<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 30, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ROHM AND HAAS COMPANY
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 2821 23-1028370
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NO.)
</TABLE>
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100 INDEPENDENCE MALL WEST
PHILADELPHIA, PENNSYLVANIA 19106
(215) 592-3000
(ADDRESS AND TELEPHONE NUMBER OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
ROBERT P. VOGEL
100 INDEPENDENCE MALL WEST
PHILADELPHIA, PENNSYLVANIA 19016
(215) 592-3000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
------------------------
WITH COPIES TO:
LINDA L. GRIGGS
MORGAN, LEWIS & BOCKIUS LLP
1800 M STREET, N.W.
WASHINGTON, DC 20036
(202) 467-7000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING AMOUNT OF
SECURITIES TO BE REGISTERED REGISTERED PER SECURITY(1) PRICE(1) REGISTRATION FEE
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<S> <C> <C> <C> <C>
6.95% Notes due 2004................. $ 500,000,000 100% $ 500,000,000 $139,000
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7.40% Notes due 2009................. $ 500,000,000 100% $ 500,000,000 $139,000
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7.85% Debentures due 2029............ $1,000,000,000 100% $1,000,000,000 $278,000
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(f)(2) under the Securities Act of 1933, as amended.
------------------------
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 SHALL SPECIFICALLY STATE 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 DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE> 2
SUBJECT TO COMPLETION, DATED JULY 30, 1999
PROSPECTUS
[ROHM AND HAAS COMPANY LOGO]
ROHM AND HAAS COMPANY
EXCHANGE OFFER FOR
$ 500,000,000 6.95% NOTES DUE 2004
$ 500,000,000 7.40% NOTES DUE 2009
$1,000,000,000 7.85% DEBENTURES DUE 2029
------------------
TERMS OF THE EXCHANGE OFFER
- The exchange offer expires at 5:00 p.m., New York City time, on
, 1999, unless extended to allow additional tenders of
outstanding notes and debentures.
- All outstanding notes and debentures that are validly tendered and not
validly withdrawn will be exchanged.
- Tenders of outstanding notes and debentures may be withdrawn at any time
prior to the expiration of the exchange offer.
- The exchange offer is not subject to any condition, other than that the
exchange offer not violate applicable law or any applicable
interpretation of the staff of the Securities and Exchange Commission.
- Rohm and Haas will not receive any proceeds from the exchange offer.
- The exchange of notes and debentures will not be a taxable exchange for
U.S. federal income tax purposes.
- The terms of the registered notes and debentures and the outstanding
notes and debentures are substantially identical, except that the
outstanding notes and debentures are subject to transfer restrictions and
have registration rights.
- There is no existing market for the registered notes and debentures, and
Rohm and Haas does not intend to apply for their listing on any
securities exchange.
Each broker-dealer that receives registered debt for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such registered debt. Each letter of
transmittal states that by so acknowledging and by delivering a prospectus, a
broker-dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act. This prospectus, as it may be amended or
supplemented from time to time, may be used by a broker-dealer in connection
with resales of registered debt received in exchange for outstanding debt
acquired by such broker-dealer as a result of market-making activities or other
trading activities. Rohm and Haas has agreed that, ending on the close of
business on the 180th day following the expiration date of the exchange offer,
it will make this prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR PASSED UPON THE
ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. ROHM
AND HAAS MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT
AN OFFER TO SELL THESE SECURITIES AND ROHM AND HAAS IS NOT SOLICITING AN OFFER
TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
THE DATE OF THIS PROSPECTUS IS , 1999
<PAGE> 3
You should rely on the information contained in, or incorporated by
reference into, this prospectus. Rohm and Haas has not authorized anyone to
provide you with different information. Rohm and Haas is not making an offer of
these securities in any state where the offer is not permitted. You should not
assume that the information contained in this prospectus is accurate as of any
date other than the date on the front cover of this prospectus.
TABLE OF CONTENTS
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PAGE
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<S> <C>
Prospectus Summary.......................................... 1
Use of Proceeds............................................. 7
Ratio of Earnings to Fixed Charges.......................... 7
The Exchange Offer.......................................... 8
Selected Historical Financial Data of Rohm and Haas......... 16
Selected Unaudited Pro Forma Combined Financial
Information............................................... 18
Description of the Registered Debt.......................... 21
United States Federal Tax Consequences...................... 30
Plan of Distribution........................................ 33
Where You Can Find More Information......................... 34
Documents Incorporated by Reference......................... 34
Validity of the Registered Debt............................. 35
Experts..................................................... 35
</TABLE>
<PAGE> 4
PROSPECTUS SUMMARY
The following summary is qualified in its entirety by reference to the more
detailed information and consolidated financial information appearing elsewhere
in or incorporated by reference into this prospectus. The pro forma net sales
amounts in this prospectus give effect to the acquisitions of Morton
International, Inc. and LeaRonal, Inc.
THE COMPANY
Rohm and Haas is a global specialty chemical manufacturing company with
1998 pro forma net sales of approximately $6.5 billion. We operate in the
following four major segments worldwide:
- Performance Polymers (56% of 1998 pro forma net sales)
- Chemical Specialties (18% of 1998 pro forma net sales)
- Electronic Materials (14% of 1998 pro forma net sales)
- Salt (12% of 1998 pro forma net sales)
Rohm and Haas was incorporated in 1917 under Delaware law. Our principal
executive offices are located at 100 Independence Mall West, Philadelphia,
Pennsylvania 19106-2399 (telephone number 215-592-3000).
PURPOSE OF THE EXCHANGE OFFER
On July 6, 1999, Rohm and Haas issued, through a private placement exempt
from the registration requirements of the Securities Act of 1933, $500 million
of its 6.95% Notes due 2004, $500 million of its 7.40% Notes due 2009 and $1
billion of its 7.85% Debentures due 2029. We refer to these three series of
outstanding notes and debentures as "outstanding debt" in this prospectus. Rohm
and Haas used the net proceeds from the issuance of the outstanding debt to
refinance outstanding commercial paper and other debt that was issued to fund a
portion of the cash paid to acquire Morton International, Inc.
Simultaneously with the private placement, Rohm and Haas entered into a
registration rights agreement with the initial purchasers of the outstanding
debt. Under the registration rights agreement, Rohm and Haas must use its
reasonable efforts to cause a registration statement for substantially identical
notes and debentures to be issued in exchange for the outstanding debt to become
effective on or before December 3, 1999. We refer to the notes and debentures to
be registered under this exchange offer registration statement as "registered
debt" in this prospectus. You may exchange your outstanding debt for registered
debt in this exchange offer. You should read the discussion under the heading
"Summary of Terms of Registered Debt" and "Description of the Registered Debt"
for further information regarding the registered debt.
Rohm and Haas did not register the outstanding debt under the Securities
Act or any state securities laws, nor does it intend to register the outstanding
debt after the exchange offer. As a result, you may only transfer the
outstanding debt in limited circumstances under the securities laws. If you do
not exchange your outstanding notes and debentures in the exchange offer, you
will lose your right to obtain debt registered under the Securities Act, subject
to certain limitations. Anyone who still holds outstanding debt after the
exchange offer may be unable to resell such outstanding debt.
Rohm and Haas believes that holders of the registered debt may resell the
registered debt without complying with the registration and prospectus delivery
provisions of the Securities Act if they meet certain conditions. You should
read the discussion under the headings "Summary of the Exchange Offer" and "The
Exchange Offer" for further information regarding the exchange offer and resales
of the registered debt.
<PAGE> 5
RECENT DEVELOPMENTS
On July 19, 1999, Rohm and Haas announced its financial performance for the
quarter ended June 30, 1999. During the second quarter, Rohm and Haas completed
the acquisition of Morton International on June 21, 1999. The acquisition
created North America's largest and one of the world's largest specialty
chemical companies with 1998 pro forma net sales of approximately $6.5 billion.
As a result of costs associated with the acquisition, Rohm and Haas reported a
loss of $9 million for the second quarter, or ($.06) per diluted common share.
The loss also reflected a settlement related to the 1998 sale of the AtoHaas
joint venture.
Excluding non-recurring items and the effect of nine days of Morton
operations at the end of the second quarter, Rohm and Haas's earnings for the
second quarter of 1999 were $116 million, or $.67 per common share. This
compares with $122 million in earnings for the second quarter of 1998, or $.65
per common share excluding non-recurring items in that quarter.
A number of non-recurring items affected the financial statements for the
second quarters of both 1998 and 1999 as follows:
- In the 1999 second quarter Rohm and Haas wrote off $105 million after tax
for acquired in-process research and development projects in connection
with the Morton acquisition and settled a claim by the buyer of Rohm and
Haas's interest in AtoHaas involving the value of certain joint venture
assets for $14 million.
- In the 1998 second quarter Rohm and Haas recognized a net gain of $48
million after tax resulting from gains on the divestitures of RohMax and
AtoHaas and charges for asset writedowns and the early retirement of
debt.
Sales for the first six months of 1999 were $2.1 billion, up 8 percent from
the $1.9 billion reported for the first six months of 1998. Reported earnings
for the first six months of 1999 were $99 million, compared to $275 million for
the first six months of 1998.
2
<PAGE> 6
SUMMARY OF THE EXCHANGE OFFER
Registration Rights........... Rohm and Haas issued the outstanding debt on
July 6, 1999 to Salomon Smith Barney Inc.,
Chase Securities Inc., Goldman, Sachs & Co. and
Banc One Capital Markets, Inc., the initial
purchasers. The initial purchasers then sold
the outstanding debt to institutional and
accredited investors. Simultaneously with the
initial issuance of the outstanding debt, Rohm
and Haas entered into a registration rights
agreement with the initial purchasers, which
provides for the exchange offer.
You may exchange your outstanding debt for
registered debt, which has substantially
identical terms. The exchange offer satisfies
our obligations under the registration rights
agreement. After the exchange offer is over,
you will not be entitled to any exchange or
registration rights with respect to your
outstanding debt. Therefore, if you do not
exchange your outstanding debt, you will not be
able to reoffer, resell or otherwise dispose of
your outstanding debt unless (1) you comply
with the registration and prospectus delivery
requirements of the Securities Act, or (2) you
are exempt from such Securities Act
requirements.
The Exchange Offer............ Rohm and Haas is offering to exchange $500
million total principal amount of its 6.95%
Notes due 2004, $500 million total principal
amount of its 7.40% Notes due 2009 and $1
billion total principal amount of its 7.85%
Debentures due 2029, which have been registered
under the Securities Act, for, respectively,
your outstanding 6.95% Notes due 2004, 7.40%
Notes due 2009 or 7.85% Debentures due 2029
sold in the July 1999 private placement. To
exchange your outstanding debt, you must
properly tender the outstanding debt, and Rohm
and Haas must accept it. Rohm and Haas will
exchange all of the outstanding debt that you
validly tender and do not validly withdraw.
Rohm and Haas will issue registered debt at or
promptly after the end of the exchange offer.
Resales....................... Rohm and Haas believes that you can offer for
resale, resell or otherwise transfer the
registered debt without complying with the
registration and prospectus delivery
requirements of the Securities Act if:
- you acquire the registered debt in the
ordinary course of your business;
- you are not participating, do not intend to
participate, and have no arrangement or
understanding with any person to participate,
in the distribution of the registered debt;
and
- you are not an "affiliate" of Rohm and Haas,
as defined in Rule 405 of the Securities Act.
If any of these conditions is not satisfied and
you transfer any registered debt without
delivering a prospectus or without qualifying
for a registration exemption, you may incur
liability under the Securities Act. Rohm and
Haas will not assume or indemnify you against
such liability.
3
<PAGE> 7
Each broker-dealer that receives registered
debt for its own account in exchange for
outstanding debt, where such outstanding debt
was acquired by such broker-dealer as a result
of market-making activities or other trading
activities, must acknowledge that it will
deliver a prospectus in connection with any
resale of such registered debt. See "Plan of
Distribution." A broker-dealer may use this
prospectus for an offer to resell, a resale or
other retransfer of the registered debt.
Expiration Date............... The exchange offer expires at 5:00 p.m., New
York City time, on , 1999,
unless extended to allow additional tenders of
outstanding debt.
Conditions to the Exchange
Offer......................... The exchange offer is subject to conditions,
some of which Rohm and Haas may waive. Such
conditions are more fully described later in
this prospectus under "The Exchange Offer --
Conditions to the Exchange Offer"
Procedures for Tendering
Outstanding Debt.............. You may tender your outstanding debt through
book-entry transfer in accordance with the
Automated Tender Offer Program, or "ATOP" of
The Depository Trust Company, commonly known as
"DTC". To tender your outstanding debt by a
means other than ATOP, a letter of transmittal
must be completed and signed according to the
instructions contained in such letter. The
letter of transmittal and any other documents
required by the letter of transmittal must be
delivered to the exchange agent by mail,
facsimile, hand delivery or overnight carrier.
In addition, you must deliver your outstanding
debt to the exchange agent or comply with the
procedures for guaranteed delivery. See "The
Exchange Offer -- Procedures for Tendering
Outstanding Debt" for more information.
Do not send letters of transmittal and
certificates representing outstanding debt, if
any, to Rohm and Haas. Send these documents
only to the exchange agent. See "The Exchange
Offer -- Exchange Agent" for more information.
Special Procedures for
Beneficial Owners............. If you are a beneficial owner whose outstanding
debt is registered in the name of a broker,
dealer, commercial bank, trust company or other
nominee, and you wish to tender your
outstanding debt in the exchange offer, please
contact the registered holder as soon as
possible and instruct such person to tender on
your behalf and comply with the instructions
set forth elsewhere in this prospectus.
Withdrawal Rights............. You may withdraw the tender of your outstanding
debt at any time before 5:00 p.m., New York
City time, on , 1999, unless
Rohm and Haas extends the date.
Appraisal or Dissenters'
Rights........................ Holders of outstanding debt do not have any
appraisal or dissenters' rights in the exchange
offer. If you do not tender your outstanding
debt or Rohm and Haas does not accept your
tender because, among other things, you
invalidly tendered your outstanding debt, you
will not be entitled to any further
4
<PAGE> 8
registration rights under the registration
rights agreement, except under limited
circumstances. However, your notes and
debentures will remain outstanding and entitled
to the benefits of the indenture.
Federal Income Tax
Considerations................ The exchange of outstanding notes and
debentures is not a taxable exchange for United
States federal income tax purposes. You should
not recognize any taxable gain or loss or any
interest income as a result of the exchange.
For additional information regarding federal
income tax considerations, you should read the
discussion under the heading "United States
Federal Tax Consequences."
Use of Proceeds............... Rohm and Haas will not receive any proceeds
from the issuance of the registered debt, and
Rohm and Haas will pay the expenses of the
exchange offer.
Exchange Agent................ Chase Manhattan Trust Company is serving as
exchange agent in the exchange offer. The
mailing address of the exchange agent is 55
Water Street, Room 234, New York, New York
10041, Attention: Carlos Estevez. Deliveries by
hand or overnight courier should be addressed
to the address listed above. For information
about the exchange offer, call the exchange
agent at telephone number: (212) 638-0828 or
facsimile number: (212) 638-7375.
5
<PAGE> 9
SUMMARY OF TERMS OF REGISTERED DEBT
The form and terms of the registered debt are the same as the form and
terms of the outstanding debt, except that the registered debt will be
registered under the Securities Act. As a result, the registered debt will not
bear legends restricting its transfer and will not contain the registration
rights and liquidated damages provisions contained in the outstanding debt. The
registered debt represents the same debt as the outstanding debt. Both the
outstanding debt and the registered debt are governed by the same indenture.
Issuer........................ Rohm and Haas Company
Aggregate Amounts............. $500,000,000 principal amount of 6.95% Notes
due 2004
$500,000,000 principal amount of 7.40% Notes
due 2009
$1,000,000,000 principal amount of 7.85%
Debentures due 2029
Interest...................... Interest will accrue on the registered debt
from July 6, 1999 and will be payable on
January 15 and July 15 of each year, beginning
on January 15, 2000.
Ranking....................... The registered debt will be senior unsecured
obligations and will rank equally with all of
our other senior unsecured and unsubordinated
indebtedness.
Optional Redemption........... Each series of the registered debt will be
redeemable, as a whole or in part, at our
option, at any time, at a redemption price
equal to the greater of (1) 100% of the
principal amount of the registered debt to be
redeemed and (2) the sum of the present values
of the remaining scheduled principal and
interest payments discounted, on a semiannual
basis, at a rate equal to the sum of the
applicable Treasury Rate (as defined herein)
and 15 basis points for the Notes due 2004, 20
basis points for the Notes due 2009 and 25
basis points for the Debentures due 2029, plus
in each case accrued interest to the date of
redemption.
Use of Proceeds............... Rohm and Haas will not receive any cash
proceeds in the exchange offer.
Absence of a Public Market for
the Registered Debt........... Rohm and Haas does not intend to apply for a
listing of the registered debt on any
securities exchange. The initial purchasers of
the outstanding debt have advised Rohm and Haas
that they currently intend to make a market in
the registered debt following the exchange
offer, but they are not obligated to do so, and
any market-making may be stopped at any time
without notice. Rohm and Haas does not know if
an active public market for the registered debt
will develop or, if developed, will continue.
If an active public market does not develop or
is not maintained, the market price and
liquidity of the registered debt may be
adversely affected. Rohm and Haas cannot make
any assurances regarding the liquidity of the
market for such registered debt, the ability of
holders to sell their registered debt or the
price at which holders may sell their
registered debt.
6
<PAGE> 10
USE OF PROCEEDS
Rohm and Haas will not receive any proceeds from the exchange offer. In
consideration for issuing the registered debt, Rohm and Haas will receive in
exchange outstanding debt of like principal amount, the terms of which are
identical in all material respects to the registered debt. The outstanding debt
surrendered in exchange for registered debt will be retired and canceled and
cannot be reissued. Accordingly, issuance of the registered debt will not result
in any increase in Rohm and Haas's indebtedness. Rohm and Haas has agreed to
bear the expenses of the exchange offer.
RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
THREE MONTHS ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
- -------------------------- ---------------------------------------------
PRO FORMA PRO FORMA
1999 1999 1998 1998 1997 1996 1995 1994
- --------- -------------- --------- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C> <C>
3.4x 11.3x 2.7x 11.7x 9.5x 8.2x 6.2x 5.9x
</TABLE>
- -------------------------
- - For purposes of computing the ratio of earnings to fixed charges, earnings
consist of earnings before income taxes and extraordinary item and exclude
undistributed earnings (losses) of affiliates and capitalized interest but
include fixed charges and amortization of previously capitalized interest.
Fixed charges consist of interest expensed and capitalized; amortized
premiums, discounts and capitalized expenses related to indebtedness; and a
share of rental expense which is deemed to represent an interest factor.
Earnings used in the computation of the ratio of earnings to fixed charges for
the year ended December 31, 1998 include the impact of a $19 million ($13
million after-tax) extraordinary loss on the early extinguishment of debt in
1998.
- - The pro forma ratio of earnings to fixed charges computations for the year
ended December 31, 1998 and the three months ended March 31, 1999 were
prepared on the same basis as the selected unaudited pro combined financial
information on pages 18 to 20 of this prospectus as if the acquisitions of
Morton and LeaRonal had occurred on January 1, 1998.
7
<PAGE> 11
THE EXCHANGE OFFER
PURPOSE OF THE EXCHANGE OFFER
Simultaneously with the sale of the outstanding debt, Rohm and Haas entered
into a registration rights agreement with Salomon Smith Barney Inc., Chase
Securities Inc., Goldman, Sachs & Co. and Banc One Capital Markets, Inc., the
initial purchasers of the outstanding debt. Under this registration rights
agreement, Rohm and Haas agreed to file a registration statement regarding the
exchange of the outstanding debt for registered notes and debentures with terms
identical in all material respects. Rohm and Haas also agreed to use its
reasonable best efforts to cause that registration statement to become effective
with the Securities and Exchange Commission. A copy of the registration rights
agreement has been filed as an exhibit to the registration statement of which
this prospectus is as part.
Rohm and Haas is conducting the exchange offer to satisfy its contractual
obligations under the registration rights agreement. The form and terms of the
registered debt are the same as the form and terms of the outstanding debt,
except that the registered debt will be registered under the Securities Act, and
holders of the registered debt will not be entitled to liquidated damages. The
registration rights agreement provides that, if applicable interpretations of
the SEC's staff permit Rohm and Haas to conduct the exchange offer and the
exchange offer registration statement is not declared effective by December 3,
1999 or the exchange offer is not consummated by January 2, 2000, Rohm and Haas
will pay liquidated damages on the outstanding debt until effectiveness of the
exchange offer registration statement or consummation of the exchange offer, as
the case may be. Upon the completion of the exchange offer, holders of
outstanding debt will not be entitled to any liquidated damages on the
outstanding debt or any further registration rights under the registration
rights agreement, except under limited circumstances.
In the event that (1) applicable interpretations of the SEC's staff do not
permit Rohm and Haas to conduct the exchange offer, (2) the registered debt is
not freely tradeable (other than because the holder is an affiliate of Rohm and
Haas or is a person that must deliver a prospectus in connection with the
resale), or (3) the exchange offer is not consummated by January 2, 2000, Rohm
and Haas will file a shelf registration statement covering resales of the
affected securities, use its reasonable efforts to cause the shelf registration
to be declared effective and use its reasonable efforts to keep effective the
shelf registration statement until the earlier of (1) two years from the date of
issuance of the outstanding debt (or, if Rule 144(k) is amended to provide a
shorter restrictive period, the shorter period) or (2) such time as when all of
the securities covered by the shelf registration statement have been sold. If
the shelf registration statement is not declared effective by February 2, 2000,
Rohm and Haas will pay liquidated damages on the outstanding debt until
effectiveness of the shelf registration statement. If a shelf registration
statement is declared effective and Rohm and Haas fails to keep it continuously
effective or useable for resales for the period required by the registration
rights agreement and the failure continues for more than 60 days (whether or not
consecutive) in any 12-month period, then Rohm and Haas will pay liquidated
damages on the applicable outstanding debt from the 61st day until the earlier
of (1) the date that the shelf registration statement is again deemed effective
or is useable, (2) the date that is two years from the date of issuance of the
outstanding debt (or, if Rule 144(k) is amended to provide a shorter restrictive
period, the shorter period), or (3) the date as of which all of the applicable
securities are sold pursuant to the shelf registration statement.
The term "holder" as used in this prospectus means (1) any person in whose
name the outstanding debt is registered on Rohm and Haas's books, or (2) any
other person who has obtained a properly completed bond power from the
registered holder, or (3) any person whose outstanding debt is held of record by
DTC and who wants to deliver such outstanding debt by book-entry transfer at
DTC.
TERMS OF THE EXCHANGE OFFER
Rohm and Haas is offering to exchange up to $2 billion total principal
amount of registered debt for a like total principal amount of outstanding debt.
The outstanding debt must be tendered properly on or before the expiration date
of the exchange offer and not withdrawn. In exchange for outstanding debt
8
<PAGE> 12
properly tendered and accepted, Rohm and Haas will issue a like total principal
amount of up to $2 billion in registered debt.
The exchange offer is not conditioned upon holders tendering a minimum
principal amount of outstanding debt. As of the date of this prospectus, $2
billion aggregate principal amount of outstanding debt is outstanding.
Holders of the outstanding debt do not have any appraisal or dissenters'
rights in the exchange offer. If holders do not tender outstanding debt or
tender outstanding debt that Rohm and Haas does not accept, their outstanding
debt will remain outstanding. Any such outstanding debt will be entitled to the
benefits of the indenture, but will not be entitled to any further registration
rights under the registration rights agreement, except under limited
circumstances.
After the expiration date of the exchange offer, Rohm and Haas will return
to the holders any tendered outstanding debt that Rohm and Haas does not accept
for exchange due to, among other things, an invalid tender.
Holders exchanging outstanding debt will not have to pay brokerage
commissions or fees or transfer taxes if they follow the instructions in the
letter of transmittal. Rohm and Haas will pay the charges and expenses, other
than certain taxes described below, in the exchange offer. See "-- Fees and
Expenses" for further information regarding fees and expenses.
As used in this prospectus, the "expiration date" of the exchange offer is
5:00 p.m., New York City time on , 1999, unless Rohm and Haas
extends the exchange offer to allow additional tenders of outstanding debt.
Rohm and Haas has the right, in accordance with applicable law, at any
time:
- to delay the acceptance of the outstanding debt;
- to terminate the exchange offer if Rohm and Haas determines that any of
the conditions to the exchange offer have not occurred or have not been
satisfied;
- to extend the expiration date of the exchange offer and keep all
outstanding debt tendered other than those outstanding notes and
debentures properly withdrawn; and
- to waive any condition or amend the terms of the exchange offer.
If Rohm and Haas materially changes the exchange offer, or if Rohm and Haas
waives a material condition of the exchange offer, Rohm and Haas will promptly
distribute a prospectus supplement to you disclosing the change or waiver. Rohm
and Haas also will extend the exchange offer as required by Rule 14e-1 under the
Securities Exchange Act of 1934.
If Rohm and Haas exercises any of the rights listed above, it will promptly
give oral or written notice of the action to the exchange agent and will issue a
release to an appropriate news agency. In the case of an extension, an
announcement will be made no later than 9:00 a.m., New York City time, on the
next business day after the previously scheduled expiration date.
ACCEPTANCE FOR EXCHANGE AND ISSUANCE OF REGISTERED DEBT
Rohm and Haas will issue registered debt to the exchange agent for
outstanding debt tendered and accepted, and not withdrawn, promptly on or after
the expiration date. The exchange agent might not deliver the registered debt to
all tendering holders at the same time. The timing of delivery depends upon when
the exchange agent receives and processes the required documents.
Rohm and Haas will be deemed to have exchanged outstanding debt validly
tendered and not withdrawn when Rohm and Haas gives oral or written notice to
the exchange agent of its acceptance. The exchange agent is an agent for Rohm
and Haas for purposes of receiving tenders of outstanding debt, letters of
transmittal and related documents. The exchange agent also is an agent for
tendering holders for purposes of receiving outstanding debt, letters of
transmittal and related documents and transmitting
9
<PAGE> 13
registered debt to validly tendering holders. If, for any reason, Rohm and Haas
(1) delays the acceptance or exchange of any outstanding debt; (2) extends the
exchange offer; or (3) is unable to accept or exchange outstanding debt, then
the exchange agent may, on behalf of Rohm and Haas, and subject to Rule 14e-1(c)
under the Exchange Act, retain tendered notes and debentures. Tendered notes and
debentures retained by the exchange agent may not be withdrawn, except according
to the withdrawal procedures outlined in the section entitled "-- Withdrawal
Rights" below.
In tendering outstanding debt, you must warrant in the letter of
transmittal or in an "Agent's Message," as described below, that:
- you have full power and authority to tender, exchange, sell, assign and
transfer your outstanding debt;
- Rohm and Haas will acquire good, marketable and unencumbered title to the
tendered outstanding debt, free and clear of all liens, restrictions,
charges and other encumbrances; and
- the outstanding debt tendered for exchange is not subject to any adverse
claims or proxies.
You also must warrant and agree that you will, upon request, execute and
deliver any additional documents requested by Rohm and Haas or the exchange
agent to complete the exchange, sale, assignment, and transfer of the
outstanding debt and that you will comply with your obligations under the
registration rights agreement.
PROCEDURES FOR TENDERING OUTSTANDING DEBT
VALID TENDER
You may tender your outstanding debt by book-entry transfer or, if you hold
certificated securities, by other means, as described below. For book-entry
transfer, you must deliver to the exchange agent either (1) a completed and
signed letter of transmittal or (2) an "agent's message." An agent's message
means a message, transmitted by DTC to and received by the exchange agent which
forms part of a confirmation of a book-entry transfer of outstanding debt into
the exchange agent's account at DTC. The agent's message states that DTC has
received an express acknowledgment from the tendering participant that such
participant has received and agrees to be bound by the letter of transmittal and
that Rohm and Haas may enforce the letter of transmittal against such
participant.
You must deliver your letter of transmittal or the agent's message by mail,
facsimile, hand delivery or overnight carrier to the exchange agent on or before
the expiration date. In addition, to complete a book-entry transfer, you must
also either (1) have DTC transfer the outstanding debt into the exchange agent's
account at DTC using the ATOP procedures for transfer, and obtain a confirmation
of such transfer, or (2) follow the guaranteed delivery procedures described
below under "-- Guaranteed Delivery Procedures."
If you tender less than all of your outstanding debt, you should fill in
the principal amount of notes and debentures tendered in the appropriate box on
the letter of transmittal. If you do not indicate the amount tendered in the
appropriate box, Rohm and Haas will assume you are tendering all of the
outstanding debt that you hold.
For tendering your outstanding debt other than by book-entry transfer, you
must deliver a completed and signed letter of transmittal to the exchange agent.
Again, you must deliver the letter of transmittal by mail, facsimile, hand
delivery or overnight carrier to the exchange agent on or before the expiration
date. In addition, to complete a valid tender you must either (1) deliver your
outstanding debt to the exchange agent on or before the expiration date, or (2)
follow the guaranteed delivery procedures set forth below under "-- Guaranteed
Delivery Procedures."
DELIVERY OF REQUIRED DOCUMENTS BY WHATEVER METHOD YOU CHOOSE IS AT YOUR
SOLE RISK. DELIVERY IS COMPLETE WHEN THE EXCHANGE AGENT ACTUALLY RECEIVES THE
ITEMS TO BE DELIVERED. DELIVERY OF DOCUMENTS TO DTC IN ACCORDANCE WITH DTC'S
PROCEDURES DOES NOT CONSTITUTE DELIVERY OF SUCH DOCUMENTS TO THE
10
<PAGE> 14
EXCHANGE AGENT. IF DELIVERY IS MADE BY MAIL, THEN REGISTERED MAIL, RETURN
RECEIPT REQUESTED, PROPERLY INSURED, OR AN OVERNIGHT DELIVERY SERVICE IS
RECOMMENDED. IN ALL CASES YOU SHOULD ALLOW SUFFICIENT TIME TO ENSURE TIMELY
DELIVERY.
SIGNATURE GUARANTEES
You do not need to endorse certificates for the outstanding debt or provide
signature guarantees on the letter of transmittal, unless (1) someone other than
the registered holder tenders the certificate or (2) you complete the box
entitled "Special Issuance Instructions" or "Special Delivery Instructions" in
the letter of transmittal. In the case of (1) or (2) above, you must sign your
outstanding debt or provide a properly executed bond power, with the signature
on the bond power and on the letter of transmittal guaranteed by a firm or other
entity identified in Rule 17Ad-15 under the Exchange Act as an "eligible
guarantor institution."
An "eligible guarantor institution" includes: (1) a bank; (2) a broker,
dealer, municipal securities broker or dealer or government securities broker or
dealer; (3) a credit union; (4) a national securities exchange, registered
securities association or clearing agency; or (5) a savings association that is
a participant in a securities transfer association.
GUARANTEED DELIVERY
If you want to tender your outstanding debt in the exchange offer and (1)
the certificates for the outstanding debt are not immediately available or all
required documents are unlikely to reach the exchange agent on or before the
expiration date, or (2) a book-entry transfer cannot be completed in time, you
may tender your outstanding debt if you comply with the following guaranteed
delivery procedures:
(a) you tender through an eligible guarantor institution;
(b) you deliver a properly completed and signed notice of guaranteed
delivery, like the form provided with the letter of transmittal, to the
exchange agent on or before the expiration date; and
(c) you deliver the certificates or a confirmation of book-entry
transfer and a properly completed and signed letter of transmittal to the
exchange agent within three New York Stock Exchange trading days after the
notice of guaranteed delivery is executed.
You may deliver the notice of guaranteed delivery by hand, facsimile or
mail to the exchange agent and must include a guarantee by an eligible guarantor
institution in the form described in the notice.
Rohm and Haas's acceptance of properly tendered outstanding debt is a
binding agreement between the tendering holder and Rohm and Haas upon the terms
and subject to the conditions of the exchange offer.
DETERMINATION OF VALIDITY
Rohm and Haas will resolve all questions regarding the form of documents,
validity, eligibility (including time of receipt) and acceptance for exchange of
any tendered outstanding debt. Rohm and Haas's resolution of these questions and
Rohm and Haas's interpretation of the terms and conditions of the exchange
offer, including the letter of transmittal, are final and binding on all
parties. A tender of outstanding debt is invalid until all irregularities have
been cured or waived. None of Rohm and Haas, any of its affiliates or assigns,
the exchange agent nor any other person is under any obligation to give notice
of any irregularities in tenders nor will they be liable for failing to give any
such notice. Rohm and Haas reserves the absolute right, in its sole and absolute
discretion, to reject any tenders determined to be in improper form or unlawful.
Rohm and Haas also reserves the absolute right to waive any of the conditions of
the exchange offer or any condition or irregularity in the tender of outstanding
debt by any holder. Rohm and Haas need not waive similar conditions or
irregularities in the case of other holders.
If any letter of transmittal, endorsement, bond power, power of attorney,
or any other document required by the letter of transmittal is signed by a
trustee, executor, administrator, guardian, attorney-in-
11
<PAGE> 15
fact, officer of a corporation or other person acting in a fiduciary or
representative capacity, that person must indicate that capacity when signing.
In addition, unless waived by Rohm and Haas, the person must submit proper
evidence satisfactory to Rohm and Haas, in its sole discretion, of his or her
authority to so act.
A beneficial owner of outstanding debt that is held by or registered in the
name of a broker, dealer, commercial bank, trust company or other nominee or
custodian should contact that entity promptly if the holder wants to participate
in the exchange offer.
RESALES OF REGISTERED DEBT
Rohm and Haas is exchanging the outstanding debt for registered debt based
upon the position of the SEC's staff, set forth in interpretive letters to third
parties in other similar transactions. Rohm and Haas will not seek its own
interpretive letter. As a result, Rohm and Haas cannot assure you that the SEC's
staff will take the same position on this exchange offer as it did in the
interpretive letters to other parties. Based on the letters of the SEC's staff
to the other parties, Rohm and Haas believes that, except as described below,
holders of registered debt, other than broker-dealers, can offer the registered
notes and debentures for resale, resell and otherwise transfer such registered
debt without delivering a prospectus to prospective purchasers.
Any holder of outstanding debt who is an "affiliate" of Rohm and Haas or
who intends to distribute registered debt, or any broker-dealer who purchased
outstanding debt from Rohm and Haas for resale pursuant to Rule 144A or any
other available exemption under the Securities Act:
- cannot rely on the interpretations of the SEC's staff in the
above-mentioned interpretive letters;
- cannot tender outstanding debt in the exchange offer; and
- must comply with the registration and prospectus delivery requirements of
the Securities Act to transfer the outstanding debt, unless the sale is
exempt.
In addition, if any broker-dealer acquired outstanding debt for its own
account as a result of market making or other trading activities and exchanges
such outstanding debt for registered debt, such broker-dealer must deliver a
prospectus with any resales of its registered debt.
