURSUANT TO SECTION 309 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE
MAY BE TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF
PRECISION CASTPARTS CORP.
Precision Castparts Corp., a corporation duly organized and
existing under the laws of Oregon (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns, the
principal sum of ___________________ on March 15, 2005, and to pay interest
thereon from March 3, 2000 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on March 15 and
September 15 in each year, commencing September 15, 2000, at the rate of 8.75%
per annum, until the principal hereof is paid or made available for payment and
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of 8.75% per annum on any overdue principal and premium and on any
overdue installment of interest and shall pay Liquidated Damages payable
pursuant to Section 5 of the Registration Rights Agreement referred to below.
The interest and Liquidated Damages so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Note is registered at the close of
business on the Regular Record Date for such interest, which shall be the March
1 or September 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest and Liquidated Damages
not so punctually paid or duly provided for will forthwith cease to be payable
to the Holder on such Regular Record Date and may either be paid to the Person
in whose name this Note (or one or more Predecessor Securities) is registered at
the close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders of
Notes 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 Notes 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.
Payment of the principal of (and premium, if any) and interest
on this Note will be made at the office or agency of the Company maintained for
that purpose in New York, New York, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts; PROVIDED, HOWEVER that at the option of the Company
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
<PAGE>
maintained by the Person entitled thereto as specified in the Security Register,
provided that such Person shall have given the Trustee written wire
instructions.
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
This Note is one of a duly authorized issue of securities of
the Company (herein called the "Notes"), issued and to be issued in one or more
series under an Indenture, dated as of December 17, 1997 (herein, together with
the Officers' Certificate creating such series, called the "Indenture"), between
the Company and Bank One Trust Company, N.A. (successor in interest to The First
National Bank of Chicago), as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Notes and of the terms upon
which the Notes are, and are to be, authenticated and delivered. This Note is
one of the series designated on the face hereof, the initial principal amount of
which is $200,000,000, but the aggregate amount of which is unlimited.
The Indenture contains provisions for defeasance at any time
of the entire Indebtedness of this Note or certain restrictive covenants and
Events of Default with respect to this Note, in each case upon compliance with
certain conditions set forth in the Indenture.
If an Event of Default with respect to Notes of this series
shall occur and be continuing, the principal of the Notes of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Notes 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
Notes 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 Notes of each series at the time Outstanding, on behalf of the
Holders of all Notes of such series, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Note shall be conclusive and binding upon such Holder and upon all future
Holders of this Note and of any Note issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and any premium and
interest on this Note at the times, place and rate, and in the coin or currency,
herein prescribed.
The Notes of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof.
The transfer of the Notes may be
<PAGE>
registered and the Notes may be exchanged as provided in the Indenture. The
Security Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture.
Prior to due presentment of this Note for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Note is registered as the owner hereof
for all purposes, and neither the Company, the Trustee nor any such agent shall
be affected by notice to the contrary.
All terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
<PAGE>
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
PRECISION CASTPARTS CORP.
AND
BANC OF AMERICA SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL INC.
U.S. BANCORP PIPER JAFFRAY INC.
WACHOVIA SECURITIES, INC.
DATED AS OF MARCH 3, 2000
<PAGE>
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "AGREEMENT") is made and
entered into as of March 3, 2000, by and among Precision Castparts Corporation,
an Oregon corporation (the "COMPANY"), and Banc of America Securities LLC, Banc
of America Securities LLC, ABN AMRO Incorporated, Banc One Capital Markets,
Inc.. BNY Capital Markets, Inc., First Union Securities, Inc., Scotia Capital
Inc., U.S. Bancorp Piper Jaffray Inc. and Wachovia Securities, Inc. (each an
"INITIAL PURCHASER" and, collectively, the "INITIAL PURCHASERS"), each of whom
has agreed to purchase the Company's 8.75% Senior Notes due March 15, 2005 (the
"INITIAL NOTES") pursuant to the Purchase Agreement (as defined below).
This Agreement is made pursuant to the Purchase Agreement, dated as of
February 29, 2000 (the "Purchase Agreement"), by and among the Company and the
Initial Purchasers (i) for your benefit and for the benefit of each other
Initial Purchaser and (ii) for the benefit of the holders from time to time of
the Initial Notes (including you and each other Initial Purchaser). In order to
induce the Initial Purchasers to purchase the Initial Notes, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the obligations of
the Initial Purchasers set forth in Section 5(h) of the Purchase Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have
the following meanings:
BROKER-DEALER: Any broker or dealer registered under the
Exchange Act.
CLOSING DATE: The date of this Agreement.
COMMISSION: The Securities and Exchange Commission.
CONSUMMATE: A Registered Exchange Offer shall be
deemed "Consummated" for purposes of this Agreement upon the
occurrence of (i) the filing and effectiveness under the
Securities Act of the Exchange Offer Registration Statement
relating to the Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Registration Statement
continuously effective and the keeping of the Exchange Offer open
for a period not less than the minimum period required pursuant
to Section 3(b) hereof, and (iii) the delivery by the Company to
the Trustee under the Indenture of Exchange Notes in the same
aggregate principal amount as the aggregate principal amount of
Initial Notes that were tendered by Holders thereof pursuant to
the Exchange Offer.
EFFECTIVENESS TARGET DATE: As defined in Section 5.
EXCHANGE ACT: The Securities Exchange Act of 1934, as
amended.
<PAGE>
EXCHANGE NOTES: The 8.75% Senior Notes due March 15,
2005, of the same series under the Indenture as the Initial
Notes, to be issued to Holders in exchange for Transfer
Restricted Securities pursuant to this Agreement.
EXCHANGE OFFER: The registration by the Company under
the Securities Act of the Exchange Notes pursuant to a
Registration Statement pursuant to which the Company offers the
Holders of all outstanding Transfer Restricted Securities the
opportunity to exchange all such outstanding Transfer Restricted
Securities held by such Holders for Exchange Notes in an
aggregate principal amount equal to the aggregate principal
amount of the Transfer Restricted Securities tendered in such
exchange offer by such Holders.
EXCHANGE OFFER REGISTRATION STATEMENT: The
Registration Statement relating to the Exchange Offer, including
the related Prospectus.
EXEMPT RESALES: The transactions in which the Initial
Purchasers propose to sell the Initial Notes to certain
"qualified institutional buyers," as such term is defined in
Rule 144A under the Securities Act, and to certain institutional
"accredited investors," as such term is defined in Rule
501(a)(1), (2), (3) and (7) of Regulation D under the Securities
Act ("ACCREDITED INSTITUTIONS").
HOLDERS: As defined in Section 2(b) hereof.
INDEMNIFIED HOLDER: As defined in Section 8(a)
hereof.
INDENTURE: The Indenture, dated as of December 16,
1997, among the Company and Bank One Trust Company, N.A.
(successor in interest to The First National Bank of Chicago), as
trustee (the "TRUSTEE"), and the supplemental indenture dated as
of February 29, 2000, pursuant to which the Notes are to be
issued, as such Indenture is amended or supplemented from time to
time in accordance with the terms thereof.
INITIAL PURCHASER: As defined in the preamble hereto.
INITIAL NOTES: The 8.75% Senior Notes due March 15,
2005, of the same series under the Indenture as the Exchange
Notes, for so long as such securities constitute Transfer
Restricted Securities.
INITIAL PLACEMENT: The issuance and sale by the
Company of the Initial Notes to the Initial Purchasers pursuant
to the Purchase Agreement.
INTEREST PAYMENT DATE: As defined in the Indenture
and the Notes.
NASD: National Association of Securities Dealers,
Inc.
NOTES: The Initial Notes and the Exchange Notes.
PERSON: An individual, partnership, corporation,
trust or unincorporated organization, or a government or agency
or political subdivision thereof.
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<PAGE>
PROSPECTUS: The prospectus included in a Registration
Statement, as amended or supplemented by any prospectus supplement and
by all other amendments thereto, including post-effective amendments,
and all material incorporated by reference into such Prospectus.
RECORD HOLDER: With respect to any Damages Payment
Date relating to the Notes, each Person who is a Holder of Notes
on the record date with respect to the Interest Payment Date on
which such Damages Payment Date shall occur.
REGISTRATION DEFAULT: As defined in Section 5 hereof.
REGISTRATION STATEMENT: Any registration statement of
the Company relating to (a) an offering of Exchange Notes
pursuant to an Exchange Offer or (b) the registration for resale
of Transfer Restricted Securities pursuant to the Shelf
Registration Statement, which is filed pursuant to the provisions
of this Agreement, in each case, including the Prospectus
included therein, all amendments and supplements thereto
(including post-effective amendments) and all exhibits and
material incorporated by reference therein.
SECURITIES ACT: The Securities Act of 1933, as
amended.
SHELF FILING DEADLINE: As defined in Section 4
hereof.
SHELF REGISTRATION STATEMENT: As defined in Section 4
hereof.
TRUST INDENTURE ACT: The Trust Indenture Act of 1939
(15 U.S.C. Section 77aaa-77bbbb) as in effect on the date of the
Indenture.
TRANSFER RESTRICTED SECURITIES: Each Note, until the
earliest to occur of (a) the date on which such Note is exchanged
by a Person other than a Broker-Dealer for an Exchange Note in
the Exchange Offer, (b) following the exchange by a Broker-Dealer
in the Exchange Offer of a Note for an Exchange Note, the date on
which such Exchange Note is sold to a purchaser who receives from
such Broker-Dealer on or prior to the date of such sale a copy of
the prospectus contained in the Exchange Offer Registration
Statement, if such prospectus is appropriate and available for
such resale, (c) the date on which such Note has been effectively
registered under the Securities Act and disposed of in accordance
with a Shelf Registration Statement and (d) the date on which
such Note is distributed to the public pursuant to Rule 144 under
the Securities Act.
UNDERWRITTEN REGISTRATION or UNDERWRITTEN OFFERING: A
registration in which securities of the Company are sold to an
underwriter for reoffering to the public.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) TRANSFER RESTRICTED SECURITIES. The securities entitled to the
benefits of this Agreement are the Transfer Restricted Securities.
(b) HOLDERS OF TRANSFER RESTRICTED SECURITIES. A Person is deemed to be
a holder of Transfer Restricted Securities (each, a "HOLDER") whenever such
Person owns Transfer Restricted Securities.
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<PAGE>
SECTION 3. REGISTERED EXCHANGE OFFER
(a) Unless the Exchange Offer shall not be permissible under applicable
law or Commission policy (after the procedures set forth in Section 6(a) below
have been complied with), the Company shall (i) cause to be filed with the
Commission as soon as practicable after the Closing Date, but in no event later
than 90 days after the Closing Date, a Registration Statement under the
Securities Act relating to the Exchange Notes and the Exchange Offer, (ii) use
its best efforts to cause such Registration Statement to become effective at the
earliest possible time, but in no event later than 180 days after the Closing
Date, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Registration Statement as may be necessary in order to cause
such Registration Statement to become effective, (B) if applicable, a
post-effective amendment to such Registration Statement pursuant to Rule 430A
under the Securities Act and (C) cause all necessary filings in connection with
the registration and qualification of the Exchange Notes to be made under the
Blue Sky laws of such jurisdictions as are necessary to permit Consummation of
the Exchange Offer, and (iv) upon the effectiveness of such Registration
Statement, commence the Exchange Offer. The Exchange Offer shall be on the
appropriate form permitting registration of the Exchange Notes to be offered in
exchange for the Transfer Restricted Securities and to permit resales of Notes
held by Broker-Dealers as contemplated by Section 3(c) below.
(b) The Company shall cause the Exchange Offer Registration Statement to
be effective continuously and shall keep the Exchange Offer open for a period of
not less than the minimum period required under applicable federal and state
securities laws to Consummate the Exchange Offer; PROVIDED, HOWEVER, that in no
event shall such period be less than 30 days after the date notice of the
Exchange Offer is mailed to the Holders. The Company shall cause the Exchange
Offer to comply with all applicable federal and state securities laws. No
securities other than the Notes shall be included in the Exchange Offer
Registration Statement. The Company shall use its best efforts to Consummate
the Exchange Offer on or prior to 30 business days, or longer, if required by
the federal securities laws, after the date on which the Exchange Offer
Registration Statement was declared effective by the Commission.
(c) The Company shall indicate in a "Plan of Distribution" section
contained in the Prospectus forming a part of the Exchange Offer Registration
Statement that any Broker-Dealer who holds Initial Notes that are Transfer
Restricted Securities and that were acquired for its own account as a result of
market-making activities or other trading activities (other than Transfer
Restricted Securities acquired directly from the Company), may exchange such
Initial Notes pursuant to the Exchange Offer; however, such Broker-Dealer may be
deemed to be an "underwriter" within the meaning of the Securities Act and must,
therefore, deliver a prospectus meeting the requirements of the Securities Act
in connection with any resales of the Exchange Notes received by such
Broker-Dealer in the Exchange Offer, which prospectus delivery requirement may
be satisfied by the delivery by such Broker-Dealer of the Prospectus contained
in the Exchange Offer Registration Statement. Such "Plan of Distribution"
section shall also contain all other information with respect to such resales by
Broker-Dealers that the Commission may require in order to permit such resales
pursuant thereto, but such "Plan of Distribution" shall not name any such
Broker-Dealer or disclose the amount of Notes held by any such Broker-Dealer
except to the extent required by the Commission as a result of a change in
policy after the date of this Agreement.
The Company shall use its best efforts to keep the Exchange Offer
Registration Statement continuously effective, supplemented and amended as
required by the provisions of Section 6(c) below to the extent necessary to
ensure that it is available for resales of Notes acquired by Broker-Dealers for
their own accounts as a result of market-making activities or other trading
activities, and to ensure that it conforms with the requirements of this
Agreement, the Securities Act
4
<PAGE>
and the policies, rules and regulations of the Commission as announced from time
to time, for a period ending on the earlier of (i) 180 days from the date on
which the Exchange Offer Registration Statement is declared effective and (ii)
the date on which a Broker-Dealer is no longer required to deliver a prospectus
in connection with market-making or other trading activities.
The Company shall provide sufficient copies of the latest version of
such Prospectus to Broker-Dealers promptly upon request at any time during such
180-day (or shorter as provided in the foregoing sentence) period in order to
facilitate such resales.
SECTION 4. SHELF REGISTRATION
(a) SHELF REGISTRATION. If (i) the Company is not required to file an
Exchange Offer Registration Statement or permitted to Consummate the Exchange
Offer because the Exchange Offer is not permitted by applicable law or
Commission policy (after the procedures set forth in Section 6(a) below have
been complied with), (ii) any Holder of Transfer Restricted Securities notifies
the Company prior to the 20th day following Consummation of the Exchange Offer
that (A) such Holder is prohibited by applicable law or Commission policy from
participating in the Exchange Offer, or (B) such Holder may not resell the
Exchange Notes acquired by it in the Exchange Offer to the public without
delivering a prospectus and that the Prospectus contained in the Exchange Offer
Registration Statement is not appropriate or available for such resales by such
Holder, or (C) such Holder is a Broker-Dealer and holds Initial Notes acquired
directly from the Company or one of its affiliates, then, upon such Holder's
request, the Company shall
(x) cause to be filed a shelf registration statement pursuant to
Rule 415 under the Securities Act, which may be an amendment to the
Exchange Offer Registration Statement (in either event, the "SHELF
REGISTRATION STATEMENT") on or prior to the earliest to occur of (1) the
90th day after the date on which the Company determines that it is not
required to file the Exchange Offer Registration Statement, and (2) the
90th day after the date on which the Company receives notice from a
Holder of Transfer Restricted Securities as contemplated by clause (ii)
above (such earliest date being the "SHELF FILING DEADLINE"), which
Shelf Registration Statement shall provide for resales of all Transfer
Restricted Securities the Holders of which shall have provided the
information required pursuant to Section 4(b) hereof; and
(y) use their best efforts to cause such Shelf Registration
Statement to be declared effective by the Commission on or before the
180th day after the Shelf Filing Deadline.
The Company shall use its best efforts to keep such Shelf Registration Statement
continuously effective, supplemented and amended as required by the provisions
of Sections 6(b) and (c) hereof to the extent necessary to ensure that it is
available for resales of Notes by the Holders of Transfer Restricted Securities
entitled to the benefit of this Section 4(a), and to ensure that it conforms
with the requirements of this Agreement, the Securities Act and the policies,
rules and regulations of the Commission as announced from time to time, for a
period of at least two years following the effective date of such Shelf
Registration Statement (or shorter period that will terminate when all the Notes
covered by such Shelf Registration Statement have been sold pursuant to such
Shelf Registration Statement).
(b) PROVISION BY HOLDERS OF CERTAIN INFORMATION IN CONNECTION WITH THE
SHELF REGISTRATION STATEMENT. No Holder of Transfer Restricted Securities may
include any of its Transfer Restricted Securities in any Shelf Registration
Statement pursuant to this Agreement unless and
5
<PAGE>
until such Holder furnishes to the Company in writing, within 20 business days
after receipt of a request therefor, such information as the Company may
reasonably request for use in connection with any Shelf Registration Statement
or Prospectus or preliminary Prospectus included therein. Each Holder as to
which any Shelf Registration Statement is being effected agrees to furnish
promptly to the Company all information required to be disclosed in order to
make the information previously furnished to the Company by such Holder not
materially misleading.
SECTION 5. LIQUIDATED DAMAGES
If (i) any Registration Statement required by this Agreement is not
filed with the Commission on or prior to the date specified for such filing in
this Agreement, (ii) any such Registration Statement has not been declared
effective by the Commission on or prior to the date specified for such
effectiveness in this Agreement (the "EFFECTIVENESS TARGET DATE"), (iii) the
Exchange Offer has not been Consummated within 30 business days after the
Effectiveness Target Date with respect to the Exchange Offer Registration
Statement or (iv) any Registration Statement required by this Agreement is filed
and declared effective but shall thereafter cease to be effective or fail to be
usable in connection with resales of Transfer Restricted Securities during the
periods specified in this Agreement without being succeeded immediately by a
post-effective amendment to such Registration Statement that cures such failure
and that is itself immediately declared effective (each such event referred to
in clauses (i) through (iv), a "REGISTRATION DEFAULT"), the Company hereby
agrees to pay to each Holder of Transfer Restricted Securities affected thereby
liquidated damages in an amount equal to $.05 per week per $1,000 in principal
amount of Transfer Restricted Securities held by such Holder for each week or
portion thereof that the Registration Default continues for the first 90-day
period immediately following the occurrence of such Registration Default. The
amount of liquidated damages shall be increased by an additional $.05 per week
per $1,000 in principal amount of Transfer Restricted Securities with respect to
each subsequent 90-day period until all Registration Defaults have been cured,
up to a maximum amount of liquidated damages of $.50 per week per $1,000 in
principal amount of Transfer Restricted Securities; PROVIDED that the Company
shall in no event be required to pay liquidated damages for more than one
Registration Default at any given time. Notwithstanding anything to the
contrary set forth herein, (1) upon filing of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (i) above, (2) upon the effectiveness of the Exchange Offer Registration
Statement (and/or, if applicable, the Shelf Registration Statement), in the case
of (ii) above, (3) upon Consummation of the Exchange Offer, in the case of (iii)
above, or (4) upon the filing of a post-effective amendment to the Registration
Statement or an additional Registration Statement that causes the Exchange Offer
Registration Statement (and/or, if applicable, the Shelf Registration Statement)
to again be declared effective or made usable in the case of (iv) above, the
liquidated damages payable with respect to the Transfer Restricted Securities as
a result of such clause (i), (ii), (iii) or (iv), as applicable, shall cease.