If you want to exchange your outstanding debt for registered debt, you will
be required to affirm that:
- you are not an "affiliate" of Rohm and Haas;
- you are acquiring the registered debt in the ordinary course of your
business;
- you have no arrangement or understanding with any person to participate
in a "distribution," within the meaning of the Securities Act, of the
registered debt; and
- if you are not a broker-dealer, you are not engaged in, and do not intend
to engage in, a "distribution," within the meaning of the Securities Act,
of the registered debt.
In addition, Rohm and Haas may require you to provide information regarding
the number of "beneficial owners," within the meaning of Rule 13d-3 under the
Exchange Act, of the outstanding debt. Each broker-dealer that receives
registered debt for its own account must acknowledge that it acquired its
outstanding debt for its own account as the result of market-making activities
or other trading activities and must agree that it will deliver a prospectus
meeting the requirements of the Securities Act in connection with any resale of
such registered debt. By making this acknowledgment and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" under the Securities Act. Based on the position of the SEC's staff
in certain interpretive letters, Rohm and Haas believes that broker-dealers who
acquired outstanding debt for their own accounts as a result of market-making
activities or other trading activities may fulfill their prospectus delivery
requirements with respect to the registered debt with a prospectus meeting the
requirements of the Securities Act. Accordingly, a broker-dealer may use this
prospectus to satisfy such requirements. Rohm and Haas has agreed that, starting
on the expiration date of the exchange offer and ending on the close of business
on the 180th day following such expiration date, it will make this prospectus,
as amended or supplemented, available to any broker-
12
<PAGE> 16
dealer for use in connection with any such resale. See "Plan of Distribution"
for more information. A broker-dealer intending to use this prospectus in the
resale of registered debt must notify Rohm and Haas, on or prior to the
expiration date, that it is a participating broker-dealer. This notice may be
given in the letter of transmittal or may be delivered to the exchange agent.
Any participating broker-dealer who is an "affiliate" of Rohm and Haas may not
rely on the interpretive letters of the SEC's staff and must comply with the
registration and prospectus delivery requirements of the Securities Act when
reselling its registered debt.
Rohm and Haas agrees to advise holders of, among other things:
- any SEC request for amendments or supplements to the registration
statement or this prospectus or for additional information;
- the SEC's issuance of any stop order suspending the effectiveness of the
registration statement or the initiation of any proceedings for that
purpose; and
- Rohm and Haas's receipt of any notification with respect to the
suspension of the qualification of the registered debt in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose.
Upon the occurrence of any of these events, Rohm and Haas agrees to notify
the holders, if applicable, to suspend use of this prospectus and Rohm and Haas
will prepare, using its reasonable efforts to do so as soon as possible, a
post-effective amendment to the registration statement or an amendment or
supplement to this prospectus or file any other required document so that, as
thereafter delivered to purchasers of the registered debt, the prospectus will
not include an untrue statement of a material fact or omit to state any material
fact necessary to make the statements herein, in the light of the circumstances
under which they were made, not misleading. The holders, if applicable, agree
that they will suspend use of this prospectus until Rohm and Haas has amended or
supplemented the prospectus so that it does not contain any such untrue
statement or omission.
WITHDRAWAL RIGHTS
You can withdraw tenders of outstanding debt at any time on or before the
expiration date of the exchange offer.
For a withdrawal to be effective, you must deliver a written or facsimile
transmission of a "notice of withdrawal" to the exchange agent on or before the
expiration date. The notice of withdrawal must specify the name of the person
tendering the outstanding debt to be withdrawn, the total principal amount of
outstanding debt withdrawn, and the name of the registered holder of the
outstanding debt if it is different from the name of the person tendering the
outstanding debt. If you delivered outstanding debt to the exchange agent, you
must submit the serial numbers of the outstanding debt to be withdrawn and the
signature on the notice of withdrawal must be guaranteed by an eligible
guarantor institution, except in the case of outstanding debt tendered for the
account of an eligible guarantor institution. If you tendered outstanding debt
as a book-entry transfer, the notice of withdrawal must specify the name and
number of the account at DTC to be credited with the withdrawal of outstanding
debt and you must deliver the notice of withdrawal to the exchange agent by
written, telegraphic, telex or facsimile transmission. You may not rescind
withdrawals of tender. Outstanding debt properly withdrawn may again be tendered
at any time on or before the expiration date.
Rohm and Haas will determine all questions regarding the validity, form and
eligibility of withdrawal notices. Rohm and Haas's determination will be final
and binding on all parties. None of Rohm and Haas, any of its affiliates or
assigns, the exchange agent nor any other person is under any obligation to give
notice of any irregularities in any notice of withdrawal, nor will they be
liable for failing to give any such notice. Withdrawn outstanding debt will be
returned to the holder after withdrawal.
13
<PAGE> 17
INTEREST ON REGISTERED DEBT
The registered debt will bear interest at the respective rates per year
that appear on the cover page of this prospectus, payable semi-annually, on
January 15 and July 15 of each year, commencing January 15, 2000. Holders of
registered debt will receive interest on January 15, 2000 from the date of
initial issuance of the registered debt. Interest on the outstanding debt
accepted for exchange will cease to accrue upon issuance of the registered debt.
CONDITIONS TO THE EXCHANGE OFFER
Rohm and Haas need not exchange any outstanding debt, may terminate the
exchange offer or may waive any conditions to the exchange offer or amend the
exchange offer, if any of the following conditions have occurred:
- the SEC's staff no longer allows the registered debt to be offered for
resale, resold and otherwise transferred by certain holders without
compliance with the registration and prospectus delivery provisions of
the Securities Act;
- a governmental body passes any law, statute, rule or regulation which, in
Rohm and Haas's opinion, prohibits or prevents the exchange offer;
- the SEC or any state securities authority issues a stop order suspending
the effectiveness of the registration statement or initiates or threatens
to initiate a proceeding to suspend the effectiveness of the registration
statement; or
- Rohm and Haas is unable to obtain any governmental approval that Rohm and
Haas believes is necessary to complete the exchange offer.
If Rohm and Haas reasonably believes that any of the above conditions has
occurred, it may (1) terminate the exchange offer, whether or not any
outstanding debt has been accepted for exchange, (2) waive any condition to the
exchange offer or (3) amend the terms of the exchange offer in any respect. Rohm
and Haas's failure at any time to exercise any of these rights will not waive
such rights, and each right will be deemed an ongoing right which may be
asserted at any time or from time to time. However, Rohm and Haas does not
intend to terminate the exchange offer if none of the preceding conditions has
occurred.
EXCHANGE AGENT
Rohm and Haas appointed Chase Manhattan Trust Company as exchange agent for
the exchange offer. Holders should direct questions and requests for assistance,
requests for additional copies of this prospectus or of the letter of
transmittal and requests for notice of guaranteed delivery to the exchange agent
addressed as follows:
<TABLE>
<S> <C>
By Registered or Certified Mail: By Hand Or Overnight Delivery:
55 Water Street 55 Water Street
Room 234 Room 234
New York, NY 10041 New York, NY 10041
Attention: Carlos Estevez Attention: Carlos Estevez
</TABLE>
Confirm by Telephone:
(212) 638-0828
Facsimile Transmissions:
(ELIGIBLE GUARANTOR INSTITUTIONS ONLY)
(212) 638-7375
If you deliver letters of transmittal and any other required documents to
an address or facsimile number other than those listed above, your tender is
invalid.
14
<PAGE> 18
FEES AND EXPENSES
Rohm and Haas will pay the exchange agent reasonable and customary fees for
its services and reasonable out-of-pocket expenses. Rohm and Haas will also pay
brokerage houses and other custodians, nominees and fiduciaries their reasonable
out-of-pocket expenses for sending copies of this prospectus and related
documents to holders of outstanding debt, and in handling or tendering for their
customers.
Rohm and Haas will pay the transfer taxes for the exchange of the
outstanding debt in the exchange offer. If, however, exchange debt is delivered
to or issued in the name of a person other than the registered holder, or if a
transfer tax is imposed for any reason other than for the exchange of
outstanding debt in the exchange offer, then the tendering holder will pay the
transfer taxes. If a tendering holder does not submit satisfactory evidence of
payment of taxes or exemption from taxes with the letter of transmittal, the
taxes will be billed directly to the tendering holder.
Rohm and Haas will not make any payment to brokers, dealers or other
nominees soliciting acceptances in the exchange offer.
ACCOUNTING TREATMENT
The registered debt will be recorded at the same carrying value as the
outstanding debt. Accordingly, Rohm and Haas will not recognize any gain or loss
for accounting purposes. Rohm and Haas intends to amortize the expenses of the
exchange offer and issuance of the outstanding debt over the respective terms of
each series of the registered debt.
15
<PAGE> 19
SELECTED HISTORICAL FINANCIAL DATA OF ROHM AND HAAS
The selected historical financial data set forth below for Rohm and Haas as
of December 31, 1998, 1997, 1996, 1995 and 1994 and for each of the years in the
five-year period ended December 31, 1998 are derived from audited financial
statements of Rohm and Haas for the three-year period ended December 31, 1998
incorporated by reference in this prospectus and audited financial statements
for the two-year period ended December 31, 1995 that were previously filed by
Rohm and Haas with the SEC. The summary historical financial data as of and for
the three-month periods ended March 31, 1999 and 1998 is unaudited. In the
opinion of Rohm and Haas management, the unaudited historical financial data of
Rohm and Haas presented below were prepared on the same basis as the audited
historical financial data and include all adjustments (consisting only of normal
recurring adjustments) necessary for a fair statement of the information set
forth herein. The results of operations for any interim period are not
necessarily indicative of the results for a full year. The summary historical
financial data should be read in conjunction with "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and the consolidated
financial statements and related notes incorporated by reference herein.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
MARCH 31, YEAR ENDED DECEMBER 31,
--------------- ------------------------------------------
1999 1998 1998 1997 1996 1995 1994
------ ------ ------ ------ ------ ------ ------
(DOLLARS IN MILLIONS)
<S> <C> <C> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales................................... $ 940 $ 937 $3,720 $3,999 $3,982 $3,884 $3,534
Earnings before taxes and extraordinary
item(1)................................... 176 166 700 611 530 441 407
Earnings before extraordinary item(1)....... 110 109 453 410 363 292 264
Net earnings................................ 110 109 440 410 363 292 264
Net earnings applicable to common
stockholders.............................. 109 107 434 403 356 285 257
Earnings per common share before
extraordinary item:
-- Basic.................................. $ .65 $ .59 $ 2.55 $ 2.17 $ 1.82 $ 1.41 $ 1.26
-- Diluted................................ .64 .58 2.52 2.13 1.79 1.40 1.26
Net earnings per common share:
-- Basic.................................. $ .65 $ .59 $ 2.47 $ 2.17 $ 1.82 $ 1.41 $ 1.26
-- Diluted................................ .64 .58 2.45 2.13 1.79 1.40 1.26
Cash dividends per common share............. $ .18 $ .17 $ .70 $ .63 $ .57 $ .52 $ .48
BALANCE SHEET DATA (AT PERIOD END):
Total current assets........................ $1,508 $1,547 $1,287 $1,397 $1,456 $1,421 $1,440
Total assets................................ 4,362 3,908 3,648 3,900 3,933 3,916 3,861
Total current liabilities................... 1,019 853 875 850 886 828 932
Long-term debt, excluding current portion... 834 514 409 509 562 606 629
Total stockholders' equity.................. 1,642 1,862 1,561 1,797 1,728 1,781 1,620
CASH FLOW DATA:
Net cash provided by operating activities... $ 50 $ 35 $ 682 $ 791 $ 706 $ 513 $ 524
Net cash provided (used) by investing
activities................................ (490) (25) 37 (324) (330) (368) (336)
Net cash provided (used) by financing
activities................................ 485 (25) (743) (438) (408) (228) (97)
OTHER DATA:
Depreciation and amortization............... $ 71 $ 70 $ 281 $ 285 $ 272 $ 252 $ 239
Capital expenditures........................ 38 34 229 254 334 417 339
Research and development.................... 47 52 207 201 187 194 201
EBIT(1)(2).................................. 187 176 734 650 569 480 453
EBITDA(2)................................... 258 246 1,015 935 841 732 692
EBIT/Sales(2)............................... 20% 19% 20% 16% 14% 12% 13%
EBITDA/Sales(2)............................. 27% 26% 27% 23% 21% 19% 20%
</TABLE>
- -------------------------
(1) In the second and third quarters of 1998, we retired a total of $130 million
of high interest long-term debt resulting in an after-tax extraordinary loss
of $13 million.
16
<PAGE> 20
(2) EBIT represents earnings before interest and taxes. EBITDA represents
earnings before interest, taxes, depreciation and amortization. EBIT and
EBITDA are presented because we believe they are frequently used by security
analysts and others in evaluating companies and their ability to service
debt. However, EBIT and EBITDA should not be considered as alternatives to
net cash provided by operating activities as a measure of liquidity or as
alternatives to net income as an indicator of our operating performance or
any other measure of performance in accordance with generally accepted
accounting principles. EBIT and EBITDA, as we use the terms herein, may not
be comparable to EBIT and EBITDA as reported by other companies.
17
<PAGE> 21
SELECTED UNAUDITED PRO FORMA COMBINED FINANCIAL INFORMATION
We are providing the following selected unaudited pro forma combined
financial information to show what the results of operations and financial
position of Rohm and Haas would have looked like, absent any operational or
other changes, had the Morton acquisition, and Rohm and Haas's January 26, 1999
acquisition of LeaRonal, Inc. for approximately $455 million in cash, been
completed for the periods and at the dates indicated.
The following selected unaudited pro forma combined balance sheet as of
March 31, 1999 and the following selected unaudited pro forma combined
statements of income for the year ended December 31, 1998 and the three months
ended March 31, 1999 were prepared using an exchange ratio of 1.088710 and the
number of outstanding Morton shares on May 18, 1999. For determining the
aggregate purchase consideration of Morton, the price of the Rohm and Haas
common stock issued in the transaction was $37.73.
This information is provided for illustrative purposes only. It does not
show what Rohm and Haas's results of operations or financial position would have
been if the transactions had actually occurred on the dates assumed and it does
not indicate what Rohm and Haas's future operating results or consolidated
financial position will be. You should read the selected unaudited pro forma
combined financial information in conjunction with the "Unaudited Pro Forma
Combined Financial Statements," including the notes thereto, the historical
consolidated financial statements of Rohm and Haas and Morton, including the
notes thereto incorporated by reference into this document.
Rohm and Haas anticipates that the Morton and LeaRonal acquisitions will
provide it with financial benefits and synergies including reduced operating
expenses and revenue enhancements. The selected unaudited pro forma combined
financial information does not give effect to any of the expense reductions,
revenue enhancements or the restructuring costs, including those costs which may
be accrued at the date of acquisition, as our plans are not sufficiently
advanced at this point in time to estimate those costs. To the extent those
costs are accounted for as accrued liabilities and included in the allocation of
the purchase price consideration, the amount allocated to assets acquired would
increase, and net income would decrease due to additional amortization. To the
extent those costs are not accounted for as accrued liabilities at the dates of
acquisition of Morton and LeaRonal, a charge may result which may be material.
The amount of this charge cannot be quantified at this time but is expected to
be recognized in the period in which the restructuring occurs.
18
<PAGE> 22
SELECTED UNAUDITED PRO FORMA COMBINED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
THREE MONTHS ENDED TWELVE MONTHS ENDED
MARCH 31, 1999 DECEMBER 31, 1998
------------------ -------------------
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
<S> <C> <C>
Net sales............................................... $1,687 $6,448
Cost of goods sold...................................... 1,079 4,174
------ ------
Gross profit............................................ 608 2,274
Selling and administrative expenses..................... 303 1,217
Research and development expense........................ 63 273
Interest expense........................................ 75 317
Share of affiliate net earnings (losses)................ (7) 1
Other income, net....................................... 27 128
------ ------
Earnings before income taxes and extraordinary item and
discontinued operations............................... 187 596
Income taxes............................................ 74 226
------ ------
Earnings before extraordinary item...................... $ 113 $ 370
====== ======
Earnings per common share before extraordinary item:
Basic................................................. $ 0.53 $ 1.65
Diluted............................................... 0.52 1.65
Weighted average common shares outstanding:
Basic................................................. 212.2 220.1
Diluted............................................... 215.9 224.2
</TABLE>
19
<PAGE> 23
SELECTED UNAUDITED PRO FORMA COMBINED BALANCE SHEET
<TABLE>
<CAPTION>
PRO FORMA
COMBINED AT
MARCH 31, 1999
--------------
(IN MILLIONS)
<S> <C>
ASSETS
Current assets:
Cash and cash equivalents................................... $ 241
Accounts receivable, net.................................... 1,338
Inventories................................................. 855
Prepaid expenses and other assets........................... 279
-------
Total current assets................................... 2,713
Investments in and advances to unconsolidated subsidiaries
and affiliates............................................ 270
Land, buildings and equipment, net.......................... 3,513
Cost in excess of businesses acquired, less amortization.... 2,109
Other assets, net........................................... 2,794
-------
Total assets........................................... $11,399
=======
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Notes Payable............................................... $ 385
Accounts payable and accrued liabilities.................... 1,035
Federal, foreign and other income taxes..................... 163
-------
Total current liabilities.............................. 1,583
Long-term debt.............................................. 4,376
Deferred income taxes....................................... 1,329
Employee benefits........................................... 587
Other liabilities........................................... 281
Minority interest........................................... 28
-------
Total liabilities...................................... 8,184
Stockholders' equity........................................ 3,215
-------
Total liabilities and stockholders' equity............. $11,399
=======
</TABLE>
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<PAGE> 24
DESCRIPTION OF THE REGISTERED DEBT
This section describes the general terms and provisions of the registered
debt. The outstanding debt was, and the registered debt will be, issued under an
indenture dated July 1, 1999, between us and Chase Manhattan Trust Company,
National Association, as trustee. The terms of the registered debt are the same
as the terms of the outstanding debt, except that (1) Rohm and Haas registered
the registered debt under the Securities Act, and, unlike the outstanding debt,
in general its transfer is not restricted and (2) holders of the registered debt
are not entitled to certain rights under the registration rights agreement.
BECAUSE THIS SECTION OF THE PROSPECTUS MERELY SUMMARIZES THE TERMS OF THE
REGISTERED DEBT, YOU SHOULD READ THE INDENTURE AND THE RELEVANT PORTIONS OF THE
TRUST INDENTURE ACT OF 1939, AS AMENDED, FOR MORE COMPLETE INFORMATION REGARDING
THE TERMS OF THE REGISTERED DEBT, INCLUDING THE DEFINITION OF TERMS USED IN THIS
SECTION. COPIES OF THE INDENTURE AND REGISTRATION RIGHTS AGREEMENT CAN BE
OBTAINED BY FOLLOWING THE INSTRUCTIONS CONTAINED IN THIS PROSPECTUS UNDER THE
HEADINGS "WHERE YOU CAN FIND MORE INFORMATION" AND "DOCUMENTS INCORPORATED BY
REFERENCE."
If we default on the securities, the trustee has the power to enforce the
holders' rights against us. In addition, the trustee performs administrative
duties on our behalf, including sending interest payments and transferring
securities to a new purchaser.
GENERAL TERMS OF THE REGISTERED DEBT
The registered debt has the following terms:
<TABLE>
<CAPTION>
PRINCIPAL INTEREST
AMOUNT RATE MATURITY DATE
-------------- -------- -------------
<S> <C> <C> <C>
Notes due 2004 $ 500,000,000 6.95% July 15, 2004
Notes due 2009 $ 500,000,000 7.40% July 15, 2009
Debentures due 2029 $1,000,000,000 7.85% July 15, 2029
</TABLE>
The registered debt consists of three separate series for the purposes of
the indenture and will be our senior unsecured obligations. The registered debt
will rank equally with all of our other senior unsecured debt. The registered
debt may be redeemable in whole or in part at any time at our option. See
"-- Optional Redemption." The registered debt will not be entitled to the
benefit of any mandatory redemption or sinking fund. The indenture does not
limit the amount of additional indebtedness that we or any of our subsidiaries
may incur. The indenture does not limit the amount of notes, debentures or other
evidences of indebtedness that we may issue thereunder and provides that notes,
debentures or other evidences of indebtedness may be issued from time to time in
one or more series. As of the date of this prospectus, no notes, debentures or
other evidences of indebtedness are outstanding under the indenture except for
the outstanding debt.
The registered debt will bear interest from July 6, 1999 at the respective
rates per annum set forth above payable semiannually in arrears on January 15
and July 15 of each year, commencing on January 15, 2000, to the persons in
whose names the registered debt is registered at the close of business on the
immediately preceding January 1 and July 1, respectively. Interest on the
registered debt will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of original issuance.
Principal of, premium, if any, and interest on the registered debt will be
payable, and the transfer of the registered debt will be registrable, at our
office or agency to be maintained for that purpose in the Borough of Manhattan,
The City of New York, except that, at our option, interest may be paid by
mailing a check to the address of the person entitled thereto as it appears on
the securities register.
Interest on the registered debt will be computed on the basis of a 360-day
year comprised of twelve 30-day months. The amount of interest payable for any
period shorter than a full semiannual period for which interest is computed will
be computed on the basis of the actual number of days elapsed per 30-day month.
In the event that any date on which principal, premium, if any, or interest is
payable on the
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<PAGE> 25
registered debt is not a business day (as defined in the indenture), then
payment of the principal, premium, if any, or interest payable on that date will
be made on the next succeeding day that is a business day (and without any
interest or other payment in respect of any such delay). The registered debt
will be issued initially in minimum denominations of $100,000 and integral
multiples of $1,000 in excess thereof.
OPTIONAL REDEMPTION
The registered debt of each series will be redeemable, as a whole or in
part, at our option, at any time or from time to time, by mailing notice to the
registered address of each holder of securities at least 30 days but not more
than 60 days prior to the redemption. The redemption prices will be equal to the
greater of (1) 100% of the principal amount of the securities to be redeemed and
(2) the sum of the present values of the Remaining Scheduled Payments (as
defined below) on such registered debt discounted, on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months), at a rate equal to
the sum of the applicable Treasury Rate (as defined below) plus 15 basis points
for the Notes due 2004, 20 basis points for the Notes due 2009 and 25 basis
points for the Debentures due 2029. Accrued interest will be paid to the date of
redemption.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding that redemption date) of the
Comparable Treasury Issue (as defined below), assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for that redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer (as defined below) as having a
maturity comparable to the remaining term of the Notes due 2004, the Notes due
2009 or the Debentures due 2029, as the case may be, to be redeemed that would
be utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of the series of securities to be redeemed.
"Comparable Treasury Price" means, with respect to any redemption date, the
average of the Reference Treasury Dealer Quotations (as defined below) for that
redemption date.
"Reference Treasury Dealer" means Salomon Smith Barney Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer,
we will substitute another nationally recognized investment banking firm that is
a primary U.S. Government securities dealer.
"Reference Treasury Dealer Quotations" means, with respect to the Reference
Treasury Dealer and any redemption date, the average, as determined by the
trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by the Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding that redemption date.
"Remaining Scheduled Payments" means, with respect to the registered debt
to be redeemed, the remaining scheduled payments of principal of and interest on
that registered debt that would be due after the related redemption date but for
that redemption. If that redemption date is not an interest payment date with
respect to the registered debt to be redeemed, the amount of the next succeeding
scheduled interest payment on those securities will be reduced by the amount of
interest accrued on such registered debt to such redemption date.
On and after the redemption date, interest will cease to accrue on the
registered debt or any portion of the securities called for redemption (unless
we default in the payment of the redemption price and accrued interest). On or
before the redemption date, we will deposit with a paying agent (or the trustee)
money sufficient to pay the redemption price of and accrued interest on the
registered debt to be redeemed on that date. If less than all of the securities
of any series are to be redeemed, the registered debt to be redeemed shall be
selected by the trustee by a method the trustee deems to be fair and
appropriate.
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<PAGE> 26
GLOBAL SECURITIES
The outstanding debt was, and the registered debt will be, issued in the
form of one or more global certificates, known as "global securities." The
global securities will be deposited on the date of the acceptance for exchange
of the outstanding debt and the issuance of the registered debt with, or on
behalf of, DTC and registered in the name of Cede & Co., as DTC's nominee.
Registered debt that is issued as described below under "Certificated
Securities" will be issued in the form of registered definitive certificates,
known as "certificated securities." Upon the transfer of certificated
securities, such certificated securities may, unless the global securities have
previously been exchanged for certificated securities, be exchanged for an
interest in the global securities representing the principal amount of
registered debt being transferred.
Persons holding interests in the global securities may hold their interests
directly through DTC, or indirectly through organizations which are participants
in DTC. Transfers between participants will be effected in the ordinary way in
accordance with DTC rules and will be settled in immediately available funds.
Persons who are not participants may beneficially own interests in global
securities held by DTC only through participants or certain banks, brokers,
dealers, trust companies and other parties that clear through or maintain a
custodial relationship with a participant, either directly or indirectly, and
have indirect access to the DTC system. So long as Cede & Co., as DTC's nominee,
is the registered owner of any global security, it will be considered the sole
holder of such global security for all purposes. Except as provided below,
owners of beneficial interests in a global security will not be entitled to have
certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form, and will not be
considered the holder thereof.
None of Rohm and Haas, the trustee nor any registrar or paying agent will
have any responsibility for the performance by DTC or its participants or
indirect participants of their respective obligations under the rules and
procedures governing their operations. DTC has advised Rohm and Haas that it
will take any action permitted to be taken by a holder of registered debt only
at the direction of one or more participants whose accounts are credited with
DTC interests in a global security.
DTC is a limited purpose trust company organized under the laws of the
State of New York, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing corporation"
within the meaning of the New York Uniform Commercial Code and a "clearing
agency" registered pursuant to the provisions of Section 17A of the Exchange
Act. DTC was created to hold securities for its participants and to facilitate
the clearance and settlement of securities transactions, such as transfers and
pledges, among participants in deposited securities through electronic
book-entry changes to accounts of its participants, thereby eliminating the need
for physical movement of securities certificates. Participants include
securities brokers and dealers, banks, trust companies, clearing corporations
and certain other organizations. Certain participants (or their
representatives), together with other entities, own DTC. The rules applicable to
DTC and its participants are on file with the SEC.
Purchases of securities under the DTC system must be made by or through
participants, which will receive a credit for the securities on DTC's records.
The ownership interest of each actual purchaser of securities, referred to as a
"beneficial owner," is in turn to be recorded on the participants' and indirect
participants' records. Beneficial owners will not receive written confirmation
from DTC of their purchase, but beneficial owners are expected to receive
written confirmations providing details of the transaction, as well as periodic
statements of their holdings, from the participant or indirect participant
through which the beneficial owner entered into the transaction. Transfers of
ownership interests in the securities are to be accomplished by entries made on
the books of participants acting on behalf of beneficial owners. Beneficial
owners will not receive certificates representing their ownership interests in
securities, except in the event that use of the book-entry system for the
securities is discontinued.
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<PAGE> 27
The deposit of securities with DTC and their registration in the name of
Cede & Co. effect no change in beneficial ownership. DTC has no knowledge of the
actual beneficial owners of the securities; DTC's records reflect only the
identity of the participants to whose accounts the securities are credited,
which may or may not be the beneficial owners. The participants will remain
responsible for keeping account of their holdings on behalf of their customers.
The laws of some jurisdictions require that certain purchasers of
securities take physical delivery of securities in definitive form. Such laws
may impair the ability to transfer beneficial interests in the global security.
Conveyance of notices and other communications by DTC to participants, by
participants to indirect participants and by participants and indirect
participants to beneficial owners will be governed by arrangements among them,
subject to any statutory or regulatory requirements that may be in effect from
time to time. Redemption notices will be sent to Cede & Co. If less than all of
the securities are being redeemed, DTC's practice is to determine by lot the
interest of each participant in the securities to be redeemed.
Principal and interest payments on the securities will be made to DTC by
wire transfer of immediately available funds. DTC's practice is to credit
participants' accounts on the payable date in accordance with their respective
holdings shown on DTC's records unless DTC has reason to believe that it will
not receive payment on the payable date. Payments by participants to beneficial
owners will be governed by standing instructions and customary practices, as is
the case with securities held for the accounts of customers in bearer form or
registered in "street name," and will be the responsibility of the participant
and not of DTC, or us, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal and interest to DTC is
our responsibility, disbursement of payments to participants will be the
responsibility of DTC and disbursement of payments to the beneficial owners will
be the responsibility of participants and indirect participants. Neither we nor
the trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the global securities or for maintaining, supervising or reviewing
any records relating to beneficial ownership interests.
DTC may discontinue providing its services as securities depositary with
respect to the securities at any time by giving reasonable notice to us. In the
event DTC notifies us that it is unwilling or unable to continue as depositary
for any Global Security or if at any time DTC ceases to be a clearing agency
registered under the Exchange Act when DTC is required to be so registered and
no successor depositary is appointed within 90 days of the notification or of
our becoming aware of DTC's ceasing to be so registered, as the case may be,
certificates for the securities will be printed and delivered in exchange for
interests in such global security. Any global security that is exchangeable
pursuant to the preceding sentence will be exchangeable for securities
registered in the names that DTC identifies. It is expected that instructions
will be based upon directions received by DTC from its participants with respect
to ownership of beneficial interests in such global security.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, certificates
representing the securities will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources that Rohm and Haas believes to be reliable, but
Rohm and Haas does not take responsibility for the accuracy of the information.
CERTIFICATED SECURITIES
The transfer and exchange of a beneficial interest in a global security
will be effected through DTC in accordance with the procedures of DTC. Upon any
such issuance of registered debt in the form of certificated securities, the
trustee is required to register such certificated securities in the name of, and
cause the same to be delivered to, such person or persons, or their nominee, if
applicable. In addition, if (1) Rohm and Haas notifies the trustee in writing
that DTC is no longer willing or able to act as
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<PAGE> 28
depositary and Rohm and Haas is unable to locate a qualified successor within 90
days or (2) Rohm and Haas, at its option, notifies the trustee in writing that
it elects to cause the issuance of registered debt in the form of certificated
securities under the indenture, then, upon surrender by Cede & Co., or its
nominee, of global securities, registered debt in such form will be issued to
each person that Cede & Co., or its nominee, and DTC identify as being the
beneficial owner of the related registered debt.
Neither Rohm and Haas nor the trustee will be liable for any delay by Cede
& Co., or its nominee, or DTC in identifying the beneficial owners of registered
debt and Rohm and Haas and the trustee may conclusively rely on, and will be
protected in relying on, instructions from Cede & Co., or its nominee, or DTC
for all purposes.
YEAR 2000
DTC management is aware that some computer applications, systems and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its Participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to security holders, book-entry
deliveries and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform its services properly is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as third-party vendors from whom DTC licenses software and hardware, and
third-party vendors on whom DTC relies for information or the provision of
services, including telecommunication and electrical utility service providers,
among others. DTC has informed the Industry that it is contacting (and will
continue to contact) third-party vendors from whom DTC acquires services to: (i)
impress upon them the importance of those services being Year 2000 compliant;
and (ii) determine the extent of their efforts for Year 2000 remediation (and,
as appropriate, testing) of their services. In addition, DTC is in the process
of developing contingency plans it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty or contract modification of any kind.
ABSENCE OF RIGHTS TO ASSETS OF SUBSIDIARIES
Our subsidiaries are separate legal entities and have no obligation to pay
any amounts due to the holders of the registered debt. The registered debt is
our obligation and is effectively subordinated to the indebtedness of our
subsidiaries.
We may have the right to receive assets of a subsidiary should it liquidate
or reorganize. Such right will be subordinated to the rights of creditors of
that subsidiary, including trade creditors. Therefore, the right of a holder of
registered debt to receive some of the assets of the liquidating or reorganizing
subsidiary will be subordinated to the rights of the subsidiary's creditors. If
we are a creditor of the subsidiary, we would receive any assets remaining after
the secured creditors and other debt holders of the subsidiary are paid.
RESTRICTIVE PROVISIONS
The indenture contains restrictive provisions that apply to us and our
Restricted Subsidiaries, as defined in the indenture.
Under the indenture, a Subsidiary is a corporation that we control because
we, or any of our Subsidiaries, own a majority of the Subsidiary's voting
shares, which gives us the right to elect its
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directors. A Restricted Subsidiary is a Subsidiary that owns or leases any
Principal Operating Property. A Principal Operating Property is any principal
manufacturing facility (or certain related facility) in the United States, any
of its territories or possessions, or Puerto Rico that we, or any Subsidiary,
have owned and operated for more than 90 days. A Subsidiary will not be a
Restricted Subsidiary if our Board of Directors determines that the facility is
not material to our business as a whole. Any Subsidiary that is not a Restricted
Subsidiary is an Unrestricted Subsidiary. (Section 101).
Limitations on Mortgages
Under the indenture, if we or any of our Restricted Subsidiaries incur debt
that is secured by a Principal Operating Property or stock or debt of a
Restricted Subsidiary, we must secure the registered debt at least equally and
ratably with the secured debt. However, if the total amount of our secured debt
and the present value of any remaining rent payments for certain sale and
leaseback transactions involving a Principal Operating Property would not exceed
5% of our consolidated net worth, this requirement does not apply. (Section
1009). In calculating consolidated net worth under the indenture, we include
capital stock, surpluses and surplus reserves of its Unrestricted Subsidiaries,
as defined in the indenture. However, in calculating the aggregate amount of
secured debt, we may exclude:
- mortgages that existed at the time the company became a Restricted
Subsidiary;
- mortgages in our favor or in favor of a Restricted Subsidiary;
- mortgages in favor of governmental bodies that secure progress or advance
payments;
- mortgages existing at the time of an acquisition;
- purchase money and construction mortgages which are entered into or for
which commitments are received within a certain time period; and
- any extensions, renewals or refunding of these categories of mortgages.
Limitations on Sales and Leasebacks
The indenture prohibits us and any Restricted Subsidiary from selling or
transferring a Principal Operating Property with the intention of leasing it
back. However, this restriction does not apply in the following situations:
- if we or the Restricted Subsidiary could mortgage the Principal Operating
Property for an amount equal to the present value of any remaining rent
payments without equally and proportionately securing the securities;
- if, within 120 days after the sale or transfer, we or the Restricted
Subsidiary use the greater of the net proceeds from the sale of the
property or the fair market value of the property (subject to certain
credits) to retire our or its long-term debt;
- if, within 120 days after the sale or transfer, we or the Restricted
Subsidiary use an amount equal to the greater of the net proceeds from
the sale of the property or the fair market value of the property to
purchase a similar property;
- if we or the Restricted Subsidiary sell or transfer the property (or
enter into an agreement for a sale or transfer) within 120 days after the
latest of the acquisition of the property, the completion of its
construction or the start of full operations;
- if the lease period, including renewals, is for not more than three
years; or
- if the sale and leaseback transaction is between us and a Restricted
Subsidiary or between Restricted Subsidiaries. (Section 1010).