All accrued liquidated damages shall be paid to the Holders entitled
thereto, in the manner provided for the payment of interest in the Indenture, on
each Interest Payment Date, as more fully set forth in the Indenture and the
Notes. Notwithstanding the fact that any securities for which liquidated
damages are due cease to be Transfer Restricted Securities, all obligations of
the Company to pay liquidated damages with respect to securities shall survive
until such time as such obligations with respect to such securities shall have
been satisfied in full.
SECTION 6. REGISTRATION PROCEDURES
(a) EXCHANGE OFFER REGISTRATION STATEMENT. In connection with the
Exchange Offer, the Company shall comply with all of the provisions of Section
6(c) below, shall use its best efforts to
6
<PAGE>
effect such exchange to permit the sale of Transfer Restricted Securities being
sold in accordance with the intended method or methods of distribution thereof,
and shall comply with all of the following provisions:
(i) If in the reasonable opinion of counsel to the Company there
is a question as to whether the Exchange Offer is permitted by applicable law,
the Company hereby agrees to seek a no-action letter or other favorable decision
from the Commission allowing the Company to Consummate an Exchange Offer for
such Initial Notes. The Company hereby agrees to pursue the issuance of such a
decision to the Commission staff level but shall not be required to take
commercially unreasonable action to effect a change of Commission policy. The
Company hereby agrees, however, to (A) participate in telephonic conferences
with the Commission, (B) deliver to the Commission staff an analysis prepared by
counsel to the Company setting forth the legal bases, if any, upon which such
counsel has concluded that such an Exchange Offer should be permitted and (C)
diligently pursue a favorable resolution by the Commission staff of such
submission.
(ii) As a condition to its participation in the Exchange Offer
pursuant to the terms of this Agreement, each Holder of Transfer Restricted
Securities shall furnish, upon the request of the Company, prior to the
Consummation thereof, a written representation to the Company (which may be
contained in the letter of transmittal contemplated by the Exchange Offer
Registration Statement) to the effect that (A) it is not an affiliate of the
Company, (B) it is not engaged in, and does not intend to engage in, and has no
arrangement or understanding with any person to participate in, a distribution
of the Exchange Notes to be issued in the Exchange Offer and (C) it is acquiring
the Exchange Notes in its ordinary course of business. In addition, all such
Holders of Transfer Restricted Securities shall otherwise cooperate in the
Company's preparations for the Exchange Offer. Each Holder hereby acknowledges
and agrees that any Broker-Dealer and any such Holder using the Exchange Offer
to participate in a distribution of the securities to be acquired in the
Exchange Offer (1) could not under Commission policy as in effect on the date of
this Agreement rely on the position of the Commission enunciated in MORGAN
STANLEY AND CO., INC. (available June 5, 1991) and EXXON CAPITAL HOLDINGS
CORPORATION (available May 13, 1988), as interpreted in the Commission's letter
to Shearman & Sterling dated July 2, 1993, and similar no-action letters (which
may include any no-action letter obtained pursuant to clause (i) above), and (2)
must comply with the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale transaction and that such a
secondary resale transaction should be covered by an effective registration
statement containing the selling security holder information required by Item
507 or 508, as applicable, of Regulation S-K if the resales are of Exchange
Notes obtained by such Holder in exchange for Initial Notes acquired by such
Holder directly from the Company.
(b) SHELF REGISTRATION STATEMENT. In connection with the Shelf
Registration Statement, the Company shall comply with all the provisions of
Section 6(c) below and shall use its best efforts to effect such registration to
permit the sale of the Transfer Restricted Securities being sold in accordance
with the intended method or methods of distribution thereof, and pursuant
thereto the Company will as expeditiously as possible prepare and file with the
Commission a Registration Statement relating to the registration on any
appropriate form under the Securities Act, which form shall be available for the
sale of the Transfer Restricted Securities in accordance with the intended
method or methods of distribution thereof.
(c) GENERAL PROVISIONS. In connection with any Registration Statement
and any Prospectus required by this Agreement to permit the sale or resale of
Transfer Restricted Securities (including, without limitation, any Registration
Statement and the related Prospectus required to permit resales of Notes by
Broker-Dealers), the Company shall:
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<PAGE>
(i) use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 3 or 4 of this Agreement, as applicable; upon the
occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (A) to contain a material misstatement or omission
or (B) not to be effective and usable for resale of Transfer Restricted
Securities during the period required by this Agreement, the Company shall file
promptly an appropriate amendment to such Registration Statement, in the case of
clause (A), correcting any such misstatement or omission, and, in the case of
either clause (A) or (B), use its best efforts to cause such amendment to be
declared effective and such Registration Statement and the related Prospectus to
become usable for their intended purpose(s) as soon as practicable thereafter;
(ii) prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep the Registration Statement effective for the applicable period set forth in
Section 3 or 4 hereof, as applicable, or such shorter period as will terminate
when all Transfer Restricted Securities covered by such Registration Statement
have been sold; cause the Prospectus to be supplemented by any required
Prospectus supplement, and as so supplemented to be filed pursuant to Rule 424
under the Securities Act, and to comply fully with the applicable provisions of
Rules 424 and 430A under the Securities Act in a timely manner; and comply with
the provisions of the Securities Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(iii) advise the underwriter(s), if any, and selling Holders
promptly and, if requested by such Persons, to confirm such advice in writing,
(A) when the Prospectus or any Prospectus supplement or post-effective amendment
has been filed, and, with respect to any Registration Statement or any
post-effective amendment thereto, when the same has become effective, (B) of any
request by the Commission for amendments to the Registration Statement or
amendments or supplements to the Prospectus or for additional information
relating thereto, (C) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement under the Securities
Act or of the suspension by any state securities commission of the qualification
of the Transfer Restricted Securities for offering or sale in any jurisdiction,
or the initiation of any proceeding for any of the preceding purposes, (D) of
the existence of any fact or the happening of any event that makes any statement
of a material fact made in the Registration Statement, the Prospectus, any
amendment or supplement thereto, or any document incorporated by reference
therein untrue, or that requires the making of any additions to or changes in
the Registration Statement or the Prospectus in order to make the statements
therein not misleading. If at any time the Commission shall issue any stop order
suspending the effectiveness of the Registration Statement, or any state
securities commission or other regulatory authority shall issue an order
suspending the qualification or exemption from qualification of the Transfer
Restricted Securities under state securities or Blue Sky laws, the Company shall
use its best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time;
(iv) furnish without charge to each of the Initial Purchasers, each
selling Holder named in any Registration Statement, and each of the
underwriter(s), if any, before filing with the Commission, copies of any
Registration Statement or any Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review of such
Holders and underwriter(s) in connection with such sale, if any, for a period of
at least five business days, and the Company will not file any such Registration
Statement or Prospectus or any amendment or supplement to any such Registration
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Statement or Prospectus (including all such documents incorporated by reference)
to which an Initial Purchaser of Transfer Restricted Securities covered by such
Registration Statement or the underwriter(s), if any, shall reasonably object in
writing within five business days after the receipt thereof (such objection to
be deemed timely made upon confirmation of telecopy transmission within such
period). The objection of an Initial Purchaser or underwriter, if any, shall be
deemed to be reasonable if such Registration Statement, amendment, Prospectus or
supplement, as applicable, as proposed to be filed, contains a material
misstatement or omission;
(v) promptly prior to the filing of any document that is to be
incorporated by reference into a Registration Statement or Prospectus, provide
copies of such document to the Initial Purchasers, each selling Holder named in
any Registration Statement, and to the underwriter(s), if any, make the
Company's representatives available for discussion of such document and other
customary due diligence matters, and include such information in such document
prior to the filing thereof as such selling Holders or underwriter(s), if any,
may reasonably request;
(vi) make available at reasonable times for inspection by the
Initial Purchasers, any managing underwriter participating in any disposition
pursuant to such Registration Statement and any attorney or accountant retained
by such Initial Purchasers or any of the underwriter(s), all financial and other
records, pertinent corporate documents and properties of the Company and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such Holder, underwriter, attorney or accountant in
connection with such Registration Statement subsequent to the filing thereof and
prior to its effectiveness;
(vii) if requested by any selling Holders or the underwriter(s), if
any, promptly incorporate in any Registration Statement or Prospectus, pursuant
to a supplement or post-effective amendment if necessary, such information as
such selling Holders and underwriter(s), if any, may reasonably request to have
included therein, including, without limitation, information relating to the
"Plan of Distribution" of the Transfer Restricted Securities, information with
respect to the principal amount of Transfer Restricted Securities being sold to
such underwriter(s), the purchase price being paid therefor and any other terms
of the offering of the Transfer Restricted Securities to be sold in such
offering; and make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after the Company is notified of
the matters to be incorporated in such Prospectus supplement or post-effective
amendment;
(viii) cause the Transfer Restricted Securities covered by the
Registration Statement to be rated with the appropriate rating agencies, if so
requested by the Holders of a majority in aggregate principal amount of Notes
covered thereby or the underwriter(s), if any;
(ix) furnish to each selling Holder and each of the underwriter(s),
if any, without charge, at least one copy of the Registration Statement, as
first filed with the Commission, and of each amendment thereto, including
financial statements and schedules, all documents incorporated by reference
therein and all exhibits (including exhibits incorporated therein by reference);
(x) deliver to each selling Holder and each of the underwriter(s),
if any, without charge, as many copies of the Prospectus (including each
preliminary prospectus) and any amendment or supplement thereto as such Persons
reasonably may request; the Company hereby consents to the use of the
Prospectus and any amendment or supplement thereto by each of the selling
Holders and each of the underwriter(s), if any, in connection with the offering
and the sale of the Transfer Restricted Securities covered by the Prospectus or
any amendment or supplement thereto;
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(xi) enter into such agreements and make such representations and
warranties, and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of the Transfer Restricted Securities
pursuant to any Registration Statement contemplated by this Agreement, all to
such extent as may be requested by any Initial Purchaser or by any Holder of
Transfer Restricted Securities or underwriter in connection with any sale or
resale pursuant to any Registration Statement contemplated by this Agreement,
and;
(A) in connection with any underwritten offering of Transfer
Restricted Securities pursuant to a Shelf Registration Statement, enter
into an underwriting agreement as is customary in underwritten offerings of
debt securities similar to the Notes and, whether or not the shelf
registration is an Underwritten Registration, the Company shall furnish to
each Initial Purchaser, each selling Holder and each underwriter, if any,
in such substance and scope as they may request and as are customarily made
by issuers to underwriters in primary underwritten offerings, upon the date
of the effectiveness of a Shelf Registration Statement:
(1) a certificate, dated the date of the Shelf
Registration Statement, as the case may be, signed by (y) the
President or any Vice President and (z) a principal financial or
accounting officer of the Company, confirming, as of the date
thereof, the matters set forth in paragraphs (i), (ii) and (iii) of
Section 5 (e) of the Purchase Agreement and such other matters as
such parties may reasonably request;
(2) an opinion, dated the date of effectiveness of the
Shelf Registration Statement of counsel for the Company, covering
the matters set forth in paragraph (c) of Section 5 of the Purchase
Agreement and such other matter as such parties may reasonably
request, and in any event including a statement to the effect that
such counsel has participated in conferences with officers and other
representatives of the Company, representatives of the independent
public accountants for the Company, the Initial Purchasers'
representatives and the Initial Purchasers' counsel in connection
with the preparation of such Registration Statement and the related
Prospectus and have considered the matters required to be stated
therein and the statements contained therein, although such counsel
has not independently verified the accuracy, completeness or
fairness of such statements; and that such counsel advises that, on
the basis of the foregoing (relying as to materiality to a large
extent upon facts provided to such counsel by officers and other
representatives of the Company and without independent check or
verification), no facts came to such counsel's attention that caused
such counsel to believe that the applicable Registration Statement,
at the time such Registration Statement or any post-effective
amendment thereto became effective, and, in the case of the Exchange
Offer Registration Statement, as of the date of Consummation,
contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, or that the Prospectus
contained in such Registration Statement as of its date and, in the
case of the opinion dated the date of Consummation of the Exchange
Offer, as of the date of Consummation, contained an untrue statement
of a material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. Without
limiting the foregoing, such counsel may state further that such
counsel assumes no responsibility for, and has not independently
verified, the accuracy, completeness or fairness of the financial
statements, notes and schedules and other financial data
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<PAGE>
included in any Registration Statement contemplated by this
Agreement or the related Prospectus; and
(3) a customary comfort letter, dated as of the date of
Consummation of the Exchange Offer or the date of effectiveness of
the Shelf Registration Statement, as the case may be, from the
Company's independent accountants, in the customary form and
covering matters of the type customarily covered in comfort letters
by underwriters in connection with primary underwritten offerings,
and affirming the matters set forth in the comfort letters delivered
pursuant to Section 5(a) of the Purchase Agreement, without
exception;
(B) set forth in full or incorporate by reference in the
underwriting agreement, if any, the indemnification provisions and
procedures of Section 8 hereof with respect to all parties to be
indemnified pursuant to said Section; and
(C) deliver such other documents and certificates as may be
reasonably requested by such parties to evidence compliance with clause (A)
above and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company pursuant to this
clause (xi), if any.
If at any time the representations and warranties of the Company
contemplated in clause (A)(1) above cease to be true and correct, the Company
shall so advise the Initial Purchasers and the underwriter(s), if any, and each
selling Holder promptly and, if requested by such Persons, shall confirm such
advice in writing;
(xii) prior to any public offering of Transfer Restricted
Securities, cooperate with the selling Holders, the underwriter(s), if any, and
their respective counsel in connection with the registration and qualification
of the Transfer Restricted Securities under the securities or Blue Sky laws of
such jurisdictions as the selling Holders or underwriter(s) may request and do
any and all other acts or things necessary or advisable to enable the
disposition in such jurisdictions of the Transfer Restricted Securities covered
by the Shelf Registration Statement; PROVIDED, HOWEVER, that the Company shall
not be required to register or qualify as a foreign corporation where it is not
then so qualified or to take any action that would subject it to the service of
process in suits or to taxation, other than as to matters and transactions
relating to the Registration Statement, in any jurisdiction where it is not then
so subject;
(xiii) shall issue, upon the request of any Holder of Initial Notes
covered by the Shelf Registration Statement, Exchange Notes, having an aggregate
principal amount equal to the aggregate principal amount of Initial Notes
surrendered to the Company by such Holder in exchange therefor or being sold by
such Holder; such Exchange Notes to be registered in the name of such Holder or
in the name of the purchaser(s) of such Notes, as the case may be; in return,
the Initial Notes held by such Holder shall be surrendered to the Company for
cancellation;
(xiv) cooperate with the selling Holders and the underwriter(s), if
any, to facilitate the timely preparation and delivery of certificates
representing Transfer Restricted Securities to be sold and not bearing any
restrictive legends; and enable such Transfer Restricted Securities to be in
such denominations and registered in such names as the Holders or the
underwriter(s), if any, may request at least two business days prior to any sale
of Transfer Restricted Securities made by such underwriter(s);
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<PAGE>
(xv) use its best efforts to cause the Transfer Restricted
Securities covered by the Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriter(s), if any, to
consummate the disposition of such Transfer Restricted Securities, subject to
the proviso contained in clause (viii) above;
(xvi) if any fact or event contemplated by clause (c)(iii)(D) above
shall exist or have occurred, prepare a supplement or post-effective amendment
to the Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Transfer Restricted Securities, the Prospectus
will not contain an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading;
(xvii) provide a CUSIP number for all Transfer Restricted Securities
not later than the effective date of the Registration Statement and provide the
Trustee under the Indenture with printed certificates for the Transfer
Restricted Securities which are in a form eligible for deposit with the
Depositary Trust Company;
(xviii) cooperate and assist in any filings required to be made with
the NASD and in the performance of any due diligence investigation by any
underwriter (including any "qualified independent underwriter") that is required
to be retained in accordance with the rules and regulations of the NASD, and use
its reasonable best efforts to cause such Registration Statement to become
effective and approved by such governmental agencies or authorities as may be
necessary to enable the Holders selling Transfer Restricted Securities to
consummate the disposition of such Transfer Restricted Securities;
(xix) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, as soon as practicable, a consolidated earnings statement
meeting the requirements of Rule 158 (which need not be audited) for the
twelve-month period (A) commencing at the end of any fiscal quarter in which
Transfer Restricted Securities are sold to underwriters in a firm or best
efforts Underwritten Offering or (B) if not sold to underwriters in such an
offering, beginning with the first month of the Company's first fiscal quarter
commencing after the effective date of the Registration Statement;
(xx) cause the Indenture to be qualified under the Trust Indenture
Act not later than the effective date of the first Registration Statement
required by this Agreement, and, in connection therewith, cooperate with the
Trustee and the Holders of Notes to effect such changes to the Indenture as may
be required for such Indenture to be so qualified in accordance with the terms
of the Trust Indenture Act; and to execute and use its best efforts to cause the
Trustee to execute, all documents that may be required to effect such changes
and all other forms and documents required to be filed with the Commission to
enable such Indenture to be so qualified in a timely manner; and
(xxi) cause all Transfer Restricted Securities covered by the
Registration Statement to be listed on each securities exchange on which similar
securities issued by the Company are then listed if requested by the Holders of
a majority in aggregate principal amount of Initial Notes or the managing
underwriter(s), if any.