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Restrictions on Consolidation, Merger and Sale of Assets
We may not consolidate with or merge into any other corporation or sell
substantially all of our assets to another corporation unless:
- the successor corporation is incorporated under the laws of the United
States or a state of the United States or the District of Columbia and
assumes the payment of principal of, and any interest and premium on, the
securities and the performance and observance of the covenants and
conditions of the indenture; and
- the successor corporation is not in default in the performance of any
covenant or condition of the indenture immediately following the merger,
consolidation or sale. (Section 801).
EVENTS OF DEFAULT
Under the indenture, it is an event of default if:
- we fail to pay the principal of, or any premium on, any security when
due;
- we fail to pay interest on any security for 30 days;
- we fail to perform any other covenant in the indenture for 60 days after
we receive written notice of that failure;
- there is an acceleration of the maturity of any of our indebtedness
because of a default that continues for ten days after we receive written
notice of that default; or
- certain events of bankruptcy, insolvency or reorganization occur.
(Section 501).
Remedies if an Event of Default Occurs
If an event of default for any series of registered debt occurs and is
continuing, the trustee or the holders of at least 25% in total principal amount
of the securities of the relevant series may declare the entire principal amount
of that series due and payable immediately. Subject to certain conditions, if
the debt is accelerated, the holders of a majority of the total principal amount
of the registered debt of that series can rescind the declaration of
acceleration. (Section 502).
MODIFICATION OF THE INDENTURE AND WAIVER OF COVENANTS
Under the indenture, in order to change our rights and obligations and the
rights of any holders of registered debt, a majority of the holders of the total
principal amount of the registered debt of that series must consent to the
change. However, we may not make any of the following changes unless each holder
of registered debt affected by the change gives his or her specific consent:
- changes to the maturity date of the principal of, any installment of the
principal of, or any interest on, the registered debt;
- reduction of the principal amount of, or the rate of interest or any
premium on, the registered debt;
- change in the place or currency of payment of principal of, or interest
or any premium on, the registered debt;
- changes that impair the right to institute suit for payment; and
- changes that reduce the percentage of principal amount held by holders
required to amend the indenture or waive certain defaults. (Section 902).
Under the indenture, a majority of the holders of registered debt of any
series may waive past defaults with respect to that series other than:
- defaults in the payment of principal of or interest or any premium on
that series of registered debt; or
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<PAGE> 31
- defaults regarding provisions that cannot be modified or amended without
the consent of each holder of that series. (Section 513).
The holders of a majority of the total principal amount of the registered
debt of any series may waive certain requirements of the indenture on behalf of
the entire class of holders of that series. (Section 1012).
DEFEASANCE PROVISIONS
Defeasance and Discharge
We will be discharged from our obligations on the registered debt of any
series if we deposit with the trustee sufficient cash or government securities
to pay the principal of, any interest or premium on, and any sinking fund
payments with respect to that series as required by the terms of that series.
This discharge will become effective 91 days after we deposit the cash or
registered debt with the trustee. If we are discharged, we must continue to
register the transfer and exchange of the securities, replace lost, stolen or
mutilated certificates representing the registered debt and, if necessary,
convert the registered debt.
We will only be eligible for discharge if the Internal Revenue Service
rules that a discharge is not a taxable event to the holders of the registered
debt. (Section 403).
Defeasance of Certain Covenants
The indenture provides us with the option to not comply with the
restrictive covenants of Sections 1009 and 1010. Section 1009 refers to
limitations on mortgages and Section 1010 refers to limitations on sale and
leaseback transactions.
To exercise our option, we must deposit with the trustee sufficient cash or
government securities to pay the principal of and any interest or premium on,
that series as required by the terms of that series. In addition, we will have
to deliver to the trustee an opinion of counsel that the holders of the
registered debt will not have to recognize income, gain or loss for Federal
income tax purposes as a result of our covenant defeasance. (Section 1011).
Defeasance and Events of Default
If an event of default occurs after we exercise our option to not comply
with certain covenants of the indenture, as discussed above, the registered debt
may become due and payable. If the amount of money and government securities
held by the trustee is not sufficient to pay the amounts due upon acceleration,
we will remain liable to pay the amounts due on the registered debt.
THE TRUSTEE
Chase Manhattan Trust Company, National Association, is the trustee under
the indenture. Chase Manhattan Trust Company, National Association, is also the
successor trustee under an indenture dated April 1, 1986 under which we have
issued debt securities. We have supplemented that indenture by amendments dated
December 15, 1988 and May 1, 1992. We have issued the following series of
securities under that indenture:
- 9.375% Debentures due November 15, 2019;
- 9.875% Notes due September 1, 2000; and
- 9.50% Medium-Term Notes due 2021.
Chase Manhattan Trust Company, National Association, is also the trustee
under an indenture dated April 1, 1990 under which Rohm and Haas Holdings, Ltd.,
our wholly owned subsidiary, issued 9.80% Amortizing Debentures due April 15,
2020. We have guaranteed these debentures.
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In addition, Chase Manhattan Trust Company, National Association, is the
trustee under an indenture dated December 20, 1991 relating to a sale and
leaseback of assets at our Texas subsidiary.
The Obligations of the Trustee
Other than its duty in the event of a default to act with the required
standard of care, the trustee is not obligated to exercise its rights or powers
under the indenture at the request or direction of any of the holders of
securities unless the holders agree to indemnify the trustee. (Section 603). If
the holders of the securities agree to indemnify the trustee, the holders of a
majority of the total principal amount of any series of securities may take, or
direct the trustee to take, certain actions. For example, they may direct the
time, method and place of:
- conducting any proceeding or remedy available to the trustee; or
- exercising any trust or power conferred on the trustee with respect to
the securities of that series. (Section 512).
Our Duties to the Trustee
We are required to give the trustee an annual statement about our
performance of certain of our obligations under the indentures. In addition, we
must inform the trustee of any default in this performance. (Section 1008).
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UNITED STATES FEDERAL TAX CONSEQUENCES
The following is a discussion of the material United States federal tax
consequences associated with the exchange of the outstanding debt for the
registered debt pursuant to the exchange offer and disposition of the registered
debt. This discussion applies only to a beneficial owner of registered debt who
acquired outstanding debt at the initial offering from Salomon Smith Barney
Inc., Chase Securities Inc., Goldman, Sachs & Co. and Banc One Capital Markets,
Inc. For the original offering price thereof and who acquires the registered
debt pursuant to the exchange offer. This discussion is based upon the United
States federal tax law now in effect, which is subject to change, possibly
retroactively. This discussion does not consider any specific facts or
circumstances that may apply to a particular holder. Prospective investors are
urged to consult their tax advisors regarding the United States federal tax
consequences of acquiring, holding, and disposing of the registered debt, as
well as any tax consequences that may arise under the laws of any foreign,
state, local, or other taxing jurisdiction.
For purposes of this discussion, a "U.S. holder" means a holder of
registered debt that is either a citizen or resident of the United States, a
corporation, partnership, or other entity created or organized in the United
States or under the laws of the United States or of any political subdivision
thereof, an estate whose income is includible in gross income for United States
federal income tax purposes regardless of its source, or a trust whose
administration is subject to the primary supervision of a United States court
and for which one or more United States persons have the authority to control
all substantial decisions of the trust. A "non-U.S. holder" is a holder of
registered debt other than a U.S. holder.
EXCHANGE OFFER
The exchange of outstanding debt for registered debt pursuant to the
exchange offer will not constitute a "significant modification" of the
outstanding debt for United States federal income tax purposes and, accordingly,
the registered debt received will be treated as a continuation of the
outstanding debt in the hand of such holder. As a result, there will be no
United States federal income tax consequences to a U.S. holder who exchanges
outstanding debt for registered debt pursuant to the exchange offer, and any
such holder will have the same adjusted tax basis and holding period in the
registered debt for United States federal income tax purposes as it had in the
outstanding debt immediately before the exchange.
STATED INTEREST
The holders of registered debt will include stated interest in gross income
in accordance with their methods of accounting for tax purposes (including
accrued, unpaid interest on the outstanding debt to the date of the issuance of
the registered debt).
DISPOSITION
A holder of registered debt will recognize gain or loss upon the sale,
exchange, redemption or other taxable disposition of the registered debt
measured by the difference between (1) the amount of cash and fair market value
of property received (that is not attributable to accrued interest which has not
yet been recognized as gross income) and (2) the holder's adjusted tax basis in
the registered debt. Any such gain or loss will be long-term capital gain or
loss, provided the registered debt was a capital asset in the hands of the
holder and had been held for more than one year.
NON-U.S. HOLDERS
Under present United States federal income and estate tax law, assuming
certain certification requirements are satisfied (which include identification
of the beneficial owner of the instrument), and subject to the discussion of
backup withholding below:
(1) payments of interest on the registered debt to any non-U.S. holder
will not be subject to United States federal income or withholding tax,
provided that (a) the holder does not actually or
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<PAGE> 34
constructively own 10% or more of the total combined voting power of all
classes of stock of Rohm and Haas entitled to vote, (b) the holder is not
(i) a bank receiving interest pursuant to a loan agreement entered into in
the ordinary course of its trade or business or (ii) a controlled foreign
corporation that is related to Rohm and Haas through stock ownership, and
(c) such interest payments are not effectively connected with the conduct
of a United States trade or business of the holder;
(2) a holder of registered debt who is a non-U.S. holder will not be
subject to the United States federal income tax or gain realized on the
sale, exchange, or other disposition of registered debt, unless (a) such
holder is an individual who is present in the United States for 183 days or
more during the taxable year and certain other requirements are met, or (b)
the gain is effectively connected with the conduct of a United States trade
or business of the holder; and
(3) if interest on the registered debt is exempt from withholding of
United States federal income tax under the rules described above (without
regard to the certification requirement), the registered debt will not be
included in the estate of a deceased non-U.S. holder for the United States
Federal estate tax purposes.
The certification referred to above may be made on an Internal Revenue
Service Form W-8 or a substantially similar substitute form.
INFORMATION REPORTING AND BACKUP WITHHOLDING
Rohm and Haas will, where required, report to the holders of registered
debt and the Internal Revenue Service the amount of any interest paid on the
registered debt in each calendar year and the amounts of federal tax withheld,
if any, with respect to such payments. A noncorporate U.S. holder may be subject
to information reporting and to backup withholding at a rate of 31% with respect
to payments of principal and interest made on registered debt, or on proceeds of
the disposition of registered debt before maturity, unless such U.S. holder
provides a correct taxpayer identification number or proof of an applicable
exemption, and otherwise complies with applicable requirements of the
information reporting and backup withholding rules.
Under temporary United States Treasury regulations, United States
information reporting requirements and backup withholding tax will generally not
apply to interest paid on the registered debt to a non-U.S. holder at an address
outside the United States. Payments by a United States office of a broker of the
process of a sale of the registered debt are subject to both backup withholding
at a rate of 31% and information reporting unless the holder certifies its
non-U.S. holder status under penalties of perjury and provides its name and
address or otherwise establishes an exemption. Information reporting
requirements (but not backup withholding) will also apply to payments of the
proceeds of sales of the registered debt by foreign offices of United States
brokers, or foreign brokers with certain types of relationships to the United
States, unless the broker has documentary evidence in its records that the
holder is a non-U.S. holder and certain other conditions are met, or the holder
otherwise establishes an exemption.
Backup withholding is not an additional tax. Any amount withheld under the
backup withholding rules will be refunded or credited against the non-U.S.
holder's United States Federal income tax liability, provided that the required
information is furnished to the Internal Revenue Service.
NEW TREASURY REGULATIONS APPLICABLE TO NON-U.S. HOLDERS
On October 6, 1997, the United States Treasury Department issued final
Treasury regulations governing information reporting and the certification
procedures regarding withholding and backup withholding on certain amounts paid
to non-U.S. holders after December 31, 2000. The new Treasury regulations modify
and, in general, unify the way in which non-U.S. holders may establish
eligibility for United States federal withholding tax exemptions, including that
under a tax treaty, and an exemption from backup withholding.
31
<PAGE> 35
For example, the new Treasury regulations will require new forms, which
non-U.S. holders will generally have to provide earlier than you would have had
to provide replacements for expiring existing forms. The new Treasury
regulations also clarify the standards upon which withholding agents of non-U.S.
holders may rely, add requirements in order for non-U.S. holders to claim
reduced federal tax withholding under a tax treaty, and provide different
procedures in order for foreign intermediaries and flow-through entities (such
as foreign partnerships) to claim the benefit of applicable exemptions if they
receive payments on behalf of non-U.S. holders.
The new Treasury regulations are particularly complex. Non-U.S. holders
should consult their tax advisors concerning the effect, if any, of such new
Treasury regulations on their investment in the registered debt.
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<PAGE> 36
PLAN OF DISTRIBUTION
Based on existing interpretations of the Securities Act by the SEC's staff
set forth in several no-action letters to third parties, and subject to the
immediately following sentence, Rohm and Haas believes that the registered debt
issued in the exchange offer may be offered for resale, resold and otherwise
transferred by the holders thereof, other than holders who are broker-dealers,
without further compliance with the registration and prospectus delivery
provisions of the Securities Act. However, any purchaser of outstanding debt who
is an affiliate of Rohm and Haas or who intends to participate in the exchange
offer for the purpose of distributing the registered debt, or any broker-dealers
who purchased the outstanding debt from Rohm and Haas to resell pursuant to Rule
144A or any other available exemption under the Securities Act, (1) will not be
able to rely on the interpretations of the SEC's staff set forth in the above-
mentioned no-action letters, (2) will not be entitled to tender its outstanding
debt in the exchange offer and (3) must comply with the registration and
prospectus delivery requirements of the Securities Act in connection with any
sale or transfer of the outstanding debt, unless such sale or transfer is made
pursuant to an exemption from such requirements. Rohm and Haas does not intend
to seek its own no-action letter, and there can be no assurance that the SEC's
staff would make a similar determination with respect to the registered debt as
it has in such no-action letters to third parties.
Each holder of the outstanding debt, other than certain specified holders,
who wishes to exchange the outstanding debt for registered debt in the exchange
offer is required to represent that:
- it is not an affiliate of Rohm and Haas;
- the registered debt to be received by it was acquired in the ordinary
course of its business;
- at the time of the exchange offer, it has no arrangement with any person
to participate in the "distribution," within the meaning of the
Securities Act, of the registered debt; and
- if such holder is not a broker-dealer, it is not engaged in, and does not
intend to engage in, a "distribution," within the meaning of the
Securities Act, of the registered debt.
In addition, in connection with any resales of registered debt, any
broker-dealer who acquired the outstanding debt for its own account as a result
of market-making or other trading activities, referred to in this section as a
"participating broker-dealer," must deliver a prospectus meeting the
requirements of the Securities Act. Based on the position the SEC has taken to
date, Rohm and Haas believes that participating broker-dealers may fulfill their
prospectus delivery requirements with respect to the exchange debt, other than a
resale of an unsold allotment from the original sale of the outstanding debt,
with this prospectus. Under the registration rights agreement, Rohm and Haas is
required to allow participating broker-dealers and other persons, if any,
subject to similar prospectus delivery requirements to use the prospectus in
connection with the resale of such registered debt for a period of 180 days from
the expiration date of the exchange offer.
Each broker-dealer that receives registered debt for its own account
pursuant to the exchange offer must acknowledge that it will deliver a
prospectus in connection with any resale of such registered debt. This
prospectus, as it may be amended or supplemented from time to time, may be used
by a broker-dealer in connection with the resales of registered debt received in
exchange for outstanding debt where such outstanding debt was acquired by such
broker-dealer as a result of market-making activities or other trading
activities. Each broker-dealer agrees that it shall suspend use of this
prospectus upon notice from Rohm and Haas of the occurrence of certain events
until Rohm and Haas has amended or supplemented the prospectus so that it does
not contain any untrue statements or omissions of material facts.
Rohm and Haas will not receive any proceeds from any sale of registered
debt by broker-dealers. Registered debt received by broker-dealers for their own
account pursuant to the exchange offer may be sold from time to time in one or
more transactions in the over-the-counter market, in negotiated transactions,
through the writing of options on the registered debt or a combination of such
methods of resale, at market prices prevailing at the time of resale, at prices
related to such prevailing market prices or at negotiated prices. Any such
resale may be made directly to purchasers or to or through brokers or
33
<PAGE> 37
dealers who may receive compensation in the form of commissions or concessions
from any such broker-dealer and/or the purchasers of any such registered debt.
Any broker-dealer that resells registered debt that was received by it for its
own account pursuant to the exchange offer and any broker or dealer that
participates in a distribution of such registered debt may be deemed to be an
"underwriter" within the meaning of the Securities Act and any profit of any
such resale of registered debt and any commissions or concessions received by
any such persons may be deemed to be underwriting compensation under the
Securities Act. Each letter of transmittal states that by acknowledging that it
will deliver and by delivering a prospectus, a broker-dealer will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
For a period of 180 days after the expiration date, Rohm and Haas will
promptly send additional copies of this prospectus and any amendment or
supplement to this prospectus to any broker-dealer that requests such documents
in the applicable letter of transmittal. Rohm and Haas has agreed to pay all
expenses incident to the exchange offer other than commissions or concessions of
any brokers or dealers and will indemnify the holders of the outstanding debt,
including any broker-dealers, against certain liabilities, including liabilities
under the Securities Act.
WHERE YOU CAN FIND MORE INFORMATION
Rohm and Haas is required to file reports and other information with the
SEC pursuant to the information requirements of the Securities Exchange Act of
1934, as amended.
Rohm and Haas's filings with the SEC may be inspected and copied at the
public reference facilities maintained by the SEC at Room 1024, Judiciary Plaza,
450 Fifth Street, N.W., Washington, D.C. 20549, and at the Regional Offices of
the SEC located at Citicorp Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois 60661, and 7 World Trade Center, Suite 1300, New York, New
York 10048. Please call the SEC at 1-800-SEC-0330 for further information
relating to the public reference rooms. Copies of our filings may be obtained at
the prescribed rates from the Public Reference Section of the SEC, 450 Fifth
Street, N.W., Washington, D.C. 20549. In addition, the SEC maintains an Internet
site (http://www.sec.gov) that contains certain reports, proxy statements and
other information regarding Rohm and Haas. Our common stock is traded on the New
York Stock Exchange.
No person is authorized to give any information or to make any
representations with respect to the matters described in this memorandum other
than those contained herein or in the documents incorporated by reference
herein. Any information or representation with respect to matters not contained
herein or therein must not be relied upon as having been authorized by Rohm and
Haas. The delivery of this memorandum shall not, under any circumstances, create
any implication that there has been no change in the affairs of Rohm and Haas
since the date hereof or that the information in this memorandum or in the
documents incorporated by reference herein is correct as of any time subsequent
to the date hereof or thereof.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by us with the SEC, are
incorporated herein and specifically made a part hereof by this reference:
(1) Rohm and Haas's Annual Report on Form 10-K for the year ended
December 31, 1998;
(2) Rohm and Haas's Annual Report on Form 10-K/A for the year ended
December 31, 1998;
(3) Rohm and Haas's Current Reports on Form 8-K filed with the SEC on
January 26, 1999, February 2, 1999, June 8, 1999 and July 1, 1999; and
(4) Rohm and Haas's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1999.
In addition, all documents filed with the SEC pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act by us subsequent to the date of this
memorandum shall be deemed to be incorporated by
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<PAGE> 38
reference into this memorandum and to be a part hereof from the date of filing
of such documents with the SEC. Any statement contained herein or in a document
incorporated or deemed to be incorporated by reference herein shall be deemed to
be modified or superseded for purposes of this memorandum to the extent that a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified or superseded shall
not be deemed, except as so modified or superseded, to constitute a part of this
memorandum.
Statements contained in this memorandum or in any document incorporated by
reference in this memorandum as to the contents of any contract or other
document referred to herein or therein are not necessarily complete, and in each
instance reference is made to the copy of such contract or other document filed
as an exhibit to the documents incorporated by reference, each such statement
being qualified in all respects by such reference.
This memorandum incorporates by reference documents that are not presented
herein or delivered herewith. Copies of such documents, other than exhibits to
such documents that are not specifically incorporated by reference herein, are
available without charge to any person to whom this memorandum is delivered,
upon written or oral request to: Rohm and Haas Company, 100 Independence Mall
West, Philadelphia, Pennsylvania 19106-2399, Attention: Corporate Secretary,
telephone: (215) 592-3000.
VALIDITY OF THE REGISTERED DEBT
The validity of the registered debt offered hereby will be passed upon for
Rohm and Haas by Morgan Lewis & Bockius LLP.
EXPERTS
The consolidated financial statements of Rohm and Haas and its subsidiaries
incorporated in this document by reference to the Annual Report on Form 10-K for
the year ended December 31, 1998, have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, independent accountants, relating to the
consolidated financial statements as of and for the year ended December 31,
1998, and the report of KPMG LLP, independent auditors, relating to the
consolidated financial statements as of and for each of the two years in the
period ended December 31, 1997, given on the authority of these firms as experts
in auditing and accounting.
The consolidated financial statements of Morton and subsidiaries
incorporated by reference in the Rohm and Haas Current Report dated July 1, 1999
(Form 8-K) have been audited by Ernst & Young LLP, independent auditors, as set
forth in their report incorporated by reference into the Form 8-K and
incorporated into this document by reference. These consolidated financial
statements are incorporated in this document by reference in reliance upon the
report given on the authority of the firm as experts in accounting and auditing.
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<PAGE> 39
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
ROHM AND HAAS COMPANY
EXCHANGE OFFER FOR
$ 500,000,000 6.95% NOTES DUE 2004
$ 500,000,000 7.40% NOTES DUE 2009
$1,000,000,000 7.85% DEBENTURES DUE 2029
[ROHM AND HAAS COMPANY LOGO]
------------
PROSPECTUS
, 1999
------------
UNTIL , ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES,
WHETHER OR
NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS.
THIS IS IN
ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS
UNDERWRITERS
AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR SUBSCRIPTIONS.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE> 40
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Article V of the Registrant's Bylaws provides that the Registrant shall
indemnify any person who was or is a party or threatened to be made a party to
any threatened, pending or completed action, suit or proceeding, either civil,
criminal, administrative or investigative, by reason of the fact that he is or
was a director, officer or employee of the Registrant (including the
subsidiaries of the Registrant) or of a constituent corporation absorbed in a
consolidation or merger (a "Constituent Corporation"), or is or was serving at
the request of the Registrant or a Constituent Corporation as a director,
officer, or employee of another enterprise, or is or was a director, officer or
employee of the Registrant or a Constituent Corporation serving at its request
as an administrator, trustee or other fiduciary of one or more of the employee
benefit plans of the Registrant or of another enterprise, against expenses
(including attorney's fees), judgments, fines, excise taxes, and amounts pain in
settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding to the extent that such person is not insured or
otherwise indemnified and the power to so indemnify has been or may be granted
by statute. The determination of the Registrant's duty or power to indemnify any
such person under the applicable statutory standards shall be made (1) by the
majority vote of a quorum of directors who are not parties to such action, suit
or proceeding, (2), if such a quorum is not obtainable, or if a quorum of
disinterested directors so directs, by a written opinion of independent legal
counsel (who may but need not be regular counsel to the Registrant), or (3) by
the stockholders. Expenses (including attorneys' fees) incurred in defending a
civil, criminal, administrative or investigative action, suit or proceeding
shall be paid by the Registrant in advance of the final disposition of such
action, suit or proceeding (a) for any present director or officer of the
Registrant upon receipt of an undertaking by or on behalf of the director or
officer to repay such amount if it shall ultimately be determined that he is not
entitled to be indemnified by the Registrant, or (b) for any other person, upon
such terms and conditions as the Registrant's Audit Committee deems appropriate.
The Registrant is a Delaware corporation and section 145 of the General
Corporation Law of Delaware governs the authority of Delaware corporations to
indemnify their directors, officers, employees and agents.
Article X of the Registrant's Certificate of Incorporation provides that no
director of the Registrant shall be personally liable to the Registrant or to
any stockholder for monetary damages for any breach of duty as a director except
to the extent such exemption from liability is not permitted under the Delaware
General Corporation Law as currently in effect or hereafter amended. This
provision does not eliminate the liability of a director (i) for a breach of the
director's duty of loyalty to the Registrant or its stockholders, (ii) for acts
or omissions by the director not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) under Section 174 of the General
Corporation Law of Delaware (relating to the declaration of dividends and
purchase or redemption of shares in violation of the General Corporation Law of
Delaware) and (iv) for transactions from which the director derived an improper
personal benefit.
There is presently in force liability insurance for directors and officers
of the Registrant acting in such capacities.
II-1
<PAGE> 41
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S>
4.1 Indenture dated July 1, 1999 between Rohm and Haas Company
and Chase Manhattan Trust Company as Trustee,
4.2 Registration Rights Agreement, dated July 6, 1999, by and
among Rohm and Haas Company, Salomon Smith Barney Inc.,
Chase Securities Inc., Goldman, Sachs & Co. and Banc One
Capital Markets, Inc.
4.3 Form of 6.95% Exchange Note due 2004
4.4 Form of 7.40% Exchange Note due 2009
4.5 Form of 7.85% Exchange Debenture due 2029
5.1 Opinion of Morgan, Lewis & Bockius LLP
12.1 Computation of Ratios of Earnings to Fixed Charges
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of KPMG LLP
23.5 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1)
24 Powers of Attorney (included in signature pages)
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 6.95%
Notes due 2004
25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 7.40%
Notes due 2009
25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 7.85%
Debentures due 2029
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Tender Instructions
</TABLE>
- ---------------
* Previously filed.
(b) Financial Statement Schedules.
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;
(ii) To reflect in the prospectus any fact 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 on 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
II-2
<PAGE> 42
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 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 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.
(2) That, for the purpose of determining any liability under
Securities Act of 1933, 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) The undersigned Registrant hereby undertakes that, for the 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 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.
(c)(1) The undersigned Registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use of a
prospectus which is part of this registration statement, by any person or party
who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer
undertakes that such reoffering prospectus will contain the information called
for by the applicable registration form with respect to reofferings by persons
who may be deemed underwriters, in addition to the information called for by the
other items of the applicable form.
(2) The Registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to meet
the requirements of Section 10(a)(3) of the Act and is used in connection with
an offering of securities subject to Rule 415, will be filed as a part of an
amendment to the registration statement and will not be used until such
amendment is effective, and that, for purposes of determining any liability
under the Securities Act of 1933, 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.
(d) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(e) The undersigned Registrant hereby undertakes to respond to request for
information that is incorporated by reference into the prospectus pursuant to
Item 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
II-3
<PAGE> 43
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.
(f) The undersigned Registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE> 44
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, as amended, the
Registrant has duly caused this registration statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the city of
Philadelphia, state of Pennsylvania, on July 30, 1999.
ROHM AND HAAS COMPANY
By: /s/ J. LAWRENCE WILSON
------------------------------------
Name: J. Lawrence Wilson
Title: Chairman of the Board
Chief Executive Officer
and Director
Each person whose signature appears below hereby appoints J. Lawrence
Wilson as his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments to this Registration
Statement on Form S-4, and to file the same, with all exhibits thereto and all
other documents in connection therewith, with the Commission, granting unto said
attorney-in-fact and agent full power and authority to perform each and every
act and thing appropriate or necessary to be done, as fully and for all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or their substitute or substitutes may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this registration statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ J. LAWRENCE WILSON Chairman of the Board, Chief July 30, 1999
- ----------------------------------------------------- Executive Officer and Director
J. Lawrence Wilson (Principal Executive Officer)
/s/ RAJIV L. GUPTA Vice Chairman and Director July 30, 1999
- -----------------------------------------------------
Rajiv L. Gupta
/s/ BRADLEY J. BELL Chief Financial Officer and July 30, 1999
- ----------------------------------------------------- Senior Vice President (Principal
Bradley J. Bell Financial and Accounting Officer)
/s/ WILLIAM J. AVERY Director July 30, 1999
- -----------------------------------------------------
William J. Avery
/s/ JAMES R. CANTALUPO Director July 30, 1999
- -----------------------------------------------------
James R. Cantalupo
/s/ J. MICHAEL FITZPATRICK Director July 30, 1999
- -----------------------------------------------------
J. Michael Fitzpatrick
/s/ EARL G. GRAVES Director July 30, 1999
- -----------------------------------------------------
Earl G. Graves
</TABLE>
II-5
<PAGE> 45
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<C> <S> <C>
/s/ DAVID W. HAAS Director July 30, 1999
- -----------------------------------------------------
David W. Haas
/s/ THOMAS W. HAAS Director July 30, 1999
- -----------------------------------------------------
Thomas W. Haas
/s/ JAMES A. HENDERSON Director July 30, 1999
- -----------------------------------------------------
James A. Henderson
/s/ RICHARD L. KEYSER Director July 30, 1999
- -----------------------------------------------------
Richard L. Keyser
/s/ JOHN H. MCARTHUR Director July 30, 1999
- -----------------------------------------------------
John H. McArthur
/s/ JORGE P. MONTOYA Director July 30, 1999
- -----------------------------------------------------
Jorge P. Montoya
/s/ SANDRA O. MOOSE Director July 30, 1999
- -----------------------------------------------------
Sandra O. Moose
/s/ GILBERT S. OMENN Director July 30, 1999
- -----------------------------------------------------
Gilbert S. Omenn
/s/ RONALDO H. SCHMITZ Director July 30, 1999
- -----------------------------------------------------
Ronaldo H. Schmitz
/s/ ALAN SCHRIESHEIM Director July 30, 1999
- -----------------------------------------------------
Alan Schriesheim
/s/ S. JAY STEWART Director July 30, 1999
- -----------------------------------------------------
S. Jay Stewart
/s/ MARNA C. WHITTINGTON Director July 30, 1999
- -----------------------------------------------------
Marna C. Whittington
</TABLE>
II-6
<PAGE> 46
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION OF EXHIBITS
- ------- -----------------------
<C> <S>
4.1 Indenture dated July 1, 1999 between Rohm and Haas Company
and Chase Manhattan Trust Company as Trustee,
4.2 Registration Rights Agreement, dated July 6, 1999, by and
among Rohm and Haas Company, Salomon Smith Barney Inc.,
Chase Securities Inc., Goldman, Sachs & Co. and Banc One
Capital Markets, Inc.
4.3 Form of 6.95% Exchange Note due 2004
4.4 Form of 7.40% Exchange Note due 2009
4.5 Form of 7.85% Exchange Debenture due 2029
5.1 Opinion of Morgan, Lewis & Bockius LLP
12.1 Computation of Ratios of Earnings to Fixed Charges
23.1 Consent of PriceWaterhouseCoopers LLP
23.2 Consent of Ernst & Young LLP
23.3 Consent of KPMG LLP
23.5 Consent of Morgan, Lewis & Bockius LLP (included in Exhibit
5.1)
24 Powers of Attorney (included in signature pages)
25.1 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 6.95%
Notes due 2004
25.2 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 7.40%
Notes due 2009
25.3 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Chase Manhattan Trust Company relating to the
Indenture and the issuance of Rohm and Haas Company's 7.85%
Debentures due 2029
99.1 Form of Letter of Transmittal
99.2 Form of Notice of Guaranteed Delivery
99.3 Form of Tender Instructions
</TABLE>
- ---------------
* Previously filed.
<PAGE> 1
Exhibit 4.1
================================================================================
ROHM AND HAAS COMPANY
TO
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
------------------
INDENTURE
Dated as of July 1, 1999
Providing for the Issuance of
Debt Securities in a Series
================================================================================
<PAGE> 2
ROHM AND HAAS COMPANY
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of July 1, 1999
<TABLE>
<CAPTION>
Trust Indenture
Act Section Indenture Section
<S> <C>
Section 310(a)(1)................................................................................... 609
(a)(2)................................................................................... 609
(a)(3)................................................................................... Not Applicable
(a)(4)................................................................................... Not Applicable
(b)...................................................................................... 608, 610
Section 311(a)...................................................................................... 613(a)
(b)...................................................................................... 613(b)
(b)(2)................................................................................... 703(a)(2), 703(b)
Section 312(a)...................................................................................... 701, 702(a)
(b)...................................................................................... 702(b)
(c)...................................................................................... 702(c)
Section 313(a)...................................................................................... 703(a)
(b)...................................................................................... 703(b)
(c)...................................................................................... 703(a), 703(b)
(d)...................................................................................... 703(c)
Section 314(a)...................................................................................... 704
(b)...................................................................................... Not Applicable
(c)(1)................................................................................... 102
(c)(2)................................................................................... 102
(c)(3)................................................................................... Not Applicable
(d)...................................................................................... Not Applicable
(e)...................................................................................... 102
Section 315(a)...................................................................................... 601(a)
(b)...................................................................................... 602, 703(a)(6)
(c)...................................................................................... 601(b)
(d)...................................................................................... 601(c)
(d)(1)................................................................................... 601(a)(1)
(d)(2)................................................................................... 601(c)(2)
(d)(3)................................................................................... 601(c)(3)
(e)...................................................................................... 514
Section 316(a)...................................................................................... 101
(a)(1)(A)................................................................................ 502, 512
(a)(1)(B)................................................................................ 513
(a)(2)................................................................................... Not Applicable
(b)...................................................................................... 508
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
Section 317(a)(1)................................................................................... 503
(a)(2)................................................................................... 504
(b)...................................................................................... 1003
Section 318(a)...................................................................................... 107
</TABLE>
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE> 4
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions......................................................................... 1
Act.............................................................................................. 2
Affiliate........................................................................................ 2
Attributable Debt................................................................................ 2
Authenticating Agent............................................................................. 2
Board of Directors............................................................................... 2
Board Resolution................................................................................. 3
Business Day..................................................................................... 3
Certified Board Resolution....................................................................... 3
Commission....................................................................................... 3
Common Stock..................................................................................... 3
Company.......................................................................................... 3
Company Request or Company Order................................................................. 3
Consolidated Net Worth........................................................................... 3
Corporate Trust Office........................................................................... 3
Corporation...................................................................................... 3
Debt............................................................................................. 3
Default Day...................................................................................... 3
Defaulted Interest............................................................................... 3
Definitive Securities............................................................................ 4
Depositary....................................................................................... 4
Event of Default................................................................................. 4
Exchange Act..................................................................................... 4
Exchange Offers.................................................................................. 4
Exchange Offer Registration Statement............................................................ 4
Funded Debt...................................................................................... 4
Global Security.................................................................................. 4
Holder........................................................................................... 4
Indenture........................................................................................ 4
Interest......................................................................................... 5
Interest Payment Date............................................................................ 5
Liquidated Damages............................................................................... 5
Maturity ........................................................................................ 5
Mortgage ........................................................................................ 5
Notice of Redemption............................................................................. 5
Officers' Certificate............................................................................ 5
Opinion of Counsel............................................................................... 5
Original Issue Discount Security................................................................. 5
</TABLE>
i
<PAGE> 5
<TABLE>
<CAPTION>
PAGE
<S> <C>
Outstanding...................................................................................... 5
Paying Agent..................................................................................... 6
Person........................................................................................... 6
Place of Payment................................................................................. 6
Predecessor Security............................................................................. 6
Principal Operating Property..................................................................... 6
Prospectus....................................................................................... 7
QIB or Qualified Institutional Buyer............................................................. 7
Redemption Date.................................................................................. 7
Redemption Price................................................................................. 7
Registration Default............................................................................. 7
Registration Rights Agreement.................................................................... 7
Registration Statement........................................................................... 7
Regulation S..................................................................................... 7
Regular Record Date.............................................................................. 8
Responsible Officer.............................................................................. 8
Restricted Subsidiary............................................................................ 8
Rule 144 ........................................................................................ 8
Rule 144A........................................................................................ 8
Rule 144(k)...................................................................................... 8
Rule 415 ........................................................................................ 8
Rule 904 ........................................................................................ 8
Securities Act................................................................................... 8
Security or Securities........................................................................... 8
Security Custodian............................................................................... 8
Security Register and Security Registrar......................................................... 8
Shelf Registration Period........................................................................ 8
Shelf Registration Statement..................................................................... 8
Special Record Date.............................................................................. 9
Stated Maturity.................................................................................. 9
Subsidiary....................................................................................... 9
Time of Delivery................................................................................. 9
Transfer Restricted Securities................................................................... 9
Transfer Restriction Termination Date............................................................ 9
Trustee.......................................................................................... 9
Trust Indenture Act.............................................................................. 9
U.S. Government Obligations...................................................................... 9
Unrestricted Subsidiary.......................................................................... 10
Vice President................................................................................... 10
SECTION 102. Compliance Certificates and Opinions................................................ 10
SECTION 103. Form of Documents Delivered to Trustee.............................................. 11
SECTION 104. Acts of Holders; Record Dates....................................................... 11
</TABLE>
ii
<PAGE> 6
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 105. Notices, Etc., to Trustee and Company............................................... 12
SECTION 106. Notice to Holders; Waiver........................................................... 13
SECTION 107. Conflict with Trust Indenture Act................................................... 13
SECTION 108. Effect of Headings and Table of Contents............................................ 13
SECTION 109. Successors and Assigns.............................................................. 13
SECTION 110. Separability Clause................................................................. 13
SECTION 111. Benefits of Indenture............................................................... 14
SECTION 112. Governing Law....................................................................... 14
SECTION 113. Legal Holidays...................................................................... 14
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally..................................................................... 14
SECTION 202. Form of Face of Security............................................................ 15
SECTION 203. Form of Reverse of Security......................................................... 18
SECTION 204 Additional Provisions Required in Global Security................................... 25
SECTION 205. Securities Issuable in the Form of a Global Security................................ 25
SECTION 206. Form of Trustee's Certificate of Authentication..................................... 28
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series................................................ 29
SECTION 302. Denominations....................................................................... 31
SECTION 303. Execution, Authentication, Delivery and Dating...................................... 31
SECTION 304. Temporary Securities................................................................ 33
SECTION 305. Registration, Registration of Transfer and Exchange; Restrictions on Transfer....... 33
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.................................... 40
SECTION 307. Payment of Interest; Interest Rights Preserved...................................... 40
SECTION 308. Persons Deemed Owners............................................................... 41
SECTION 309. Cancellation........................................................................ 42
SECTION 310. Computation of Interest............................................................. 42
SECTION 311. CUSIP Numbers....................................................................... 42
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture............................................. 42
SECTION 402. Application of Trust Money; Indemnification......................................... 44
SECTION 403. Defeasance and Discharge of Indenture............................................... 44
</TABLE>
iii
<PAGE> 7
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE V
REMEDIES
SECTION 501. Events of Default................................................................... 46
SECTION 502. Acceleration of Maturity; Rescission and Annulment.................................. 47
SECTION 503. Collection of Indebtedness and Suits for Enforcement by Trustee..................... 48
SECTION 504. Trustee May File Proofs of Claim.................................................... 49
SECTION 505. Trustee May Enforce Claims Without Possession of Securities......................... 49
SECTION 506. Application of Money Collected...................................................... 50
SECTION 507. Limitation of Suits................................................................. 50
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium and Interest........... 51
SECTION 509. Restoration of Rights and Remedies.................................................. 51
SECTION 510. Rights and Remedies Cumulative...................................................... 51
SECTION 511. Delay or Omission Not Waiver........................................................ 51
SECTION 512. Control by Holders.................................................................. 51
SECTION 513. Waiver of Past Defaults............................................................. 52
SECTION 514. Undertaking for Costs............................................................... 52
SECTION 515. Waiver of Stay or Extension Laws.................................................... 52
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities................................................. 53
SECTION 602. Notice of Defaults.................................................................. 53
SECTION 603. Certain Rights of Trustee........................................................... 53
SECTION 604. Not Responsible for Recitals or Issuance of Securities.............................. 54
SECTION 605. May Hold Securities and Serve as Trustee Under Other Indentures..................... 54
SECTION 606. Money Held in Trust................................................................. 55
SECTION 607. Compensation and Reimbursement...................................................... 55
SECTION 608. Disqualification; Conflicting Interests............................................. 55
SECTION 609. Corporate Trustee Required; Eligibility............................................. 56
SECTION 610. Resignation and Removal; Appointment of Successor................................... 56
SECTION 611. Acceptance of Appointment by Successor.............................................. 57
SECTION 612. Merger, Conversion, Consolidation or Succession to Business......................... 58
SECTION 613. Preferential Collection of Claims Against Company................................... 59
SECTION 614. Appointment of Authenticating Agent................................................. 59
</TABLE>
iv
<PAGE> 8
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE VII
HOLDERS' LIST AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders........................... 61
SECTION 702. Preservation of Information; Communications to Holders.............................. 61
SECTION 703. Reports by Trustee.................................................................. 61
SECTION 704. Reports by Company.................................................................. 62
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms................................ 62
SECTION 802. Successor Corporation Substituted................................................... 63
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.................................. 63
SECTION 902. Supplemental Indentures with Consent of Holders..................................... 64
SECTION 903. Execution of Supplemental Indentures................................................ 65
SECTION 904. Effect of Supplemental Indentures................................................... 65
SECTION 905. Conformity with Trust Indenture Act................................................. 66
SECTION 906. Reference in Securities to Supplemental Indenture................................... 66
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.......................................... 66
SECTION 1002. Maintenance of Office or Agency..................................................... 66
SECTION 1003. Money for Securities Payments to Be Held in Trust................................... 67
SECTION 1004. Corporate Existence................................................................. 68
SECTION 1005. Maintenance of Properties........................................................... 68
SECTION 1006. Payment of Taxes and Other Claims................................................... 69
SECTION 1007. Maintenance of Insurance............................................................ 69
SECTION 1008. Statement as to Compliance.......................................................... 69
SECTION 1009. Limitation Upon Mortgages........................................................... 69
SECTION 1010. Limitation Upon Sale and Leaseback Transactions..................................... 71
SECTION 1011. Defeasance of Certain Obligations................................................... 72
SECTION 1012. Waiver of Certain Covenants......................................................... 73
</TABLE>
v
<PAGE> 9
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article............................................................ 73
SECTION 1102. Election to Redeem; Notice to Trustee............................................... 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed................................... 74
SECTION 1104. Notice of Redemption................................................................ 74
SECTION 1105. Deposit of Redemption Price......................................................... 75
SECTION 1106. Securities Payable on Redemption Date............................................... 75
SECTION 1107. Securities Redeemed in Part......................................................... 76
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article............................................................ 76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities............................... 77
SECTION 1203. Redemption of Securities for Sinking Fund........................................... 77
TESTIMONIUM.......................................................................................... 78
SIGNATURES AND SEALS................................................................................. 78
Schedule 305(h)(v)................................................................................... S-1
</TABLE>
vi
<PAGE> 10
INDENTURE, dated as of July 1, 1999, between ROHM AND HAAS COMPANY, a
corporation duly organized and existing under the laws of the State of Delaware
(herein called the "Company"), having its principal office at 100 Independence
Mall West, Philadelphia, Pennsylvania, and CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION, a national banking association duly organized and existing
under the laws of the United States of America, as Trustee (herein called the
"Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance (i) from time to time in one or more
transactions either exempt from, or not subject to, the registration provisions
of the Securities Act of 1933, as amended (the "Securities Act"), of one or more
series of unsecured debentures, notes or other evidences of indebtedness ("Debt
Securities") and (ii) in one or more exchange offers registered under the
Securities Act for the then outstanding Debt Securities, of substantially
identical series of unsecured debentures, notes or other evidences of
indebtedness (except in the absence of the legend set forth in Section 305
manifesting the transfer restrictions and the terms with respect to the
liquidated damage payments applicable to the Debt Securities) (the "Exchange
Securities" and, together with the "Debt Securities," the "Securities).
The Company has duly authorized the execution and delivery of this
Indenture to provide, among other things, for the authentication, delivery and
administration of the Securities.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities or of any
series thereof, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
<PAGE> 11
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted at the date of
such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" in respect of a Sale and Leaseback Transaction
referred to in Sections 1009 and 1010 means, at the time of determination, the
present value (discounted at the rate per annum not greater than the rate borne
by any Debt Securities of any series, compounded semi-annually) of the total
obligations of the lessee for net rental payments during the remaining term of
the lease included in such arrangement (including any period for which such
lease has been extended or may, at the option of the lessor, be extended). The
term "net rental payments" under any lease for any period shall mean the sum of
the rental and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder. In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such net amount
shall also include the amount of such penalty, but no rent shall be considered
as required to be paid under such lease subsequent to the first date upon which
it may be so terminated.
"Authenticating Agent" means any Person authorized by the Trustee to
act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of that board.
2
<PAGE> 12
"Board Resolution" means a resolution duly adopted by the Board of
Directors.
"Business Day" when used with respect to any Place of Payment, means
each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in that Place of Payment are authorized or obligated by law
to close.
"Certified Board Resolution" means a copy of a Board Resolution
certified by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect on the
date of such certification, and delivered to the Trustee.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Exchange Act, 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.
"Common Stock" means, with respect to each series of Securities subject
to Article Thirteen, Common Stock of the Company as it exists on the date of
issuance of such series.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President,
its Vice Chairman or a Vice President, and by its Chief Financial Officer, its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Consolidated Net Worth" means the aggregate of capital stock and
surplus and surplus reserves which would be included on a consolidated balance
sheet of the Company and its Subsidiaries determined on a consolidated basis in
accordance with generally accepted accounting principles, less the cost of any
treasury shares as included on such balance sheet.
"Corporate Trust Office" means the principal office of the Trustee in
Philadelphia, Pennsylvania at which at any particular time its corporate trust
business shall be administered.
"Corporation" includes corporations, associations, companies and
business trusts.
"Debt" has the meaning specified in Section 1009.
"Default Day" has the meaning specified in Section 202.
"Defaulted Interest" has the meaning specified in Section 307.
3
<PAGE> 13
"Definitive Securities" means Securities that are in the form of the
Securities set forth in Article Two hereof that do not include the information
called for by Section 204.
"Depositary" means, with respect to the Securities of any series
issuable or issued in the form of one or more Global Securities, the Person
designated as Depositary by the Company pursuant to Section 301 until a
successor depositary shall have become such pursuant to the applicable
provisions of this Indenture, and thereafter "Depositary" shall mean or include
such Person who is then a Depositary hereunder, and if at any time there is more
than one such Person, "Depositary" as used with respect to the Securities of
such series shall mean the Depositary with respect to the Global Securities of
that series.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Offers" means the offers that may be made by the Company
pursuant to a Registration Rights Agreement to exchange Debt Securities for
Exchange Securities.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Securities Act with respect to
the Exchange Offers, and all amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Funded Debt" means any indebtedness for money borrowed maturing on, or
extendible at the option of the obligor to, a date more than one year from the
date of the creation thereof.
"Global Security" means a Security in the form prescribed in Article
Two hereof that contains the legend and additional schedule referred to in
Section 204 hereof, evidencing all or part of a series of Securities, which is
executed by the Company and authenticated and delivered by the Trustee to the
Depositary or pursuant to the Depositary's instruction, all in accordance with
this Indenture and pursuant to a Company Order, which shall be registered in the
name of the Depositary or its nominee.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively. The term "Indenture" shall also include the terms of particular
series of Securities established as contemplated by Section 301.
4
<PAGE> 14
"Interest", (i) when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity and (ii) includes Liquidated Damages if and when payable
pursuant to Section 202.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Liquidated Damages" has the meaning specified in Section 202.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise.
"Mortgage" means and includes any mortgage, pledge, lien, security
interest, conditional sale or other title retention agreement or other similar
encumbrance.
"Notice of Redemption" has the meaning specified in Section 1104.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President, the Vice Chairman or a Vice President, and by the
Chief Financial Officer, the Treasurer, an Assistant Treasurer, the Secretary or
an Assistant Secretary, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee
or delivered to the Trustee for cancellation;
(ii)Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if
such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
5
<PAGE> 15
(iii) Securities which have been paid pursuant to
Section 306 or in exchange for or in lieu of which other Securities
have been authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such Securities
are held by a bona fide purchaser in whose hands such Securities are
valid obligations of the Company; and
(iv) For purposes of selection of Securities for
partial redemption, Securities not deemed Outstanding pursuant to
Section 1103;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, (i) the principal
amount of an Original Issue Discount Security that shall be deemed to be
Outstanding shall be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof pursuant to Section 502, and (ii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor shall be disregarded and deemed not to be Outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the pledgee
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities of any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable and where the
Securities of that series may be presented for exchange or conversion as
specified as contemplated by Section 301.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Operating Property" means any principal manufacturing plant
and related physical facilities (other than facilities constructed or acquired
subsequent to December 31, 1985 for the
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control or abatement of atmospheric pollutants or contaminants, water pollution,
noise, odor or other pollution) which on the date of this Indenture or at any
time subsequent thereto is located in the United States, any of its territories
or possessions or Puerto Rico and has been owned and operated by the Company or
any Subsidiary for more than 90 days; provided, however, that any principal
manufacturing plant and related physical facilities (not theretofore owned by
the Company or a Subsidiary) owned and operated by a corporation which becomes a
Subsidiary after the original execution and delivery of this Indenture shall not
constitute a Principal Operating Property unless owned and operated by such
corporation for more than 90 days after it becomes a Subsidiary; and provided,
further, that the Board of Directors may by resolution declare that any plant is
not of material importance to the business of the Company and its Restricted
Subsidiaries as a whole, in which case such plant shall not be deemed to be a
Principal Operating Property.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Securities Act), as amended or supplemented by
any prospectus supplement, with respect to the terms of the offering of any
portion of the Debt Securities or the Exchange Securities covered by such
Registration Statement, and all amendments and supplements to the Prospectus,
including post-effective amendments.
"QIB" or "Qualified Institutional Buyer" means "Qualified Institutional
Buyer" as such term is defined in Rule 144A.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Default" has the meaning specified in Section 202.
"Registration Rights Agreement" means an agreement which may be entered
into from time to time between the Company and the holders of Debt Securities or
the broker or dealer offering such Debt Securities providing for, among other
things, an offer to exchange such Debt Securities for the corresponding series
of Exchange Securities and the filing of a Shelf Registration Statement under
the circumstances described therein.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Debt Securities
or the Exchange Securities pursuant to the provisions of any Registration Rights
Agreement, and amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Regulation S" means Regulation S under the Securities Act, or any
successor provision.
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"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities of any series means the date specified for that purpose
as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means the
chairman or any vice-chairman of the board of directors, the chairman or any
vice-chairman of the executive committee of the board of directors, the chairman
of the trust committee, the president, and vice president, the secretary, any
assistant secretary, the treasurer, any assistant treasurer, the cashier, any
assistant cashier, any trust officer or assistant trust officer, the controller
or any assistant controller or any other officer of the Trustee customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Restricted Subsidiary" means as of the date of determination any
Subsidiary of the Company which owns or leases any Principal Operating Property.
"Rule 144" means Rule 144 under the Securities Act or any successor
provision.
"Rule 144A" means Rule 144A under the Securities Act or any successor
provision.
"Rule 144(k)" means Rule 144(k) under the Securities Act or any
successor provision.
"Rule 415" means Rule 415 under the Securities Act or any successor
provision.
"Rule 904" means Rule 904 under the Securities Act or any successor
provision.
"Securities Act" has the meaning set forth in the first recital of this
Indenture.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Custodian" means the Trustee, as custodian with respect to
Global Securities, or any successor entity thereto.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Shelf Registration Period" means the shorter of (i) two years (or, if
Rule 144(k) is amended to provide a shorter restrictive period, such shorter
period) and (ii) such period that will terminate when all of the Debt Securities
or Exchange Securities, as applicable, covered by the particular Shelf
Registration Statement have been sold pursuant to such Shelf Registration
Statement.
"Shelf Registration Statement" means a "shelf" registration statement
of the Company which covers some or all of the Debt Securities or the Exchange
Securities, as applicable, on an appropriate
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form and complying with Rule 415, and amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock
which ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Time of Delivery" means the date on which any series of Debt
Securities is initially issued.
"Transfer Restricted Securities" means Securities that bear or are
required to bear the legend set forth in Section 305(h)(i) or (ii) hereof.
"Transfer Restriction Termination Date" means the earlier of the first
date on which (i) the Securities of a series (other than such Securities
acquired by the Company or any Affiliate thereof since the Time of Delivery of
such Securities) may be sold pursuant to Rule 144(k) (or any successor
provision) and (ii) all such Securities have been exchanged or sold pursuant to
an effective registration statement.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder, and
if at any time there is more than one such Person, "Trustee" as used with
respect to the Securities of any series shall mean the Trustee with respect to
Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended
by the Trust Indenture Reform Act of 1990; provided, however, if the Trust
Indenture Act is amended after the date hereof, "Trust Indenture Act" means, to
the extent required by any such amendment, the Trust Indenture Act as so
amended.
"U.S. Government Obligations" means securities which are (i) direct
obligations of the United States of America for the payment of which its full
faith and credit is pledged or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States of
America the payment of which is unconditionally guaranteed as a full faith and
credit obligation by the United States of America, which, in either case, are
not callable or
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redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt; provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation or the specific payment
of interest on or principal of the U.S. Government Obligation evidenced by such
depository receipt.
"Unrestricted Subsidiary" means any Subsidiary other than a Restricted
Subsidiary.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 102. Compliance Certificates and Opinions.
Except as otherwise expressly provided by, or as contemplated in,
Section 301 or 303 of this Indenture, upon any application or request by the
Company to the Trustee to take any action under any provision of this Indenture
(except for the initial issuances of Securities hereunder), the Company shall
furnish to the Trustee an Officers' Certificate, stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and, where this Indenture provides that
compliance with conditions precedent is subject to verification by accountants,
a certificate or opinion of an accountant, together with an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent, if
any, have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than certificates
provided pursuant to Section 1008) shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, any such Person may certify or
give an opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an officer or officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 601) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
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<PAGE> 21
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The Company may fix any day as the record date for the
purpose of determining the Holders of Securities of any series entitled to give
or take any request, demand, authorization, direction, notice, consent, waiver
or other action, or to vote on any action, authorized or permitted to be given
or taken by Holders of Securities of such series. If not set by the Company
prior to the first solicitation of a Holder of Securities of such series made by
any Person in respect of any such action, or, in the case of any such vote,
prior to such vote, the record date for any such action or vote shall be the
30th day (or, if later, the date of the most recent list of Holders required to
be provided pursuant to Section 701) prior to such first solicitation or vote,
as the case may be. With regard to any record date for action to be taken by the
Holders of one or more series of Securities, only the Holders of Securities of
such series on such date (or their duly designated proxies) shall be entitled to
give or take, or vote on, the relevant action.
(d) The ownership of Securities shall be proved by the
Security Register.
(e) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
SECTION 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office,
Attention: Capital Markets Fiduciary Services, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it Attention: Treasury Department
at the address of its principal office specified in the first paragraph
of this instrument or at any other address previously furnished in
writing to the Trustee by the Company.
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SECTION 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to each Holder affected
by such event, at his address as it appears in the Security Register, not later
than the latest date, and not earlier than the earliest date, prescribed for the
giving of such notice. In any case where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders. Where this Indenture provides for notice in any
manner, such notice may be waived in writing by the Person entitled to receive
such notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with the
Trustee, but such filing shall not be a condition precedent to the validity of
any action taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under the Trust Indenture Act to be
a part of and to govern this Indenture, the latter shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act that may be so modified or excluded, the provision as so modified
or excluded shall be deemed to apply.
SECTION 108. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
SECTION 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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SECTION 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, expressed or implied,
shall give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right, remedy
or claim under this Indenture.
SECTION 112. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA WITHOUT GIVING
EFFECT TO CONFLICT OF LAWS PROVISIONS THEREOF.
SECTION 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal (and premium, if any) need not be
made at such Place of Payment on such date, but may be made on the next
succeeding Business Day at such Place of Payment with the same force and effect
as if made on the Interest Payment Date or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue for the period from and after
such Interest Payment Date, Redemption Date or Stated Maturity, as the case may
be.
ARTICLE II
SECURITY FORMS
SECTION 201. Forms Generally.
The Securities of each series shall be in substantially the form set
forth in this Article, or in such other form or forms as shall be established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, in each case with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted by this Indenture, and may
have such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities. If the form of Securities of any series is established by action
taken pursuant to a Board Resolution, a copy of an appropriate record of such
action shall be certified by the Secretary or an Assistant Secretary of the
Company and delivered to the Trustee at or prior to the delivery of the Company
Order contemplated by Section 303 for the authentication and delivery of such
Securities.
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The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined
by the officers executing such Securities, as evidenced by their execution of
such Securities.
SECTION 202. Form of Face of Security.
[If the Security is an Original Issue Discount Security,
insert any legend required by the United States Internal Revenue Code and the
regulations thereunder.]
ROHM AND HAAS COMPANY
_____________________
No._____ $_____
ROHM AND HAAS COMPANY, a corporation duly organized and existing under
the laws of Delaware (herein called the "Company", which term includes any
successor corporation under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________ or registered assigns, the
principal sum [if Global Security, insert -- set forth above or such other
principal sum on the Schedule attached hereto (which shall not exceed
$_________] [of Dollars] on [if the Security is to bear interest prior to
Maturity, insert -- , and to pay interest thereon from or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually on _____ and _____ in each year, commencing _____ , at the rate of
_____ % per annum, until the principal hereof is paid or made available for
payment]; [if applicable, insert -- provided, however, in the event (each such
event in clauses (i) through (iv) below being referred to as a "Registration
Default") that: (i) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is filed with the Commission on or prior to the
90th calendar day following the Time of Delivery; (ii) the Company is permitted
under the law and currently prevailing interpretations of the Commission's staff
to effect the Exchange Offers and the Exchange Offer Registration Statement is
not declared effective on or prior to the (A) 150th day following the Time of
Delivery or (B) the Exchange Offers are not consummated on or prior to the 180th
day following the Time of Delivery; or (iii) the Company is required to file a
Shelf Registration Statement, and the applicable Shelf Registration Statement is
not declared effective on or prior to the 210th day following the Time of
Delivery; or (iv) after a Shelf Registration Statement is declared effective,
(A) such Shelf Registration Statement ceases to be effective prior to the end of
the Shelf Registration Period (except as permitted under the Registration Rights
Agreement); or (B) such Shelf Registration Statement or the related Prospectus
ceases to be useable in connection with resales of Securities covered by such
Shelf Registration Statement prior to the end of the Shelf Registration Period
(except as permitted under the Registration Rights Agreement) because (1) the
Company
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determines that any event occurs as a result of which the related Prospectus
forming part of such Shelf Registration Statement would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein in the light of the circumstances under which they
were made not misleading, (2) the Company determines that it shall be necessary
to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Securities Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes public disclosure will be
prejudicial to the Company, then, in addition to the stated interest set forth
in the title of this Security, liquidated damages ("Liquidated Damages") shall
accrue on this Security, over and above the interest rate set forth in the title
of this Security, following the occurrence of each Registration Default set
forth in clauses (i), (ii) and (iii) above from and including the next day
following each such Registration Default, in each case at a rate equal to 0.25%
per annum; provided, however, that in any case, if one or more Registration
Defaults referred to in clause (iv) above occurs and continues for more than 60
days (whether or not consecutive) in any twelve-month period (the 61st day being
referred to as the "Default Day") then from the Default Day until the earlier of
(i) the date such Shelf Registration Statement is again deemed effective or is
useable, (ii) the date that is the second anniversary of the Time of Delivery
(or, if Rule 144(k) is amended to provide a shorter restrictive period, such
shorter period) or (iii) the date on which all of the Securities are sold
pursuant to such Shelf Registration Statement, Liquidated Damages shall accrue
at a rate of 0.25% per annum; provided, further, that the aggregate amount of
Liquidated Damages payable pursuant to the Registration Rights Agreement will in
no event exceed 0.25% per annum. The Liquidated Damages attributable to each
Registration Default referred to in clauses (i), (ii) and (iii) above shall
cease to accrue from the date of the filing of the Exchange Offer Registration
Statement or Shelf Registration Statement after such 90-day period, in the case
of clause (i) above, the date of effectiveness of the Exchange Offer
Registration Statement after such 150-day period, in the case of clause (ii)(A)
above, the consummation of the Registered Exchange Offers after such 180-day
period in the case of clause (ii)(B) above or the date of effectiveness of the
applicable Shelf Registration Statement after such 210-day period, in the case
of clause (iii) above.]
[if applicable insert -- , In the event of any overdue principal and premium and
any overdue installment of interest, the Company hereby promises to pay interest
(to the extent that the payment of such interest shall be legally enforceable)
at the rate of % per annum on any such overdue principal and premium and on any
such overdue installment of interest]. The interest [if applicable, insert --
(and Liquidated Damages, if any)] so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in such Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the _____ or _____ (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof
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<PAGE> 26
shall be given to Holders of Securities of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in said Indenture].
[If the security is not to bear interest prior to Maturity, insert --
The principal of this Security shall not bear interest except in the case of a
default in payment of principal upon acceleration, upon redemption or at Stated
Maturity and in such case the overdue principal of this Security shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
default in payment to the date payment of such principal has been made or duly
provided for. Interest on any overdue principal shall be payable on demand. Any
such interest on any overdue principal that is not so paid on demand shall bear
interest at the rate of _____% per annum (to the extent that the payment of such
interest shall be legally enforceable), which shall accrue from the date of such
demand for payment to the date payment of such interest has been made or duly
provided for, and such interest shall also be payable on demand.]
Payment of the principal of (and premium, if any) and [if applicable,
insert -- any such] interest [if applicable, insert -- (and Liquidated Damages,
if any)] on this Security will be made at the office or agency of the Company
maintained for that purpose in _____ , in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts [if applicable, insert -- ; provided, however, that at
the option of the Company payment of interest may be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register or by wire transfer to an account maintained by the Person
entitled thereto as specified in the Security Register, provided that such
Person shall have given the Trustee written wire instructions at least five
Business Days prior to the applicable Interest Payment Date].
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under a facsimile of its corporate seal.
Dated:
ROHM AND HAAS COMPANY
[Corporate Seal] By:_____________________________________
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Attest:
_____________________________________
SECTION 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1999 (herein called the
"Indenture"), between the Company and CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all Indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof [, limited in aggregate principal
amount to $___].
[If applicable, insert -- The Securities are redeemable, as a whole or
in part, at the option of the Company, at any time or from time to time, on at
least 30 days, but not more than 60 days, prior notice mailed to the registered
address of each holder of Securities. The redemption prices will be equal to the
greater of (1) 100% of the principal amount of the Securities to be redeemed and
(2) the sum of the present values of the Remaining Scheduled Payments (as
defined below) discounted, on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months), at a rate equal to the sum of the
applicable Treasury Rate (as defined below) plus __ basis points. Accrued
interest will also be paid to the date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of the Reference Treasury Dealer Quotations for such redemption
date. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the
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<PAGE> 28
average, as determined by the Trustee, of the bid and asked prices for the
Comparable Treasury Issue (expressed in each case as a percentage of its
principal amount) quoted in writing to the Trustee by such Reference Treasury
Dealer at 3:30 p.m., New York City time, on the third business day preceding
such redemption date.
"Reference Treasury Dealer" means Salomon Smith Barney Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer
(a "Primary Treasury Dealer"), the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days nor more than 60 days' notice by mail,
such 30 or 60 days, as the case may be, to be counted from the date notice is
mailed, [if applicable, insert -- (1) on _____ in any year commencing with the
year ____ and ending with the year _____ through operation of the sinking fund
for this series at a Redemption Price equal to 100% of the principal amount, and
(2)] at any time [on or after _____ , 19_____ ], as a whole or in part, at the
election of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): If redeemed [on or before _____ , _____ %,
and if redeemed] during the 12-month period beginning ______ of the years
indicated,
<TABLE>
<CAPTION>
Redemption Redemption
Year Price Year Price
---- ---------- ---- ----------
<S> <C> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption [if applicable insert -- (whether
through operation of the sinking fund or
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<PAGE> 29
otherwise)] with accrued interest to the Redemption Date, but interest
installments whose Stated Maturity is on or prior to such Redemption Date will
be payable to the Holders of such Securities, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[If applicable, insert -- The Securities of this series are subject to
redemption upon not less than 30 days nor more than 60 days' notice by mail,
such 30 or 60 days, as the case may be, to be counted from the date notice is
mailed, (1) on _____ in any year commencing with the year _____ and ending with
the year _____ through operation of the sinking fund for this series at the
Redemption Prices for redemption through operation of the sinking fund
(expressed as percentages of the principal amount) set forth in the table below,
and (2) at any time [on or after _____ ], as a whole or in part, at the election
of the Company, at the Redemption Prices for redemption otherwise than through
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below: If redeemed during the 12-month period beginning
______ of the years indicated,
<TABLE>
<CAPTION>
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
---- ----------------- ----------------------
<S> <C> <C>
</TABLE>
and thereafter at a Redemption Price equal to _____% of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date, but
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to _____,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than _____% per annum.]
[The sinking fund for this series provides for the redemption on _____
in each year beginning with the year _____ and ending with the year _____ of
[not less than] $__________ [("mandatory sinking fund") and not more than
$_____________] aggregate principal amount of Securities of this series.
[Securities of this series acquired or redeemed by the Company otherwise than
through [mandatory] sinking fund payments may be credited against subsequent
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<PAGE> 30
[mandatory] sinking fund payments otherwise required to be made -- in the
inverse order in which they become due.]
[If the Securities do not have a sinking fund, then insert -- the
Securities do not have the benefit of any sinking fund obligations.]
[If the Security is subject to redemption, insert -- In the event of
redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.]
[If the Security is not subject to redemption, insert -- The Securities
of this series are not redeemable prior to Stated Maturity.]
[If applicable, insert -- The Indenture contains provisions for
defeasance at any time of [the entire indebtedness of this Security][and/or]
[certain restrictive covenants and Events of Default with respect to this
Security][, in each case) upon compliance with certain conditions set forth in
the Indenture.]
[If the Security is not an Original Issue Discount Security, insert --
If an Event of Default with respect to Securities of this series shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.]
[If the Security is an Original Issue Discount Security, insert -- If
an Event of Default with respect to Securities of this series shall occur and be
continuing, an amount of principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture. Such amount shall be equal to -- insert formula for determining the
amount. Upon payment (i) of the amount of principal so declared due and payable
and (ii) of interest on any overdue principal and overdue interest (in each case
to the extent that the payment of such interest shall be legally enforceable),
all of the Company's obligations in respect of the payment of the principal of
and interest, if any, on the Securities of this series shall terminate.]
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be affected. The Indenture also contains provisions permitting the
Holders of specified percentages in principal amount of the Securities of each
series at the time Outstanding, on behalf of the Holders of all Securities of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
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<PAGE> 31
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest [if applicable insert -- (and Liquidated Damages, if any)] on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $_____ and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest [if applicable, insert -- (or Liquidated
Damages, if any)] on this Security, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer, director
or employee, as such, past, present or future, of the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability
being, by the acceptance hereof and as part of the consideration for the issue
hereof, expressly waived and released.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
[If applicable, insert -- Interest on this Security shall be computed
on the basis of a 360-day year of twelve 30-day months. The amount of interest
payable for any period shorter than a full semi-annual period for which interest
is computed will be computed on the basis of the actual number of days elapsed
per 30-day month. In the event that any date on which principal, premium, if
any, or interest is payable on the Securities is not a Business Day, then
payment of the principal,
22
<PAGE> 32
premium, if any, or interest that is payable on that date will be made on the
next succeeding day that is a Business Day (and without any interest or other
payment in respect of any such delay)].
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles thereof.
23
<PAGE> 33
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of
Securities held in *________ global or *_______ definitive form by
________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities, and as provided in Section
305 of such Indenture, the transfer of this Security does not require
registration under the Securities Act of 1933, as amended (the "Securities
Act"), because:*
[ ] Such Security is being acquired for the Transferor's own account,
without transfer (in satisfaction of Section 305(b)(ii)(A) or Section
305(e)(i)(A) of the Indenture).
[ ] Such Security is being transferred to a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act in reliance on Rule
144A (in satisfaction of Section 305(b)(ii)(B) or Section 305(e)(i)(B)
of the Indenture) or pursuant to an exemption from registration in
accordance with Rule 904 under the Securities Act (in satisfaction of
Section 305(b)(ii)(B) or Section 305(e)(i)(B) of the Indenture.)
[ ] Such Security is being transferred in accordance with Rule 144 under
the Securities Act or pursuant to an effective registration statement
under the Securities Act (in satisfaction of Section 305(b)(ii)(B) or
Section 305(e)(i)(B) of the Indenture).
[ ] Such Security is being transferred in reliance on and in compliance
with an exemption from the registration requirements of the Securities
Act, other than Rule 144A, Rule 144 or Rule 904 under the Securities
Act, and any applicable state securities laws. An Opinion of Counsel to
the effect that such transfer does not require registration under the
Securities Act accompanies this Certificate (in satisfaction of Section
305(b)(ii)(C) or Section 305(e)(i)(C) of the Indenture).
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<PAGE> 34
___________________________
[INSERT NAME OF TRANSFEROR]
Dated:______ By: _____________________________
*Check applicable box.
SECTION 204. Additional Provisions Required in Global Security.
Any Global Security issued hereunder shall, in addition to the
provisions contained in Sections 202 and 203 and in addition to any legend
required by the Depositary, bear a legend in substantially the following form:
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE
BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE
DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY
THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY. UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH
OTHER NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
In addition, the reverse of each Global Security shall have attached to
it a Schedule in the following form:
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<PAGE> 35
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Global Security signatory
Date of Principal Amount of this Global following such decrease of Trustee or
Exchange this Global Security Security (or increase) Security Custodian
- -------- --------------------- --------------------- ------------------------ ------------------
<S> <C> <C> <C> <C>
</TABLE>
SECTION 205. Securities Issuable in the Form of a Global Security.