Each Holder agrees by acquisition of a Transfer Restricted Security
that, upon receipt of any notice from the Company of the existence of any fact
of the kind described in Section 6(c)(iii)(D) hereof, such Holder will forthwith
discontinue disposition of Transfer Restricted Securities pursuant to the
applicable Registration Statement until such Holder's receipt of the copies
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<PAGE>
of the supplemented or amended Prospectus contemplated by Section 6(c)(xvi)
hereof, or until it is advised in writing (the "ADVICE") by the Company that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus. If
so directed by the Company, each Holder will deliver to the Company (at the
Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Transfer Restricted
Securities that was current at the time of receipt of such notice. In the event
the Company shall give any such notice, the time period regarding the
effectiveness of such Registration Statement set forth in Section 3 or 4 hereof,
as applicable, shall be extended by the number of days during the period from
and including the date of the giving of such notice pursuant to Section
6(c)(iii)(D) hereof to and including the date when each selling Holder covered
by such Registration Statement shall have received the copies of the
supplemented or amended Prospectus contemplated by Section 6(c)(xvi) hereof or
shall have received the Advice; however, no such extension shall be taken into
account in determining whether Liquidated damages are due pursuant to Section 5
hereof or the amount of such Liquidated damages, it being agreed that the
Company's option to suspend use of a Registration Statement pursuant to this
paragraph shall be treated as a Registration Default for purposes of Section 5.
SECTION 7. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement will be borne by the Company, regardless of whether a
Registration Statement becomes effective, including without limitation: (i) all
registration and filing fees and expenses (including filings made by any Initial
Purchaser or Holder with the NASD (and, if applicable, the fees and expenses of
any "qualified independent underwriter" and its counsel that may be required by
the rules and regulations of the NASD)); (ii) all fees and expenses of
compliance with federal securities and state Blue Sky or securities laws; (iii)
all expenses of printing (including printing certificates for the Exchange Notes
to be issued in the Exchange Offer and printing of Prospectuses), messenger and
delivery services and telephone; (iv) all fees and disbursements of counsel for
the Company and, subject to Section 7(b) below, the Holders of Transfer
Restricted Securities; (v) all application and filing fees in connection with
listing the Exchange Notes on a national securities exchange or automated
quotation system pursuant to the requirements thereof; and (vi) all fees and
disbursements of independent certified public accountants of the Company
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties), the expenses of any annual
audit and the fees and expenses of any Person, including special experts,
retained by the Company.
(b) In connection with any Registration Statement required by this
Agreement (including, without limitation, the Exchange Offer Registration
Statement and the Shelf Registration Statement), the Company will reimburse the
Initial Purchasers and the Holders of Transfer Restricted Securities being
tendered in the Exchange Offer and/or resold pursuant to the "Plan of
Distribution" contained in the Exchange Offer Registration Statement or
registered pursuant to the Shelf Registration Statement, as applicable, for the
reasonable fees and disbursements of not more than one counsel, who shall be
Latham & Watkins or such other counsel as may be chosen by the Holders of a
majority in principal amount of the Transfer Restricted Securities for whose
benefit such Registration Statement is being prepared.
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SECTION 8. INDEMNIFICATION
(a) The Company agrees to indemnify and hold harmless each Holder, its
directors, officers and employees, and each person, if any, who controls any
Holder within the meaning of the Securities Act or the Exchange Act against any
loss, claim, damage, liability, or expense, as incurred, to which such Holder or
such controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common
law or otherwise (including in settlement of any litigation, if such settlement
is effected with the written consent of the Company), insofar as such loss,
claim, damage, liability or expense (or actions in respect thereof as
contemplated below) arises out of or is based upon any untrue statement or
alleged untrue statement of a material fact contained in any Registration
Statement (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading except insofar as such loss, claim, damage, liability or expense is
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in
addition to any liability which the Company may otherwise have.
Promptly after receipt by an indemnified party under this Section 8
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section 8, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section 8 or to
the extent it is not prejudiced as a proximate result of such failure. In case
any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the
indemnifying party will be entitled to participate in and, to the extent that it
shall elect, jointly with all other indemnifying parties similarly notified, by
written notice delivered to the indemnified party promptly after receiving the
aforesaid notice from such indemnified party, to assume the defense thereof with
counsel reasonably satisfactory to such indemnified party; PROVIDED, HOWEVER, if
the defendants in any such action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that a conflict may arise between the positions of the indemnifying party and
the indemnified party in conducting the defense of any such action or that there
may be legal defenses available to it and/or other indemnified parties which are
different from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon receipt of notice
from the indemnifying party to such indemnified party of such indemnifying
party's election so to assume the defense of such action and approval by the
indemnified party of counsel, the indemnifying party will not be liable to such
indemnified party under this Section 8 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed separate counsel in
accordance with the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the expenses of
more than one separate counsel (together with local counsel), approved by the
indemnifying party, representing the indemnified parties who are parties to such
action) or (ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the indemnified party within
a reasonable time after notice of commencement of the action, in each of which
cases the fees and expenses of counsel shall be at the expense of the
indemnifying party. The indemnifying party under this Section 8 shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled
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with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by Section 8 hereof, the
indemnifying party agrees that it shall be liable for any settlement of any
proceeding effected without its written consent if such settlement is entered
into more than 30 days after receipt by such indemnifying party of the aforesaid
request and such indemnifying party shall not have reimbursed the indemnified
party in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement, compromise or consent to the entry of judgment in
any pending or threatened action, suit or proceeding in respect of which any
indemnified party is or could have been a party and indemnity was or could have
been sought hereunder by such indemnified party, unless such settlement,
compromise or consent includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such action,
suit or proceeding.
(b) Each Holder of Transfer Restricted Securities agrees, severally and
not jointly, to indemnify and hold harmless the Company and each of its
directors and each person, if any, who controls the Company within the meaning
of the Securities Act or the Exchange Act, against any loss, claim, damage,
liability or expense, as incurred, to which the Company or any such director, or
controlling person may become subject, under the Securities Act, the Exchange
Act, or other federal or state or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Holder), but only with
respect to claims and actions based on information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement. In case any action or proceeding shall be brought against the
Company or its directors or any such controlling person in respect of which
indemnity may be sought against a Holder of Transfer Restricted Securities, such
Holder shall have the rights and duties given the Company and the Company or its
directors or such controlling person shall have the rights and duties given to
each Holder by the preceding paragraph. In no event shall the liability of any
selling Holder hereunder be greater in amount than the dollar amount of the
proceeds received by such Holder upon the sale of the Securities giving rise to
such indemnification obligation.
(c) If the indemnification provided for in this Section 8 is for any
reason held to be unavailable to or otherwise insufficient to hold harmless an
indemnified party under Section 8(a) or Section 8(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities, or expenses referred to therein, then each
applicable indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the aggregate amount paid or payable by such indemnified
party, as incurred, as a result of any losses, claims, damages, liabilities or
expenses (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Holders, on the other
hand, from the Initial Placement (which in the case of the Issuer shall be
deemed to be equal to the total gross proceeds from the Initial Placement as set
forth on the cover page of the Offering Memorandum), the amount of liquidated
damages which did not become payable as a result of the filing of the
Registration Statement resulting in such losses, claims, damages, liabilities or
expenses, and such Registration Statement, or (ii) if the allocation provided by
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand, and of the
Indemnified Holder, on the other hand, in connection with the statements or
omissions or inaccuracies which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable considerations.
The relative fault of the Company on the one hand and of the Indemnified Holder
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on the other shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Indemnified Holder and the partes' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section
8(a), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and each Holder of Transfer Restricted Securities agree
that it would not be just and equitable if contribution pursuant to this Section
8(c) were determined by pro rata allocation (even if the Holders were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 8, none of the
Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Initial Notes exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 8(c) are several in
proportion to the respective principal amount of Initial Notes held by each of
the Holders hereunder and not joint. For purposes of this section 8(c), each
director of a Holder and each person, if any, who controls a Holder within the
meaning of the Securities Act and the Exchange Act shall have the same rights to
contribution as such Holder, and each director of the Company, and each person,
if any, who controls the Company within the meaning of the Securities Act and
the Exchange Act shall have the same rights to contribution as the Company.
SECTION 9. RULE 144A
The Company hereby agrees with each Holder, for so long as any
Transfer Restricted Securities remain outstanding, to make available to any
Holder or beneficial owner of Transfer Restricted Securities in connection with
any sale thereof and any prospective purchaser of such Transfer Restricted
Securities from such Holder or beneficial owner, the information required by
Rule 144A(d)(4) under the Securities Act in order to permit resales of such
Transfer Restricted Securities pursuant to Rule 144A.
SECTION 10. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS
No Holder may participate in any Underwritten Registration hereunder
unless such Holder (a) agrees to sell such Holder's Transfer Restricted
Securities on the basis provided in any underwriting arrangements approved by
the Persons entitled hereunder to approve such arrangements and (b) completes
and executes all reasonable questionnaires, powers of attorney, indemnities,
underwriting agreements, lock-up letters and other documents required under the
terms of such underwriting arrangements.
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SECTION 11. SELECTION OF UNDERWRITERS
The Holders of Transfer Restricted Securities covered by the Shelf
Registration Statement who desire to do so may sell such Transfer Restricted
Securities in an Underwritten Offering. In any such Underwritten Offering, the
investment banker or investment bankers and manager or managers that will
administer the offering will be selected by the Holders of a majority in
aggregate principal amount of the Transfer Restricted Securities included in
such offering; PROVIDED, that such investment bankers and managers must be
reasonably satisfactory to the Company.
SECTION 12. MISCELLANEOUS
(a) REMEDIES. The Company hereby agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. The Company will not on or after the
date of this Agreement enter into any agreement with respect to its securities
that is inconsistent with the rights granted to the Holders in this Agreement or
otherwise conflicts with the provisions hereof. The Company has not previously
entered into any agreement granting any registration rights with respect to its
securities to any Person. The rights granted to the Holders hereunder do not in
any way conflict with and are not inconsistent with the rights granted to the
holders of the Company's securities under any agreement in effect on the date
hereof.
(c) ADJUSTMENTS AFFECTING THE NOTES. The Company will not take any
action, or permit any change to occur, with respect to the Notes that would
materially and adversely affect the ability of the Holders to Consummate any
Exchange Offer.
(d) AMENDMENTS AND WAIVERS. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities. Notwithstanding the foregoing, a waiver or
consent to departure from the provisions hereof that relates exclusively to the
rights of Holders whose securities are being tendered pursuant to the Exchange
Offer and that does not affect directly or indirectly the rights of other
Holders whose securities are not being tendered pursuant to such Exchange Offer
may be given by the Holders of a majority of the outstanding principal amount of
Transfer Restricted Securities being tendered or registered; PROVIDED that, with
respect to any matter that directly or indirectly affects the rights of any
Initial Purchaser hereunder, the Company shall obtain the written consent of
each such Initial Purchaser with respect to which such amendment, qualification,
supplement, waiver, consent or departure is to be effective.
(e) NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the
Indenture; and
(ii) if to the Company:
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Precision Castparts Corp.
4650 S.W. Macadam Avenue, Suite 240
Portland, Oregon 97201-4254
Telecopier No.: (503) 417-4814
Attention: Geoff Hawkes
With a copy to:
Stoel Rives LLP
900 S.W. Fifth Avenue, Suite 2600
Portland, Oregon 97204-1268
Telecopier No.: (503) 220-2480
Attention: Ruth A. Beyer
All such notices and communications shall be deemed to have been
duly given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next business day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications shall be
concurrently delivered by the Person giving the same to the Trustee at the
address specified in the Indenture.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit
of and be binding upon the successors and assigns of each of the parties,
including without limitation and without the need for an express assignment,
subsequent Holders of Transfer Restricted Securities; PROVIDED, HOWEVER, that
this Agreement shall not inure to the benefit of or be binding upon a successor
or assign of a Holder unless and to the extent such successor or assign acquired
Transfer Restricted Securities from such Holder.
(g) COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) ENTIRE AGREEMENT. This Agreement together with the other Operative
Documents (as defined in the Purchase Agreement) is intended by the parties as a
final expression of their
18
<PAGE>
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein with respect to
the registration rights granted by the Company with respect to the Transfer
Restricted Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
19
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first written above.
PRECISION CASTPARTS CORP.
By:
------------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
BANC OF AMERICA SECURITIES LLC
BANC OF AMERICA SECURITIES LLC
ABN AMRO INCORPORATED
BANC ONE CAPITAL MARKETS, INC.
BNY CAPITAL MARKETS, INC.
FIRST UNION SECURITIES, INC.
SCOTIA CAPITAL INC.
U.S. BANCORP PIPER JAFFRAY INC.
WACHOVIA SECURITIES, INC.
BY: BANC OF AMERICA SECURITIES LLC
By:
-----------------------------
S-1
<PAGE>
EXHIBIT 5.1
March 31, 2000
Board of Directors
Precision Castparts Corp.
4650 SW Macadam Avenue, Suite 440
Portland, Oregon 97201
We have acted as counsel for Precision Castparts Corp., an Oregon
corporation, (the "Company") in connection with the preparation and filing of a
Registration Statement on Form S-4 (the "Registration Statement") under the
Securities Act of 1933, as amended, covering $200,000,000 of Debt Securities of
the Company (the "Debt Securities"). We have reviewed the corporate action of
the Company in connection with this matter and have examined the documents,
corporate records and other instruments we deemed necessary for the purpose of
this opinion.
Based on the foregoing, we are of the opinion that the Company is a
corporation duly organized and validly existing under the laws of the State of
Oregon.
We are further of the opinion that all action necessary to make valid
the proposed issuance of the Debt Securities by the Company will have been taken
when:
(1) the Registration Statement, as it may be amended, shall have become
effective;
(2) certain officers of the Company shall have taken appropriate action
approving certain of the terms of such Debt Securities; and
(3) the Debt Securities shall have been appropriately issued and delivered
for the consideration contemplated by, and otherwise in conformity with,
the acts, proceedings and documents referred to above.
We are further of the opinion that when the steps set forth in the
immediately preceding paragraph shall have been taken, the Debt Securities will
be duly authorized and binding obligations of the Company.
We consent to the use of our name in the Registration Statement and in
the Prospectus filed as a part thereof and to the filing of this opinion as an
exhibit to the Registration Statement.
Very truly yours,
STOEL RIVES LLP
<PAGE>
EXHIBIT 12.1
PRECISION CASTPARTS CORP.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(000'S OMITTED)
<TABLE>
<CAPTION>
Fiscal Years Nine Months Ended
-------------------------------- December 27, December 26,
1995 1996 1997 1998 1999 1998 1999
---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C>
"Earnings" before income taxes $46,800 $63,700 $95,700 $135,300 $150,800 $122,600 $ 94,400
Fixed Charges:
Interest and other financial charges $ 1,000 $ 600 $17,200 $21,900 $27,900 $ 20,900 $ 25,200
Interest capitalized - 500 1,100 1,500 2,000 1,600 1,000
One-third of rental expense (a) 900 1,000 1,700 2,100 2,200 1,600 1,700
-------- -------- -------- -------- -------- -------- --------
$1,900 $2,100 $20,000 $25,500 $32,100 $ 24,100 $ 27,900
-------- -------- -------- -------- -------- -------- --------
Adjusted "earnings $48,700 $65,800 $115,700 $160,800 $182,900 $146,700 $122,300
======== ======== ======== ======== ======== ======== ========
Ratio of earnings to fixed charges (b) 25.6 31.1 5.7 6.2 5.6 6.0 4.3
======== ======== ======== ======== ======== ======== ========
</TABLE>
(a) Considered to be representative of interest factor in rental expense.
(b) Adjusted "earnings" less interest capitalized divided by Fixed Charges.
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this
Registration Statement on Form S-4 of Precision Castparts Corp. of our report
dated April 28, 1999 relating to the financial statements, which appears in
the Company's 1999 Annual Report to Shareholders, which is incorporated by
reference in its Annual Report on Form 10-K for the year ended March 28,
1998. We also consent to the incorporation by reference of our report dated
April 28, 1999 relating to the financial statement schedule, which appears in
such Annual Report on Form 10-K. We also consent to the references to us
under the heading "Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Portland, Oregon
March 31, 2000
<PAGE>
Exhibit 23.2
Consent of Ernst & Young LLP, Independent Auditors
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-4) and related Prospectus of Precision Castparts
Corp. for the registration of $200,000,000 Precision Castparts Corp. 8.75%
Senior Notes due 2005 and to the incorporation by reference therein of our
report dated June 23, 1999, with respect to the consolidated financial
statements of Wyman-Gordon Company, Inc. for the year ended May 31, 1999,
included in Precision Castparts Corp.'s Form 8-K dated December 8, 1999, as
amended February 7, 2000, filed with the Securities and Exchange Commission.
/s/ERNST & YOUNG LLP
March 30, 2000
Boston, Massachusetts
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)
----------------------------
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 31-0838515
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
100 EAST BROAD STREET, COLUMBUS, OHIO 43271-0181
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
BANK ONE TRUST COMPANY, N.A.
ONE NORTH STATE STREET, 9TH FLOOR
CHICAGO, ILLINOIS 60602
ATTN: SANDRA L. CARUBA, VICE PRESIDENT AND SENIOR COUNSEL, (312) 336-9436
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------
PRECISION CASTPARTS CORP.
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
OREGON 93-0460598
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
4650 SW MACADAM AVE. 97201-4254
PORTLAND, OREGON (ZIP CODE)
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING
AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of Currency, Washington, D.C.; Federal Deposit
Insurance Corporation, Washington, D.C.; The Board of
Governors of the Federal Reserve System, Washington D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST
POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the trustee now
in effect.
2. A copy of the certificate of authority of the trustee to
commence business.
3. A copy of the authorization of the trustee to exercise
corporate trust powers.
4. A copy of the existing by-laws of the trustee.
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE>
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bank One Trust Company, National Association, a
national banking association organized and existing under the laws of
the United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 23rd day of March, 2000.
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION,
TRUSTEE
BY /s/ SANDRA L. CARUBA
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 1
A COPY OF THE ARTICLES OF ASSOCIATION OF THE
TRUSTEE NOW IN EFFECT
AMENDED AND RESTATED
ARTICLES OF ASSOCIATION
OF
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
FIRST. The title of this Association shall be BANK ONE TRUST COMPANY,
NATIONAL ASSOCIATION.
SECOND. The main office of the Association shall be in the City of Columbus,
County of Franklin, State of Ohio.
The business of the Association will be limited to the fiduciary powers and the
support of activities incidental to the exercise of those powers. The
Association will not expand or alter its business beyond that stated in this
article without the prior approval of the Comptroller of the Currency.