If the Company shall establish pursuant to Section 301 that the
Securities of a particular series are to be issued in whole or in part in the
form of one or more Global Securities, then the Company shall execute and the
Trustee shall, in accordance with Section 303 and the Company Order delivered to
the Trustee thereunder, authenticate and deliver, such Global Security or
Securities, which (i) shall represent, and shall be denominated in an amount
equal to the aggregate principal amount of, the Outstanding Securities of such
series to be represented by such Global Security or Securities, (ii) shall be
registered in the name of the Depositary for such Global Security or Securities
or its nominee, (iii) shall be delivered by the Trustee to the Depositary or
pursuant to the Depositary's instruction and (iv) shall bear a legend
substantially to the following effect: "Unless and until it is exchanged in
whole or in part for the individual Securities represented hereby, this Global
Security may not be transferred except as a whole by the Depositary to a nominee
of the Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary."
Notwithstanding any other provision of this Section 205 or of Section
305, unless the terms of a Global Security for Exchange Securities expressly
permit such Global Security to be exchanged in whole or in part for individual
Securities, a Global Security may be transferred, in whole but not in part and
in the manner provided in Section 305, only to another nominee of the Depositary
for such Global Security, or to a successor Depositary for such Global Security
selected or approved by the Company or to a nominee of such successor
Depositary.
If at any time the Depositary for a Global Security notifies the
Company that it is unwilling or unable to continue as Depositary for such Global
Security or if at any time the Depositary for the Securities for such series
shall no longer be eligible or in good standing under the Securities Exchange
Act of 1934, as amended, or other applicable statute or regulation, the Company
shall appoint a successor Depositary with respect to such Global Security. If a
successor Depositary for such Global Security is not appointed by the Company
within 90 days after the Company receives such notice or becomes aware of such
ineligibility, the Company's election pursuant to Section 301
26
<PAGE> 36
shall no longer be effective with respect to such Global Security and the
Company will execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of individual Securities of such series in exchange
for such Global Security, will authenticate and deliver individual Securities of
such series of like tenor and terms in definitive form in an aggregate principal
amount equal to the principal amount of the Global Security in exchange for such
Global Security.
The Company may at any time and in its sole discretion determine that
the Securities of any series issued or issuable in the form of one or more
Global Securities shall no longer be represented by such Global Security or
Global Securities. In such event the Company will execute, and the Trustee, upon
receipt of a Company Order for the authentication and delivery of individual
Securities of such series in exchange in whole or in part for such Global
Security, will authenticate and deliver individual Securities of such series of
like tenor and terms in definitive form in an aggregate principal amount equal
to the principal amount of such Global Security or Global Securities
representing such series in exchange for such Global Security or Global
Securities.
If specified by the Company pursuant to Section 301 with respect to
Securities issued or issuable in the form of a Global Security, the Depositary
for such Global Security may surrender such Global Security in exchange in whole
or in part for individual Securities of such series of like tenor and terms in
definitive form on such terms as are acceptable to the Company and such
Depositary. Thereupon the Company shall execute, and the Trustee shall
authenticate and deliver, without service charge, (i) to each Holder specified
by such Depositary a new Security or Securities of the same series of like tenor
and terms and of any authorized denomination as requested by such Holder in
aggregate principal amount equal to and in exchange for such Holder's beneficial
interest in the Global Security; and (ii) to such Depositary a new Global
Security of like tenor and terms and in a denomination equal to the difference,
if any, between the principal amount of the surrendered Global Security and the
aggregate principal amount of Securities delivered to Holders thereof.
In any exchange provided for in any of the preceding three paragraphs,
the Company will execute and the Trustee will authenticate and deliver
individual Securities in definitive registered form in authorized denominations.
Upon the exchange of a Global Security for individual Securities, such Global
Security shall be cancelled by the Trustee. Securities issued in exchange for a
Global Security pursuant to this Section shall be registered in such names and
in such authorized denominations as the Depositary for such Global Security,
pursuant to instructions from its direct or indirect participants or otherwise,
shall instruct the Trustee. The Trustee shall deliver such Securities to the
persons in whose names such Securities are so registered.
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<PAGE> 37
SECTION 206. Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially
the following form:
This is one of the Securities of a series designated under the
Indenture described herein.
Dated: __________
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
as Trustee
By:_____________________________________
Authorized Officer
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<PAGE> 38
ARTICLE III
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution and, subject to Section 303,
set forth in, or determined in writing in the manner provided in, an Officers'
Certificate, or established in one or more indentures supplemental hereto, prior
to the issuance of Securities of any series:
(1) the title of the Securities of the series (which shall
distinguish the Securities of the series from all other Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series which may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 205, 304, 305, 306, 906,
or 1107 and except for any Securities which, pursuant to Section 303,
are deemed never to have been authenticated and delivered hereunder);
(3) the Person to whom any interest on a Security of the
series shall be payable, if other than the Person in whose name that
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest;
(4) the date or dates on which the principal of the Securities
of the series is payable;
(5) the rate or rates at which the Securities of the series
shall bear interest, if any, the date or dates from which such interest
shall accrue, the Interest Payment Dates on which such interest shall
be payable and the Regular Record Date for the interest payable on any
Interest Payment Date;
(6) the place or places where the principal of (and premium,
if any) and interest on Securities of the series shall be payable and
where such Securities may be presented for exchange;
(7) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, as a whole or in part, at the option of the Company;
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<PAGE> 39
(8) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, as a whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which Securities of the series
shall be issuable;
(10) if the amount of payments of principal of and any premium
or interest on the Securities of the series may be determined with
reference to an index, the manner in which such amounts shall be
determined;
(11) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(12) whether the Securities of the series will be issued in
whole or in part in the form of a Global Security or Global Securities;
the terms and conditions, if any, upon which such Global Security or
Global Securities may be exchanged in whole or in part for other
individual Securities; and the Depositary for such Global Security or
Global Securities, provided, however, that each Depositary must, at the
time of its designation and at all times while it serves as Depositary,
be a clearing agency registered under the Securities Exchange Act of
1934, as amended, and any other applicable statute or regulation;
(13) the method of setting the Record Date for determining the
identity of Holders entitled to vote or consent to any action permitted
by this Indenture, if other than the method provided in the Trust
Indenture Act; and
(14) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series shall be substantially identical
except as to denomination and except as may otherwise be provided in or pursuant
to the Board Resolution referred to above and (subject to Section 303) set forth
in the Officers' Certificate referred to above or in any such indenture
supplemental hereto.
The Debt Securities of a particular series and any corresponding series
of Exchange Securities shall be identical in all material respects (except that
the Exchange Securities will not contain the legend set forth in Section 305
manifesting the transfer restrictions or the terms with respect to the
Liquidated Damages applicable to the Debt Securities). The Exchange Securities
of a particular series shall be originally issued only in exchange for the then
outstanding Debt Securities of the corresponding series tendered at the option
of the Holders thereof pursuant to the applicable Exchange Offer. The Exchange
Securities of a particular series and the Debt Securities
30
<PAGE> 40
of the corresponding series shall for all purposes under this Indenture be
deemed to be the same series of Securities, and shall vote together as a single
series.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
shall be certified by the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee at or prior to the delivery of the Officers'
Certificate setting forth the terms of the series.
SECTION 302. Denominations.
The Securities of each series shall be issuable in registered form
without coupons in such denominations as shall be specified as contemplated by
Section 301. In the absence of any such provisions with respect to the
Securities of any series, the Securities of such series shall be issuable in
denominations of $1,000 and any integral multiple thereof.
SECTION 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President, its Vice Chairman or one of its Vice
Presidents under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities of any series executed by the
Company to the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities. If the
form or terms of the Securities of the series have been established in or
pursuant to one or more Board Resolutions as permitted by Sections 201 and 301,
in authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 601) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of such Securities has been established by or
pursuant to Board Resolution as permitted by Section 201, that such form has
been established in conformity with the provisions of this Indenture;
(b) if the terms of such Securities have been established by
or pursuant to Board Resolution as permitted by Section 301, that such terms
have been established in conformity with the provisions of this Indenture; and
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<PAGE> 41
(c) that such Securities, when authenticated and delivered by
the Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, reorganization and other laws of
general applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles.
If such form or terms have been so established, the Trustee shall not
be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 301 and of the preceding
paragraph, if all of the Securities of a series are not to be originally issued
at one time, it shall not be necessary to deliver the Officers' Certificate
otherwise required pursuant to Section 301 or the Company Order and Opinion of
Counsel otherwise required pursuant to such preceding paragraph at or prior to
the time of authentication of each Security of such series if such documents are
delivered at or prior to the time of authentication upon original issuance of
the first Security of such series to be issued. After the original issuance of
the first Security of each such series, the Trustee shall authenticate such
additional securities of such series in accordance with a written determination
of the Company in the manner provided in the Officer's Certificate.
If the Company shall establish pursuant to Section 301 that the
Securities of a series are to be issued in whole or in part in the form of one
or more Global Securities, then the Company shall execute and the Trustee shall,
in accordance with this Section and the Company Order with respect to such
series, authenticate and deliver or make available for delivery one or more
Securities in such form that (i) shall represent and shall be denominated in an
amount equal to the aggregate principal amount of the Outstanding Securities of
such series to be represented by such Global Security or Securities, (ii) shall
be registered in the name of the Depositary for such Global Security or
Securities or the nominee of such Depositary, (iii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instruction and (iv)
shall bear the legend set forth in Section 204.
Unless otherwise established pursuant to Section 301, each Depositary
designated pursuant to Section 301 for a Global Security must, at the time of
its designation and at all times while it serves as Depositary, be a clearing
agency registered under the Exchange Act and any other applicable statute or
regulation. The Trustee shall have no responsibility to determine if the
Depositary is so registered. Each Depositary shall enter into an agreement with
the Trustee governing the respective duties and rights of such Depositary and
the Trustee with regard to Global Securities.
Each Security shall be dated the date of the authentication.
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No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture. Notwithstanding the foregoing, if any Security shall
have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 309 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities.
Pending the preparation of definitive Securities of any series, the
Company may execute, and upon Company Order the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities of any series are issued, the Company will
cause definitive Securities of that series to be prepared without unreasonable
delay. After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder. Subject to Section 205, upon surrender for
cancellation of any one or more temporary Securities of any series the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of definitive Securities of the same series and
of like tenor of authorized denominations. Until so exchanged the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of such series.
SECTION 305. Registration, Registration of Transfer and Exchange;
Restrictions on Transfer.
(a) General Provisions Relating to Transfers and Exchanges.
(i) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such
office and in any other office or agency of the Company in a Place of
Payment being herein sometimes collectively referred to as the
"Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of
Securities and of transfers and exchanges of Securities. The Trustee is
hereby appointed "Security Registrar" for the purpose of registering
Securities and transfers and exchanges of Securities as herein
provided. To
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permit registrations, transfers and exchanges of Securities, the
Company shall execute and the Trustee shall authenticate Definitive
Securities and Global Securities at the Security Registrar's request.
Notwithstanding anything herein to the contrary, there shall be only
one Security Register with respect to each series of Securities.
(ii) No service charge shall be made to a Holder for any
registration of transfer or exchange of Securities, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906 or 1107 not involving any
transfer.
(iii) Notwithstanding any other provision in this Indenture,
unless and until it is exchanged as a whole or in part for Securities
that are not in the form of a Global Security, a Global Security may
not be transferred or exchanged except as a whole by the Depositary
with respect to such Global Security to a nominee of such Depositary or
by a nominee of such Depositary to such Depositary or another nominee
of such Depositary.
(iv) All Definitive Securities and Global Securities issued
upon any registration of transfer or exchange of Definitive Securities
or Global Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Definitive Securities or Global Securities
surrendered upon such registration of transfer or exchange.
(v) The Company shall not be required (i) to issue, register
the transfer of or exchange Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected
for redemption under Section 1103 and ending at the close of business
on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption as a whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(vi) Upon surrender for registration of transfer of any
Security of any series at the office or agency of the Company in a
Place of Payment for that series, the Company shall execute, and the
Trustee shall authenticate and deliver or make available for delivery,
in the name of the designated transferee or transferees, one or more
new Securities of the same series, of any authorized denominations and
of a like aggregate principal amount and tenor.
(vii) At the option of the Holder, Securities of any series
may be exchanged for other Securities of the same series, of any
authorized denominations and of a like aggregate principal amount and
tenor, upon surrender of the Securities to be exchanged at such office
or agency. Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver
or make available for delivery, the Securities which the Holder making
the exchange is entitled to receive.
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(viii) Every Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the
Company, the Security Registrar or the Trustee) be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to
the Company, the Security Registrar and the Trustee duly executed, by
the Holder thereof or his attorney duly authorized in writing.
(ix) Notwithstanding the foregoing, any Global Security shall
be exchangeable pursuant to this Section 305 for Securities registered
in the names of Persons other than the Depositary for such Security or
its nominee only if (i) such Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for such Global Security
or if at any time such Depositary ceases to be a clearing agency
registered under the Exchange Act and the Company does not appoint a
successor Depositary within 90 days after receipt by it of such notice
or after it becomes aware of such cessation, (ii) the Company executes
and delivers to the Trustee a Company Order that such Global Security
shall be so exchangeable or (iii) there shall have occurred and be
continuing an Event of Default with respect to the Securities. Any
Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Securities registered in such names as such
Depositary shall direct.
(x) None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any
aspect of the records relating to or payments made on account of
beneficial ownership interests in a Global Security or for maintaining,
supervising or reviewing any records relating to such beneficial
ownership interests.
(b) Transfer and Exchange of Securities. When Definitive Securities are
presented by a Holder to the Security Registrar with a request: (x) to register
the transfer of the Definitive Securities; or (y) to exchange such Definitive
Securities for an equal principal amount of Definitive Securities of other
authorized denominations, the Security Registrar shall register the transfer or
make the exchange as requested if its requirements for such transactions are
met; provided, however, that the Definitive Securities presented or surrendered
for register of transfer or exchange: (i) shall be duly endorsed or accompanied
by a written instruction of transfer in form satisfactory to the Security
Registrar duly executed by such Holder or by his attorney, duly authorized in
writing; and (ii) in the case of a Definitive Security that is a Transfer
Restricted Security, such request shall be accompanied by the following
additional information and documents, as applicable: (A) if such Transfer
Restricted Security is being delivered to the Security Registrar by a Holder for
registration in the name of such Holder, without transfer, a certification to
that effect from such Holder (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities" set forth
in Section 203); or (B) if such Transfer Restricted Security is being
transferred to a "qualified institutional buyer" (as defined in Rule 144A) in
accordance with Rule 144A or pursuant to an exemption from registration in
accordance with Rule 144 or Rule 904 or pursuant to an effective registration
statement under the Securities Act, a certification to that effect from such
Holder (in substantially the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in Section 203) or
(C) if such Transfer Restricted Security is being transferred in reliance on
another exemption from the registration requirements of
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<PAGE> 45
the Securities Act or the securities laws of any other applicable jurisdiction,
a certification to that effect from such Holder (in substantially the form of
the "Certificate to be Delivered Upon Exchange or Registration of Transfer of
Securities" set forth in Section 203) and an Opinion of Counsel from such Holder
or the transferee reasonably acceptable to the Company and to the Security
Registrar to the effect that such transfer is in compliance with the Securities
Act.
(c) Transfer of a Definitive Security for a Beneficial Interest in a
Global Security. A Definitive Security may not be exchanged for a beneficial
interest in a Global Security except upon satisfaction of the requirements set
forth below. Upon receipt by the Trustee of a Definitive Security, duly endorsed
or accompanied by appropriate instruments of transfer, in form satisfactory to
the Trustee, together with: (i) if such Definitive Security is a Transfer
Restricted Security, a certification from the Holder thereof (in substantially
the form of the "Certificate to be Delivered Upon Exchange or Registration of
Transfer of Securities" set forth in Section 203) to the effect that such
Definitive Security is being transferred by such Holder to a "qualified
institutional buyer" (as defined in Rule 144A) in accordance with Rule 144A; and
(ii) whether or not such Definitive Security is a Transfer Restricted Security,
written instructions from the Holder thereof directing the Trustee to make, or
to direct the Security Custodian to make, an endorsement on the Global Security
to reflect an increase in the aggregate principal amount of the Securities
represented by the Global Security, in which case the Trustee shall cancel such
Definitive Security in accordance with Section 309 hereof and cause, or direct
the Security Custodian to cause, in accordance with the standing instructions
and procedures existing between the Depositary and the Security Custodian, the
aggregate principal amount of Securities represented by the Global Security to
be increased accordingly. If no Global Securities are then outstanding, the
Company shall issue and, upon receipt of a Company Order in accordance with
Section 303 hereof, the Trustee shall authenticate a new Global Security in the
appropriate principal amount.
(d) Transfer and Exchange of Global Securities. The transfer and
exchange of Global Securities or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture and the procedures of
the Depositary therefor, which shall include restrictions on transfer comparable
to those set forth herein to the extent required by the Securities Act.
(e) Transfer of a Beneficial Interest in a Global Security for a
Definitive Security.
(i) Any Person having a beneficial interest in a Global
Security for a Transfer Restricted Security may upon request exchange
such beneficial interest for a Definitive Security. Upon receipt by the
Trustee of written instructions or such other form of instructions as
is customary for the Depositary, from the Depositary or its nominee on
behalf of any Person having a beneficial interest in a Global Security,
and, in the case of a Transfer Restricted Security, the following
additional information and documents (all of which may be submitted by
facsimile): (A) if such beneficial interest is being transferred to the
Person designated by the Depositary as being the beneficial owner, a
certification to that effect from such Person (in substantially the
form of the "Certificate to be Delivered Upon Exchange or Registration
of Transfer of Securities" set forth in Section 203) or (B) if such
beneficial interest is being transferred to a "qualified institutional
buyer" (as defined in Rule 144A) in
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accordance with Rule 144A or pursuant to an exemption from registration
in accordance with Rule 144 or Rule 904 or pursuant to an effective
registration statement under the Securities Act, a certification to
that effect from the transferor (in substantially the form of
"Certificate to be Delivered Upon Exchange or Registration of Transfer
of Securities" set forth in Section 203) or (C) if such beneficial
interest is being transferred in reliance on another exemption from the
registration requirements of the Securities Act or the securities laws
of any other applicable jurisdiction, a certification to that effect
from the transferor (in substantially the form of the "Certificate to
be Delivered Upon Exchange or Registration of Transfer of Securities"
set forth in Section 203) and an Opinion of Counsel from the transferee
or transferor reasonably acceptable to the Company and to the Security
Registrar to the effect that such transfer is in compliance with the
Securities Act, and in the case of a beneficial interest in a Global
Security other than a Transfer Restricted Security, compliance with
Section 305(d), in which case the Trustee or the Security Custodian, at
the direction of the Trustee, shall, in accordance with the standing
instructions and procedures existing between the Depositary and the
Security Custodian, cause the aggregate principal amount of Global
Securities to be reduced accordingly and, following such reduction, the
Company shall execute and, upon receipt of a Company Order in
accordance with Section 303 hereof, the Trustee shall authenticate and
deliver to the transferee a Definitive Security in the appropriate
principal amount.
(ii) Definitive Securities issued in exchange for a beneficial
interest in a Global Security pursuant to this Section 305(e) shall be
registered in such names and in such authorized denominations as the
Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee
shall deliver such Definitive Securities to the Persons in whose names
such Securities are so registered.
(f) Restrictions on Transfer and Exchange of Global Securities.
Notwithstanding any other provision of this Indenture (other than the provisions
set forth in subsection (g) of this Section 305), a Global Security may not be
transferred as a whole except by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(g) Authentication of Securities in Absence of Depositary. If at any
time: (i) the Depositary for the Securities notifies the Company that the
Depositary is unwilling or unable to continue as Depositary for the Global
Securities and a successor Depositary for the Global Securities is not appointed
by the Company within 90 days after delivery of such notice; or (ii) the
Company, at its sole discretion, notifies the Trustee in writing that it elects
to cause the issuance of Definitive Securities under this Indenture, then the
Company shall execute, and the Trustee shall, upon receipt of a Company Order in
accordance with Section 303 hereof, authenticate and deliver, Definitive
Securities in an aggregate principal amount equal to the principal amount of the
Global Securities in exchange for such Global Securities.
(h) Legends and Authentication of Securities under Specified
Circumstances.
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(i) Except as permitted by the following paragraphs (iii) and
(iv), each Security certificate evidencing Global Securities and
Definitive Securities (and all Securities issued in exchange therefor
or substitution thereof) issued other than pursuant to Regulation S
shall bear a legend in substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") IN A TRANSACTION MEETING
THE REQUIREMENTS OF RULE 144A, (2) TO AN INSTITUTIONAL ACCREDITED
INVESTOR THAT, PRIOR TO SUCH TRANSFER, FURNISHES TO THE TRUSTEE FOR
THIS [NOTE] [DEBENTURE] A SIGNED LETTER CONTAINING CERTAIN
REPRESENTATIONS AND AGREEMENTS RELATING TO THE RESTRICTIONS ON TRANSFER
OF THE SECURITY EVIDENCED HEREBY (THE FORM OF WHICH LETTER CAN BE
OBTAINED FROM THE TRUSTEE), (3) IN AN OFFSHORE TRANSACTION MEETING THE
REQUIREMENTS OF RULE 903 OR 904 OF REGULATION S UNDER THE SECURITIES
ACT OR (4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES."
(ii) Except as permitted by the following paragraphs (iii) and
(iv), each Security certificate evidencing Global Securities and
Definitive Securities (and all Securities issued in exchange therefor
or substitution thereof) issued pursuant to Regulation S shall bear a
legend in substantially the following form:
"THIS [NOTE] [DEBENTURE] HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND,
PRIOR TO THE EXPIRATION OF A DISTRIBUTION COMPLIANCE PERIOD (DEFINED AS
40 DAYS AFTER THE ISSUE DATE WITH RESPECT TO THE [NOTES] [DEBENTURES]),
MAY NOT BE: OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) IN AN OFFSHORE TRANSACTION MEETING THE REQUIREMENTS OF RULE 903
OR 904 OF REGULATION S OR (2) TO A QUALIFIED INSTITUTIONAL BUYER WITHIN
THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ("RULE 144A") IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, OR (3) TO AN
INSTITUTIONAL ACCREDITED INVESTOR THAT, PRIOR TO SUCH TRANSFER,
FURNISHES TO THE TRUSTEE FOR THIS [NOTE] [DEBENTURE] A SIGNED LETTER
CONTAINING CERTAIN REPRESENTATIONS AND AGREEMENTS
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RELATING TO THE RESTRICTIONS ON TRANSFER OF THE SECURITY EVIDENCED
HEREBY (THE FORM OF WHICH LETTER CAN BE OBTAINED FROM THE TRUSTEE), AND
(B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF
THE UNITED STATES."
(iii) Upon any sale or transfer of a Transfer Restricted
Security (including any Transfer Restricted Security represented by a
Global Security) pursuant to Rule 144 or pursuant to an effective
registration statement under the Securities Act: (A) in the case of any
Transfer Restricted Security that is a Definitive Security, the
Security Registrar shall permit the Holder thereof to exchange such
Transfer Restricted Security for a Definitive Security that does not
bear the legend set forth in (i) or (ii) above and rescind any
restriction on the transfer of such Transfer Restricted Security; and
(B) in the case of any Transfer Restricted Security represented by a
Global Security, such Transfer Restricted Security shall not be
required to bear the legend set forth in (i) or (ii) above, but shall
continue to be subject to the provisions of Section 305(e) hereof;
provided, however, that with respect to any request for an exchange of
a Transfer Restricted Security that is represented by a Global Security
for a Definitive Security that does not bear the legend set forth in
(i) or (ii) above, which request is made in reliance upon Rule 144, the
Holder thereof shall certify in writing to the Security Registrar that
such request is being made pursuant to Rule 144 (such certification to
be substantially in the form of the "Certificate to be Delivered Upon
Exchange or Registration of Transfer of Securities" set forth in
Section 203).
(iv) Notwithstanding the foregoing, upon consummation of the
Exchange Offer, the Company shall issue and, upon receipt of a Company
Order in accordance with Section 303 hereof, the Trustee shall
authenticate Exchange Securities in exchange for Debt Securities
accepted for exchange in the Exchange Offer, which Exchange Securities
shall not bear the legend set forth in (i) or (ii) above, and the
Security Registrar shall rescind any restriction on the transfer of
such Securities, in each case unless the Holder of such Debt Securities
is either (A) a broker-dealer, (B) a Person participating in the
distribution of the Debt Securities or (C) a Person who is an affiliate
(as defined in Rule 144A) of the Company.
(v) The letter required to be provided pursuant to paragraphs
(i) and (ii) above shall be substantially in the form of Schedule
305(h)(v) hereto.
(i) Cancellation and/or Adjustment of Global Securities. At such time
as all beneficial interests in Global Securities have been exchanged for
Definitive Securities, redeemed, repurchased or cancelled, all Global Securities
shall be returned to or retained and cancelled by the Trustee in accordance with
Section 309 hereof. At any time prior to such cancellation, if any beneficial
interest in a Global Security is exchanged for Definitive Securities, redeemed,
repurchased or cancelled, the Trustee or the Security Custodian, at the
direction of the Trustee, shall, in accordance with the standing instructions
and procedures existing between the Depository and the Security Custodian, cause
the aggregate amount of Global Securities to be reduced accordingly.
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SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their respective satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by either of
them to save each of them and any agent or either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of the same series and of
like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment mutilated, destroyed, lost or stolen Securities.
SECTION 307. Payment of Interest; Interest Rights Preserved.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Security which is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest.
Any interest on any Security of any series which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith
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cease to be payable to the Holder on the relevant Regular Record Date by virtue
of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities of such series
(or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security of such series and the
date of the proposed payment, and at the same time the Company shall
deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or
shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the Persons entitled to such
Defaulted Interest as in this Clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted
Interest which shall be not more than 15 days and not less than 10 days
prior to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed payment.
The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder of Securities of such series at his address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities of such series (or their respective Predecessor Securities)
are registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this Clause, such manner of payment
shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
SECTION 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is
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registered as the owner of such Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the Company or
the Trustee shall be affected by notice to the contrary.
SECTION 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer, exchange or conversion or for credit against any sinking fund payment
shall, if surrendered to any Person other than the Trustee, be delivered to the
Trustee and shall be promptly canceled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly canceled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Securities held by the Trustee shall be disposed of as directed by a Company
Order.
SECTION 310. Computation of Interest.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be affected
by any defect in or omission of such CUSIP numbers. The Company will promptly
notify the Trustee of any change in the CUSIP numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer, conversion or
exchange of Securities herein expressly
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provided for), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one
year, or
(iii) are to be called for redemption
within one year under arrangements
satisfactory to the Trustee for the
giving of notice of redemption by
the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (B)(i), (ii) or (iii) above,
has deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose an amount sufficient to
pay and discharge the entire indebtedness on such Securities
not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to
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subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003, shall survive.
SECTION 402. Application of Trust Money; Indemnification.
(a) Subject to the provisions of the last paragraph of Section
1003, all money deposited with the Trustee pursuant to Section 401, all money
and U.S. Government Obligations deposited with the Trustee pursuant to Section
403 or 1011 and all money received by the Trustee in respect of U.S. Government
Obligations deposited with the Trustee pursuant to Section 403 or 1011, shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with or received by the Trustee or to make mandatory sinking fund payments or
analogous payments as contemplated by Section 403 or 1011.
(b) The Company shall pay and shall indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against U.S.
Government Obligations deposited pursuant to Section 403 or 1011 or the interest
and principal received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time
to time upon Company Request and with satisfactory indemnity from the Company
any U.S. Government Obligations or money held by it as provided in Section 403
or which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are then in excess of the amount thereof which then would have been
required to be deposited for the purpose for which such obligations or money
were deposited or received.
SECTION 403. Defeasance and Discharge of Indenture.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities on the 91st day after the date of
the deposit referred to in subparagraph (d) hereof, and the provisions of this
Indenture, as it relates to such Outstanding Securities, shall no longer be in
effect (and the Trustee, at the expense of the Company, shall at Company
Request, execute proper instruments acknowledging the same), except as to:
(a) the rights of Holders of Securities to receive, from the
trust funds described in subparagraph (d) hereof, (i) payment of the principal
of (and premium, if any) or interest on the Outstanding Securities on the Stated
Maturity of such principal or installment of principal or interest and (ii) the
benefit of any mandatory sinking fund payments applicable to the Securities on
the day on which such payments are due and payable in accordance with the terms
of this Indenture and the Securities;
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(b) the Company's obligations with respect to such Securities
under Sections 305, 306, 1002 and 1003; and
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder;
provided that, the following conditions shall have been satisfied:
(d) the Company has deposited or caused to be irrevocably
deposited (except as provided in Section 402) with the Trustee (or another
trustee satisfying the requirements of Section 609) as trust funds in the trust,
specifically pledged as security for, and dedicated solely to, the benefit of
the Holders of the Securities, (i) money in an amount, or (ii) U.S. Government
Obligations which through the payment of interest and principal in respect
thereof in accordance with their terms will provide not later than one day
before the due date of any payment referred to in clause (A) or (B) of this
subparagraph (d) money in an amount or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge (A) the principal of (and premium, if any) and
each installment of principal of (and premium, if any) and interest on the
Outstanding Securities on the Stated Maturity of such principal or installment
of principal or interest and (B) any mandatory sinking fund payments applicable
to the Securities on the day on which such payments are due and payable in
accordance with the terms of this Indenture and of the Securities;
(e) such deposit shall not cause the Trustee with respect to
the Securities to have a conflicting interest as defined in the Trust Indenture
Act with respect to the Securities;
(f) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(g) such provision would not cause any Outstanding Securities
then listed on the New York Stock Exchange or other securities exchange to be
delisted as a result thereof;
(h) no Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities shall have
occurred and be continuing on the date of such deposit or during the period
ending on the 91st day after such date;
(i) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel to the effect that the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling to the effect that Holders of the Securities will not recognize income,
gain or loss for Federal income tax purposes as a result of such deposits,
defeasance and discharge and will be subject to Federal income tax on the same
amount and in the same manner and at the same times, as would have been the case
if such deposit, defeasance and discharge had not occurred; and
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(j) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent relating to the defeasance contemplated by this Section have been
complied with.
ARTICLE V
REMEDIES
SECTION 501. Events of Default.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default the payment of any interest upon any Security of
that series when it becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default or
breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
(5) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall constitute a failure to pay
any portion of the principal of such indebtedness when due and payable
after the expiration of any applicable grace period with respect
thereto or shall have resulted in such indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration
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having been rescinded or annulled, within a period of 10 days after
there shall have been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders
of at least 10% in principal amount of the Outstanding Securities of
that series a written notice specifying such default and requiring the
Company to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice
is a "Notice of Default" hereunder; provided, however, that, subject to
the provisions of Sections 601 and 602, the Trustee shall not be deemed
to have knowledge of such default unless either (A) a Responsible
Officer of the Trustee shall have actual knowledge of such default or
(B) the Trustee shall have received written notice thereof from the
Company, from any Holder, from the holder of any such indebtedness or
from the trustee under any such mortgage, indenture or other
instrument; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
Federal or State law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts general as
they become due, or the taking of corporate action by the Company in
furtherance of any such action; or
(8) any other Event of Default provided with respect to
Securities of that series.
SECTION 502. Acceleration of Maturity; Rescission and Annulment.
In an Event of Default with respect to Securities of any series at the
time Outstanding occurs and is continuing, then in every such case the Trustee
or the Holders of not less than 25% in
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principal amount of the Outstanding Securities of that series may declare the
principal amount (or, if any of the Securities of that series are Original Issue
Discount Securities, such portion of the principal amount of such Securities as
may be specified in the terms thereof) of all of the Securities of that series
to be due and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders), and upon any such declaration such principal
amount (or specified amount) shall become immediately due and payable.
At any time after such a declaration of acceleration with respect to
Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this
Article provided, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor in such Securities, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default with respect to Securities of that
series, other than the non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days, or
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(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, if any) and interest and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, 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.
If an Event of Default with respect to Securities of any series occurs
and is continuing, the Trustee may in its discretion proceed to protect and
enforce its rights and the rights of the Holders of Securities of such series by
such appropriate judicial proceedings as the Trustee shall deem most effectual
to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any
power granted herein, or to enforce any other property remedy.
SECTION 504. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company or any other
obligor upon the Securities, its property or its creditors, the Trustee shall be
entitled and empowered, by intervention in such proceeding or otherwise, to take
any and all actions authorized under the Trust Indenture Act in order to have
claims of the Holders and the Trustee allowed in any such proceeding. In
particular, the Trustee shall be authorized to collect and receive any moneys or
other property payable or deliverable on any such claims to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 607.
No provision of this Indenture shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the
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Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, upon presentation of the Securities and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, 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, if any) and interest, respectively.
SECTION 507. Limitation of Suits.
No Holder of any Security of any series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities
of that series;
(2) the Holder of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request
to the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
satisfactory indemnity against the costs, expenses and liabilities to
be incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that
series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
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preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or Maturities
expressed in such Security (or, in the case of redemption, on the Redemption
Date) or to institute suit for the enforcement of any such payment right, and
such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all rights and remedies of the Trustee and the Holders shall continue
as though no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
SECTION 512. Control by Holders.
The Holders of a majority in principal amount of the Outstanding
Securities of any series shall have the right to direct the time, method and
place of conducting any proceeding for any
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remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities of such series, provided that
(1) such direction shall not be in conflict with any rule of
law of with this Indenture,
(2) the Trustee may request satisfactory indemnity, and
(3) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
SECTION 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series waiver any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security of such series, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 514. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered or
omitted by it as Trustee, a court may require any party litigant in such suit to
file an undertaking to pay the costs of such suit, and may assess reasonable
costs, including reasonable attorneys' fees, against any such party litigant in
the manner and to the extent provided in the Trust Indenture Act, provided that
this Section 514 shall have no application to any suit instituted by the Company
or the Trustee.
SECTION 515. Waiver of Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will
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not hinder, delay or impede the execution of any power herein granted to the
Trustee, but will suffer and permit the execution of every such power as though
no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or adequate indemnity against
such risk or liability is not reasonably assured to it.
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
SECTION 602. Notice of Defaults.
If a default occurs hereunder with respect to the Securities of any
series, the Trustee shall give the Holders of Securities of such series notice
of such default as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified in
Section 501(4) with respect to Securities of such series, no such notice to
Holders shall be given until at least 30 days after the occurrence thereof. For
the purpose of this Section, the term "default" means any event which is, or
after notice or lapse of time or both would become, an Event of Default with
respect to Securities of such series.
SECTION 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order or as
otherwise expressly provided by, or as contemplated in Section 301 or Section
303 herein and any resolution of the Board of Directors may be sufficiently
evidenced by a Certified Board Resolution;
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(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such Holders
shall have offered to the Trustee reasonable security or indemnity against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder.
SECTION 604. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of the Securities. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Securities or the proceeds thereof.
SECTION 605. May Hold Securities and Serve as Trustee Under Other
Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and, subject to Sections
608 and 613, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Security
Registrar or such other agent.