THIRD. The Board of Directors of this Association shall consist of not less than
five nor more than twenty-five persons, the exact number to be fixed and
determined from time to time by resolution of a majority of the full Board of
Directors or by resolution of a majority of the shareholders at any annual or
special meeting thereof. Each director shall own common or preferred stock of
the Association, or of a holding company owning the Association, with an
aggregate par, fair market or equity value of not less than $1,000, as of either
(i) the date of purchase, (ii) the date the person became a director, or (iii)
the date of that person's most recent election to the Board of Directors,
whichever is more recent. Any combination of common or preferred stock of the
Association or holding company may be used.
Any vacancy in the Board of Directors may be filled by action of a majority of
the remaining directors between meetings of shareholders. The Board of Directors
may not increase the number of directors between meetings of shareholders to a
number which: (1) exceeds by more than two the number of directors last elected
by shareholders where the number was 15 or less; or (2) exceeds by more than
four the number of directors last elected by shareholders where the number was
16 or more, but in no event shall the number of directors exceed 25.
Terms of directors, including directors selected to fill vacancies, shall expire
at the next regular meeting of shareholders at which directors are elected,
unless the directors resign or are removed from office.
Despite the expiration of a director's term, the director shall continue to
serve until his or her successor is elected and qualifies or until there is a
decrease in the number of directors and his or her position is eliminated.
Honorary or advisory members of the Board of Directors, without voting power or
power of final decision in matters concerning the business of the Association,
may be appointed by resolution of a majority of the full Board of Directors, or
by resolution of shareholders at any annual or special meeting. Honorary or
advisory directors shall not be counted to determine the number of directors of
the Association or the presence of a quorum in connection with any board action,
and shall not be required to own qualifying shares.
<PAGE>
FOURTH. There shall be an annual meeting of the shareholders to elect directors
and transact whatever other business may be brought before the meeting. It shall
be held at the main office or any other convenient place the Board of Directors
may designate, on the day of each year specified therefor in the Bylaws or, if
that day falls on a legal holiday in the state in which the Association is
located, on the next following banking day. If no election is held on the day
fixed or in the event of a legal holiday on the following banking day, an
election may be held on any subsequent day within 60 days of the day fixed, to
be designated by the Board of Directors or, if the directors fail to fix the
day, by shareholders representing two-thirds of the shares issued and
outstanding. In all cases at least 10 days advance notice of the meeting shall
be given to the shareholders by first class mail.
In all elections of directors, the number of votes each common shareholder may
cast will be determined by multiplying the number of shares such shareholder
owns by the number of directors to be elected. Those votes may be cumulated and
cast for a single candidate or may be distributed among two or more candidates
in the manner selected by the shareholder. On all other questions, each common
shareholder shall be entitled to one vote for each share of stock held by such
shareholder. If the issuance of preferred stock with voting rights has been
authorized by a vote of shareholders owning a majority of the common stock of
the association, preferred shareholders will have cumulative voting rights and
will be included within the same class as common shareholders, for purposes of
elections of directors.
A director may resign at any time by delivering written notice to the Board of
Directors, its chairperson, or to the Association, which resignation shall be
effective when the notice is delivered unless the notice specifies a later
effective date.
A director may be removed by shareholders at a meeting called to remove him or
her, when notice of the meeting stating that the purpose or one of the purposes
is to remove him or her is provided, if there is a failure to fulfill one of the
affirmative requirements for qualification, or for cause, provided, however,
that a director may not be removed if the number of votes sufficient to elect
him or her under cumulative voting is voted against his or her removal.
FIFTH. The authorized amount of capital stock of this Association shall be
eighty thousand shares of common stock of the par value of ten dollars ($10.00)
each; but said capital stock may be increased or decreased from time to time,
according to the provisions of the laws of the United States.
No holder of shares of the capital stock of any class of the Association shall
have any preemptive or preferential right of subscription to any shares of any
class of stock of the Association, whether now or hereafter authorized, or to
any obligations convertible into stock of the Association, issued or sold, nor
any right of subscription to any thereof other than such, if any, as the Board
of Directors, in its discretion, may from time to time determine and at such
price as the Board of Directors may from time to time fix. Unless otherwise
specified in the Articles of Association or required by law, (1) all matters
requiring shareholder action, including amendments to the Articles of
Association, must be approved by shareholders owning a majority voting interest
in the outstanding voting stock, and (2) each shareholder shall be entitled to
one vote per share.
Unless otherwise specified in the Articles of Association or required by law,
all shares of voting stock shall be voted together as a class on any matters
requiring shareholder approval. If a proposed amendment would affect two or more
classes or series in the same or a substantially similar way, all the classes or
series so affected must vote together as a single voting group on the proposed
amendment.
Shares of the same class or series may be issued as a dividend on a pro rata
basis and without consideration. Shares of another class or series may be issued
as share dividends in respect
<PAGE>
of a class or series of stock if approved by a majority of the votes entitled to
be cast by the class or series to be issued unless there are no outstanding
shares of the class or series to be issued. Unless otherwise provided by the
Board of Directors, the record date for determining shareholders entitled to a
share dividend shall be the date the Board of Directors authorizes the share
dividend.
Unless otherwise provided in the Bylaws, the record date for determining
shareholders entitled to notice of and to vote at any meeting is the close of
business on the day before the first notice is mailed or otherwise sent to the
shareholders, provided that in no event may a record date be more than 70 days
before the meeting.
If a shareholder is entitled to fractional shares pursuant to preemptive rights,
a stock dividend, consolidation or merger, reverse stock split or otherwise, the
Association may: (a) issue fractional shares or; (b) in lieu of the issuance of
fractional shares, issue script or warrants entitling the holder to receive a
full share upon surrendering enough script or warrants to equal a full share;
(c) if there is an established and active market in the Association's stock,
make reasonable arrangements to provide the shareholder with an opportunity to
realize a fair price through sale of the fraction, or purchase of the additional
fraction required for a full share; (d) remit the cash equivalent of the
fraction to the shareholder; or (e) sell full shares representing all the
fractions at public auction or to the highest bidder after having solicited and
received sealed bids from at least three licensed stock brokers, and distribute
the proceeds pro rata to shareholders who otherwise would be entitled to the
fractional shares. The holder of a fractional share is entitled to exercise the
rights for shareholder, including the right to vote, to receive dividends, and
to participate in the assets of the Association upon liquidation, in proportion
to the fractional interest. The holder of script or warrants is not entitled to
any of these rights unless the script or warrants explicitly provide for such
rights. The script or warrants may be subject to such additional conditions as:
(1) that the script or warrants will become void if not exchanged for full
shares before a specified date; and (2) that the shares for which the script or
warrants are exchangeable may be sold at the option of the Association and the
proceeds paid to scriptholders.
The Association, at any time and from time to time, may authorize and issue debt
obligations, whether or not subordinated, without the approval of the
shareholders. Obligations classified as debt, whether or not subordinated, which
may be issued by the Association without the approval of shareholders, do not
carry voting rights on any issue, including an increase or decrease in the
aggregate number of the securities, or the exchange or reclassification of all
or part of securities into securities of another class or series.
SIXTH. The Board of Directors shall appoint one of its members president of this
Association, and one of its members chairperson of the board and shall have the
power to appoint one or more vice presidents, a secretary who shall keep minutes
of the directors' and shareholders' meetings and be responsible for
authenticating the records of the Association, and such other officers and
employees as may be required to transact the business of this Association. A
duly appointed officer may appoint one or more officers or assistant officers if
authorized by the Board of Directors in accordance with the Bylaws.
The Board of Directors shall have the power to:
(1) Define the duties of the officers, employees, and agents of the
Association.
(2) Delegate the performance of its duties, but not the responsibility for
its duties, to the officers, employees, and agents of the Association.
(3) Fix the compensation and enter into employment contracts with its
officers and employees upon reasonable terms and conditions consistent
with applicable law.
<PAGE>
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and to fix the penalty
thereof.
(6) Ratify written policies authorized by the Association's management or
committees of the board.
(7) Regulate the manner in which any increase or decrease of the capital of
the Association shall be made, provided that nothing herein shall
restrict the power of shareholders to increase or decrease the capital
of the association in accordance with law, and nothing shall raise or
lower from two-thirds the percentage for shareholder approval to
increase or reduce the capital.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial Bylaws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal Bylaws, except to the extent that the Articles of
Association reserve this power in whole or in part to shareholders.
(11) Make contracts.
(12) Generally perform all acts that are legal for a Board of Directors to
perform.
SEVENTH. The Board of Directors shall have the power to change the location of
the main office of this Association to any other place within the limits of the
City of Columbus, State of Ohio, without the approval of the shareholders; and
shall have the power to change the location of the main office of this
Association to any other place outside the limits of the City of Columbus, State
of Ohio, but not more than thirty miles beyond such limits, with the affirmative
vote of shareholders owning two-thirds of the stock of the Association, subject
to receipt of a certificate of approval from the Comptroller of the Currency.
The Board of Directors shall have the power to establish or change the location
of any branch or branches of the Association to any other location permitted
under applicable law without the approval of the shareholders, subject to
approval by the Office of the Comptroller of the Currency. The Board of
Directors shall have the power to establish or change the location of any
nonbranch office or facility of the Association without the approval of the
shareholders.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. The Board of Directors of this Association, or any shareholders owning,
in the aggregate, not less than 20 percent of the stock of this Association, may
call a special meeting of shareholders at any time. Unless otherwise provided by
the Bylaws or the laws of the United States, or waived by shareholders, a notice
of the time, place, and purpose of every annual and special meeting of the
shareholders shall be given by first-class mail, postage prepaid, mailed at
least 10, and no more than 60, days prior to the date of the meeting to each
shareholder of record at his/her address as shown upon the books of this
Association. Unless otherwise provided by the Bylaws, any action requiring
approval of shareholders must be effected at a duly called annual or special
meeting.
TENTH. The Association shall provide indemnification as set forth below:
Every person who is or was a Director, officer or employee of the Association or
of any other corporation which he served as a Director, officer or employee at
the request of the Association
<PAGE>
as part of his regularly assigned duties may be indemnified by the Association
in accordance with the provisions of this Article against all liability
(including, without limitation, judgments, fines, penalties, and settlements)
and all reasonable expenses (including, without limitation, attorneys' fees and
investigative expenses) that may be incurred or paid by him in connection with
any claim, action, suit or proceeding, whether civil, criminal or administrative
(all referred to hereafter in this Article as "Claims") or in connection with
any appeal relating thereto in which he may become involved as a party or
otherwise or with which he may be threatened by reason of his being or having
been a Director, officer or employee of the Association or such other
corporation, or by reason of any action taken or omitted by him in his capacity
as such Director, officer or employee, whether or not he continues to be such at
the time such liability or expenses are incurred; PROVIDED that nothing
contained in this Article shall be construed to permit indemnification of any
such person who is adjudged guilty of, or liable for, willful misconduct, gross
neglect of duty or criminal acts, unless, at the time such indemnification is
sought, such indemnification in such instance is permissible under applicable
law and regulations, including published rulings of the Comptroller of the
Currency or other appropriate supervisory or regulatory authority; and PROVIDED
FURTHER that there shall be no indemnification of Directors, officers, or
employees against expenses, penalties, or other payments incurred in an
administrative proceeding or action instituted by an appropriate regulatory
agency which proceeding or action results in a final order assessing civil money
penalties or requiring affirmative action by an individual or individuals in the
form of payments to the Association.
Every person who may be indemnified under the provisions of this Article and who
has been wholly successful on the merits with respect to any Claim shall be
entitled to indemnification as of right. Except as provided in the preceding
sentence, any indemnification under this Article shall be at the sole discretion
of the Board of Directors and shall be made only if the Board of Directors or
the Executive Committee acting by a quorum consisting of Directors who are not
parties to such Claim shall find or if independent legal counsel (who may be the
regular counsel of the Association) selected by the Board of Directors or
Executive Committee whether or not a disinterested quorum exists shall render
their opinion that in view of all of the circumstances then surrounding the
Claim, such indemnification is equitable and in the best interests of the
Association. Among the circumstances to be taken into consideration in arriving
at such a finding or opinion is the existence or non-existence of a contract of
insurance or indemnity under which the Association would be wholly or partially
reimbursed for such indemnification, but the existence or non-existence of such
insurance is not the sole circumstance to be considered nor shall it be wholly
determinative of whether such indemnification shall be made. In addition to such
finding or opinion, no indemnification under this Article shall be made unless
the Board of Directors or the Executive Committee acting by a quorum consisting
of Directors who are not parties to such Claim shall find or if independent
legal counsel (who may be the regular counsel of the Association) selected by
the Board of Directors or Executive Committee whether or not a disinterested
quorum exists shall render their opinion that the Directors, officer or employee
acted in good faith in what he reasonably believed to be the best interests of
the Association or such other corporation and further in the case of any
criminal action or proceeding, that the Director, officer or employee reasonably
believed his conduct to be lawful. Determination of any Claim by judgment
adverse to a Director, officer or employee by settlement with or without Court
approval or conviction upon a plea of guilty or of NOLO CONTENDERE or its
equivalent shall not create a presumption that a Director, officer or employee
failed to meet the standards of conduct set forth in this Article. Expenses
incurred with respect to any Claim may be advanced by the Association prior to
the final disposition thereof upon receipt of an undertaking satisfactory to the
Association by or on behalf of the recipient to repay such amount unless it is
ultimately determined that he is entitled to indemnification under this Article.
The rights of indemnification provided in this Article shall be in addition to
any rights to which any Director, officer or employee may otherwise be entitled
by contract or as a matter of law. Every person who shall act as a Director,
officer or employee of this Association shall be
<PAGE>
conclusively presumed to be doing so in reliance upon the right of
indemnification provided for in this Article.
ELEVENTH. These Articles of Association may be amended at any regular or special
meeting of the shareholders by the affirmative vote of the holders of a majority
of the stock of this Association, unless the vote of the holders of a greater
amount of stock is required by law, and in that case by the vote of the holders
of such greater amount. The Association's Board of Directors may propose one or
more amendments to the Articles of Association for submission to the
shareholders.
<PAGE>
EXHIBIT 2
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE
TRUSTEE TO COMMENCE BUSINESS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) is a National Banking Association formed under the laws of the
United States and is authorized thereunder to transact the business of
banking on the date of this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 3
A COPY OF THE AUTHORIZATION OF THE TRUSTEE
TO EXERCISE CORPORATE TRUST POWERS
CERTIFICATE
I, John D. Hawke, Jr., Comptroller of the Currency, do hereby certify that:
1. The Comptroller of the Currency, pursuant to Revised Statutes 324, et seq.,
as amended, 12 U.S.C. 1, et seq., as amended, has possession, custody and
control of all records pertaining to the chartering of all National Banking
Associations.
2. "Bank One Trust Company, National Association," Columbus, Ohio, (Charter
No. 16235) was granted, under the hand and seal of the Comptroller, the right
to act in all fiduciary capacities authorized under the provisions of the Act
of Congress approved September 28, 1962, 76 Stat. 668, 12 U.S.C. 92a, and
that the authority so granted remains in full force and effect on the date of
this Certificate.
IN TESTIMONY WHEREOF, I have hereunto
subscribed my name and caused my seal of
office to be affixed to these presents at the
Treasury Department in the City of
Washington and District of Columbia, this
15th day of September, 1999.
/s/ John D. Hawke, Jr.
----------------------
Comptroller of the Currency
<PAGE>
EXHIBIT 4
A COPY OF THE EXISTING BY-LAWS OF THE TRUSTEE
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I
MEETINGS OF SHAREHOLDERS
SECTION 1.01. ANNUAL MEETING. The regular annual meeting of the shareholders of
the Bank for the election of Directors and for the transaction of such business
as may properly come before the meeting shall be held at its main office, or
other convenient place duly authorized by the Board of Directors, on the same
day upon which any regular or special Board meeting is held from and including
the first Monday of January to, and including, the fourth Monday of February of
each year, or on the next succeeding banking day, if the day fixed falls on a
legal holiday. If from any cause, an election of Directors is not made on the
day fixed for the regular meeting of the shareholders or, in the event of a
legal holiday, on the next succeeding banking day, the Board of Directors shall
order the election to be held on some subsequent day, as soon thereafter as
practicable, according to the provisions of law; and notice thereof shall be
given in the manner herein provided for the annual meeting. Notice of such
annual meeting shall be given by or under the direction of the Secretary, or
such other officer as may be designated by the Chief Executive Officer, by
first-class mail, postage prepaid, to all shareholders of record of the Bank at
their respective addresses as shown upon the books of the Bank mailed not less
than ten days prior to the date fixed for such meeting.
SECTION 1.02. SPECIAL MEETINGS. A special meeting of the shareholders of the
Bank may be called at any time by the Board of Directors or by any three or more
shareholders owning, in the aggregate, not less than ten percent of the stock of
the Bank. Notice of any special meeting of the shareholders called by the Board
of Directors, stating the time, place and purpose of the meeting, shall be given
by or under the direction of the Secretary, or such other officer as is
designated by the Chief Executive Officer, by first-class mail, postage prepaid,
to all shareholders of record of the Bank at their respective addresses as shown
upon the books of the Bank mailed not less than ten days prior to the date fixed
for such meeting. Any special meeting of shareholders shall be conducted and its
proceedings recorded in the manner prescribed in these By-Laws for annual
meetings of shareholders.
SECTION 1.03. SECRETARY OF MEETING OF SHAREHOLDERS. The Board of Directors may
designate a person to be the secretary of the meeting of shareholders. In the
absence of a presiding officer, as designated by these By-Laws, the Board of
Directors may designate a person to act as the presiding officer. In the event
the Board of Directors fails to designate a person to preside at a meeting of
shareholders and a secretary of such meeting, the shareholders present or
represented shall elect a person to preside and a person to serve as secretary
of the meeting. The secretary of the meeting of shareholders shall cause the
returns made by the judges of election and other proceedings to be recorded in
the minute books of the Bank. The presiding officer shall notify the
Directors-elect of their election and to meet forthwith for the organization of
the new Board of Directors. The minutes of the meeting shall be signed by the
presiding officer and the secretary designated for the meeting.
SECTION 1.04. JUDGES OF ELECTION. The Board of Directors may appoint as many as
three shareholders to be judges of the election, who shall hold and conduct the
same, and who
<PAGE>
shall, after the election has been held, notify, in writing over their
signatures, the secretary of the meeting of shareholders of the result thereof
and the names of the Directors elected; provided, however, that upon failure for
any reason of any judge or judges of election, so appointed by the Directors, to
serve, the presiding officer of the meeting shall appoint other shareholders or
their proxies to fill the vacancies. The judges of election, at the request of
the chairman of the meeting, shall act as tellers of any other vote by ballot
taken at such meeting, and shall notify, in writing over their signature, the
secretary of the Board of Directors of the result thereof.
SECTION 1.05. PROXIES. In all elections of Directors, each shareholder of
record, who is qualified to vote under the provisions of Federal Law, shall have
the right to vote the number of shares of record in such shareholder's name for
as many persons as there are Directors to be elected, or to cumulate such shares
as provided by Federal Law. In deciding all other questions at meetings of
shareholders, each shareholder shall be entitled to one vote on each share of
stock of record in such shareholder's name. Shareholders may vote by proxy duly
authorized in writing. All proxies used at the annual meeting shall be secured
for that meeting only, or any adjournment thereof, and shall be dated, if not
dated by the shareholder, as of the date of the receipt thereof. No officer or
employee of this Bank may act as proxy.
SECTION 1.06. QUORUM. Holders of record of a majority of the shares of the
capital stock of the Bank, eligible to be voted, present either in person or by
proxy, shall constitute a quorum for the transaction of business at any meeting
of shareholders, but shareholders present at any meeting and constituting less
than a quorum may, without further notice, adjourn the meeting from time to time
until a quorum is obtained. A majority of the votes cast shall decide every
question or matter submitted to the shareholders at any meeting, unless
otherwise provided by law or by the Articles of Association.
ARTICLE II
DIRECTORS
SECTION 2.01. QUALIFICATIONS. Each Director shall have the qualifications
prescribed by law. No person elected as a Director may exercise any of the
powers of office until such Director has taken the oath of such office.
SECTION 2.02. VACANCIES. Directors of the Bank shall hold office for one year or
until their successors are elected and qualified. Any vacancy in the Board shall
be filled by appointment of the remaining Directors, and any Director so
appointed shall hold office until the next election.
SECTION 2.03. ORGANIZATION MEETING. The Directors elected by the shareholders
shall meet for organization of the new Board of Directors at the time and place
fixed by the presiding officer of the annual meeting. If at the time fixed for
such meeting there is no quorum present, the Directors in attendance may adjourn
from time to time until a quorum is obtained. A majority of the number of
Directors elected by the shareholders shall constitute a quorum for the
transaction of business.
SECTION 2.04. REGULAR MEETINGS. The regular meetings of the Board of Directors
shall be held at such date, time and place as the Board may previously
designate, or should the Board fail to so designate, at such date, time and
place as the Chairman of the Board, Chief
<PAGE>
Executive Officer, or President may fix. Whenever a quorum is not present, the
Directors in attendance shall adjourn the meeting to a time not later than the
date fixed by the By-Laws for the next succeeding regular meeting of the Board.
Members of the Board of Directors may participate in such meetings through use
of conference telephone or similar communications equipment, so long as all
members participating in such meetings can hear one another.
SECTION 2.05. SPECIAL MEETINGS. Special meetings of the Board of Directors shall
be held at the call of the Chairman of the Board, Chief Executive Officer, or
President, or at the request of two or more Directors. Any special meeting may
be held at such place and at such time as may be fixed in the call. Written or
oral notice shall be given to each Director not later than the day next
preceding the day on which the special meeting is to be held, which notice may
be waived in writing. The presence of a Director at any meeting of the Board of
Directors shall be deemed a waiver of notice thereof by such Director. Whenever
a quorum is not present, the Directors in attendance shall adjourn the special
meeting from day to day until a quorum is obtained. Members of the Board of
Directors may participate in such meetings through use of conference telephone
or similar communications equipment, so long as all members participating in
such meetings can hear one another.
SECTION 2.06. QUORUM. A majority of the Directors shall constitute a quorum at
any meeting, except when otherwise provided by law; but a lesser number may
adjourn any meeting, from time-to-time, and the meeting may be held, as
adjourned, without further notice. When, however, less than a quorum as herein
defined, but at least one-third and not less than two of the authorized number
of Directors are present at a meeting of the Directors, business of the Bank may
be transacted and matters before the Board approved or disapproved by the
unanimous vote of the Directors present.
SECTION 2.07. COMPENSATION. Each member of the Board of Directors shall receive
such fees for attendance at Board and Board committee meetings and such fees for
service as a Director, irrespective of meeting attendance, as from time to time
are fixed by resolution of the Board; provided, however, that payment hereunder
shall not be made to a Director for meetings attended and/or Board service which
are not for the Bank's sole benefit and which are concurrent and duplicative
with meetings attended or Board service for an affiliate of the Bank for which
the Director receives payment; and provided further that fees hereunder shall
not be paid in the case of any Director in the regular employment of the Bank or
of one of its affiliates. Each member of the Board of Directors, whether or not
such Director is in the regular employment of the Bank or of one of its
affiliates, shall be reimbursed for travel expenses incident to attendance at
Board and Board committee meetings.
SECTION 2.08. EXECUTIVE COMMITTEE. There may be a standing committee of the
Board of Directors known as the Executive Committee which shall possess and
exercise, when the Board is not in session, all the powers of the Board that may
lawfully be delegated. The Executive Committee shall consist of at least three
Board members, one of whom shall be the Chairman of the Board, Chief Executive
Officer or the President. The other members of the Executive Committee shall be
appointed by the Chairman of the Board, the Chief Executive Officer, or the
President, with the approval of the Board, and who shall continue as members of
the Executive Committee until their successors are appointed, provided, however,
that any member of the Executive Committee may be removed by the Board upon a
majority vote thereof at any regular or special meeting of the Board. The
Chairman, Chief Executive Officer, or President shall fill any vacancy in the
Executive Committee by the appointment of another Director, subject to the
approval of the Board of Directors. The Executive Committee shall
<PAGE>
meet at the call of the Chairman, Chief Executive Officer, or President or any
two members thereof at such time or times and place as may be designated. In the
event of the absence of any member or members of the Executive Committee, the
presiding member may appoint a member or members of the Board to fill the place
or places of such absent member or members to serve during such absence. Two
members of the Executive Committee shall constitute a quorum. When neither the
Chairman of the Board, the Chief Executive Officer, nor President are present,
the Executive Committee shall appoint a presiding officer. The Executive
Committee shall report its proceedings and the action taken by it to the Board
of Directors.
SECTION 2.09. OTHER COMMITTEES. The Board of Directors may appoint such special
committees from time to time as are in its judgment necessary in the interest of
the Bank.
ARTICLE III
OFFICERS, MANAGEMENT STAFF AND EMPLOYEES
SECTION 3.01. OFFICERS AND MANAGEMENT STAFF.
(a) The executive officers of the Bank shall include a Chairman of the Board,
Chief Executive Officer, President, Chief Financial Officer, Secretary, Security
Officer, and may include one or more Senior Managing Directors or Managing
Directors. The Chairman of the Board, Chief Executive Officer, President, any
Senior Managing Director, any Managing Director, Chief Financial Officer,
Secretary, and Security Officer shall be elected by the Board. The Chairman of
the Board, Chief Executive Officer, and the President shall be elected by the
Board from their own number. Such officers as the Board shall elect from their
own number shall hold office from the date of their election as officers until
the organization meeting of the Board of Directors following the next annual
meeting of shareholders, provided, however, that such officers may be relieved
of their duties at any time by action of the Board of Directors, in which event
all the powers incident to their office shall immediately terminate. The
Chairman of the Board, Chief Executive Officer, or the President shall preside
at all meetings of shareholders and meetings of the Board of Directors.
(b) The management staff of the Bank shall include officers elected by the
Board, officers appointed by the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and such other persons in the employment of the Bank
who, pursuant to authorization by a duly authorized officer of the Bank, perform
management functions and have management responsibilities. Any two or more
offices may be held by the same person except that no person shall hold the
office of Chairman of the Board, Chief Executive Officer and/or President and at
the same time also hold the office of Secretary.
(c) Except as provided in the case of the elected officers who are members of
the Board, all officers and employees, whether elected or appointed, shall hold
office at the pleasure of the Board. Except as otherwise limited by law or these
By-Laws, the Board assigns to the Chairman of the Board, the Chief Executive
Officer, the President, any Senior Managing Director, any Managing Director, the
Chief Financial Officer, and/or each of their respective designees the authority
to control all personnel, including elected and appointed officers and employees
of the Bank, to employ or direct the employment of such officers and employees
as he or she may deem necessary, including the fixing of salaries and the
dismissal of such officers and employees at pleasure, and to define and
prescribe the duties and responsibilities
<PAGE>
of all officers and employees of the Bank, subject to such further limitations
and directions as he or she may from time to time deem appropriate.
(d) The Chairman of the Board, the Chief Executive Officer, the President, any
Senior Managing Director, any Managing Director, the Chief Financial Officer,
and any other officer of the Bank, to the extent that such officer is authorized
in writing by the Chairman of the Board, the Chief Executive Officer, the
President, any Senior Managing Director, any Managing Director, or the Chief
Financial Officer may appoint persons other than officers who are in employment
of the Bank to serve in management positions and in connection therewith, the
appointing officer may assign such title, salary, responsibilities and functions
as are deemed appropriate, provided, however, that nothing contained herein
shall be construed as placing any limitation on the authority of the Chairman of
the Board, the Chief Executive Officer, the President, any Senior Managing
Director, any Managing Director, or the Chief Financial Officer as provided in
this and other sections of these By-Laws.
(e) The Senior Managing Directors and the Managing Directors of the Bank shall
have general and active authority over the management of the business of the
Bank, shall see that all orders and resolutions of the Board of Directors are
carried into effect, and shall do or cause to be done all things necessary or
proper to carry on the business of the Bank in accordance with provisions of
applicable law and regulations. Each Senior Managing Director and Managing
Director shall perform all duties incident to his or her office and such other
and further duties, as may from time to time be required by the Chief Executive
Officer, the President, the Board of Directors, or the shareholders. The
specification of authority in these By-Laws wherever and to whomever granted
shall not be construed to limit in any manner the general powers of delegation
granted to a Senior Managing Director or a Managing Director in conducting the
business of the Bank. In the absence of a Senior Managing Director or a Managing
Director, such officer as is designated by the Senior Managing Director or the
Managing Director shall be vested with all the powers and perform all the duties
of the Senior Managing Director or the Managing Director as defined by these
By-Laws.
(f) Each Managing Director who is assigned oversight of one or more trust
service offices shall appoint a management committee known as the Investment
Management and Trust Committee consisting of the Managing Director of the trust
service offices and at least three other members who shall be capable and
experienced officers of the Bank appointed from time to time by the Managing
Director and who shall continue as members of the Investment Management and
Trust Committee until their successors are appointed, provided, however, that
any member of the Investment Management and Trust Committee may be removed by
the Managing Director as provided in this and other sections of these By-Laws.
The Managing Director shall fill any vacancy in the Investment Management and
Trust Committee by the appointment of another capable and experienced officer of
the Bank. Each Investment Management and Trust Committee shall meet at such
date, time and place as the Managing Director shall fix. In the event of the
absence of any member or members of the Investment Management and Trust
Committee, the Managing Director may, in his or her discretion, appoint another
officer of the Bank to fill the place or places of such absent member or members
to serve during such absence. A majority of each Investment Management and Trust
Committee shall constitute a quorum. Each Investment Management and Trust
Committee shall carry out the policies of the Bank, as adopted by the Board of
Directors, which shall be formulated and executed in accordance with State and
Federal Law, Regulations of the Comptroller of the Currency, and sound fiduciary
principles. In carrying out the policies of the Bank, each Investment Management
and Trust Committee is hereby authorized to establish management
<PAGE>
teams whose duties and responsibilities shall be specifically set forth in the
policies of the Bank. Each such management team shall report such proceedings
and the actions taken thereby to the Investment Management and Trust Committee.
Each Managing Director shall then report such proceedings and the actions taken
thereby to the Board of Directors.
SECTION 3.02. POWERS AND DUTIES OF MANAGEMENT STAFF. Pursuant to the fiduciary
powers granted to this Bank under the provisions of Federal Law and Regulations
of the Comptroller of the Currency, the Chairman of the Board, the Chief
Executive Officer, the President, the Senior Managing Directors, the Managing
Directors, the Chief Financial Officer, and those officers so designated and
authorized by the Chairman of the Board, the Chief Executive Officer, the
President, the Senior Managing Directors, the Managing Directors, or the Chief
Financial Officer are authorized for and on behalf of the Bank, and to the
extent permitted by law, to make loans and discounts; to purchase or acquire
drafts, notes, stocks, bonds, and other securities for investment of funds held
by the Bank; to execute and purchase acceptances; to appoint, empower and direct
all necessary agents and attorneys; to sign and give any notice required to be
given; to demand payment and/or to declare due for any default any debt or
obligation due or payable to the Bank upon demand or authorized to be declared
due; to foreclose any mortgages; to exercise any option, privilege or election
to forfeit, terminate, extend or renew any lease; to authorize and direct any
proceedings for the collection of any money or for the enforcement of any right
or obligation; to adjust, settle and compromise all claims of every kind and
description in favor of or against the Bank, and to give receipts, releases and
discharges therefor; to borrow money and in connection therewith to make,
execute and deliver notes, bonds or other evidences of indebtedness; to pledge
or hypothecate any securities or any stocks, bonds, notes or any property real
or personal held or owned by the Bank, or to rediscount any notes or other
obligations held or owned by the Bank, whenever in his or her judgment it is
reasonably necessary for the operation of the Bank; and in furtherance of and in
addition to the powers hereinabove set forth to do all such acts and to take all
such proceedings as in his or her judgment are necessary and incidental to the
operation of the Bank.
SECTION 3.03. SECRETARY. The Secretary or such other officers as may be
designated by the Chief Executive Officer shall have supervision and control of
the records of the Bank and, subject to the direction of the Chief Executive
Officer, shall undertake other duties and functions usually performed by a
corporate secretary. Other officers may be designated by the Secretary as
Assistant Secretary to perform the duties of the Secretary.
SECTION 3.04. EXECUTION OF DOCUMENTS. Any member of the Bank's management staff
or any employee of the Bank designated as an officer on the Bank's payroll
system is hereby authorized for and on behalf of the Bank to sell, assign,
lease, mortgage, transfer, deliver and convey any real or personal property,
including shares of stock, bonds, notes, certificates of indebtedness (including
the assignment and redemption of registered United States obligations) and all
other forms of intangible property now or hereafter owned by or standing in the
name of the Bank, or its nominee, or held by the Bank as collateral security, or
standing in the name of the Bank, or its nominee, in any fiduciary capacity or
in the name of any principal for whom this Bank may now or hereafter be acting
under a power of attorney or as agent, and to execute and deliver such partial
releases from any discharges or assignments of mortgages and assignments or
surrender of insurance policies, deeds, contracts, assignments or other papers
or documents as may be appropriate in the circumstances now or hereafter held by
the Bank in its own name, in a fiduciary capacity, or owned by any principal for
whom this Bank may now or hereafter be acting under a power of attorney or as
agent; provided,
<PAGE>
however, that, when necessary, the signature of any such person shall be
attested or witnessed in each case by another officer of the Bank. Any member of
the Bank's management staff or any employee of the Bank designated as an officer
on the Bank's payroll system is hereby authorized for and on behalf of the Bank
to execute any indemnity and fidelity bonds, trust agreements, proxies or other
papers or documents of like or different character necessary, desirable or
incidental to the appointment of the Bank in any fiduciary capacity, the conduct
of its business in any fiduciary capacity, or the conduct of its other banking
business; to sign and issue checks, drafts, orders for the payment of money and
certificates of deposit; to sign and endorse bills of exchange, to sign and
countersign foreign and domestic letters of credit, to receive and receipt for
payments of principal, interest, dividends, rents, fees and payments of every
kind and description paid to the Bank, to sign receipts for money or other
property acquired by or entrusted to the Bank, to guarantee the genuineness of
signatures on assignments of stocks, bonds or other securities, to sign
certifications of checks, to endorse and deliver checks, drafts, warrants,
bills, notes, certificates of deposit and acceptances in all business
transactions of the Bank; also to foreclose any mortgage, to execute and deliver
receipts for any money or property; also to sign stock certificates for and on
behalf of this Bank as transfer agent or registrar, and to authenticate bonds,
debentures, land or lease trust certificates or other forms of security issued
pursuant to any indenture under which this Bank now or hereafter is acting as
trustee or in any other fiduciary capacity; to execute and deliver various forms
of documents or agreements necessary to effectuate certain investment strategies
for various fiduciary or custody customers of the Bank, including, without
limitation, exchange funds, options, both listed and over-the-counter,
commodities trading, futures trading, hedge funds, limited partnerships, venture
capital funds, swap or collar transactions and other similar investment vehicles
for which the Bank now or in the future may deem appropriate for investment of
fiduciary customers or in which non-fiduciary customers may direct investment by
the Bank.
Without limitation on the foregoing, the Chief Executive Officer, Chairman of
the Board, or President of the Bank shall have the authority from time to time
to appoint officers of the Bank as Vice President for the sole purpose of
executing releases or other documents incidental to the conduct of the Bank's
business in any fiduciary capacity where required by state law or the governing
document. In addition, other persons in the employment of the Bank or its
affiliates may be authorized by the Chief Executive Officer, Chairman of the
Board, President, Senior Managing Directors, Managing Directors, or Chief
Financial Officer to perform acts and to execute the documents described in the
paragraph above, subject, however, to such limitations and conditions as are
contained in the authorization given to such person.
SECTION 3.05. PERFORMANCE BOND. All officers and employees of the Bank shall be
bonded for the honest and faithful performance of their duties for such amount
as may be prescribed by the Board of Directors.
ARTICLE IV
STOCKS AND STOCK CERTIFICATES
SECTION 4.01. STOCK CERTIFICATES. The shares of stock of the Bank shall be
evidenced by certificates which shall bear the signature of the Chairman of the
Board, the Chief Executive Officer, or the President (which signature may be
engraved, printed or impressed), and shall be signed manually by the Secretary,
or any other officer appointed by the Chief Executive Officer for that purpose.
In case any such officer who has signed or whose facsimile signature has
<PAGE>
been placed upon such certificate shall have ceased to be such officer before
such certificate is issued, it may be issued by the Bank with the same effect as
if such officer had not ceased to be such at the time of its issue. Each such
certificate shall bear the corporate seal of the Bank, shall recite on its face
that stock represented thereby is transferable only upon the books of the Bank
when properly endorsed and shall recite such other information as is required by
law and deemed appropriate by the Board. The corporate seal may be facsimile
engraved or printed.