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Subject to the provisions of Section 608, the Trustee may become and
act as trustee under other indentures under which other securities, or
certificates of interest or participation in other securities, of the Company
are outstanding in the same manner as if it were not Trustee.
SECTION 606. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
SECTION 607. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify and hold the Trustee and its directors,
officers, agents and employees (collectively, the "Indemnitees")
harmless from and against any and all claims, liabilities, losses,
damages, fines, penalties and expenses, including out-of-pocket
expenses, incidental expenses and fees and expenses of outside counsel
("Losses") that may be imposed on, incurred by, or asserted against,
the Indemnitees or any of them for following any instruction or other
direction upon which the Trustee is authorized to rely pursuant to the
terms of this Indenture. In addition to and not in limitation of the
immediately preceding sentence, the Company also agrees to indemnify
and hold the Indemnitees and each of them harmless from and against any
and all Losses that may be imposed on, incurred by, or asserted against
the Indemnitees or any of them in connection with or arising out of the
Trustee's performance under this Indenture, provided that the Trustee
has not acted in negligence or engaged in misconduct. The provisions of
this Section 607(3) shall survive the termination of this Indenture and
the resignation or removal of the Trustee for any reason.
SECTION 608. Disqualification; Conflicting Interests.
Provisions relating to disqualification of the Trustee shall be as
provided in the Trust Indenture Act. To the extent permitted by the Trust
Indenture Act, the Trustee shall not be deemed
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to have a conflicting interest by being the successor trustee under the
Indenture between the Company and Mellon Bank, N.A. (successor trustee to
CoreStates Bank, N.A., formerly The Philadelphia National Bank), dated as of
April 1, 1986, and supplemented by amendments dated December 15, 1988 and May 1,
1992.
SECTION 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $25,000,000 subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 610. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 611.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice to the Company. If the
instrument of acceptance by a successor Trustee required by Section 611 shall
not have been delivered to the Trustee within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Securities of such series.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series, delivered to the Trustee and to
the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the
provisions of the Trust Indenture Act applicable in respect of
a conflicting interest after written request therefor by the
Company or by any Holder who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, or
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(3) the Trustee shall become incapable of acting or
shall be adjudged a bankrupt or insolvent or a receiver of the
Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its
property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee with respect to all Securities, or (ii) subject to Section 514, any
Holder who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, with respect to the Securities of one or more series, the Company, by
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time there shall be only one Trustee
with respect to the Securities of any particular series) and shall comply with
the applicable requirements of Section 611. If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment in accordance with the applicable requirements of Section
611, become the successor Trustee with respect to the Securities of such series
and to that extent supersede the successor Trustee appointed by the Company. If
no successor Trustee with respect to the Securities of any series shall have
been so appointed by the Company or the Holders and accepted appointment in the
manner required by Section 611, any Holder who has been a bona fide Holder of a
Security of such series for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities of such
series.
(f) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
by mailing written notice of such event by first-class mail, postage prepaid, to
all Holders of Securities of such series as their names and addresses appear in
the Security Register. Each notice shall include the name of the successor
Trustee with respect to the Securities of such series and the address of its
Corporate Trust Office.
SECTION 611. Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor
Trustee with respect to all Securities, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee,
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without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on the request
of the Company or the successor Trustee, such retiring Trustee shall, upon
payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and
shall duly assign, transfer and deliver to such successor Trustee all property
and money held by such retiring Trustee hereunder.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall continue to be vested in the
retiring Trustee, and (3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of a
trust or trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery of
such supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested with
all the rights, powers, trusts and duties of the retiring Trustee with respect
to the Securities of that or those series to which the appointment of such
successor Trustee relates; but, on request of the Company or any successor
Trustee, such retiring Trustee shall duly assign, transfer and deliver to such
successor Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates.
(c) Upon request of any successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 612. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all the corporate
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trust business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities so authenticated with the same
effect as if such successor Trustee had itself authenticated such Securities.
SECTION 613. Preferential Collection of Claims Against Company.
Provisions relating to preference collection of claims against the
Company shall be as provided by the Trust Indenture Act.
SECTION 614. Appointment of Authenticating Agent.
At any time when any of the Securities remain Outstanding the Trustee
may appoint an Authenticating Agent or Agents with respect to one or more series
of Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon the exchange, registration of
transfer or partial redemption or conversion thereof or pursuant to Section 306,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business
under the laws of the United States of America, any State thereof or the
District of Columbia, authorized under such laws to act as Authenticating Agent,
having a combined capital and surplus of not less than $25,000,000 and subject
to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said supervising or examining authority, then
for the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
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An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon receiving such a notice of
resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve, as their names and addresses appear in the Security Register. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its service under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the provisions
of Section 607.
If an appointment with respect to one or more series is made pursuant
to this Section, the Securities of such series may have endorsed thereon, in
addition to the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of a series designated under the
Indenture described herein.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
__________________________________
As Trustee
By________________________________
As Authenticating Agent
By________________________________
Authorized Officer
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ARTICLE VII
HOLDERS' LIST AND REPORTS BY
TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semi-annually, not later than May 15 and November 15 in
each year, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of the preceding May 1 or November 1, as
the case may be, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 702. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made pursuant
to the Trust Indenture Act.
SECTION 703. Reports by Trustee.
To the extent and in the manner required by the Trust Indenture Act,
reports by the Trustee will be transmitted to Holders within 60 days after May
15 of each year.
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SECTION 704. Reports by Company.
The Company shall file with the Trustee and the Commission, and
transmit to Holders, such information, documents and other reports, and such
summaries thereof, as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant to such Act; provided that any such
information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE VIII
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company or convey, transfer or lease its
properties and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another corporation or convey, transfer or lease its properties and
assets substantially as an entirety to any Person, the corporation
formed by such consolidation or into which the Company is merged or the
Person which acquires by conveyance or transfer, or which leases, the
properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United
States of America, any State thereof or the District of Columbia and
shall expressly assume, by an indenture supplemental hereto, executed
and delivered to the Trustee, in form satisfactory to the Trustee, the
due and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such consolidation or merger or
such conveyance, transfer or lease, properties or assets of the Company
would become subject to a mortgage, pledge, lien, security interest or
other encumbrance which would not be permitted by this Indenture, the
Company or such successor corporation or Person, as the case may be,
shall
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take such steps as shall be necessary effectively to secure the
Securities equally and ratably with (or prior to) all indebtedness
secured thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 802. Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of the
properties and assets of the Company substantially as an entirety in accordance
with Section 801, the successor corporation formed by such consolidation or into
which the Company is merged or to which such conveyance, transfer or lease is
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for any of the following purposes:
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants
are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company; or
(3) to add any additional Events of Default; or
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(4) to add to or change any of the provisions of this
Indenture to such extent as shall be necessary to permit or facilitate
the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which is
entitled to the benefit of such provision; or
(6) to secure the Securities; or
(7) to establish the form or terms of Securities of any series
as permitted by Sections 201 and 301; or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one
or more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
pursuant to the requirements of Section 611(b); or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
adversely affect the interests of the Holders of Securities of any
series in any material respect.
SECTION 902. Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of principal of or interest on, any Security, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or reduce the amount of the
principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, or change any Place of Payment where, or the
coin or currency in which, any Security or any premium or the interest
thereon is payable, or make any change that adversely affects the right
to convert
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any Security or impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption, on or after the Redemption Date), or to enforce
such conversion right, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section, Section 513
or Section 1012, except to increase any such percentage or to provide
that certain other provisions of this indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security
affected thereby, provided, however, that this clause shall not be
deemed to require the consent of any Holder with respect to changes in
the references to "the Trustee" and concomitant changes in this Section
and Section 1012, or the deletion of this proviso, in accordance with
the requirements of Sections 611(b) and 901(8).
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the
benefit of one or more particular series of Securities or which modifies the
rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it shall
be sufficient if such Act shall approve the substance thereof.
SECTION 903. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
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SECTION 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indenture.
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture.
The Company will have the right to require the Holder of a Security of
any series, in connection with the payment of the principal of and interest on
the Security, to present at either office or agency to be maintained by the
Company in accordance with Section 1002 a certificate, in such form as the
Company may from time to time prescribe, to enable it to determine its duties
and liabilities with respect to any taxes, assessments or governmental charges
which it may be required to deduct or withhold therefrom under any present or
future law of the Untied States of America or of any State, county, municipality
or taxing authority therein and giving, among other information, the identity
and residence of the Holder of such Security; and the Company will be entitled
to determine its duties and liabilities with respect to such deduction or
withholding on the basis of the information contained in such certificate or, if
no such certificate shall be so presented, on the basis of any presumption
created by any such law, and shall be entitled to act in accordance with such
determination.
SECTION 1002. Maintenance of Office or Agency.
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer, exchange or conversion and
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where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of such office or agency. If at any time the Company shall fail to maintain any
such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the Corporate Trust Office of the Trustee, and the Company hereby
appoints the Trustee as its agent to receive all such presentations, surrenders,
notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all such purposes and may from time to time rescind
such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such office
or agency.
SECTION 1003. Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with
respect to any series of Securities, it will, on or before each due date of the
principal of (and premium, 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, if any) or 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 (and
premium, if any) or interest on any Securities of that series, deposit with a
Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest so becoming due, such sum to be held in trust for the benefit of the
Persons entitled to such principal, premium or interest, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided,
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of principal (and premium, if any) or interest of the
Securities of that series; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (and premium, if
any) or interest on any Security of any series and remaining unclaimed for three
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in the Borough of Manhattan, The City of New York, notice that such
money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company or any Subsidiary; provided, however, that the Company
shall not be required to preserve any such right or franchise if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company or any Subsidiary and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 1005. Maintenance of Properties.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; provided, however, that
nothing in this Section shall prevent
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the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 1006. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 1007. Maintenance of Insurance.
The Company will insure and keep insured, and will cause each
Subsidiary to insure and keep insured, with reputable insurance companies, so
much of their respective properties, to such an extent and against such risks
(including fire), as companies engaged in similar businesses customarily insure
properties of a similar character; or, in lieu thereof, in the case of itself or
of any one or more of its Subsidiaries, the Company will maintain or cause to be
maintained a system or systems of self-insurance which will accord with the
approved practices of companies owning or operating properties of a similar
character and maintaining such systems, and, in such cases of self-insurance,
will maintain or cause to be maintained an insurance reserve or reserves in
adequate amounts.
SECTION 1008. Statement as to Compliance.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement signed by the principal executive
officer, the principal financial officer or the principal accounting officer,
stating that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision;
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation (determined without regard to any
period of grace or requirement of notice provided for in this
indenture), specifying each such default known to him and the nature
and status thereof, and (b) no event has occurred and is continuing
which is, or after notice or lapse of time or both would become, an
Event of Default under Clauses (3) or (5) of Section 501, or, if such
an event has occurred and is continuing, specifying each such event
known to him and the nature and status thereof; and
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(3) setting forth arithmetical computations sufficient to show
compliance with the provisions of Sections 1009 and 1010 during such
fiscal year.
SECTION 1009. Limitation Upon Mortgages.
The Company will not itself, and will not permit any Restricted
Subsidiary to, incur, issue, assume, guarantee or suffer to exist any
indebtedness for money borrowed (indebtedness for money borrowed (indebtedness
for money borrowed being hereinafter in this Section 1009 called "Debt") secured
by a Mortgage on any Principal Operating Property of the Company or any
Restricted Subsidiary, or any shares of stock of or Debt of any Restricted
Subsidiary, without effectively providing that the Securities (together with, if
the Company shall so determine, any other Debt of the Company or such Restricted
Subsidiary then existing or thereafter created which is not subordinate to the
Securities) shall be secured equally and ratably with (or, at the option of the
Company, prior to) such secured Debt, so long as such secured Debt shall be so
secured, unless after giving effect thereto, the aggregate amount of all such
secured Debt plus all Attributable Debt of the Company and its Restricted
Subsidiaries in respect of sale and leaseback transactions (as defined in
Section 1010, but excluding leases exempt from the prohibition of Section 1010
by Clauses (2) through (7), inclusive, thereof) would not exceed 5% of
Consolidated Net Worth; provided, however, that this Section 1009 shall not
apply to, and there shall be excluded from secured Debt in any computation under
this Section, Debt secured by:
(1) Mortgages on property of, or on any shares of stock of or
Debt of, any corporation existing at the time such corporation becomes
a Restricted Subsidiary;
(2) Mortgages in favor of the Company or any Restricted
Subsidiary;
(3) Mortgages in favor of any governmental body to secure
progress, advance or other payments pursuant to any contract or
provision of any statute;
(4) Mortgages on property (including leasehold estates),
shares of stock or Debt existing at the time of acquisition thereof
(including acquisition through merger or consolidation) or to secure
the payment of all or any part of the purchase price thereof or
construction thereon or to secure any Debt incurred prior to, at the
time of, or within 120 days after the latest of the acquisition, the
completion of construction or the commencement of full operation of
such property or within 120 days after the acquisition of such shares
or Debt for the purpose of financing all or any part of the purchase
price thereof or construction thereon, it being understood that if a
bona fide commitment from a bank, insurance company or other lender or
investor (not including the Company or any Subsidiary) for such
financing is made prior to or within such 120-day period, the
applicable Mortgage shall be deemed to be included in this Clause (4)
whether or not such Mortgage is created within such 120-day period; or
(5) any extension, renewal or replacement (or successive
extensions, renewals or replacements), as a whole or in part, of any
Mortgage referred to in the foregoing Clauses
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(1) to (4), inclusive, provided, that such extension, renewal or
replacement Mortgage shall be limited to all or part of the same
property, shares of stock or Debt that secured the Mortgage extended,
renewed or replaced (plus improvements on such property).
SECTION 1010. Limitation Upon Sale and Leaseback Transactions.
Except as hereinafter provided, the Company will not itself, and it
will not permit any Restricted Subsidiary to, enter into any transaction with
any bank, insurance company or other lender or investor, or to which any such
bank, company, lender or investor is a party, providing for the leasing by the
Company or a Restricted Subsidiary of any Principal Operating Property which has
been or is to be sold or transferred by the Company or such Restricted
Subsidiary to such bank, company, lender or investor, or to any Person to whom
funds have been or are to be advanced by such bank, company, lender or investor
on the security of such Principal Operating Property (herein referred to as a
"sale and leaseback transaction"). This covenant shall not apply to any sale and
leaseback transaction if:
(1) the Company or such Restricted Subsidiary could create
Debt secured by a Mortgage pursuant to Section 1009, without regard to
Clauses (1) through (5) thereof, on the Principal Operating Property to
be leased in an amount equal to the Attributable Debt with respect to
such sale and leaseback transaction without equally and ratably
securing the Securities; or
(2) the Company or a Restricted Subsidiary, within 120 days
after the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies on amount equal to the greater of the
net proceeds from the sale of the Principal Operating Property leased
pursuant to such arrangement or the fair market value of the Principal
Operating Property so leased at the time of entering into such
arrangement (as determined in any manner approved by the Board of
Directors) to the retirement of Funded Debt of the Company or a
Restricted Subsidiary (except that no Securities shall be retired if
such retirement of Securities pursuant to this provision would be
prohibited by Section 1101); provided, that the amount to be applied to
the retirement of Funded Debt of the Company or a Restricted Subsidiary
shall be reduced by (a) the principal amount of any Securities (or
other debentures or notes constituting Funded Debt of the Company or a
Restricted Subsidiary not subordinate to the Securities) delivered to
the Trustee or other applicable trustee for retirement and cancellation
within 75 days after such sale or transfer shall have been made and (b)
the principal amount of Funded Debt, other than Funded Debt included
under Clause (a), voluntarily retired by the Company or a Restricted
Subsidiary within 75 days after such sale (notwithstanding the
foregoing, no retirement referred to in this Clause (2) may be effected
by payment at maturity or pursuant to any mandatory sinking fund
payment or any mandatory prepayment provision); or
(3) the Company or a Restricted Subsidiary, within 120 days
after the sale or transfer shall have been made by the Company or by a
Restricted Subsidiary, applies an amount equal to the greater of the
net proceeds from the sale of the Principal Operating
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Property leased pursuant to such arrangement or the fair market value
of the Principal Operating Property so leased at the time of entering
into such arrangement (as determined in any manner approved by the
Board of Directors) to the purchase of a manufacturing plant and
related physical facilities similar to the Principal Operating Property
leased pursuant to such arrangement; or
(4) the sale or transfer of the Principal Operating Property
is made within 120 days after the latest to occur of the date of (a)
the acquisition of such Principal Operating Property, (b) the
completion of construction or (c) the commencement of full operation
thereof; or
(5) the sale or transfer of the Principal Operating Property
is made pursuant to a bona fide commitment for such sale or transfer
entered into with such bank, company, lender or investor within 120
days after the latest to occur of the events specified in Clause (4)
above; or
(6) the lease in such sale and leaseback transaction is for a
period, including renewals, of not in excess of three years; or
(7) such arrangement is between the Company and a Restricted
Subsidiary or between Restricted Subsidiaries.
SECTION 1011. Defeasance of Certain Obligations.
The Company may omit to comply with any term, provision or condition
set forth in Sections 1009 and 1010, with respect to the Securities if:
(1) With reference to this Section 1011, the Company has
deposited or caused to be irrevocably deposited with the Trustee (or
another trustee satisfying the requirements of Section 609) as trust
funds in trust, specifically pledged as security for, and dedicated
solely to, the benefit of the Holders of the Securities, (1) money in
an amount, or (ii) U.S. Government Obligations which through the
payment of interest and principal in respect thereof in accordance with
their terms will provide not later than one day before the due date of
any payment referred to in clause (A) or (B) of this subparagraph (1)
money in an amount, or (iii) a combination thereof, sufficient, in the
opinion of a nationally recognized firm of independent certified public
accountants expressed in a written certification thereof delivered to
the Trustee, to pay and discharge (A) the principal of (and premium, if
any) and each installment of principal of (and premium, if any) and
interest on the Outstanding Securities on the Stated Maturity of such
principal or installment of principal or interest and (B) any mandatory
sinking fund payments applicable to the Securities on the day on which
such payments are due and payable in accordance with the terms of the
Indenture and of the Securities;
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(2) Such deposit shall not cause the Trustee with respect to
the Securities to have a conflicting interest as defined in the Trust
Indenture Act with respect to the Securities;
(3) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) No Event of Default or event which with notice or lapse of
time would become an Event of Default with respect to the Securities
shall have occurred and be continuing on the date of such deposit;
(5) The Company has delivered to the Trustee an Opinion of
Counsel to the effect that Holders of the Securities will not recognize
income, gain or loss for Federal income tax purposes as a result of
such deposit and defeasance of certain obligations and will be subject
to Federal income tax on the same amount and in the same manner and at
the same times, as would have been the case if such deposit and
defeasance had not occurred; and
(6) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated
by this Section have been complied with.
SECTION 1012. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1010, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least a majority in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
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SECTION 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by a Certified Board Resolution. In case of any redemption at the election of
the Company of less than all the Securities of any series, the Company shall, at
least 45 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities of any series are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of
such series not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate (including by lot) and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof) of
the principal amount of Securities such series of a denomination larger than the
minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities selected
for partial redemption, the principal amount thereof to be redeemed.
If any Security selected for partial redemption is surrendered for
conversion pursuant to Article Thirteen after such selection, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Upon any redemption of less than all the Securities of
a series, for purposes of selection for redemption, the Company and the Trustee
may treat as Outstanding Securities surrendered for conversion during the period
of 15 days next preceding the mailing of a notice of redemption and need not
treat as Outstanding any Security authenticated and delivered during such period
in exchange for the unconverted portion of any Security converted in part during
such period.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption.
Notice of redemption shall be given by first class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
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Each notice of redemption (herein "Notice of Redemption") shall state:
(1) the Redemption Date,
(2) the Redemption Price and the Conversion Price, if any,
(3) if less than all of the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Securities
to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date,
(5) the place or places where such Securities are to be
surrendered for payment of the Redemption Price or for conversion, if
applicable,
(6) if the Securities called for redemption are subject to
Article Thirteen, that Securities called for redemption may be
converted, the requirements for conversion and the date on which the
right to convert Securities will expire, and
(7) that the redemption is for a sinking fund, if such is the
case.
Notice of Redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
which are to be redeemed on that date. If any Security called for redemption is
converted pursuant to Article Thirteen, any money deposited with the Trustee or
with a Paying Agent or segregated and held in trust for the redemption of such
Security shall be paid to the Company at the Company's request, or if then held
by the Company, shall be discharged from such trust.
SECTION 1106. Securities Payable on Redemption Date.
Notice of Redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest and shall cease to be
convertible.
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Upon surrender of any such Security for redemption in accordance with said
notice, such Security shall be paid by the Company at the Redemption Price,
together with accrued interest to the Redemption Date; provided, however, that
installments of interest whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security and remain convertible into Common Stock in accordance
with its terms.
SECTION 1107. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities of the same series and of like tenor, of
any authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
ARTICLE XII
SINKING FUNDS
SECTION 1201. Applicability of Article.
The provisions of this Article shall be applicable to any sinking fund
for the retirement of Securities of a series except as otherwise specified as
contemplated by Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any series,
the cash amount of any sinking fund payment may be subject to reduction as
provided in Section 1202. Each sinking fund payment shall be applied to the
redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company (1) may deliver Outstanding Securities of a series (other
than any previously called for redemption) and (2) may apply as a credit
Securities of a series which have been converted into Common Stock or which have
been redeemed either at the election of the Company pursuant to the terms of
such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, in each case in satisfaction
of all or any part of any sinking fund payment with respect to the Securities of
such series required to be made pursuant to the terms of such Securities as
provided for by the terms of such series; provided that such Securities have not
been previously so credited. Such Securities shall be received and credited for
such purpose by the Trustee at the Redemption Price specified in such Securities
for redemption through operation of the sinking fund and the amount of such
sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund.
Not less than 45 days prior to each sinking fund payment date for any
series of Securities, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
The Company's obligation to make a mandatory or optional sinking fund
payment shall automatically be reduced by an amount equal to the Redemption
Price allocable to any Securities or portion thereof called for redemption
pursuant to the preceding paragraph on any sinking fund payment date and
converted into Common Stock; provided, however, that if the Trustee is not the
Conversion Agent for the Securities, the Company or such Conversion Agent shall
give the Trustee written notice prior to the date fixed for redemption of the
principal amount of Securities or portions thereof so converted.
*****
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
ROHM AND HAAS COMPANY
By:
-------------------------------------
Edward E. Liebert
Treasurer
Attest:
- ---------------------------
Gail P. Granoff
Secretary [SEAL]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By:
-------------------------------------
Catherine Lenhardt
Authorized Officer
Attest:
- --------------------------- [SEAL]
<PAGE> 88
Schedule 305(h)(v)
We understand that the ____________________ of Rohm and Haas Company
(the "Securities") were issued in a transaction not involving any public
offering within the United States within the meaning of the Securities Act of
1933, as amended (the "Securities Act"), and that the Securities have not been
registered under the Securities Act, and we agree, on our own behalf and on
behalf of each account for which we acquire any Securities, that, if in the
future we decide to resell or otherwise transfer any Securities, such Securities
may be resold or otherwise transferred only (i) to Rohm and Haas Company or any
subsidiary thereof, (ii) pursuant to an effective registration statement under
the Securities Act, (iii) to a person who is a "qualified institutional buyer"
(as defined in Rule 144A under the Securities Act) in a transaction meeting the
requirements of Rule 144A, (iv) to an Institutional Accredited Investor (as
defined below) that, prior to such transfer, furnishes to Chase Manhattan Trust
Company, N.A., as Trustee (the "Trustee"), a signed letter substantially in the
form hereof, (v) outside the United States in a transaction meeting the
requirements of Rule 904 under the Securities Act or (vi) pursuant to the
exemption from registration provided by Rule 144 under the Securities Act (if
applicable) and (vii) in each case, in accordance with any applicable securities
laws of the United States or any other applicable jurisdiction and in accordance
with the legends set forth on the Securities. We further agree to provide any
person purchasing any of the Securities from us a notice advising such purchaser
that resales of such Securities are restricted as stated herein. We understand
that the registrar for the Securities will not be required to accept for
registration of transfer any Securities, except upon presentation of evidence
satisfactory to Rohm and Haas Company that the foregoing restrictions on
transfer have been complied with. We further understand that any Securities will
be in the form of definitive physical certificates and that such certificates
will bear a legend reflecting the substance of this paragraph.
We confirm that:
(i) we are an "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act (an "Institutional
Accredited Investor");
(ii) any purchase of Securities by us will be for our own
account or for the account of one or more Institutional Accredited
Investors or as fiduciary for the account of one or more trusts, each
of which is an "accredited investor" within the meaning of Rule
501(a)(7) under the Securities Act and for each of which we exercise
sole investment discretion;
(iii) in the event that we purchase any Securities, we will
acquire Securities having a minimum purchase price of not less than
$100,000 for our own account or for any separate account for which we
are acting;
(iv) we have such knowledge and experience in financial and
business matters that we are capable of evaluating the merits and risks
of purchasing the Securities; and
S-1
<PAGE> 89
(v) we are not acquiring the Securities with a view to
distribution thereof or with any present intention of offering or
selling the Securities, except as permitted above and provided that the
disposition of our property and property of any accounts for which we
are acting as fiduciary shall remain at all times within our control.
We acknowledge that Rohm and Haas Company, you and others will rely
upon our confirmations, acknowledgments and agreements set forth herein, and we
agree to notify you promptly in writing if any of our representations or
warranties herein ceases to be accurate and complete.
(Name of Purchaser)
By:
-------------------------------------
Name:
Title:
S-2
<PAGE> 1
Exhibit 4.2
ROHM AND HAAS COMPANY
$500,000,000 Notes due 2004
$500,000,000 Notes due 2009
$1,000,000,000 Debentures due 2029
REGISTRATION RIGHTS AGREEMENT
New York, New York
July 6, 1999
Salomon Smith Barney Inc.
Chase Securities Inc.
Goldman, Sachs & Co.
Banc One Capital Markets, Inc.
c/o Salomon Smith Barney Inc.
388 Greenwich Street
New York, New York 10013
Ladies and Gentlemen:
Rohm and Haas Company, a Delaware corporation (the "Company"), proposes
to issue and sell (the "Initial Placement") to Salomon Smith Barney Inc.,
Goldman, Sachs & Co., Chase Securities, Inc., First Chicago Capital Markets,
Inc. and the other purchasers listed in Schedule I to the Purchase Agreement
(the "Purchase Agreement") dated June 30, 1999 (collectively, the "Initial
Purchasers"), upon the terms set forth in the Purchase Agreement, $500,000,000
principal amount of its 6.95% Notes due 2004, $500,000,000 principal amount of
its 7.40% Notes due 2009 and $1,000,000,000 principal amount of its 7.95%
Debentures due 2029 (collectively, the "Securities"). The Securities will be
issued under an Indenture dated as of July 1, 1999 (the "Indenture") between the
Company and Chase Manhattan Trust Company, National Association, as trustee (the
"Trustee"). As an inducement to the Initial Purchasers to enter into the
Purchase Agreement and in satisfaction of a condition to your obligations
thereunder, the Company agrees with you, (i) for your benefit and (ii) for the
benefit of the holders from time to time (each of the foregoing a "Holder" and
together the "Holders") of the Securities or the Exchange Securities (as defined
herein), as follows:
1. Definitions. Capitalized terms used herein without definition shall
have their respective meanings set forth in the Purchase Agreement. As used in
this Agreement, the following capitalized defined terms shall have the following
meanings:
<PAGE> 2
"Act" means the Securities Act of 1933, as amended, and the rules and
regulations of the Commission promulgated thereunder.
"Affiliate" shall have the same meaning given to that term in Rule 405
of the Act of any successor rule thereunder.
"Closing Date" shall have the same meaning given to that term in the
Purchase Agreement.
"Commission" means the Securities and Exchange Commission.
"Depositary" means The Depository Trust Company, or any other
depositary appointed by the Company, provided, however, that such depositary
must have an address in the Borough of Manhattan, in the City of New York.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer" means the exchange offer by the Company of Exchange
Securities in exchange for the Securities effected pursuant to Section 2 hereof.
"Exchange Offer Registration Period" means the 180-day period following
the issuance of the Exchange Securities, exclusive of any period during which
any stop order shall be in effect suspending the effectiveness of the Exchange
Offer Registration Statement.
"Exchange Offer Registration Statement" means a registration statement
of the Company on an appropriate form under the Act with respect to the Exchange
Offer, and all amendments and supplements to such registration statement,
including post-effective amendments, in each case including the Prospectus
contained therein, all exhibits thereto and all material incorporated by
reference therein.
"Exchange Securities" means securities containing terms identical to
the Securities in all material respects (except for references to certain
interest rate provisions, restrictions on transfers and restrictive legends), to
be offered to Holders of Securities in exchange for Securities pursuant to the
Exchange Offer.
"Exchanging Dealer" means any Holder (which may include any Initial
Purchaser) which is a broker-dealer electing to exchange Securities acquired for
its own account as a result of market-making activities or other trading
activities for Exchange Securities from whom the Company has received notice
that it will be an Exchanging Dealer.
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<PAGE> 3
"Final Offering Memorandum" shall have the meaning set forth in the
Purchase Agreement.
"Holder" has the meaning set forth in the preamble hereto.
"Indenture" has the meaning set forth in the preamble hereto.
"Initial Placement" has the meaning set forth in the preamble hereto.
"Letter of Transmittal" has the meaning set forth in Section 2(c)
hereof.
"Liquidated Damages" has the meaning set forth in Section 7(a) hereof.
"Majority Holders" means the Holders of a majority of the aggregate
principal amount of securities registered under a Registration Statement.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Prospectus" means the prospectus included in any Registration
Statement (including a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A under the Act), as amended or supplemented by any
prospectus supplement, with respect to the terms of the offering of any portion
of the Securities or the Exchange Securities, covered by such Registration
Statement, and all amendments and supplements to the Prospectus, including
post-effective amendments.
"Registration Statement" means any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, and
amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Securities" has the meaning set forth in the preamble hereto.
"Shelf Registration" means a registration effected pursuant to Section
3 hereof.
"Shelf Registration Event" has the meaning set forth in Section 3
hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
3
<PAGE> 4
"Shelf Registration Statement" means a "shelf" registration statement
of the Company pursuant to the provisions of Section 3 hereof which covers some
or all of the Securities or the Exchange Securities, as applicable, on an
appropriate form under Rule 415 under the Act, or any similar rule that may be
adopted by the Commission, and amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Special Counsel" means Mayer, Brown & Platt or such other single
counsel as shall be specified by the Majority Holders of securities included in
the relevant Registration Statement, the fees and expenses of which will be paid
by the Company pursuant to Section 5 hereof.
"Trustee" has the meaning set forth in the preamble hereto.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Underwriter" means any underwriter of Securities or Exchange
Securities in connection with an offering thereof under a Shelf Registration
Statement.
2. Exchange Offer; Resales of Exchange Securities by Exchanging
Dealers.
(a) The Company shall, for the benefit of the Holders, at the Company's
cost, use its reasonable best efforts to (i) prepare and, as soon as practicable
but not later than 90 days following the Closing Date, file with the Commission
an Exchange Offer Registration Statement on an appropriate form under the Act
with respect to the proposed Exchange Offer and the issuance and delivery to the
Holders, in exchange for the Securities, of a like principal amount of Exchange
Securities, (ii) cause the Exchange Offer Registration Statement to be declared
effective under the Act within 150 days of the Closing Date, (iii) keep the
Exchange Offer Registration Statement effective until the closing of the
Exchange Offer and (iv) cause the Exchange Offer to be consummated not later
than 180 days following the Closing Date.
Each Holder participating in the Exchange Offer shall be required, as a
condition to such participation, to represent in writing to the Company that, at
the time of the consummation of the Exchange Offer, such Holder (a) is not an
affiliate of the Company within the meaning of Rule 405 under the Act, (b) is
not a broker-dealer tendering Securities acquired directly from the Company for
its own account, (c) acquired the Securities and will acquire the Exchange
Securities in the ordinary course of such Holder's business and (d) has no
arrangements or understandings with any Person for the purpose of distributing
the Exchange Securities.
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<PAGE> 5
The Exchange Securities shall be issued under (i) the Indenture or (ii)
an indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act, or is exempt from
such qualification and shall provide that the Exchange Securities shall not be
subject to the transfer restrictions set forth in the Indenture. The Indenture
or such indenture shall provide that the Exchange Securities and the Securities
having the same interest rate and maturity shall vote and consent together on
all matters as one class and that none of the Exchange Securities or the
Securities having the same interest rate and maturity will have the right to
vote or consent as a separate class on any matter.
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Exchange Offer, it being the
objective of such Exchange Offer to enable each Holder electing to exchange
Securities for Exchange Securities (assuming that such Holder is not an
Affiliate of the Company, acquired the Securities and acquires the Exchange
Securities in the ordinary course of such Holder's business and has no
arrangements with any person to participate in the distribution (within the
meaning of the Act) of the Exchange Securities) to transfer such Exchange
Securities from and after their receipt without any limitations or restrictions
under the Act or state securities or "blue sky" laws.
(c) In connection with the Exchange Offer, the Company shall:
(i) mail as promptly as practicable to each Holder a copy of
the Prospectus forming part of the Exchange Offer Registration
Statement, together with an appropriate letter of transmittal and
related documents relating to the Exchange Offer ("Letter of
Transmittal");
(ii) keep the Exchange Offer open for not less than 30 days
after the date notice thereof is mailed to the Holders (or longer if
required by applicable law) (the "Exchange Period");
(iii) utilize the services of a depositary for the Exchange
Offer with an address in the Borough of Manhattan, The City of New
York;
(iv) permit Holders to withdraw tendered Securities at any
time prior to 5:00 p.m. (Eastern Standard Time), on the last business
day of the Exchange Period, by sending to the institution specified in
the notice, a telegram, telex, facsimile transmission or letter setting
forth the name of such Holder, the principal amount of Securities
delivered for exchange, and a statement that such Holder is withdrawing
such Holder's election to have such Securities exchanged;
(v) notify each Holder that any Security not tendered will
remain outstanding and continue to accrue interest, but will not retain
any rights under this Agreement (except in the case of an Exchanging
Dealer as provided herein); and
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<PAGE> 6
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Exchange Offer, the
Company shall:
(i) accept for exchange all Securities validly tendered and
not withdrawn pursuant to the Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Trustee promptly to authenticate and deliver
Exchange Securities to the Depositary for the benefit of each Holder of
Securities so accepted for exchange in a principal amount equal to the
principal amount of the Securities of such Holder so accepted for
exchange.
(e) The Initial Purchasers and the Company acknowledge that, pursuant
to interpretations by the Commission's staff of Section 5 of the Act, and in the
absence of an applicable exemption therefrom, each Exchanging Dealer is required
to deliver a Prospectus (the "Post-Exchange Prospectus") in connection with a
sale of any Exchange Securities received by such Exchanging Dealer pursuant to
the Exchange Offer in exchange for Securities acquired for its own account as a
result of market-making activities or other trading activities. Accordingly, the
Company shall:
(i) include the information set forth in Annex A hereto on the
cover of the Prospectus contained in the Exchange Offer Registration
Statement, in Annex B hereto in the forepart of the Exchange Offer
Registration Statement in a section setting forth details of the
Exchange Offer, and in Annex C hereto in the underwriting or plan of
distribution section of the Prospectus forming a part of the Exchange
Offer Registration Statement, and include the information set forth in
Annex D hereto in each Letter of Transmittal delivered pursuant to each
Exchange Offer; and
(ii) use its reasonable best efforts to keep the Exchange
Offer Registration Statement continuously effective under the Act
during the Exchange Offer Registration Period for delivery of the
Prospectus forming a part thereof by Exchanging Dealers in connection
with sales of Exchange Securities received pursuant to the Exchange
Offer, as contemplated by Section 4(h) below.
(f) In the event that the Initial Purchasers determine that they are
not eligible to participate in the Exchange Offer with respect to the exchange
of Securities constituting any portion of their initial unsold allotment, at the
request of the Initial Purchasers, the Company shall issue and deliver to the
Initial Purchasers, in exchange for such Securities, a like principal
6
<PAGE> 7
amount of Exchange Securities (provided that such Exchange Securities shall
include legends with respect to restrictions on transfer), and the Company
shall, starting on the date of effectiveness of the Exchange Offer Registration
Statement and ending on the close of business on the 180th day following such
date, make available as many copies of the Exchange Offer Registration Statement
prospectus, as amended or supplemented, as reasonably requested by the Initial
Purchasers. The Company shall seek to cause the CUSIP Service Bureau to issue
the same CUSIP number(s) for such securities as for the corresponding Exchange
Securities issued pursuant to the Exchange Offer. The Initial Purchasers agree
to promptly notify the Company in writing following the resale of their initial
allotment of Securities.
(g) Interest on each Exchange Security will accrue from the last date
on which interest was paid on the Securities surrendered in exchange therefor
or, if no interest has been paid on the Securities, from the date of original
issuance. The Exchange Offer shall not be subject to any conditions, other than
(i) that the Exchange Offer, or the making of any exchange by a Holder, does not
violate applicable law or any applicable interpretation of the staff of the
Commission, (ii) the due tendering of Securities shall be in accordance with the
Exchange Offer, (iii) that each Holder of Securities exchanged in the Exchange
Offer shall have made the representations set forth above in this Section 2 and
such other representations as may be reasonably necessary under applicable
Commission rules, regulations or interpretations to render the use of Form S-4
or other appropriate form under the Act available and (iv) that no action or
proceeding shall have been instituted or threatened in any court or by or before
any governmental agency with respect to the Exchange Offer which, in the
Company's judgment, would reasonably be expected to impair the ability of the
Company to proceed with the Exchange Offer. The Company shall inform the Initial
Purchasers of the names and addresses of the Holders to whom the Exchange Offer
is made, and the Initial Purchasers shall have the right to contact such Holders
and otherwise facilitate the tender of Securities in the Exchange Offer.
3. Shelf Registration. If, (i) because of any change in law or in
currently prevailing interpretations thereof by the Commission's staff, the
Company is not permitted to effect the Exchange Offer as contemplated by Section
2 hereof, (ii) the Exchange Offer is not consummated within 180 days after the
Closing Date, (iii) upon the request of any of the Initial Purchasers within 60
days after consummation of the Exchange Offer with respect to Securities that
are not eligible to be exchanged for Exchange Securities in the Exchange Offer
or with respect to Exchange Securities received by the Initial Purchasers in the
Exchange Offer that are not freely tradeable or (iv) if a Holder identified in
writing to the Company (other than an Initial Purchaser) is not permitted by
applicable law to participate in the Exchange Offer or elects to participate in
the Exchange Offer but does not receive freely tradeable Exchange Securities
pursuant to the Exchange Offer (other than due solely to the status of such
Holder as an Affiliate of the Company or as a broker-dealer) and, in the
reasonable opinion of the Company, cannot deliver the Exchange Offer
Registration Statement in connection with its sale of the Exchange Securities
(it being understood that, for purposes of this Section 3, (x) the requirement
that the Initial Purchasers deliver a Prospectus containing the information
required by Items 507 and/or
7
<PAGE> 8
508 of Regulation S-K under the Act in connection with sales of Exchange
Securities acquired in exchange for such Securities shall result in such
Exchange Securities being not "freely tradeable" but (y) the requirement that an
Exchanging Dealer deliver a Prospectus in connection with sales of Exchange
Securities acquired in the Exchange Offers in exchange for Securities acquired
as a result of market-making activities or other trading activities shall not
result in such Exchange Securities being not "freely tradeable") (the events
described in clauses (i) through (iv) of this paragraph are each referred to
herein as a "Shelf Registration Event"), the following provisions shall apply:
(a) The Company shall promptly deliver to the applicable Holders
written notice of a Shelf Registration Event and, as promptly as practicable,
file with the Commission and thereafter use its reasonable best efforts to cause
to be declared effective under the Act, a Shelf Registration Statement relating
to the offer and sale of the applicable Securities or the applicable Exchange
Securities, as the case may be, by the applicable Holders from time to time in
accordance with the methods of distribution elected by such Holders and set
forth in such Shelf Registration Statement; provided, however, that with respect
to Exchange Securities received by the Initial Purchasers in exchange for
Securities constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement containing
the information required by Regulation S-K Items 507 and/or 508, as applicable,
in satisfaction of their obligations under this paragraph (a) with respect
thereto, and any such Exchange Offer Registration Statement, as so amended,
shall be referred to herein as, and governed by the provisions herein applicable
to, a Shelf Registration Statement.
(b) The Company shall use its reasonable best efforts to keep such
Shelf Registration Statement continuously effective in order to permit the
Prospectus forming part thereof to be usable by such Holders for a period of two
years after the issuance of the Securities (or, if Rule 144(k) is amended to
provide a shorter restrictive period, such shorter period) or such shorter
period that will terminate when all the Securities or Exchange Securities, as
applicable, covered by such Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement (in any such case, such period being called
the "Shelf Registration Period").
(c) The Company shall not permit any securities other than Securities
to be included in the Shelf Registration Statement. The Company further agrees,
if necessary, to supplement or amend the Shelf Registration Statement, as
required by Section 4(k) below, and to furnish to the Holders of Registrable
Securities copies of any such supplement or amendment promptly after its being
used or filed with the Commission.
4. Registration Procedures. In connection with any Shelf Registration
Statement and, to the extent specified, any Exchange Offer Registration
Statement, the following provisions shall apply:
8
<PAGE> 9
(a) The Company shall furnish to each Initial Purchaser, prior to the
filing thereof with the Commission, a copy of any Shelf Registration Statement
and any Exchange Offer Registration Statement, and each amendment thereof and
each amendment or supplement, if any, to the Prospectus included therein and the
Company shall, if reasonably requested, promptly incorporate in such
Registration Statement, such information and comments as the Initial Purchasers
reasonably agree with the Company and its counsel should be included therein.
(b) The Company shall ensure that, subject to Section 4(k), (i) any
Registration Statement and any amendment thereto and any Prospectus forming a
part thereof and any amendment or supplement thereto complies in all material
respects with the Act, (ii) any Registration Statement and any amendment thereto
does not, when it becomes effective, contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading and (iii) any Prospectus forming
part of any Registration Statement, and any amendment or supplement to such
Prospectus, does not, during the period when delivery thereof is required,
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the circumstances
under which they were made, not misleading.
(c)(1) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby and, if requested by you or any such Holder, confirm
such advice in writing:
(i) when a Registration Statement and any amendment
thereto has been filed with the Commission and when a
Registration Statement or any post-effective amendment thereto
has become effective; and
(ii) of any request by the Commission for amendments
or supplements to a Registration Statement or the Prospectus
included therein or for additional information (and shall
provide to the Initial Purchasers a copy of any such request
by the Commission).
(2) The Company shall advise the Initial Purchasers and, in
the case of a Shelf Registration Statement, the Holders of securities
covered thereby, and, in the case of an Exchange Offer Registration
Statement, any Exchanging Dealer that has provided in writing to the
Company a telephone or facsimile number and address for notices, and,
if requested by you or any such Holder or Exchanging Dealer, confirm
such advice in writing:
(i) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement
or the initiation of any proceedings for that purpose;
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<PAGE> 10
(ii) of the receipt by the Company of any
notification with respect to the suspension of the
qualification of the securities included therein for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose; and
(iii) of the suspension of the use of a Prospectus.
(d) Subject to Section 4(k), the Company shall use its reasonable best
efforts to prevent the issuance or obtain the withdrawal of any order suspending
the effectiveness or use of any Registration Statement at the earliest possible
time.
(e) The Company shall furnish to each Holder of securities included
within the coverage of any Shelf Registration Statement, without charge, at
least one copy of such Shelf Registration Statement and any post-effective
amendment thereto, including financial statements and schedules, and, if the
Holder so requests in writing, all exhibits (including those incorporated by
reference).
(f) Subject to Section 4(k), the Company shall, during the Shelf
Registration Period, as promptly as is reasonably practicable deliver to each
Holder of securities included within the coverage of any Shelf Registration
Statement, without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and any
amendment or supplement thereto as such Holder may reasonably request; and
subject to Section 4(k), the Company consents to the use of the Prospectus or
any amendment or supplement thereto as to which no notice has been given
pursuant to paragraph 4(c)(2) by each of the selling Holders of securities in
connection with the offering and sale of the securities covered by the
Prospectus or any amendment or supplement thereto.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, any documents incorporated by reference therein, and,
if the Exchanging Dealer so requests in writing, all exhibits (including those
incorporated by reference).
(h) Subject to Section 4(k), the Company shall, during the Exchange
Offer Registration Period, promptly deliver to each Exchanging Dealer, without
charge, as many copies of the Prospectus included in such Exchange Offer
Registration Statement and any amendment or supplement thereto as such
Exchanging Dealer may reasonably request for delivery by such Exchanging Dealer
in connection with a sale of Exchange Securities received by it pursuant to the
Exchange Offer; and subject to Section 4(k), the Company consents to the use of
the Prospectus or any amendment or supplement thereto as to which no notice has
been given pursuant to paragraph 4(c)(2) by any such Exchanging Dealer, as
aforesaid.
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<PAGE> 11
(i) Prior to the Exchange Offer or the effectiveness of a Registration
Statement, the Company shall, if required by applicable law, register or qualify
or cooperate with the Holders of securities included therein and their
respective counsel in connection with the registration or qualification of such
securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any such Holders reasonably request in writing and do any and
all other acts or things necessary or advisable to enable the offer and sale in
such United States jurisdictions of the securities covered by such Registration
Statement; provided, however, that the Company will not be required to (1)
qualify generally to do business as a foreign corporation or as a dealer in
securities in any jurisdiction where it would not otherwise be required to so
qualify but for this Section 4(i), (2) file any general consent to service of
process in any jurisdiction where it is not as of the date hereof so subject or
(3) subject itself to taxation in any jurisdiction where it is not otherwise
subject.
(j) Unless the applicable securities shall be in book-entry only form,
the Company shall cooperate with the Holders of Securities or Exchange
Securities to facilitate the timely preparation and delivery of certificates
representing Securities or Exchange Securities to be sold pursuant to any
Registration Statement free of any restrictive legends and in such denominations
and registered in such names as Holders may request prior to sales of Securities
or Exchange Securities pursuant to such Registration Statement.
(k) Upon the occurrence of any event contemplated by paragraphs
(c)(1)(ii), (c)(2)(i) or (c)(2)(iii) above, the Company agrees to notify the
Initial Purchasers, and in the case of a Shelf Registration Statement, the
Holders of securities covered thereby, to suspend use of the Prospectus and the
Company shall prepare, using its reasonable best efforts to do so as soon as
possible, a post-effective amendment to any Registration Statement or an
amendment or supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the securities
included therein, the Prospectus will not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading and the Initial Purchasers, and in the case of a Shelf
Registration Statement, the Holders of securities covered thereby, shall suspend
use of such Prospectus until the Company has amended or supplemented such
Prospectus so that such Prospectus does not contain any such untrue statement or
omission.
(l) The Company shall use its reasonable best efforts to cause The
Depository Trust Company ("DTC") on the first business day following the
effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from any existing CUSIP number assigned to any
Securities, any designation indicating that such Securities are "restricted
securities," which efforts shall include delivery to DTC of a letter executed by
the Company substantially in the form of Annex E hereto and (ii) any other stop
or restriction on DTC's system with respect to such Securities. In the event the
Company is unable to cause DTC to take the actions described in the immediately
preceding sentence, the Company
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<PAGE> 12
shall take such actions as the Initial Purchasers may reasonably request to
provide, as soon as practicable, a CUSIP number for each series of Securities
registered under such Registration Statement and to cause such CUSIP numbers to
be assigned to such Securities (or to the maximum aggregate principal amount of
such Securities to which such number(s) may be assigned). Upon compliance with
the foregoing requirements of this Section 4(1), the Company shall provide the
Trustee with printed certificates for each series of Securities, in a form
eligible for deposit with DTC.
(m) The Company shall use its reasonable best efforts to comply with
all applicable rules and regulations of the Commission and shall make generally
available to its security holders as soon as practicable after the effective
date of the applicable Registration Statement an earnings statement satisfying
the provisions of Section 11(a) of the Act.
(n) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement and each Exchanging Dealer required
to deliver a Prospectus to furnish to the Company such information regarding
such Holder and the distribution of such securities by such Holder as the
Company may from time to time reasonably require for inclusion in such
Registration Statement and securities of a Holder that does not provide
information necessary for inclusion in such Registration Statement may be
omitted from any Shelf Registration Statement or any Post-Exchange Prospectus.
(o) The Company shall, if reasonably requested, and in no event more
than one time, promptly incorporate in a Prospectus supplement or post-effective
amendment to a Shelf Registration Statement, such information as the Managing
Underwriters and Holders of a majority in aggregate principal amount of each
series of Securities reasonably agree with the Company and its counsel should be
included therein and shall make all required filings of such Prospectus
supplement or post-effective amendment as soon as notified of the matters to be
incorporated in such Prospectus supplement or post-effective amendment provided
that the Company shall not be required to take any action under this Section
4(o) that is not in the reasonable opinion of counsel for the Company in
compliance with applicable law.
(p) In the case of any Shelf Registration Statement, the Company shall
enter into such customary agreements (including underwriting agreements) and
take all other appropriate and reasonably required actions in connection
therewith in order to expedite or facilitate the registration or the disposition
of the applicable Securities or the applicable Exchange Securities, as the case
may be, and in connection therewith, if an underwriting agreement is entered
into, cause the same to contain indemnification provisions and procedures no
less favorable than those set forth in Section 6 (or such other provisions and
procedures acceptable to Holders of a majority in aggregate principal amount of
each applicable series of Securities and the Managing Underwriters, if any) with
respect to all parties to be indemnified pursuant to Section 6.
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(q) In the case of any Shelf Registration Statement, the Company shall
(i) make reasonably available for inspection by the Holders of securities to be
registered thereunder, subject to their acceptance of the provisions of this
Section 4(q), any underwriter participating in any distribution pursuant to such
Registration Statement, and any Special Counsel, accountant or other agent
retained by such Holders or any such underwriter, all relevant financial and
other records, pertinent corporate documents and properties of the Company and
its subsidiaries as shall reasonably be required in connection with the
discharge of their due diligence obligations; (ii) cause the Company's officers,
directors and employees and any relevant trustee to supply all relevant
information reasonably requested by such Holders or any such underwriter,
Special Counsel, accountant or agent in connection with any such Registration
Statement as is customary for similar due diligence examinations; provided,
however, that, in the case of clause (i) and (ii) above, any information that is
designated in writing by the Company, in good faith, as confidential at the time
of delivery of such information shall be kept confidential by such Holders and
any such underwriter, Special Counsel, accountant or agent, unless such
disclosure is made in connection with a court proceeding or as required by law
after notice has been given to the Company of such pending disclosure and a
reasonable opportunity has been provided, whenever reasonably possible, for the
Company to obtain an appropriate protective order for the information to be
disclosed, or such information becomes available to the public generally or
through a third party without an accompanying obligation of confidentiality; and
provided further, however, that the foregoing inspection and information
gathering shall be coordinated on behalf of such Holders and the other parties
entitled thereto by the Special Counsel; (iii) make such representations and
warranties to the Holders of securities registered thereunder and the
underwriters, if any, in form, substance and scope as are customarily made by
issuers to underwriters in secondary offerings and covering such matters as are
customarily covered in representations and warranties requested in secondary
offerings; (iv) obtain opinions of the general counsel of the Company and
updates thereof addressed to each selling Holder of securities registered
thereunder (if requested by the Majority Holders) and the underwriters, if any,
covering such matters and with such exceptions as are customarily covered or
taken in opinions requested in secondary offerings; (v) obtain "cold comfort"
letters and updates thereof from the independent certified public accountants of
the Company (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each selling Holder
of securities registered thereunder (if requested by the Majority Holders) and
the underwriters, if any, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with secondary
offerings; and (vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if any, or
their counsel including those to evidence compliance with Section 4(k) and with
conditions customarily contained in the underwriting agreement or other
agreement entered into by the Company. The foregoing actions set forth in
clauses (iii), (iv), (v) and (vi) of this Section 4(q) shall be performed at (A)
the effectiveness of such Registration Statement and each post-
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effective amendment thereto and (B) the closing under an underwriting or similar
agreement as and to the extent required thereunder.
Notwithstanding the foregoing, the Company shall not be required to
comply with the foregoing actions set forth in clauses (i) through (vi) above
more than once in connection with an underwritten offering pursuant to a Shelf
Registration Statement and the only Holders that may participate in any such
underwritten offering are those that agree to enter into customary agreements
and provide required information.
(r) In the case of any Exchange Offer Registration Statement, if
requested by the Initial Purchasers, the Company shall (i) make reasonably
available for inspection by the Initial Purchasers, subject to their acceptance
of the provisions of this Section 4(r), and any Special Counsel, accountant or
other agent retained by the Initial Purchasers, all relevant financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries as shall reasonably be required in connection with the discharge of
their due diligence obligations; (ii) cause the Company's officers, directors
and employees and any relevant trustee to supply all relevant information
reasonably requested by the Initial Purchasers or any such Special Counsel,
accountant or agent in connection with any such Registration Statement as is
customary for similar due diligence examinations; provided, however, that, in
the case of clause (i) and (ii) above, any information that is designated in
writing by the Company, in good faith, as confidential at the time of delivery
of such information shall be kept confidential by the Initial Purchasers and any
such Special Counsel, accountant or agent, unless such disclosure is made in
connection with a court proceeding or as required by law after notice has been
given to the Company of such pending disclosure and a reasonable opportunity has
been provided, whenever reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or such
information becomes available to the public generally or through a third party
without an accompanying obligation of confidentiality; and provided further,
however, that the foregoing inspection and information gathering shall be
coordinated on behalf of the Initial Purchasers and other parties entitled
thereto by the Special Counsel and other parties; (iii) make such
representations and warranties to the Initial Purchasers, in form, substance and
scope as are customarily made by issuers to underwriters in secondary offerings
and covering such matters as are customarily covered in representations and
warranties requested in secondary offerings; and (iv) deliver such documents and
certificates as may be reasonably requested by the Initial Purchasers or their
counsel, including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements. The foregoing
actions set forth in clauses (iii) and (iv) of this Section 4(r) shall be
performed, if reasonably requested by the Initial Purchasers, at the closing of
each of the Exchange Offers and the effective date of any post-effective
amendment to the Exchange Offer Registration Statement.
(s) The Company shall cause the Indenture to be qualified under the
Trust Indenture Act in a timely manner.
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<PAGE> 15
5. Registration Expenses. The Company shall bear all expenses incurred
in connection with the performance of their obligations under Sections 2, 3 and
4 hereof (other than any underwriting discounts or commissions) and, in the
event of any Shelf Registration Statement, will reimburse the applicable Holders
for the reasonable fees and disbursements of the Special Counsel designated in
connection therewith.
6. Indemnification; Contribution.
(a) The Company will indemnify and hold harmless each Holder and each
Exchanging Dealer against any losses, claims, damages or liabilities, joint or
several, to which such Holder or Exchanging Dealer may become subject, under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any preliminary
Prospectus, any preliminary Prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Exchange Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and, except as provided in (c) below,
will reimburse each Holder and Exchanging Dealer for any legal or other expenses
reasonably incurred by such Holder or Exchanging Dealer in connection with
investigating or defending any such action or claim; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any preliminary
Prospectus, any preliminary Prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or the Exchange Securities, or any amendment or supplement
thereto, in reliance upon and in conformity with written information furnished
to the Company by any Holder or Exchanging Dealer expressly for inclusion in the
Prospectus; provided further, that if any preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities or the Exchange Securities, or
any amendment or supplement thereto, contained any alleged untrue statement or
allegedly omitted to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading and such statement or
omission shall have been corrected in a revised preliminary Prospectus, any
preliminary Prospectus supplement, the Prospectus as amended or supplemented and
any other prospectus relating to the Securities or the Exchange Securities, or
any amendment or supplement thereto, the Company shall not be liable to any
Holder or Exchanging Dealer under this subsection (a) with respect to such
alleged untrue statement or alleged omission to the extent that any such loss,
claim, damage or liability of such Holder or Exchanging Dealer results from the
fact that such Holder or Exchanging Dealer sold Securities or Exchange
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of a revised preliminary Prospectus
(excluding documents incorporated by reference), preliminary Prospectus
supplement (excluding documents incorporated by reference), the
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<PAGE> 16
Prospectus (excluding documents incorporated by reference), the Prospectus as
amended or supplemented (excluding documents incorporated by reference), any
other amended prospectus relating to the Securities or the Exchange Securities
(excluding documents incorporated by reference) or any amendment or supplement
thereto relating to the Securities or the Exchange Securities (excluding
documents incorporated by reference), as the case may be, containing a
correction of such alleged misstatement or omission, if the Company has made
available copies thereof to such Holder or Exchanging Dealer prior to the
confirmation of such sale; and provided, further, that the Company shall not be
liable to any Holder or Exchanging Dealer under this subsection (a) to the
extent that any such loss, claim, damage or liability of such Holder or
Exchanging Dealer results from the use by such Holder or Exchanging Dealer of
the Prospectus as then amended or supplemented (excluding documents incorporated
by reference) (i) otherwise than in connection with an offer or sale of the
Securities or the Exchange Securities, or (ii) at any time nine months or more
after the time of effectiveness of the Prospectus as amended or supplemented
unless the Company has prior to such use amended or supplemented the Prospectus
as amended or supplemented to comply with Section 10(a)(3) of the Act if
required pursuant to Section 5(b) thereof and such Holder or Exchanging Dealer
uses the Prospectus as then amended or supplemented.
Each Holder and Exchanging Dealer acknowledges that the indemnity
agreement in this subsection (a) does not extend to any liability which such
Holder or Exchanging Dealer might have under Section 5(b) of the Act by reason
of the fact that such Holder or Exchanging Dealer sold Securities or Exchange
Securities to a person to whom there was not sent or given, at or prior to the
written confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the
Securities or the Exchange Securities (excluding documents incorporated by
reference) or any amendment or supplement relating thereto (excluding documents
incorporated by reference), as the case may be, if the Company has made
available copies thereof to such Holder or Exchanging Dealer.
For purposes of this subsection (a) the Prospectus (excluding documents
incorporated by reference), the Prospectus as amended or supplemented (excluding
documents incorporated by reference), any other prospectus relating to the
Securities or the Exchange Securities (excluding documents incorporated by
reference) or any amendment or supplement relating thereto (excluding documents
incorporated by reference), shall not be deemed to have been made available to a
Holder or Exchanging Dealer until such Holder or Exchanging Dealer has received
the same.
(b) Each Holder and Exchanging Dealer will indemnify and hold harmless
the Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any preliminary Prospectus, any preliminary Prospectus
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<PAGE> 17
supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or the Exchange
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
preliminary Prospectus, any preliminary Prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities or the Exchange Securities, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by such Holder or Exchanging Dealer expressly for
inclusion therein; and, except as provided in (c) below, will reimburse the
Company for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof, and in the event that such indemnified party shall not so
notify the indemnifying party within 30 days following receipt of any such
notice by such indemnified party, the indemnifying party shall have no further
liability under such subsection to such indemnified party unless such
indemnifying party shall have received other notice addressed and delivered in
the manner provided in Section 8(c) hereof of the commencement of such action;
but the omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than under
such subsection. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the commencement
thereof as provided above, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party, and, after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party shall not be liable to such
indemnified party under such subsection for any legal expenses of other counsel
or any other expenses, in each case subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnification provided for in this Section 6 is
unavailable to an indemnified party under subsection (a) or (b) above in respect
of any losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall, in lieu of indemnifying
such indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and the Holders and
Exchanging Dealers on the other from the
17
<PAGE> 18
offering of the Securities or Exchange Securities to which such loss, claim,
damage or liability (or action in respect thereof) relates. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Holders and Exchanging Dealers on
the other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof), as well
as any other relevant equitable considerations. The benefits received by the
Company shall be deemed to be equal to the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Final Offering Memorandum. Benefits received by the Initial Purchasers shall be
deemed to be equal to the total purchase discounts and commissions as set forth
on the cover page of the Final Offering Memorandum, and benefits received by any
other Holders or Exchanging Dealers shall be deemed to be equal to the value of
receiving Securities or Exchange Securities, as applicable, registered under the
Act. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company on the one hand or such Holders or Exchanging Dealers on
the other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
the Holders and Exchanging Dealers agree that it would not be just and equitable
if contribution pursuant to this subsection (d) were determined by pro rata
allocation (even if the Holders and Exchanging Dealers 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 above in this
subsection (d). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (d), no Holder or Exchanging Dealer shall be
required to contribute any amount in excess of the amount by which the total
price at which the applicable Securities or Exchange Securities sold pursuant to
the Registration Statement exceeds the amount of any damages which such Holder
or Exchanging Dealer has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Holders and Exchanging
Dealers in this subsection (d) to contribute are several and not joint.
(e) The obligations of the Company under this Section 6 shall be in
addition to any liability that the Company may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of a Holder or
Exchanging Dealer and to each person, if any, who controls a Holder or
Exchanging Dealer within the meaning of the Act or the Exchange
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<PAGE> 19
Act; and the obligations of the Holders and Exchanging Dealers under this
Section 6 shall be in addition to any liability that the respective Holders and
Exchanging Dealers may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act or the Exchange Act.
7. Liquidated Damages Under Certain Circumstances. (a) Liquidated
damages ("Liquidated Damages") shall become payable in respect of the Securities
as follows if any of the following events occur (each such event in clauses (i)
through (iv) below, a "Registration Default"):
(i) neither the Exchange Offer Registration Statement nor the
Shelf Registration Statement is filed with the Commission on or prior
to 90th calendar day following the Closing Date;
(ii) in the event that the Company is permitted under the law
and currently prevailing interpretations of the Commission's staff to
effect the Exchange Offers and the Exchange Offer Registration
Statement is not declared effective on or prior to the 150th calendar
day following the Closing Date or the Exchange Offers are not
consummated on or prior to the 180th calendar day following the Closing
Date;
(iii) in the event the Company is required to file a Shelf
Registration Statement, the Shelf Registration Statement is not
declared effective on or prior to the 210th day following the Closing
Date; or
(iv) after a Shelf Registration Statement is declared
effective, (A) such Shelf Registration Statement ceases to be effective
prior to the end of the Shelf Registration Period (except as permitted
in paragraph (b) of this Section 7); (B) such Shelf Registration
Statement or the related Prospectus ceases to be useable in connection
with resales of Securities or Exchange Securities, as the case may be,
covered by such Shelf Registration Statement prior to the end of the
Shelf Registration Period (except as permitted in paragraph (b) of this
Section 7) because (1) the Company determines that an event occurs as a
result of which the related Prospectus forming part of such Shelf
Registration Statement would include any untrue statement of a material
fact or omit to state a material fact necessary to make the statements
therein in the light of the circumstances under which they were made
not misleading, (2) the Company determines that it shall be necessary
to amend such Shelf Registration Statement, or supplement the related
Prospectus, to comply with the Act or the Exchange Act or the rules
thereunder, or (3) the Company determines that it is advisable to
suspend use of the Prospectus for a discrete period of time due to
pending material corporate developments or similar material events that
have not yet been publicly disclosed and as to which the Company
believes public disclosure will be prejudicial to the Company.
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<PAGE> 20
Liquidated Damages shall accrue on the applicable Securities or the
applicable Exchange Securities, as the case may be, over and above the interest
rate set forth in the title to the applicable Securities or the applicable
Exchange Securities, as the case may be, following the occurrence of any
Registration Default set forth in clauses (i), (ii) and (iii) above from and
including the next day following each such Registration Default, in each case at
a rate equal to 0.25% per annum. The Liquidated Damages attributable to each
Registration Default referred to in clauses (i), (ii) and (iii) above shall
cease to accrue from the filing of the Exchange Offer Registration Statement or
the Shelf Registration Statement after such 90-day period, in the case of clause
(i) above, the date of effectiveness of the Exchange Offer Registration
Statement after such 150-day period or the consummation of the Exchange Offers
after such 180-day period, in the case of clause (ii) above, or the date of
effectiveness of the applicable Shelf Registration Statement after the
applicable period, in the case of clause (iii) above. In no event, however,
shall the rate for the Liquidated Damages exceed 0.25% per annum.
If the Shelf Registration Statement is declared effective but shall
thereafter become unusable by the Holders for any reason (whether pursuant to
Section 7(a)(iv) or otherwise), and the aggregate number of days in any
consecutive twelve-month period for which the Shelf Registration Statement shall
not be usable exceeds 60 days in the aggregate, then the Liquidated Damages
shall accrue on the applicable Securities or the applicable Exchange Securities,
as the case may be, over and above the interest rate set forth in the title to
the applicable Securities or the applicable Exchange Securities, as the case may
be, beginning on the 61st such date that such Shelf Registration Statement
ceases to be usable at a rate equal to 0.25% per annum.
The Company shall notify the Trustee within five business days after
each and every date on which an event occurs in respect of which Liquidated
Damages are required to be paid (an "Event Date"). Liquidated Damages shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders of
the Securities entitled to receive the interest payment, on or before the
applicable semi-annual interest payment date, immediately available funds in
sums sufficient to pay the Liquidated Damages then due. The Liquidated Damages
due shall be payable on each interest payment date to the record Holder of
Securities entitled to receive the interest payment to be paid on such date as
set forth in the Indenture.
(b) A Registration Default referred to in Section 7(a)(iv) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-effective
amendment to such Shelf Registration Statement to incorporate annual audited
financial information with respect to the Company where such post-effective
amendment is not yet effective and needs to be declared effective to permit
Holders to use the related Prospectus or (y) the occurrence of other material
events or developments with respect to the Company that would need to be
described in such Registration Statement or the related Prospectus or (z) the
Company determines in its good faith judgment that the disclosure of such event
at such time
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<PAGE> 21
would have a material adverse effect on the business, operations or prospects of
the Company or the disclosure otherwise relates to a pending material business
transaction that has not yet been publicly disclosed and the Company proceeds
promptly and in good faith to amend or supplement such Registration Statement
and related Prospectus as soon as it reasonably believes such disclosure can be
made, and (ii) in the case of clause (y), the Company is proceeding promptly and
in good faith to amend or supplement such Registration Statement and related
Prospectus to describe such events, and in the case of clause (z), such
registration default does not exceed 60 days in any 365-day period.
8. Miscellaneous.
(a) No Inconsistent Agreements. The Company has not, as of the date
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to the Securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
Holders of at least a majority of the then outstanding aggregate principal
amount of each series of Securities (or, after the consummation of any Exchange
Offer in accordance with Section 2 hereof, of each series of Exchange
Securities); provided, however, that, with respect to any matter that affects
the rights of any Initial Purchaser hereunder, the Company shall obtain the
written consent of the Initial Purchasers. Notwithstanding the foregoing (except
the foregoing proviso), a waiver or consent to departure from the provisions
hereof with respect to a matter that relates exclusively to the rights of
Holders whose Securities are being sold pursuant to a Registration Statement and
that does not directly or indirectly affect the rights of other Holders may be
given by the Holders of a majority of each series of Securities, determined on
the basis of Securities being sold rather than registered under such
Registration Statement.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the most current address given by such
Holder to the Company in accordance with the provisions of this Section
8(c), which address initially is, with respect to each Holder, the
address of such Holder maintained by the registrar under the Indenture,
with a copy in like manner to the Initial Purchasers;
(ii) if to you, initially at the address set forth in the
Purchase Agreement; and
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<PAGE> 22
(iii) if to the Company, initially at the address set forth in
the Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received. The Initial Purchasers or the Company by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
(d) 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 the need for an express assignment or any consent by the
Company thereto, subsequent Holders of Securities and/or Exchange Securities.
The Company hereby agrees to extend the benefits of this Agreement to any
Holders of Securities and/or Exchange Securities and any such Holder may enforce
the provisions of this Agreement as if an original party hereto.
(e) 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.
(f) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED IN SAID STATE.
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Securities Held by the Company, etc. Whenever the consent or
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
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<PAGE> 23
Please confirm that the foregoing correctly sets forth the agreement
among the Company and you.
Very truly yours,
ROHM AND HAAS COMPANY
By:_________________________________
Name:
Title:
Accepted, July 6, 1999
SALOMON SMITH BARNEY INC.
CHASE SECURITIES INC.
GOLDMAN, SACHS & CO.
BANC ONE CAPITAL MARKETS, INC.
By: SALOMON SMITH BARNEY INC.
By:_________________________________
Name:
Title:
<PAGE> 24
ANNEX A
Annex A
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. Each
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a broker-dealer
in connection with resales of Exchange Securities received in exchange for
Securities acquired by such broker-dealer as a result of market-making
activities or other trading activities. The Company has agreed that, ending on
the close of business on the 180th day following the Expiration Date (as defined
herein), it will make this Prospectus available to any broker-dealer for use in
connection with any such resale. See "Plan of Distribution."
<PAGE> 25
ANNEX B
Annex B
Each broker-dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution."
<PAGE> 26
ANNEX C
Plan of Distribution
Each broker-dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offers must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. 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 Exchange Securities received in
exchange for Securities where such Securities were acquired by such
broker-dealer as a result of market-making activities or other trading
activities. The Company has agreed that, starting on the applicable Expiration
Date and ending on the close of business on the 180th day following such
Expiration Date, it will make this Prospectus, as amended or supplemented,
available to any broker-dealer for use in connection with any such resale.