SECTION 4.02. STOCK ISSUE AND TRANSFER. The shares of stock of the Bank shall be
transferable only upon the stock transfer books of the Bank and, except as
hereinafter provided, no transfer shall be made or new certificates issued
except upon the surrender for cancellation of the certificate or certificates
previously issued therefor. In the case of the loss, theft, or destruction of
any certificate, a new certificate may be issued in place of such certificate
upon the furnishing of an affidavit setting forth the circumstances of such
loss, theft, or destruction and indemnity satisfactory to the Chairman of the
Board, the Chief Executive Officer, or the President. The Board of Directors or
the Chairman of the Board, Chief Executive Officer, or the President may
authorize the issuance of a new certificate therefor without the furnishing of
indemnity. Stock transfer books, in which all transfers of stock shall be
recorded, shall be provided. The stock transfer books may be closed for a
reasonable period and under such conditions as the Board of Directors may at any
time determine, for any meeting of shareholders, the payment of dividends or any
other lawful purpose. In lieu of closing the transfer books, the Board of
Directors may, in its discretion, fix a record date and hour constituting a
reasonable period prior to the day designated for the holding of any meeting of
the shareholders or the day appointed for the payment of any dividend, or for
any other purpose at the time as of which shareholders entitled to notice of and
to vote at any such meeting or to receive such dividend or to be treated as
shareholders for such other purpose shall be determined, and only shareholders
of record at such time shall be entitled to notice of or to vote at such meeting
or to receive such dividends or to be treated as shareholders for such other
purpose.
ARTICLE V
MISCELLANEOUS PROVISIONS
SECTION 5.01. SEAL. The seal of the Bank shall be circular in form with "SEAL"
in the center, and the name "BANK ONE TRUST COMPANY, NA" located clockwise
around the upper half of the seal.
SECTION 5.02. MINUTE BOOK. The organization papers of this Bank, the Articles of
Association, the returns of judges of elections, the By-Laws and any amendments
thereto, the proceedings of all regular and special meetings of the shareholders
and of the Board of Directors, and reports of the committees of the Board of
Directors shall be recorded in the minute books of the Bank. The minutes of each
such meeting shall be signed by the presiding officer and attested by the
secretary of the meeting.
SECTION 5.03. CORPORATE POWERS. The corporate existence of the Bank shall
continue until terminated in accordance with the laws of the United States. The
purpose of the Bank shall be to carry on the general business of a commercial
bank trust department and to engage in such activities as are necessary,
incident, or related to such business. The Articles of Association of the Bank
shall not be amended, or any other provision added elsewhere in the
<PAGE>
Articles expanding the powers of the Bank, without the prior approval of the
Comptroller of the Currency.
SECTION 5.04. AMENDMENT OF BY-LAWS. The By-Laws may be amended, altered or
repealed, at any regular or special meeting of the Board of Directors, by a vote
of a majority of the Directors.
As amended April 24, 1991 Section 3.01 (Officers and Management Staff)
Section 3.02 (Chief Executive Officer)
Section 3.03 (Powers and Duties of Officers and
Management Staff)
Section 3.05 (Execution of Documents)
As amended January 27, 1995 Section 2.04 (Regular Meetings)
Section 2.05 (Special Meetings)
Section 3.01(f) (Officers and Management Staff)
Section 3.03(e) (Powers and Duties of Officers
and Management Staff)
Section 5.01 (Seal)
Amended and restated in its entirety effective May 1, 1996
As amended August 1, 1996 Section 2.09 (Trust Examining Committee)
Section 2.10 (Other Committees)
As amended October 16, 1997 Section 3.01 (Officers and Management Staff)
Section 3.02 (Powers and Duties of Officers and
Management Staff)
Section 3.04 (Execution of Documents)
As amended January 1, 1998 Section 1.01 (Annual Meeting)
<PAGE>
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
March 23, 2000
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of an indenture between Precision Castparts
Corp. and Bank One Trust Company, National Association, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
BANK ONE TRUST COMPANY, NATIONAL ASSOCIATION
BY: /s/ SANDRA L. CARUBA
SANDRA L. CARUBA
VICE PRESIDENT
<PAGE>
EXHIBIT 7
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 Broad Street Vendor ID: D Cert #: 21377 Page RC-1
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1999
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C300
--------
ASSETS
<S> <C> <C> <C>
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCON
----
a. Noninterest-bearing balances and currency and coin(1) .............. 0081 123,692 1.a
b. Interest-bearing balances(2) ....................................... 0071 17,687 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .......... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) ....... 1773 5,860 2.b
3. Federal funds sold and securities purchased under agreements to
resell ................................................................ 1350 364,813 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule ............ RCON
----
RC-C) ................................................................. 2122 58,020 4.a
b. LESS: Allowance for loan and lease losses .......................... 3123 10 4.b
c. LESS: Allocated transfer risk reserve .............................. 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and ........... RCON
----
reserve (item 4.a minus 4.b and 4.c) ............................... 2125 58,010 4.d
5. Trading assets (from Schedule RD-D) ................................... 3545 0 5.
6. Premises and fixed assets (including capitalized leases) .............. 2145 22,547 6.
7. Other real estate owned (from Schedule RC-M) .......................... 2150 0 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) ........................................ 2130 0 8.
9. Customers' liability to this bank on acceptances outstanding .......... 2155 0 9.
10. Intangible assets (from Schedule RC-M) ................................ 2143 27,151 10.
11. Other assets (from Schedule RC-F) ..................................... 2160 141,759 11.
12. Total assets (sum of items 1 through 11) .............................. 2170 761,519 12.
</TABLE>
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bank One Trust Company, N.A. Call Date: 12/31/99 State #: 391581 FFIEC 032
Address: 100 East Broad Street Vendor ID: D Cert #" 21377 Page RC-2
City, State Zip: Columbus, OH 43271 Transit #: 04400003
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
---------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1) ........................................... 2200 589,846 13.a
(1) Noninterest-bearing(1) .............................................. 6631 517,140 13.a1
(2) Interest-bearing .................................................... 6636 72,706 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from
Schedule RC-E, part II).................................................
(1) Noninterest bearing.................................................
(2) Interest-bearing....................................................
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 0 14
15. a. Demand notes issued to the U.S. Treasury RCON 2840 0 15.a
b. Trading Liabilities(from Sechedule RC-D) ............................... RCFD 3548 0 15.b
16. Other borrowed money: RCON
----
a. With original maturity of one year or less .............................. 2332 0 16.a
b. With original maturity of more than one year ........................... A547 0 16.b
c. With original maturity of more than three years ........................ A548 0 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding .................... 2920 0 18.
19. Subordinated notes and debentures .......................................... 3200 0 19.
20. Other liabilities (from Schedule RC-G) ..................................... 2930 63,244 20.
21. Total liabilities (sum of items 13 through 20) ............................. 2948 653,090 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus .............................. 3838 0 23.
24. Common stock ............................................................... 3230 800 24.
25. Surplus (exclude all surplus related to preferred stock) ................... 3839 45,157 25.
26. a. Undivided profits and capital reserves .................................. 3632 62,458 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities ............................................................. 8434 14 26.b
c. Accumulated net gains (losses) on cash flow hedges ...................... 4336 0 26.c
27. Cumulative foreign currency translation adjustments.........................
28. Total equity capital (sum of items 23 through 27) .......................... 3210 108,429 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28) ...................................... 3300 761,519 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement below that
best describes the most auditors as of any date during ------------
1996.......................................RCFD 6724........ N/A M.1.
-------------
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by other
with generally accepted auditing standards by a certified external auditors (may be required by state chartering
public accounting firm which submits a report on the bank authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by external
conducted in accordance with generally accepted auditing auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by external
submits a report on the consolidated holding company auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation work)
3 = Directors' examination of the bank conducted in 8 = No external audit work
<PAGE>
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
</TABLE>
(1) Includes total demand deposits and noninterest-bearing time and savings
deposits.
<PAGE>
LETTER OF TRANSMITTAL
TO EXCHANGE
8.75% SENIOR NOTES DUE 2005
OF
PRECISION CASTPARTS CORP.
(THE "COMPANY")
- --------------------------------------------------------------------------------
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON ___________,
2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF 8.75% SENIOR NOTES DUE
2005 MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE.
- --------------------------------------------------------------------------------
TO:
BANK ONE TRUST COMPANY, N.A., EXCHANGE AGENT
BY MAIL, BY HAND OR OVERNIGHT BY FACSIMILE: (312) 407-8853
DELIVERY:
c/o Bank One Trust Company, N.A. PHONE NUMBER: (800) 524-9472
One North State Street, 9th Floor
Chicago, IL 60602
Attention: Exchanges
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS, OR TRANSMISSION OF
INSTRUCTIONS VIA FACSIMILE OR TELEX, OTHER THAN AS SET
FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
The instructions accompanying this Letter of Transmittal should be read
carefully before this Letter of Transmittal is completed. Except as otherwise
provided herein, all signatures on this Letter of Transmittal must be guaranteed
in accordance with the procedures set forth herein. See Instruction 1.
HOLDERS WHO WISH TO BE ELIGIBLE TO RECEIVE THE EXCHANGE OFFER
CONSIDERATION PURSUANT TO THE EXCHANGE OFFER MUST VALIDLY TENDER (AND NOT
WITHDRAW) THEIR NOTES TO THE EXCHANGE AGENT PRIOR TO THE EXPIRATION DATE.
This Letter of Transmittal is to be used only if 8.75% Senior Notes due
2005 (the "Securities" or the "Old Notes") of the Company are to be physically
delivered to the Exchange Agent or delivered by book-entry transfer to the
Exchange Agent's account at The Depository Trust Company ("DTC") (a "Book-Entry
Transfer Facility") pursuant to the book-entry transfer procedures set forth in
the Prospectus of the Company dated _____________, 2000 (as the same may be
amended or supplemented from time to time, the "Prospectus") under the heading
"The Exchange Offer -- Procedures for Tendering" and "-- Book-Entry Transfer."
See Instruction 2. Delivery of documents to a Book-Entry Transfer Facility does
not constitute delivery to the Exchange Agent.
Holders whose Old Notes are not immediately available or who cannot
deliver their Old Notes and all other required documents to the Exchange Agent,
or who cannot complete the procedure for book-entry transfer, prior to the
Expiration Date, may nevertheless tender their Old Notes in accordance with the
guaranteed delivery procedures set forth in the Prospectus under the heading
"The Exchange Offer -- Procedures for Tendering" and "-- Guaranteed Delivery
Procedures." See Instruction 2.
All capitalized terms used herein and not otherwise defined herein are
used herein with the meanings ascribed to them in the Prospectus.
HOLDERS WHO WISH TO TENDER THEIR OLD NOTES MUST, AT A MINIMUM, COMPLETE
COLUMNS (1) THROUGH (3) IN THE BOX HEREIN ENTITLED "DESCRIPTION OF SECURITIES
TENDERED" AND SIGN IN THE APPROPRIATE BOX BELOW. If only those columns are
completed, the holder will be deemed to have tendered all the Old Notes, listed
in the table. If a holder wishes to tender less than all of such Old Notes,
column (4) must be completed in full, and such holder should refer to
Instruction 5.
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED BY BOOK-ENTRY
TRANSFER TO THE EXCHANGE AGENT'S ACCOUNT AT A BOOK-ENTRY TRANSFER
FACILITY AND COMPLETE THE FOLLOWING:
Name of Tendering Institution:
Account Number:
Transaction Code Number:
/ / CHECK HERE IF TENDERED OLD NOTES ARE BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY AND COMPLETE THE
FOLLOWING:
Name(s) of Registered Holder(s):
Window Ticket No. (if any):
Date of Execution of Notice of Guaranteed Delivery:
Name of Institution which Guaranteed Delivery:
Account Number:
Transaction Code Number:
DESCRIPTION OF SECURITIES TENDERED
<TABLE>
<CAPTION>
====================================================================================================================================
(1) (2) (3) (4)
NAME(S) AND ADDRESS(ES) OF HOLDER(S) (PLEASE FILL IN, IF BLANK, SECURITY NUMBER(S)* TOTAL PRINCIPAL PRINCIPAL AMOUNT TENDERED
EXACTLY AS NAME(S) APPEAR(S) ON SECURITIES AMOUNT OF (IF LESS
SECURITIES** THAN ALL)**
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
Total:
====================================================================================================================================
</TABLE>
<PAGE>
- --------------------------------------------------------------------------------
* Need not be completed by holders tendering by book-entry transfer (see
below).
** Completion of column (3) will constitute the tender by you of all
Securities delivered unless otherwise specified in column (4). See
Instruction 5.
- --------------------------------------------------------------------------------
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
Ladies and Gentlemen:
By execution hereof, the undersigned hereby acknowledges he has received
and reviewed the Prospectus and this Letter of Transmittal relating to the
Company's offer to exchange (the "Exchange Offer") the Old Notes for 8.75%
Senior Notes due 2005 (the "New Notes"), which have been registered under the
Securities Act of 1933, as amended (the "Securities Act"), and otherwise upon
the terms and subject to the conditions set forth in the Prospectus. The
undersigned hereby acknowledges that the undersigned will not be entitled to any
payment in respect of accrued and unpaid interest on the Securities tendered
herewith and accepted pursuant to the Exchange Offer.
Upon the terms and subject to the conditions of the Exchange Offer, the
undersigned hereby tenders to the Company the principal amount of Securities
indicated above.
Subject to, and effective upon, the acceptance by the Company of the
principal amount of Securities tendered hereby for exchange pursuant to the
terms of the Exchange Offer, the undersigned hereby irrevocably sells, assigns
and transfers to, or upon the order of, the Company, all right, title and
interest in and to, and any and all claims in respect of or arising or having
arisen as a result of the undersigned's status as a holder of, all Securities
tendered hereby, waives any and all rights with respect to the Securities
tendered hereby (including, without limitation, the undersigned's waiver of any
existing or past defaults and their consequences with respect to the Securities)
and releases and discharges any obligor or parent of any obligor of the
Securities from any and all claims the undersigned may have now, or may have in
the future, arising out of or related to the Securities, including, without
limitation, any claims that the undersigned is entitled to receive additional
principal or interest payments with respect to the Securities or to participate
in any redemption or defeasance of the Securities. The undersigned hereby
irrevocably constitutes and appoints the Exchange Agent (with full knowledge
that the Exchange Agent also acts as agent of the Company) as the true and
lawful agent and attorney-in-fact of the undersigned with respect to such
Securities, with full power of substitution (such power-of-attorney being deemed
to be an irrevocable power coupled with an interest) to (a) deliver such
Securities, or transfer ownership of such Securities on the account books
maintained by a Book-Entry Transfer Facility, together, in either case, with all
accompanying evidences of transfer and authenticity, to or upon the order of the
Company, (b) present such Securities for transfer on the books of the Company,
and (c) receive all benefits and otherwise exercise all rights of beneficial
ownership of such Securities, all in accordance with the terms of the Exchange
Offer.
The undersigned hereby represents and warrants that (i) the undersigned
has full power and authority to tender, sell, assign and transfer the Securities
tendered hereby, and that when such Securities are accepted for exchange by the
Company, the Company will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances and
that none of such Securities will be subject to any adverse claim or right; (ii)
the undersigned owns the Securities being tendered hereby and is entitled to
tender such Securities as contemplated by the Exchange Offer, all within the
meaning of Rule 14e-4 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and (iii) the tender of such Securities complies with Rule
14e-4. The undersigned, upon request, will execute and deliver all additional
documents deemed by the Exchange Agent or the Company to be necessary or
desirable to complete the sale, assignment and transfer of the Securities
tendered hereby.
The undersigned understands that tenders of Securities pursuant to any of
the procedures described in the Prospectus under the caption "The Exchange Offer
- -- Procedures for Tendering" and in the instructions hereto will constitute the
undersigned's acceptance of the terms and conditions of the Exchange Offer. The
Company's acceptance of such Securities for exchange pursuant to the terms of
the Exchange Offer will constitute a binding agreement between the undersigned
and the Company upon the terms and subject to the conditions of the Exchange
Offer. The undersigned has read and agrees to all terms and conditions of the
Exchange Offer. Delivery of the enclosed Securities shall be effected, and risk
of loss and title of such Securities shall pass, only upon proper delivery
thereof to the Exchange Agent.
All authority conferred or agreed to be conferred by this Letter of
Transmittal shall survive the death or incapacity of the undersigned and every
obligation of the undersigned under this Letter of Transmittal shall be binding
upon the undersigned's heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives. SECURITIES TENDERED PURSUANT TO THE EXCHANGE OFFER MAY BE
WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION DATE. See the information set
forth under the heading "The Exchange Offer -- Withdrawal of Tenders" in the
Prospectus.
Unless otherwise indicated herein in the box entitled "Special Payment
Instructions," please issue the New Notes with respect to Securities accepted
for exchange, and return any certificates for Securities not tendered or not
accepted for exchange, in the name(s) of the registered holder(s) appearing in
the box entitled "Description of Securities Tendered" (and, in the case of
Securities tendered by book-entry transfer, by credit to the account at the
Book-Entry Transfer Facility designated above). Similarly, unless otherwise
indicated herein in the box entitled "Special Delivery Instructions," please
deliver the New Notes with respect to Securities accepted for exchange, together
with any certificates for Securities not tendered or not accepted for exchange
(and accompanying documents, as appropriate) to the address(es) of the
registered holder(s) appearing in the box entitled "Description of Securities
Tendered." If both the "Special Payment Instructions" box and the "Special
Delivery Instructions" box are completed, please issue the New Notes with
respect to any Securities accepted for exchange, and return any certificates for
Securities not tendered or not accepted for exchange, in the name(s) of, and
deliver such New Notes and any such certificates to, the person(s) at the
address(es) so indicated. Please credit any Securities tendered hereby and
delivered by book-entry transfer, but which are not accepted for exchange, by
crediting the account at the Book-Entry Transfer Facility designated above.
- --------------------------------------------------------------------------------
<PAGE>
- --------------------------------------------------------------------------------
ITEM: B
SPECIAL PAYMENT INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if the payment of accrued and unpaid interest due on the
Old Notes accepted for exchange and/or certificates for Securities in a
principal amount not tendered or not accepted for exchange, and/or the
certificates representing the New Notes, are to be issued in the name of someone
other than the undersigned or if Securities delivered by book-entry transfer not
accepted for purchase are to be returned by credit to a participant number
maintained at the Book-Entry Transfer Facility other than the participant number
indicated above.
Issue: / / Securities
/ / New Notes to:
Name:
(Please Print)
Address:
Zip Code
Wire Transfer Instructions
Please complete the Substitute Form W-9 below.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ITEM: C
SPECIAL DELIVERY INSTRUCTIONS
(SEE INSTRUCTIONS 1, 6, 7 AND 8)
To be completed ONLY if certificates for Securities in a principal amount not
tendered or not accepted for exchange, and/or the certificates representing the
New Notes, are to be sent to someone other than the undersigned, or to the
undersigned at an address other than that shown above.
Deliver: / / Securities
/ / New Notes to:
Name:
(Please Print)
Address:
Zip Code
Please complete the Substitute Form W-9 below.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ITEM: D
SIGN HERE
(TO BE COMPLETED BY ALL TENDERING HOLDERS OF SECURITIES REGARDLESS OF WHETHER
SECURITIES ARE BEING PHYSICALLY DELIVERED HEREWITH)
x
x
Signature(s) of Holder(s) and Authorized Signatory Date: _________________, 2000
Must be signed by the registered holder(s) of the Securities tendered hereby
exactly as their name(s) appear(s) on the certificate(s) for such Securities or,
if tendered by a participant in one of the Book-Entry Transfer Facilities,
exactly as such participant's name appears on a security position listing as the
owner of the Securities, or by person(s) authorized to become registered
holder(s) by endorsements and documents transmitted with this Letter of
Transmittal. If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer of a corporation, agent or other person acting in a
fiduciary or representative capacity, please provide the following information
and see Instruction 6.
Name(s):
(Please Print)
Capacity (full title):
Address:
(Including Zip Code)
Area Code and Telephone No.
Tax Identification Number or Social Security Number
Wire Transfer Instructions
SIGNATURE GUARANTEE (SEE INSTRUCTIONS 1 AND 6 BELOW)
(Name of Eligible Institution Guaranteeing Signatures)
(Address (including zip code) and Telephone Number (including area code) of
Eligible Institution)
(Authorized Signature)
(Printed Name)
(Title)
Date: __________, 2000
- --------------------------------------------------------------------------------
<PAGE>
<TABLE>
<S><C>
- -------------------------------------------------------------------------------------------------------------------------------
PAYOR'S NAME: BANK ONE TRUST COMPANY, N.A.
NAME/ADDRESS:
- -------------------------------------------------------------------------------------------------------------------------------
SUBSTITUTE
FORM W-9
Department of
the Treasury
Internal
Revenue Service
Payor's Request for
Taxpayer
Identification
Number ("TIN")
and Certification
-------------------------------------------------------------------------------------------------------
PART 1(a) -- PLEASE PROVIDE YOUR TIN IN THE BOX TIN ________________
AT RIGHT AND CERTIFY BY SIGNING AND DATING
BELOW (Social Security Number or
Employer Identification Number)
-------------------------------------------------------------------------------------------------------
PART 1(b) -- PLEASE CHECK THE BOX AT THE RIGHT IF YOU HAVE APPLIED FOR AND ARE AWAITING RECEIPT OF YOUR
TIN OR INTEND TO APPLY FOR A TIN IN THE NEAR FUTURE / /
-------------------------------------------------------------------------------------------------------
PART 2 -- FOR PAYEES EXEMPT FROM BACKUP WITHHOLDING PLEASE WRITE "EXEMPT" HERE
(SEE INSTRUCTIONS)
-------------------------------------------------------------------------------------------------------
PART 3 -- CERTIFICATION UNDER PENALTIES OF PERJURY, I CERTIFY THAT (X) the number shown on this form is
my correct TIN (or I am waiting for a number to be issued to me), and (Y) I am not subject to backup
withholding because: (a) I am exempt from backup withholding, or (b) I have not been notified by the
Internal Revenue Service (the "IRS") that I am subject to backup withholding as a result of a failure
to report all interest or dividends, or (c) the IRS has notified me that I am no longer subject to
backup withholding.
SIGNATURE DATE
- -------------------------------------------------------------------------------------------------------------------------------
</TABLE>
You must cross out Item (Y) of Part 3 above if you have been notified by
the IRS that you are currently subject to backup withholding because of under
reporting interest or dividends on your tax return. However, if after being
notified by the IRS that you were subject to backup withholding you received
another notification from the IRS that you are no longer subject to backup
withholding, do not cross out Item (Y) of Part 3. (Also see Certification under
Specific Instructions in the enclosed Guidelines.)
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31 PERCENT OF ANY CASH PAYMENTS. PLEASE REVIEW THE ENCLOSED
"GUIDELINES FOR CERTIFICATION OF TAXPAYER IDENTIFICATION NUMBER ON
SUBSTITUTE FORM W-9" FOR ADDITIONAL DETAILS.
INSTRUCTIONS
FORMING PART OF THE TERMS AND CONDITIONS OF THE EXCHANGE OFFER
1. GUARANTEE OF SIGNATURES. All signatures on this Letter of
Transmittal must be guaranteed by a firm which is a member of a registered
national securities exchange or of the National Association of Securities
Dealers, Inc., by a commercial bank or trust company having an office or
correspondent in the United States or by any other "Eligible Guarantor
Institution" as such term is defined in Rule 17Ad-15 under the Exchange Act
(each of the foregoing being referred to herein as an "Eligible Institution")
unless (a) this Letter of Transmittal is signed by the registered holder of the
Securities tendered herewith (or by a participant in one of the Book-Entry
Transfer Facilities whose name appears on a security position listing as the
owner of such Securities) and neither the "Special Payment Instructions" box nor
the "Special Delivery Instructions" box of this Letter of Transmittal has been
completed or (b) such Securities are tendered for the account of an Eligible
Institution. See Instruction 6.
2. DELIVERY OF LETTER OF TRANSMITTAL AND SECURITIES; GUARANTEED
DELIVERY PROCEDURES. This Letter of Transmittal is to be used only if Securities
tendered hereby are to be physically delivered to Exchange Agent or delivered by
book-entry transfer to the Exchange Agent's account at a Book-Entry Transfer
Facility pursuant to the procedures set forth in the Prospectus under the
heading "The Exchange Offer -- Book-Entry Transfer." All physically tendered
Securities or confirmations of, or an Agent's Message with respect to,
book-entry transfer into the Exchange Agent's account with a Book-Entry Transfer
Facility, together with a properly completed and validly executed Letter of
Transmittal (or facsimile or electronic copy thereof or an electronic agreement
to comply with the terms thereof) and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at one of its
addresses set forth on the cover page hereof prior to the Expiration Date. If
Securities are forwarded to the Exchange Agent in multiple deliveries, a
properly completed and validly executed Letter of Transmittal must accompany
each such delivery. The Company may elect to waive receipt of a written Letter
of Transmittal if delivery is properly effected through a Book-Entry Transfer
Facility.
If a holder desires to tender Securities pursuant to the Exchange Offer
and (a) certificates representing such Securities are not immediately available,
(b) time will not permit this Letter of Transmittal, certificates representing
such Securities and all other required documents to reach the Exchange Agent
prior to the Expiration Date, or (c) the procedures for book-entry transfer
cannot be completed prior to the Expiration Date, such holder may effect a
tender of Securities in accordance with the guaranteed delivery procedure set
forth in the Prospectus under the caption "The Exchange Offer -- Guaranteed
Delivery Procedures."
Pursuant to such procedure:
<PAGE>
(a) such tender must be made by or through an Eligible Institution;
(b) prior to the Expiration Date, the Exchange Agent must have
received from such Eligible Institution, at one of the addresses of the Exchange
Agent set forth on the cover page hereof, a properly completed and validly
executed Notice of Guaranteed Delivery (by telegram, facsimile, mail or hand
delivery) substantially in the form provided by the Company, setting forth the
name and address of the registered holder and the principal amount or number of
Securities being tendered and stating that the tender is being made thereby and
guaranteeing that, within three New York Stock Exchange trading days after the
date of the Notice of Guaranteed Delivery, this Letter of Transmittal validly
executed (or a facsimile hereof), together with certificates evidencing the Old
Notes (or confirmation of, or an Agent's Message with respect to, book-entry
transfer of such Old Notes into the Exchange Agent's account with a Book- Entry
Transfer Facility), and any other documents required by this Letter of
Transmittal and these instructions, will be deposited by such Eligible
Institution with the Exchange Agent; and
(c) this Letter of Transmittal or a facsimile hereof, properly
completed and validly executed, with any required signature guarantees,
certificates representing the Securities in proper form for transfer (or
confirmation of book-entry transfer into the Exchange Agent's account with a
Book-Entry Transfer Facility) and all other documents required by this Letter of
Transmittal must be received by the Exchange Agent within three New York Stock
Exchange trading days after the date of such Notice of Guaranteed Delivery.
THE METHOD OF DELIVERY OF THIS LETTER OF TRANSMITTAL, SECURITIES AND ALL
OTHER REQUIRED DOCUMENTS, INCLUDING DELIVERY THROUGH ANY BOOK-ENTRY TRANSFER
FACILITY, TO THE EXCHANGE AGENT IS AT THE ELECTION AND RISK OF THE TENDERING
HOLDER, AND THE DELIVERY WILL BE DEEMED MADE ONLY WHEN ACTUALLY RECEIVED BY THE
EXCHANGE AGENT. IF SUCH DELIVERY IS BY MAIL, REGISTERED MAIL WITH RETURN RECEIPT
REQUESTED, PROPERLY INSURED, IS RECOMMENDED. IN ALL CASES, THE MAILING SHOULD BE
MADE SUFFICIENTLY IN ADVANCE OF THE EXPIRATION DATE, TO PERMIT DELIVERY TO THE
EXCHANGE AGENT PRIOR TO SUCH DATE. NO ALTERNATIVE, CONDITIONAL OR CONTINGENT
TENDERS OF SECURITIES WILL BE ACCEPTED. BY EXECUTION OF THIS LETTER OF
TRANSMITTAL (OR A FACSIMILE HEREOF), ALL TENDERING HOLDERS WAIVE ANY RIGHT TO
RECEIVE ANY NOTICE OF THE ACCEPTANCE OF THEIR SECURITIES FOR PAYMENT.
3. INADEQUATE SPACE. If the space provided herein under "Description
of Securities Tendered" is inadequate, the certificate numbers of the Securities
and the principal amount of Securities tendered should be listed on a separate
schedule and attached hereto.
4. WITHDRAWAL OF TENDERS. Tenders of Old Notes may be withdrawn at
any time until the Expiration Date. Thereafter, such tenders are irrevocable.
Holders who wish to exercise their right of withdrawal with respect to a
Exchange Offer must give written notice of withdrawal, delivered by mail or hand
delivery or facsimile transmission, to the Exchange Agent prior to the
Expiration Date or at such other time as otherwise provided for herein. In order
to be effective, a notice of withdrawal must specify the name of the person who
deposited the Old Notes to be withdrawn (the "Depositor"), the name in which the
Old Notes are registered, if different from that of the Depositor, and the
principal amount of the Old Notes to be withdrawn prior to the physical release
of the certificates to be withdrawn. If tendered Old Notes to be withdrawn have
been delivered or identified through confirmation of book-entry transfer to the
Exchange Agent, the notice of withdrawal also must specify the name and number
of the account at the Book-Entry Transfer Facility to be credited with withdrawn
Old Notes. The notice of withdrawal must be signed by the registered holder of
such Old Notes in the same manner as the applicable Letter of Transmittal
(including any required signature guarantees), or be accompanied by evidence
satisfactory to the Company that the person withdrawing the tender has succeeded
to the beneficial ownership of such Old Notes. Withdrawals of tenders of Old
Notes may not be rescinded, and any Old Notes withdrawn will be deemed not
validly tendered thereafter for purposes of the Exchange Offer. However,
properly withdrawn Old Notes may be tendered again at any time prior to the
Expiration Date by following the procedures for tendering not previously
tendered Old Notes described elsewhere herein.
If the Company is delayed in its acceptance for conversion and payment
for any Old Notes or is unable to accept for conversion or convert any Old Notes
pursuant to the Exchange Offer for any reason, then, without prejudice to the
Company's rights hereunder, tendered Old Notes may be retained by the Exchange
Agent on behalf of the Company and may not be withdrawn (subject to Rule
13e-4(f)(5) under the Exchange Act, which requires that the issuer making the
tender offer pay the consideration offered, or return the tendered securities,
promptly after the termination or withdrawal of a tender offer), except as
otherwise permitted hereby.
5. PARTIAL TENDERS (NOT APPLICABLE TO HOLDERS WHO TENDER BY
BOOK-ENTRY TRANSFER). Tenders of Securities will be accepted only in integral
multiples of $1,000 principal amount. The aggregate principal amount of all
Securities delivered to the Exchange Agent will be deemed to have been tendered
unless otherwise indicated. If tenders of Securities are made with respect to
less than the entire principal amount of Securities delivered herewith,
certificate(s) for the principal amount of Securities not tendered will be
issued and sent to the registered holder, unless otherwise specified in the
"Special Payment Instructions" or "Special Delivery Instructions" boxes in this
Letter of Transmittal.
6. SIGNATURES ON LETTER OF TRANSMITTAL; BOND POWERS AND ENDORSEMENTS.
If this Letter of Transmittal is signed by the registered holder(s) of the
Securities tendered hereby, the signature(s) must correspond with the name(s) as
written on the face of the certificates representing such Securities without
alteration, enlargement or any other change whatsoever. If this Letter of
Transmittal is signed by a participant in one of the Book-Entry Transfer
Facilities whose name is shown on a security position listing as the owner of
the Securities tendered hereby, the signature must correspond with the name
shown on the security position listing as the owner of the Securities.
If any Securities tendered hereby are owned of record by two or more
persons, all such persons must sign this Letter of Transmittal.
If any Securities tendered hereby are registered in the names of
different holders, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal, and any necessary accompanying documents, as
there are different registrations of such Securities.
If this Letter of Transmittal is signed by the registered holder of
Securities tendered hereby, no endorsements of such Securities or separate bond
powers are required, unless the New Notes are, or Securities not tendered or not
accepted for exchange, are to be issued in the name of a person other than the
registered holder(s), in which case the Securities tendered hereby must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on such Securities
(and with respect to a participant in a Book-Entry Transfer Facility whose name
appears on a security position listing as the owner of Securities, exactly as
the name(s) of the participant(s) appear(s) on such security position listing as
the owner of the Securities). Signatures on such Securities and bond powers must
be guaranteed by an Eligible Institution. See Instruction 1.
If this Letter of Transmittal is signed by a person other than the
registered holder(s) of the Securities tendered hereby, the Securities must be
endorsed or accompanied by appropriate bond powers, in either case signed
exactly as the name(s) of the registered holder(s) appear(s) on the certificates
representing such Securities. Signatures on such Securities and bond powers must
be guaranteed by an Eligible Institution. See Instruction 1.
If this Letter of Transmittal or any Securities or bond powers are signed
by a trustee, executor, administrator, guardian, attorney-in-fact, officer of a
<PAGE>
corporation or other person acting in a fiduciary or representative capacity,
such person should so indicate when signing, and proper evidence satisfactory to
the Company of such person's authority so to act must be submitted with this
Letter of Transmittal.
7. TRANSFER TAXES. Except as otherwise provided in this Instruction
7, the Company will pay all transfer taxes with respect to the delivery and
conversion of Securities pursuant to the Exchange Offer. If, however, issuance
of the New Notes, or Securities not tendered or not accepted for exchange, are
to be issued in the name of a person other than the registered holder(s), the
amount of any transfer taxes (whether imposed on the registered holder(s), such
other person or otherwise) payable on account of the transfer to such other
person must be paid by such other person unless evidence satisfactory to the
Company of the payment of such taxes, or exemption therefrom, is submitted.
Except as provided in this Instruction 7, it will not be necessary for transfer
tax stamps to be affixed to the Securities tendered hereby.
8. SPECIAL PAYMENT AND DELIVERY INSTRUCTIONS. If the New Notes with
respect to any Securities tendered hereby, or Securities not tendered or not
accepted for exchange, are to be issued in the name of a person other than the
person(s) signing this Letter of Transmittal or to the person(s) signing this
Letter of Transmittal but at an address other than that shown in the box
entitled "Description of Securities Tendered," the appropriate boxes in this
Letter of Transmittal must be completed. All Securities tendered by book-entry
transfer and not accepted for exchange will be returned by crediting the account
at the Book-Entry Transfer Facility designated above as the account from which
such Securities were delivered.
9. TAXPAYER IDENTIFICATION NUMBER. Each tendering holder is required
to provide the Exchange Agent with the holder's correct taxpayer identification
number ("TIN"), generally, the holder's social security or federal employer
identification number, on Substitute Form W-9, which is provided under
"Important Tax Information" below, and to certify whether such person is subject
to backup withholding of federal income tax.
A holder must cross out Item (Y) of Part 3 in the certification box of
Substitute Form W-9 if such holder is subject to backup withholding. Failure to
provide the information on the Substitute Form W-9 may subject the tendering
holder to 31% federal income tax backup withholding on the reportable payments
made to the holder or other payee with respect to Securities exchanged pursuant
to the Exchange Offer. The box in Part 1(b) of the form should be checked if the
tendering holder has not been issued a TIN and has applied for a TIN or intends
to apply for a TIN in the near future. If the box in Part 1(b) is checked and
the Exchange Agent is not provided with a TIN within 60 days, thereafter the
Exchange Agent will hold 31% of all reportable payments until a TIN is provided
to the Exchange Agent. Certain holders, such as corporations, are exempt from
backup withholding. An exempt holder should complete Part 1(a) showing the
holder's correct TIN, write "Exempt" in the box in Part 2 and sign and date the
form.
10. CONFLICTS. In the event of any conflict between the terms of the
Prospectus and the terms of this Letter of Transmittal, the terms of the
Prospectus will control.
11. MUTILATED, LOST, STOLEN OR DESTROYED SECURITIES. Any holder of
Securities, whose Securities have been mutilated, lost, stolen or destroyed,
should contact the Exchange Agent at the addresses indicated above for further
instructions.
12. REQUESTS FOR ASSISTANCE OR ADDITIONAL COPIES. Requests for
assistance may be directed to the Exchange Agent at its address set forth below
or from the tendering registered holder's broker, dealer, commercial bank or
trust company. Additional copies of the Prospectus, this Letter of Transmittal,
the Notice of Guaranteed Delivery and the Guidelines for Certification of
Taxpayer Identification Number on Substitute Form W-9 may be obtained from the
Exchange Agent.
13. DETERMINATION OF VALIDITY. All questions as to the form of all
documents, the validity (including time of receipt) and acceptance of tenders of
the Old Notes will be determined by the Company, in its sole discretion, the
determination of which shall be final and binding. Alternative, conditional or
contingent tenders of Old Notes will not be considered valid. The Company
reserves the absolute right to reject any or all tenders of Old Notes that are
not in proper form or the acceptance of which, in the Company's opinion, would
be unlawful. The Company also reserves the right to waive any defects,
irregularities or conditions of tender as to particular Old Notes. If the
Company waives its right to reject a defective tender of Old Notes, the holder
will be entitled to the New Notes. The Company's interpretation of the terms and
conditions of the Exchange Offer (including the instructions in the Letter of
Transmittal) will be final and binding. Any defect or irregularity in connection
with tenders of Old Notes must be cured within such time as the Company
determines, unless waived by the Company. Tenders of Old Notes shall not be
deemed to have been made until all defects and irregularities have been waived
by the Company or cured. None of the Company, the Exchange Agent or any other
person will be under any duty to give notice of any defects or irregularities in
tenders of Old Notes, or will incur any liability to holders for failure to give
any such notice.
IMPORTANT TAX INFORMATION
Under the federal income tax law, a holder whose tendered Securities are
accepted for exchange is required by law to provide the Exchange Agent (as
payor) with such holder's correct TIN on Substitute Form W-9 below. If such
holder is an individual, the TIN is his or her social security number. If the
Exchange Agent is not provided with the correct TIN, a $50 penalty may be
imposed by the Internal Revenue Service, and certain payments may be subject to
backup withholding.
Certain holders (including, among others, corporations) are not subject
to these backup withholdings and reporting requirements. Exempt holders should
indicate their exempt status on Substitute Form W-9. In order for a foreign
individual to qualify as an exempt recipient, such individual must submit a
statement, signed under penalties of perjury, attesting to such individual's
exempt status. Forms of such statements can be obtained from the Exchange Agent.
See the enclosed "Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9" for additional instructions.
If backup withholding applies, the Exchange Agent is required to withhold
31% of any reportable payments made to the holder or other payee. Backup
withholding is not an additional federal income tax. Rather, the federal income
tax liability of persons subject to backup withholding will be reduced by the
amount of tax withheld. If withholding results in an overpayment of taxes, a
refund may be obtained from the Internal Revenue Service.
PURPOSE OF SUBSTITUTE FORM W-9
To prevent backup withholding on reportable payments made with respect to
securities accepted for conversion pursuant to the Exchange Offer, the holder is
required to notify the Exchange Agent of such holder's correct TIN by completing
the form below, certifying that the TIN provided on the Substitute From W-9 is
correct (or that such holder is awaiting a TIN) and that (a) such holder is
exempt from backup withholding, (b) such holder has not been notified by the
Internal Revenue Service that he is subject to backup withholding as a result of
a failure to report all interest or dividends or (c) the Internal Revenue
Service has notified such holder that such holder is no longer subject to backup
withholding.
WHAT NUMBER TO GIVE THE EXCHANGE AGENT
The holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the holder of the
Securities tendered hereby. If the Securities are held in more than one name or
are not held in the name of the actual owner, consult the enclosed "Guidelines
for Certification of Taxpayer Identification Number on Substitute Form W-9" for
additional guidance on which number to report.
<PAGE>
The Exchange Agent for the Exchange Offer is:
BANK ONE TRUST COMPANY, N.A.
One North State Street, 9th Floor
Chicago, IL 60602
BANKERS AND BROKERS AND OTHERS CALL: (800) 524-9472
<PAGE>
NOTICE OF GUARANTEED DELIVERY
FOR
EXCHANGE OF
8.75% SENIOR NOTES DUE 2005
OF
PRECISION CASTPARTS CORP.
This Notice of Guaranteed Delivery or a form substantially equivalent
hereto must be used to accept Precision Castparts Corp.'s (the "Company") offer
(the "Exchange Offer") to exchange registered 8.75% Senior Notes due 2005 (the
"New Notes") for its outstanding 8.75% Senior Notes due 2005 (the "Old Notes"),
if (a) certificates representing the Old Notes are not immediately available,
(b) the procedures for book-entry transfer cannot be completed prior to the
Expiration Date (as defined below), or (c) time will not permit the Old Notes
and all other required documents to reach the Exchange Agent prior to the
Expiration Date. This form may be delivered by a firm which is a member of a
registered national securities exchange or of the National Association of
Securities Dealers, Inc., by a commercial bank or trust company having an office
or correspondent in the United States or by any other "Eligible Guarantor
Institution" as such term is defined in Rule 17Ad-15 under the Securities
Exchange Act of 1934 (each such institution being referred to as an "Eligible
Institution") by mail or hand delivery or transmitted, via facsimile, telegram
or telex to the Exchange Agent as set forth below.
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
__________, 2000 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF 8.75%
SENIOR NOTES DUE 2005 MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
To:
BANK ONE TRUST COMPANY, N.A., EXCHANGE AGENT
BY MAIL, BY HAND OR OVERNIGHT DELIVERY:
c/o Bank One Trust Company, N.A.
One North State Street, 9th Floor
Chicago, IL 60602
Attention: Exchanges
BY FACSIMILE: (312) 407-8853
PHONE NUMBER: (800) 524-9472
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS, OR
TRANSMISSION VIA FACSIMILE TRANSMISSION OR TELEX, OTHER THAN AS SET FORTH ABOVE
WILL NOT CONSTITUTE A VALID DELIVERY.
This form is not to be used to guarantee signatures. If a signature on
the Letter of Transmittal is required to be guaranteed by an Eligible
Institution under the instructions thereto, such signature guarantee must appear
in the applicable space provided in the signature box on the Letter of
Transmittal.
The undersigned hereby submit(s) to the Company, upon the terms and
subject to the conditions set forth in the Company's Prospectus dated
____________, 2000 and the Letter of Transmittal, receipt of which is hereby
acknowledged, the principal amount of Old Notes set forth below, pursuant to the
guaranteed delivery procedures set forth in the Prospectus under the heading
"The Exchange Offer -- Procedures for Tendering" and "-- Guaranteed Delivery
Procedures."
<PAGE>
All authority herein conferred or agreed to be conferred by this Notice
of Guaranteed Delivery shall survive the death or incapacity of the undersigned
and every obligation of the undersigned under this Notice of Guaranteed Delivery
shall be binding upon the heirs, personal representatives, executors,
administrators, successors, assigns, trustees in bankruptcy and other legal
representatives of the undersigned.
PLEASE SIGN AND COMPLETE
Signature(s) of Registered Holder(s) or Authorized Address(es):
Signatory:
Area Code and Telephone No.:
Name(s) of Registered Holder(s):
If Old Notes will be delivered by
book-entry transfer, check box below:
The Depository Trust Company
Principal Amount of Old Notes Account No.:
Submitted:
Certificate No(s). of Old Notes (if available):
Date:
This Notice of Guaranteed Delivery must be signed by the registered holder(s) of
Old Notes exactly as their name(s) appear(s) on the certificates representing
such Old Notes or on a security position listing as the owner(s) of the Old
Notes, or by person(s) authorized to become registered holder(s) by endorsements
and documents transmitted with this Notice of Guaranteed Delivery. If signature
is by a trustee, guardian, attorney-in-fact, officer of a corporation, executor,
administrator, agent or other representative, such person must provide the
following information.
PLEASE PRINT NAME(S) AND ADDRESS(ES)
Name(s):
Capacity:
Address(es):
Do not send Old Notes with this form. Old Notes should be sent to the Exchange
Agent, together with a properly completed and validly executed Letter of
Transmittal.
<PAGE>
GUARANTEE
(NOT TO BE USED FOR SIGNATURE GUARANTEE)
The undersigned, a member firm of a registered national securities
exchange or of the National Association of Securities Dealers, Inc. or a
commercial bank or trust company having an office or a correspondent in the
United States or another "Eligible Guarantor Institution" as defined in Rule
17Ad-15 under the Securities Exchange Act of 1934, as amended, hereby guarantees
that, within three New York Stock Exchange trading days from the date of this
Notice of Guaranteed Delivery, a properly completed and validly executed Letter
of Transmittal (or a facsimile thereof), together with Old Notes submitted
hereby in proper form for transfer (or confirmation of the book-entry transfer
of such Old Notes into the Exchange Agent's account at a Book-Entry Transfer
Facility, pursuant to the procedure for book-entry transfer set forth in the
Prospectus under the heading "The Exchange Offer -- Procedures for Tendering"
and "-- Book-Entry Transfer"), and all other required documents will be
deposited by the undersigned with the Exchange Agent at one of its addresses set
forth above.
Name of Firm:
Authorized Signature
Address: Name:
Title:
Area Code and Telephone No.:
Date:
DO NOT SEND OLD NOTES WITH THIS FORM. ACTUAL SURRENDER OF OLD NOTES MUST
BE MADE PURSUANT TO, AND BE ACCOMPANIED BY, A PROPERLY COMPLETED AND VALIDLY
EXECUTED LETTER OF TRANSMITTAL AND ANY OTHER REQUIRED DOCUMENTS.
<PAGE>
PRECISION CASTPARTS CORP.
OFFER TO EXCHANGE
REGISTERED 8.75% SENIOR NOTES DUE 2005
FOR OUTSTANDING 8.75% SENIOR NOTES DUE 2005
CUSIP NO. 740189 AB1
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
__________, 2000 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF 8.75%
SENIOR NOTES DUE 2005 MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
_________, 2000
TO BROKERS, DEALERS, COMMERCIAL BANKS, TRUST COMPANIES AND OTHER
NOMINEES:
We are enclosing herewith the material listed below relating to the offer
(the "Exchange Offer") by Precision Castparts Corp. (the "Company") to exchange
registered 8.75% Senior Notes due 2005 (the "New Notes") for its outstanding
8.75% Senior Notes due 2005 (the "Old Notes"). Consummation of the Exchange
Offer is subject to, among other things, satisfaction of the terms and
conditions set forth in the Company's Prospectus dated __________, 2000 (as the
same may be further amended or supplemented from time to time, the "Prospectus")
under the heading "The Exchange Offer."
We are asking you to contact your clients for whom you hold Old Notes
registered in your name or in the name of your nominee. In addition, we are
asking you to contact your clients who, to your knowledge, hold Old Notes
registered in their own name.
Enclosed for your information and use are copies of the following
documents:
1. The Prospectus;
2. A BLUE Letter of Transmittal (the "Letter of Transmittal")
for your use in connection with the submission of Old Notes and for the
information of your clients;
3. A YELLOW form of letter that may be sent to your clients
for whose accounts you hold Old Notes registered in your name or the name
of your nominee, with space provided for obtaining the clients'
instructions with regard to the Exchange Offer;
4. A GREEN form of Notice of Guaranteed Delivery (the "Notice
of Guaranteed Delivery");
5. Guidelines for Certification of Taxpayer Identification
Number on Substitute Form W-9; and
6. A return envelope addressed to Bank One Trust Company,
N.A., the Exchange Agent.
<PAGE>
WE URGE YOU TO CONTACT YOUR CLIENTS AS PROMPTLY AS POSSIBLE. PLEASE NOTE
THAT THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
____________, 2000, UNLESS EXTENDED (THE "EXPIRATION DATE"). OLD NOTES SUBMITTED
PURSUANT TO THE EXCHANGE OFFER MAY BE WITHDRAWN, SUBJECT TO THE PROCEDURES
DESCRIBED IN THE PROSPECTUS, AT ANY TIME PRIOR TO THE EXPIRATION DATE.
In all cases, New Notes will be issued for Old Notes accepted for
exchange pursuant to the Exchange Offer only after timely receipt by the
Exchange Agent of such Old Notes (or confirmation of, or an Agent's Message with
respect to, book-entry transfer of such Securities into the Exchange Agent's
account at one of the Book-Entry Transfer Facilities (as defined in the
Prospectus)), of a Letter of Transmittal (or facsimile thereof), properly
completed and validly executed, and any other required documents.
If holders of Old Notes wish to submit, but it is impracticable for them
to forward their Old Notes or other required documents prior to the Expiration
Date, a submission may be effected by following the guaranteed delivery
procedures described in the Prospectus under the heading "The Exchange Offer --
Procedures for Tendering" and "-- Guaranteed Delivery Procedures."
Procedures for submitting Old Notes are set forth in the Prospectus under
the caption "The Exchange Offer -- Procedures for Tendering." Holders of Old
Notes who wish to exchange their Securities must use either the Letter of
Transmittal or a facsimile or electronic copy thereof or an electronic agreement
to comply with the terms thereof. In addition, holders of Old Notes who are
following the procedures for guaranteed delivery set forth in the Prospectus
must use the Notice of Guaranteed Delivery.
The Company will not pay any fees or commissions to any broker, dealer or
other person in connection with the solicitation of submissions of the Old Notes
pursuant to the Prospectus. However, the Company will reimburse you for
customary mailing and handling expenses incurred by you in forwarding any of the
enclosed materials to your clients. The Company will pay or cause to be paid any
transfer taxes payable with respect to the transfer of Old Notes to it, except
as otherwise provided in Instruction 7 of the Letter of Transmittal.
Any inquiries you may have with respect to the Exchange Offer should be
addressed to, and additional copies of the enclosed materials may be obtained
from, the Exchange Agent at its address and telephone number set forth on the
cover page of the Letter of Transmittal.
Very truly yours,
Precision Castparts Corp.
NOTHING CONTAINED IN THIS LETTER OR IN THE ENCLOSED DOCUMENTS SHALL
CONSTITUTE YOU OR ANY OTHER PERSON THE AGENT OF THE COMPANY, THE EXCHANGE AGENT,
OR ANY AFFILIATE OF ANY OF THEM, OR AUTHORIZE YOU OR ANY OTHER PERSON TO USE ANY
DOCUMENT OR TO MAKE ANY STATEMENT ON BEHALF OF ANY OF THEM IN CONNECTION WITH
THE EXCHANGE OFFER OTHER THAN THE ENCLOSED DOCUMENTS AND THE STATEMENTS
CONTAINED THEREIN.
<PAGE>
PRECISION CASTPARTS CORP.
OFFER TO EXCHANGE
REGISTERED 8.75% SENIOR NOTES DUE 2005
FOR OUTSTANDING 8.75% SENIOR NOTES DUE 2005
THE EXCHANGE OFFER WILL EXPIRE AT 5:00 P.M., NEW YORK CITY TIME, ON
__________, 2000 UNLESS EXTENDED (THE "EXPIRATION DATE"). TENDERS OF 8.75%
SENIOR NOTES DUE 2005 MAY BE WITHDRAWN AT ANY TIME PRIOR TO THE EXPIRATION
DATE.
, 2000
----------
TO OUR CLIENTS:
Enclosed for your consideration is the Prospectus dated ____________,
2000 (as the same may be further amended or supplemented from time to time, the
"Prospectus") and a related form of Letter of Transmittal and instructions
thereto (the "Letter of Transmittal") relating to the offer (the "Exchange
Offer") by Precision Castparts Corp. (the "Company") to exchange registered
8.75% Senior Notes due 2005 (the "New Notes") for its outstanding 8.75% Senior
Notes due 2005 (the "Old Notes").
WE ARE THE REGISTERED HOLDER OF OLD NOTES HELD BY US FOR YOUR ACCOUNT. A
SUBMISSION OF ANY SUCH OLD NOTES CAN BE MADE ONLY BY US AS THE REGISTERED HOLDER
AND PURSUANT TO YOUR INSTRUCTIONS. THE BLUE LETTER OF TRANSMITTAL IS FURNISHED
TO YOU FOR YOUR INFORMATION ONLY AND CANNOT BE USED BY YOU TO SUBMIT OLD NOTES
HELD BY US FOR YOUR ACCOUNT.
Accordingly, we request instructions as to whether you wish us to submit
any or all of the Old Notes held by us for your account pursuant to the terms
and conditions set forth in the Prospectus and the Letter of Transmittal. We
urge you to read the Prospectus and the Letter of Transmittal carefully before
instructing us to submit your Old Notes.
Your instructions to us should be forwarded as promptly as possible in
order to permit us to submit Old Notes on your behalf in accordance with the
provisions of the Exchange Offer. The Exchange Offer will expire at 5:00 p.m.,
New York City time, on _________,2000 unless extended. Old Notes submitted
pursuant to the Exchange Offer may be withdrawn, subject to the procedures
described in the Prospectus, at any time prior to the Expiration Date.
Your attention is directed to the following:
1. The Exchange Offer is for all outstanding Old Notes.
2. Holders who submit their Old Notes in the Exchange Offer
will not be entitled to receive any payment in respect of accrued and
unpaid interest on Old Notes accepted for exchange through the Expiration
Date.
3. Any transfer taxes incident to the transfer of Old Notes
from the submitting holder to the Company will be paid by the Company,
except as provided in the Prospectus and the instructions to the Letter
of Transmittal.
If you wish to have us submit any or all of the Old Notes held by us for
your account, please so instruct us by completing, executing and returning to us
the instruction form that follows.
<PAGE>
INSTRUCTIONS REGARDING THE PROSPECTUS
WITH RESPECT TO THE 8.75% SENIOR NOTES DUE 2005
OF PRECISION CASTPARTS CORP.
The undersigned acknowledge(s) receipt of your letter and the enclosed
material referred to therein relating to the Exchange Offer of Precision
Castparts Corporation.
This will instruct you whether to submit the principal amount of Old
Notes indicated below held by you for the account of the undersigned pursuant to
terms of and conditions set forth in the Prospectus and the Letter of
Transmittal.
Please submit the Old Notes held by you for my account.
Please do not submit any Old Notes held by you for my account.
Date: , 2000
Signature(s)*
Please print name(s) here
Principal Amount of Old Notes
- ---------------------------------------
to be Submitted:
$
Please type or print address
Area code and telephone number
Taxpayer Identification or
Social Security Number
My account number with you
* UNLESS OTHERWISE INDICATED, SIGNATURE(S) HEREON BY BENEFICIAL OWNER(S) SHALL
CONSTITUTE AN INSTRUCTION TO THE NOMINEE TO SUBMIT ALL OLD NOTES OF SUCH
BENEFICIAL OWNER(S).