The Company will not receive any proceeds from any sale of Exchange
Securities by broker-dealers. Exchange Securities received by broker-dealers for
their own account pursuant to the Exchange Offers 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 Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or at negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such broker-dealer and/or the purchasers of any such
Exchange Securities. Any broker-dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offers and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Act and any
profit of any such resale of Exchange Securities and any commissions or
concessions received by any such persons may be deemed to be underwriting
compensation under the Securities Act. Each Letter of Transmittal relating to
the exchange of Securities for Exchange Securities states that by acknowledging
that it will deliver and by delivering a prospectus, a broker-dealer will not be
deemed to admit that it is an "underwriter" within the meaning of the Securities
Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any broker-dealer that requests such documents
in the applicable Letter of Transmittal. The Company has agreed to pay all
expenses incident to the Exchange Offers other than commissions or concessions
of any brokers or dealers and will indemnify the holders of the Securities
(including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
[If applicable, add information required by Regulation S-K Items 507
and/or 508.]
<PAGE> 27
ANNEX D
Rider A
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS THERETO.
Name:___________________________________________________________________________
Address:________________________________________________________________________
________________________________________________________________________
Rider B
If the undersigned is not a broker-dealer, the undersigned represents
that it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities. If the undersigned is a broker-dealer that will receive
Exchange Securities for its own account in exchange for Securities, it
represents that the Securities to be exchanged for Exchange Securities were
acquired by it as a result of market-making activities or other trading
activities and acknowledges that it will deliver a prospectus in connection with
any resale of such Exchange Securities; however, by so acknowledging and by
delivering a prospectus, the undersigned will not be deemed to admit that it is
an "underwriter" within the meaning of the Act.
<PAGE> 28
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
ROHM AND HAAS COMPANY
100 Independence Mall West
Philadelphia, PA 19106-2399
__________________, 199__
The Depository Trust Company
55 Water Street, 49th Floor
New York, NY 10041
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated July 1, 1999 (the
"Letter of Representations"), from Rohm and Haas Company (the "Issuer") and
Chase Manhattan Trust Company, National Association, as trustee (the "Trustee"),
to The Depository Trust Company ("DTC") regarding the Issuer's 6.95% Notes due
2004, 7.40% Notes due 2009 and 7.95% Debentures due 2029 (the "Old Securities").
The CUSIP numbers of the Old Securities are 775371 AL 1, 775371 AP 2 and 775371
AS 6, respectively, for qualified institutional buyers, U77533 AA 2, U77533 AB 0
and U77533 AC 8, respectively, for buyers who were sold Old Securities in
compliance with Regulation S under the Securities Act of 1933, as amended, and
775371 AM 9, 775371 AQ 0 and 775371 AT 4, respectively, for institutional
accredited investors. The Issuer and the Trustee hereby agree and notify DTC
that as of ________ __, 199__, the Securities and Exchange Commission declared
effective a Registration Statement (File No. _____) with respect to an offering
of the Issuer's 6.95% Exchange Notes due 2004, 7.40% Exchange Notes due 2009 and
7.85% Exchange Debentures due 2029, (the "New Securities") (CUSIP Nos.
_________, _________ and _________, respectively) in exchange for the Old
Securities. Following the consummation of the exchange offer and the
cancellation of the global securities representing the Old Securities, the
Issuer and the Trustee agree that, with the exception of the Representations for
Rule 144A Securities attached thereto, the Letter of Representations and any
applicable riders thereto shall remain in full force and effect with respect to
the New Securities.
Very truly yours,
ROHM AND HAAS COMPANY
By:_________________________________
Name:
Title:
<PAGE> 29
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:_________________________________
Name:
Title:
<PAGE> 1
EXHIBIT 4.3
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 2
ROHM AND HAAS COMPANY
6.95% Notes due 2004
No. U.S.$
CUSIP No.
Rohm and Haas Company, a corporation duly organized and existing under
the laws of Delaware (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 set forth above or such other principal sum on the Schedule
attached hereto (which shall not exceed U.S.$ ) on July 15, 2004, and to pay
interest thereon from July 6, 1999 or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, semiannually on January 15
and July 15 in each year, commencing January 15, 2000, at the rate of 6.95% per
annum, until the principal hereof is paid or made available for payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company 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 at least five
Business Days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
2
<PAGE> 3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Signatures appear on next page]
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ROHM AND HAAS COMPANY
By:__________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Authorized Officer
<PAGE> 5
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1999 (herein called the
"Indenture"), between the Company and CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $ .
The Securities are redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days, prior notice mailed to the registered address of each holder of
Securities. The redemption prices will be equal to the greater of (1) 100% of
the principal amount of the Securities to be redeemed and (2) the sum of the
present values of the Remaining Scheduled Payments (as defined below)
discounted, on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months), at a rate equal to the sum of the applicable Treasury Rate (as
defined below) plus 15 basis points. Accrued interest will also be paid on the
date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of the Reference Treasury Dealer Quotations for such redemption
date. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
5
<PAGE> 6
"Reference Treasury Dealer" means Salomon Smith Barney Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer
(a "Primary Treasury Dealer"), the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security and certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities 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 Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be adversely affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration
6
<PAGE> 7
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any period
shorter than a full semi-annual period for which interest is computed will be
computed on the basis of the actual number of days elapsed per 30-day month. In
the event that any date on which principal, premium, if any, or interest is
payable
7
<PAGE> 8
on the Securities is not a Business Day, then payment of the principal, premium,
if any, or interest that is payable on that date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles thereof.
8
<PAGE> 9
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of
Securities held in *________ global or *_______ definitive form by
________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities.
[INSERT NAME OF TRANSFEROR]
Dated: By:___________________________________
*Check applicable box.
9
<PAGE> 10
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Global Security signatory
Date of Principal Amount of this Global following such decrease of Trustee or
Exchange this Global Security Security (or increase) Security Custodian
-------- -------------------- -------- ------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
10
<PAGE> 1
EXHIBIT 4.4
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 2
ROHM AND HAAS COMPANY
7.85% Notes due 2029
No. U.S.$
CUSIP No.
Rohm and Haas Company, a corporation duly organized and existing under
the laws of Delaware (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 set forth above or such other principal sum on the Schedule
attached hereto (which shall not exceed U.S.$200,000,000) on July 15, 2029, and
to pay interest thereon from July 6, 1999 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on January 15 and July 15 in each year, commencing January 15, 2000, at the rate
of 7.85% per annum, until the principal hereof is paid or made available for
payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company 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 at least five
Business Days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
2
<PAGE> 3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Signatures appear on next page]
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ROHM AND HAAS COMPANY
By:__________________________________
Name:
Title:
Attest:
________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:__________________________________
Authorized Officer
<PAGE> 5
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1999 (herein called the
"Indenture"), between the Company and CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $ .
The Securities are redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days, prior notice mailed to the registered address of each holder of
Securities. The redemption prices will be equal to the greater of (1) 100% of
the principal amount of the Securities to be redeemed and (2) the sum of the
present values of the Remaining Scheduled Payments (as defined below)
discounted, on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months), at a rate equal to the sum of the applicable Treasury Rate (as
defined below) plus 20 basis points. Accrued interest will also be paid on the
date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of the Reference Treasury Dealer Quotations for such redemption
date. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
5
<PAGE> 6
"Reference Treasury Dealer" means Salomon Smith Barney Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer
(a "Primary Treasury Dealer"), the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security and certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities 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 Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be adversely affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration
6
<PAGE> 7
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any period
shorter than a full semi-annual period for which interest is computed will be
computed on the basis of the actual number of days elapsed per 30-day month. In
the event that any date on which principal, premium, if any, or interest is
payable
7
<PAGE> 8
on the Securities is not a Business Day, then payment of the principal, premium,
if any, or interest that is payable on that date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles thereof.
8
<PAGE> 9
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of
Securities held in *________ global or *_______ definitive form by
________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities.
[INSERT NAME OF TRANSFEROR]
Dated: By:___________________________________
*Check applicable box.
9
<PAGE> 10
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Global Security signatory
Date of Principal Amount of this Global following such decrease of Trustee or
Exchange this Global Security Security (or increase) Security Custodian
-------- -------------------- -------- ------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
10
<PAGE> 1
EXHIBIT 4.5
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO
THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITORY. UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) ("DTC"),
TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER
NAME AS MAY BE REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT
IS MADE TO CEDE & CO. OR SUCH OTHER ENTITY AS MAY BE REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
<PAGE> 2
ROHM AND HAAS COMPANY
7.40% Debentures due 2009
No. U.S.$
CUSIP No.
Rohm and Haas Company, a corporation duly organized and existing under
the laws of Delaware (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 set forth above or such other principal sum on the Schedule
attached hereto (which shall not exceed U.S.$ ) on July 15, 2009, and
to pay interest thereon from July 6, 1999 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semiannually
on January 15 and July 15 in each year, commencing January 15, 2000, at the rate
of 7.40% per annum, until the principal hereof is paid or made available for
payment.
The interest so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be the January 1 or July 1 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Any such
interest not so punctually paid or duly provided for will forthwith cease to be
payable to the Holder on such Regular Record Date and may either be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in said Indenture.
Payment of the principal of (and premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; provided, however, that at the
option of the Company 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 at least five
Business Days prior to the applicable Interest Payment Date.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
2
<PAGE> 3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
[Signatures appear on next page]
3
<PAGE> 4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
ROHM AND HAAS COMPANY
By:__________________________________
Name:
Title:
Attest:
_______________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Dated:
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION,
as Trustee
By:____________________________________
Authorized Officer
<PAGE> 5
[REVERSE OF SECURITY]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of July 1, 1999 (herein called the
"Indenture"), between the Company and CHASE MANHATTAN TRUST COMPANY, NATIONAL
ASSOCIATION, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is one
of the series designated on the face hereof, limited in aggregate principal
amount to $ .
The Securities are redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days, prior notice mailed to the registered address of each holder of
Securities. The redemption prices will be equal to the greater of (1) 100% of
the principal amount of the Securities to be redeemed and (2) the sum of the
present values of the Remaining Scheduled Payments (as defined below)
discounted, on a semi-annual basis (assuming a 360-day year consisting of twelve
30-day months), at a rate equal to the sum of the applicable Treasury Rate (as
defined below) plus 25 basis points. Accrued interest will also be paid on the
date of redemption.
"Treasury Rate" means, with respect to any redemption date, the rate
per annum equal to the semi-annual equivalent yield to maturity (computed as of
the second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of such series of Securities to be redeemed that would be
utilized, at the time of selection and in accordance with customary financial
practice, in pricing new issues of corporate debt securities of comparable
maturity to the remaining term of such series of Securities. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by the
Company.
"Comparable Treasury Price" means, with respect to any redemption date,
the average of the Reference Treasury Dealer Quotations for such redemption
date. "Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
5
<PAGE> 6
"Reference Treasury Dealer" means Salomon Smith Barney Inc. and its
successor. If it shall cease to be a primary U.S. Government securities dealer
(a "Primary Treasury Dealer"), the Company shall substitute another nationally
recognized investment banking firm that is a Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to Securities to be
redeemed, the remaining scheduled payments of principal of and interest on such
Securities that would be due after the related redemption date but for such
redemption. If such redemption date is not an interest payment date with respect
to such Securities, the amount of the next succeeding scheduled interest payment
on such Securities will be reduced by the amount of interest accrued on such
Securities to such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption (unless the
Company defaults in the payment of the redemption price and accrued interest).
On or before the redemption date, the Company will deposit with a paying agent
(or the Trustee) money sufficient to pay the redemption price of and accrued
interest on the Securities to be redeemed on such date. If less than all of the
Securities of any series are to be redeemed, the Securities to be redeemed shall
be selected by the Trustee by such method as the Trustee shall deem fair and
appropriate.
The Securities do not have the benefit of any sinking fund obligations.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor for the unredeemed
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security and certain restrictive covenants and
Events of Default with respect to this Security, in each case upon compliance
with certain conditions set forth in the Indenture.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities 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 Securities under the Indenture at
any time by the Company and the Trustee with the consent of the Holders of a
majority in principal amount of the Securities at the time Outstanding of each
series to be adversely affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration
6
<PAGE> 7
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $100,000 and any integral multiple of $1,000
in excess thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
No recourse shall be had for the payment of the principal of (or
premium, if any) or the interest on this Security, or for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past, present or future, of
the Company or any successor corporation, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
Interest on this Security shall be computed on the basis of a 360-day
year of twelve 30-day months. The amount of interest payable for any period
shorter than a full semi-annual period for which interest is computed will be
computed on the basis of the actual number of days elapsed per 30-day month. In
the event that any date on which principal, premium, if any, or interest is
payable
7
<PAGE> 8
on the Securities is not a Business Day, then payment of the principal, premium,
if any, or interest that is payable on that date will be made on the next
succeeding day that is a Business Day (and without any interest or other payment
in respect of any such delay).
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Indenture and this Security shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania without giving
effect to conflict of laws principles thereof.
8
<PAGE> 9
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____ principal amount of
Securities held in *________ global or *_______ definitive form by
________________ (the "Transferor").
The Transferor*:
[ ] has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depository a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
[ ] has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with such request and in respect of each such Security, the
Transferor does hereby certify and agree that Transferor is familiar with the
Indenture relating to the above captioned Securities.
[INSERT NAME OF TRANSFEROR]
Dated: By:___________________________________
*Check applicable box.
9
<PAGE> 10
SCHEDULE OF EXCHANGES
The following exchanges of a part of this Global Security have been
made:
<TABLE>
<CAPTION>
Signature of
Amount of increase in Principal Amount of this authorized
Amount of decrease in Principal Amount of Global Security signatory
Date of Principal Amount of this Global following such decrease of Trustee or
Exchange this Global Security Security (or increase) Security Custodian
-------- -------------------- -------- ------------- ------------------
<S> <C> <C> <C> <C>
</TABLE>
10
<PAGE> 1
EXHIBIT 5.1
Morgan, Lewis & Bockius LLP
Counselors At Law
1800 M Street, N.W.
Washington, DC 20036
Telephone: (202) 467-7000
Fax: (202) 467-7176
July 29, 1999
Rohm and Haas Company
100 Independence Mall West
Philadelphia, Pennsylvania 19106-2399
Re: Registration Statement on Form S-4
of Rohm and Haas Company
Ladies and Gentlemen:
We have acted as counsel to Rohm and Haas Company, a Delaware corporation (the
"Company"), in connection with the preparation of a registration statement on
Form S-4 (the "Registration Statement") to be filed with the Securities and
Exchange Commission under the Securities Act of 1933, as amended (the "Act"),
relating to the Company's offer to exchange $500,000,000 aggregate principal
amount of its 6.95% Notes due 2004, $500,000,000 aggregate principal amount of
its 7.40% Notes due 2009, and $1,000,000,000 aggregate principal amount of its
7.85% Debentures due 2029, respectively (collectively, the "Exchange Debt"),
which have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for its outstanding 6.95% Notes due 2004, 7.40% Notes due
2009 and its 7.85% Debentures due 2029, respectively, which were issued and sold
in a transaction exempt from registration under the Securities Act
(collectively, the "Outstanding Debt"), all as more fully described in the
Registration Statement. The Exchange Debt will be issued under the Company's
Indenture dated as of July 1, 1999 between the Company and Chase Manhattan Trust
Company, N.A., as trustee (the "Trustee"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
prospectus (the "Prospectus") contained in the Registration Statement.
In rendering the opinion set forth below, we have reviewed (a) the Registration
Statement and the exhibits thereto; (b) the Company's Restated Certificate of
Incorporation; (c) the Company's Bylaws; (d) the Indenture; (e) the form of the
Exchange Debt; (f) resolutions of the Board of Directors of the Company relating
to, among other things, the issuance and exchange of the Exchange Debt for the
Outstanding Debt and the filing of the Registration Statement; and (g) such
other documents as we have deemed relevant. In our examination, we have assumed
the
<PAGE> 2
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity with the original of all documents submitted to
us as copies thereof.
Based upon the foregoing, we are of the opinion that when (a) the Registration
Statement, as finally amended (including all necessary post-effective
amendments), shall have become effective under the Securities Act, (b) the
Exchange Debt is duly executed and authenticated in accordance with the
provisions of the Indenture, and (c) the Exchange Debt shall have been issued
and delivered in exchange for the Outstanding Debt pursuant to the terms set
forth in the Prospectus, the Exchange Debt will be a binding obligation of the
Company.
Our opinion set forth above are limited to the laws of the United States and the
General Corporation Law of the State of Delaware.
We hereby consent to the use of this opinion as Exhibit 5 to the Registration
Statement. In giving such opinion, we do not thereby admit that we are acting
within the category of persons whose consent is required under Section 7 of the
Act or the rules or regulations of the Securities and Exchange Commission
thereunder.
Very truly yours,
<PAGE> 1
Exhibit 12.1
ROHM AND HAAS COMPANY AND SUBSIDIARIES
COMPUTATION OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Three Months
Ended
March 31, 1999 Year Ended December 31,
------------------- ----------------------------------------------------------------
Pro Forma Pro Forma
1999 1999 1998 1998 1997 1996 1995 1994
-------- ------ ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Earnings before
income taxes........... $187 $176 $596 $680 $611 $530 $441 $407
Fixed charges........... 83 18 351 64 71 75 84 82
Capitalized interest
adjustment............. 2 2 5 5 3 (1) (5) (2)
Undistributed earnings
adjustment............. 7 7 1 1 (11) 12 (3) (2)
---- ---- ---- ---- ---- ---- ---- -----
Earnings................ $279 $203 $953 $750 $674 $616 $517 $485
==== ==== ==== ==== ==== ==== ==== =====
Ratio of earnings to
fixed charges.......... 3.4x 11.3x 2.7x 11.7x 9.5x 8.2x 6.2x 5.9x
===== ===== =====
</TABLE>
<PAGE> 1
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-4 of Rohm and Haas Company of our report dated February 22,
1999 relating to the financial statements and financial statement schedules
appearing in Rohm and Haas Company's Annual Report on Form 10-K for the year
ended December 31, 1998. We also consent to the reference to us under the
heading "Experts" in such Registration Statement.
/s/ PRICEWATERHOUSECOOPERS LLP
Philadelphia, PA
July 27, 1999
<PAGE> 1
EXHIBIT 23.2
CONSENT OF 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 Rohm and Haas
Company for the registration of certain of its debt securities and to the
incorporation by reference therein of our report dated July 29, 1998, with
respect to the consolidated financial statements and schedule of Morton
International, Inc. incorporated by reference in its Annual Report (Form 10-K)
for the year ended June 30, 1998 incorporated by reference in Rohm and Haas
Company's Current Report on Form 8-K dated July 1, 1999, incorporated by
reference in this Registration Statement (Form S-4) and filed with the
Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Chicago, Illinois
July 26, 1999
<PAGE> 1
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors
Rohm and Haas Company
We consent to the incorporation by reference in this Registration Statement
on Form S-4 of Rohm and Haas Company of our report dated February 23, 1998,
relating to the consolidated balance sheet of Rohm and Haas Company and
subsidiaries as of December 31, 1997, and the related consolidated statements of
earnings, stockholders' equity and cash flows and the related financial
statement schedule for each of the years in the two-year period ended December
31, 1997, which report appears in the December 31, 1998 annual report on Form
10-K of Rohm and Haas Company. We also consent to the reference to our firm
under the heading "Experts" in this Registration Statement.
/s/ KPMG LLP
Philadelphia, Pennsylvania
July 29, 1999
<PAGE> 1
EXHIBIT 25.1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------------------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ____X___
----------------------------------------
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
ONE OXFORD CENTER, SUITE 1100
301 GRANT STREET, PITTSBURGH, PA 15219
(Address of principal executive offices) (Zip Code)
WILLIAM H. McDAVID
THE CHASE MANHATTAN BANK
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
ROHM AND HAAS COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 23-1028370
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 INDEPENDENCE MALL WEST
PHILADELPHIA, PA 19106
(Address of principal executive offices) (Zip Code)
6.95% NOTES DUE 2004
(Title of the indenture securities)
<PAGE> 2
GENERAL
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 the Currency, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE (PREVIOUSLY KNOWN AS
NEW TRUST COMPANY, NATIONAL ASSOCIATION,) TO COMMENCE BUSINESS. ALSO
INCLUDED IN EXHIBIT 16(2) ARE LETTERS DATED NOVEMBER 24, 1997 FROM THE
COMPTROLLER OF THE CURRENCY AUTHORIZING THE EXERCISE OF FIDUCIARY POWERS BY
THE TRUSTEE AND ACKNOWLEDGING THE NAME CHANGE OF THE TRUSTEE.
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST IS CONTAINED IN
EXHIBIT 16(2).
A COPY OF THE BY-LAWS OF THE TRUSTEE AS NOW IN EFFECT.
NOT APPLICABLE
THE TRUSTEE'S CONSENT REQUIRED BY SECTION 321(b) OF THE ACT.
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE, PUBLISHED PURSUANT
TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY.
NOT APPLICABLE
NOT APPLICABLE
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan 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
Philadelphia and State of Pennsylvania, on the 26th day of July, 1999.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By \s\ Catherine Lenhardt
--------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 4
EXHIBIT 16(1)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
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, during the full term of his
directorship, 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. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
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.
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 therefore in the by-laws, 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 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.
Advance notice of the meeting may be duly waived by the sole shareholder in
accordance with 12 C.F.R. 7.2001.
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.
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) 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.
<PAGE> 5
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 to 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.
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.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons 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 by-laws.
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.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and 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.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal by-laws, 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 to any other location permitted under applicable law, without
the approval of the shareholders, and 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.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. 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> 6
EXHIBIT 16(2)
Comptroller of the Currency
[PICTURE OF
TREASURY DEPARTMENT TREASURY DEPARTMENT OF THE UNITED STATES
APPEARS HERE]
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of
the Currency that NEW TRUST COMPANY, NATIONAL ASSOCIATION located in PITTSBURGH
State of PENNSYLVANIA has complied with all provisions of the statutes of the
United States required to be complied with before being authorized to
commence the business of banking as a National Banking Association;
Now, therefore, I hereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature and seal of office this 24th
day of NOVEMBER 1997
SEAL APPEARS HERE] Charter No. 23548 [SIGNATURE APPEARS HERE]
<PAGE> 7
[LETTERHEAD OF COMPTROLLER OF THE CURRENCY APPEARS HERE]
November 24, 1997
Mr. Daryl J. Zupan
President and CEO New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Ban, New Trust Company, National
Association, Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all
conditions imposed by the OCC and completed all steps necessary to commence the
business of banking. Your charter certificate is enclosed. You are authorized to
commence business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operation. Some of the conditions bear reiteration here:
Regardless of the association's FDIC insurance status, the association
is subject to the Change in Bank Control Act (12 U.S.C. 1817(j)) by
virtue of its national bank charter. Please refer to item 4 in the list
of standard conditions sent with the preliminary approval letter.
The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them.
This includes maintaining an internal control system that ensures
compliance with the currency reporting and record keeping requirements
of the Bank Secrecy Act (BSA). The board is expected to train its
personnel in BSA procedures and designate one person or a group to
monitor day-to-day compliance.
<PAGE> 8
Mr. Daryl J. Zupan
Page two
The bank will not engage in full commercial powers authorized to
national banks without the OCC's prior approval. Following the
commencement of operations, bank management is urged to become familiar
with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the
bank's equity securities and related periodic reports. These
requirements will be applicable to your bank when the number of
shareholders of record is maintained at 500 or more. Such registration
may be subsequently terminated pursuant to the Act only when the number
of shareholders of record is reduced to fewer than 300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Michael G. Tiscia
- ------------------------------
Michael G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
<PAGE> 9
[LOGO APPEARS HERE]
Comptroller of the Currency Administrator of National Banks
Northeastern District
1114 Avenue of the Americas, Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the
above-referenced Bank's Articles of Association. The OCC has amended its records
to reflect that effective November 24, 1997, the corporate title of New
Trust Company, National Association, Charter Number 23548, was changed to
"ChaseManhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
does it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights to any previously used title is
the responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal or state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours,
/s/ Linda Leickel
- ---------------------------------
Linda Leickel
Senior Licensing Analyst
Charter No.: 23548
Control No.: 97 NE 04 010 w/97 NE 01 022
<PAGE> 10
EXHIBIT 16(4)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETING. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. Section 7.2001. If, for any cause, an election of directors is
not made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
SECTION 1.2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special meeting
may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R.
Section 7.2001.
SECTION 1.3. NOMINATIONS OF DIRECTORS. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder. Nominations not made in accordance herewith may,
in his/her discretion, be disregarded by the Chairperson of the meeting, and
upon his/her instructions, the vote tellers may disregard all votes cast for
each such nominee.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
SECTION 1.5 QUORUM. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. 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
<PAGE> 11
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
ARTICLE II. DIRECTORS
SECTION 2.1. BOARD OF DIRECTORS. The board of directors ("board") shall have the
power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
SECTION 2.2. NUMBER. The board shall consist of not less than five nor more than
twenty-five persons, the exact number within such minimum and maximum limits to
be fixed and determined from time to time by resolution of a majority of the
full board or by resolution of a majority of the shareholders at any meeting
thereof; provided, however, that a majority of the full board may not increase
the number of directors to a number which: (1) exceeds by more than two the
number of directors last elected by shareholders where such number was 15 or
less; and (2) exceeds by more than four the number of directors last elected by
shareholders where such number was 16 or more, but in no event shall the number
of directors exceed 25.
SECTION 2.3. ORGANIZATION MEETING. The Secretary shall notify the
directors-elect of their election and of the time at which they are required to
meet at the main office of the Association to organize the new board and elect
and appoint officers of the Association for the succeeding year. Such meeting
shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such
meeting, there shall not be a quorum, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
SECTION 2.4. REGULAR MEETINGS. The time and location of regular meetings of the
board shall be set by the board. Such meetings may be held without notice. Any
business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
SECTION 2.6. ACTION BY THE BOARD. Except as otherwise provided by law, corporate
action to be taken by the board shall mean such action at a meeting of the
board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members of
the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
SECTION 2.7. WAIVER OF NOTICE. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him or her.
SECTION 2.8. QUORUM AND MANNER OF ACTING. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.9. VACANCIES. In the event a majority of the full board increases the
number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy
<PAGE> 12
in the board for any other cause, a director may be appointed to fill such
vacancy by vote of a majority of the remaining directors then in office.
SECTION 2.10. REMOVAL OF DIRECTORS. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
ARTICLE III. COMMITTEES
SECTION 3.1. EXECUTIVE COMMITTEE. There may be an executive committee consisting
of the Chairperson or Co-Chairperson of the board and not less than two other
directors appointed by the board annually or more often. Subject to the
limitations in Section 3.4(g) of these by-laws, the executive committee shall
have the maximum authority permitted by law.
SECTION 3.2. AUDIT COMMITTEE. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
SECTION 3.3. OTHER COMMITTEES. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
SECTION 3.4. GENERAL. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall
meet at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given.
Notice of every special meeting shall be given either by mailing such notice to
each member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing of
any meeting, whether prior or subsequent to such meeting, or attendance at such
meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to
the authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or
these by-laws, a quorum at any meeting of any committee shall be one-third of
the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
ARTICLE IV. OFFICERS AND EMPLOYEES
SECTION 4.1. CHAIRPERSON OF THE BOARD. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as
Co-Chairperson of the board to serve at its pleasure. Such person shall preside
at all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
<PAGE> 13
SECTION 4.2. PRESIDENT. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or
Co-Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
SECTION 4.3. VICE PRESIDENT. The board may appoint one or more Vice Presidents.
Each Vice President shall have such powers and duties as may be assigned by the
board.
SECTION 4.4. SECRETARY. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
SECTION 4.5. OTHER OFFICERS. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
SECTION 4.6. RESIGNATION. An officer may resign at any time by delivering notice
to the Association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V. FIDUCIARY ACTIVITIES
SECTION 5.1. TRUST COMMITTEE. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
SECTION 5.2. TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
SECTION 5.3. TRUST AUDIT COMMITTEE. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
SECTION 5.4. FIDUCIARY FILES. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
<PAGE> 14
ARTICLE VI. STOCK AND STOCK CERTIFICATES
SECTION 6.1. TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares. The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
SECTION 6.2. STOCK CERTIFICATES. Certificates of stock shall bear the signature
of the Chairperson or Co-Chairpersons of the board or President (which may be
engraved, printed or impressed), and shall be signed manually or by facsimile
process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or
any other officer appointed by the board for that purpose, to be known as an
authorized officer, and the seal of the Association shall be engraved thereon.
Each certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the Association properly endorsed. In case
any such officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such before such certificate is
issued, it may be issued by the Association with the same effect as if such
officer had not ceased to be such at the time of its issue. The corporate seal
may be a facsimile, engraved or printed.
ARTICLE VII. CORPORATE SEAL
SECTION 7.1. CORPORATE SEAL. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
by-laws.
SECTION 8.3. RECORDS. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
SECTION 8.4. CORPORATE GOVERNANCE PROCEDURES. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX. INDEMNIFICATION
SECTION 9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a
<PAGE> 15
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or an officer of the
Association or is or was serving at the request of the Association as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Association to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Association to provide
broader indemnification rights than such law permitted the Association to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section 9.3 of these by-laws with respect to proceedings to enforce rights to
indemnification, the Association shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the board.
SECTION 9.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
SECTION 9.3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1 or
9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
SECTION 9.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
<PAGE> 16
SECTION 9.5. INSURANCE. The Association may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 9.6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE ASSOCIATION. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
ARTICLE X. BY-LAWS
SECTION 10.1. INSPECTION. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
SECTION 10.2. AMENDMENTS. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may amend
or repeal the by-laws even though the by-laws may be amended or repealed by its
board.
<PAGE> 17
EXHIBIT 16(6)
Consent for Records of Governmental Agencies
to be Made Available to the Commission
The undersigned, Chase Manhattan Trust Company, National Association,
pursuant to Section 321(b) of The Trust Indenture Act of 1939, hereby authorizes
the Board of Governors of the Federal Reserve System, the Federal Reserve Banks,
the Treasury Department, the Comptroller of the Currency and the Federal Deposit
Insurance Corporation, under such conditions as they may prescribe, to make
available to the Commission such reports, records or other information as they
may have available with respect to the undersigned as a prospective trustee
under an indenture to be qualified under the aforesaid Trustee Indenture Act of
1939 and to make through their examiners or other employees for the use of the
Commission, examinations of the undersigned prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust
Indenture Act of 1939, consents that reports of examination by the Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Commission upon request therefor.
Dated this 26th day of July, 1999.
Chase Manhattan Trust Company,
National Association
By: \s\ Catherine Lenhardt
------------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 18
EXHIBIT 16(7)
Chase Manhattan Trust Company, National Association
Statement of Condition
MARCH 31,1999
<TABLE>
<CAPTION>
($000)
------
<S> <C>
ASSETS
Cash and Due From Banks $ 6,195
Securities Available for Sale 3,027
Premises and Fixed Assets 647
Intangible Assets 159,849
---------
Total Assets $ 169,718
=========
LIABILITIES
Sundry Liabilities and Accrued Expenses $ 985
---------
STOCKHOLDER'S EQUITY
Common Stock $ 5,000
Surplus 156,892
Retained Earnings 6,841
---------
Total Stockholder's Equity $ 168,733
---------
Total Liabilities and Stockholder's Equity $ 169,718
=========
</TABLE>
<PAGE> 1
EXHIBIT 25.2
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) ____X___
----------------------------------------
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
ONE OXFORD CENTER, SUITE 1100
301 GRANT STREET, PITTSBURGH, PA 15219
(Address of principal executive offices) (Zip Code)
WILLIAM H. MCDAVID
THE CHASE MANHATTAN BANK
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
ROHM AND HAAS COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 23-1028370
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 INDEPENDENCE MALL WEST
PHILADELPHIA, PA 19106
(Address of principal executive offices) (Zip Code)
7.40% NOTES DUE 2009
(Title of the indenture securities)
<PAGE> 2
GENERAL
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 the Currency, Washington, D.C.
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE (PREVIOUSLY KNOWN AS NEW
TRUST COMPANY, NATIONAL ASSOCIATION,) TO COMMENCE BUSINESS. ALSO INCLUDED IN
EXHIBIT 16(2) ARE LETTERS DATED NOVEMBER 24, 1997 FROM THE COMPTROLLER OF THE
CURRENCY AUTHORIZING THE EXERCISE OF FIDUCIARY POWERS BY THE TRUSTEE AND
ACKNOWLEDGING THE NAME CHANGE OF THE TRUSTEE.
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST IS CONTAINED IN
EXHIBIT 16(2).
A COPY OF THE BY-LAWS OF THE TRUSTEE AS NOW IN EFFECT.
NOT APPLICABLE
THE TRUSTEE'S CONSENT REQUIRED BY SECTION 321(b) OF THE ACT.
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE, PUBLISHED PURSUANT
TO LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY.
NOT APPLICABLE
NOT APPLICABLE
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan 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
Philadelphia and State of Pennsylvania, on the 26th day of July, 1999.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By \s\ Catherine Lenhardt
--------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 4
EXHIBIT 16(1)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
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, during the full term of his
directorship, 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. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
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.
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 therefore in the by-laws, 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 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.
Advance notice of the meeting may be duly waived by the sole shareholder in
accordance with 12 C.F.R. 7.2001.
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.
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) 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.
<PAGE> 5
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 to 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.
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.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons 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 by-laws.
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.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and 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.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal by-laws, 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 to any other location permitted under applicable law, without
the approval of the shareholders, and 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.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. 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> 6
EXHIBIT 16(2)
Comptroller of the Currency
[PICTURE OF
TREASURY DEPARTMENT TREASURY DEPARTMENT OF THE UNITED STATES
APPEARS HERE]
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of
the Currency that NEW TRUST COMPANY, NATIONAL ASSOCIATION located in PITTSBURGH
State of PENNSYLVANIA has complied with all provisions of the statutes of the
United States required to be complied with before being authorized to
commence the business of banking as a National Banking Association;
Now, therefore, I hereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature and seal of office this 24th
day of NOVEMBER 1997
[SEAL APPEARS HERE] Charter No. 23548 [SIGNATURE APPEARS HERE]
<PAGE> 7
[LETTERHEAD OF COMPTROLLER OF THE CURRENCY APPEARS HERE]
November 24, 1997
Mr. Daryl J. Zupan
President and CEO New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Ban, New Trust Company, National
Association, Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all
conditions imposed by the OCC and completed all steps necessary to commence the
business of banking. Your charter certificate is enclosed. You are authorized to
commence business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operation. Some of the conditions bear reiteration here:
Regardless of the association's FDIC insurance status, the association
is subject to the Change in Bank Control Act (12 U.S.C. 1817(j)) by
virtue of its national bank charter. Please refer to item 4 in the list
of standard conditions sent with the preliminary approval letter.
The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them.
This includes maintaining an internal control system that ensures
compliance with the currency reporting and record keeping requirements
of the Bank Secrecy Act (BSA). The board is expected to train its
personnel in BSA procedures and designate one person or a group to
monitor day-to-day compliance.
<PAGE> 8
Mr. Daryl J. Zupan
Page two
The bank will not engage in full commercial powers authorized to
national banks without the OCC's prior approval. Following the
commencement of operations, bank management is urged to become familiar
with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the
bank's equity securities and related periodic reports. These
requirements will be applicable to your bank when the number of
shareholders of record is maintained at 500 or more. Such registration
may be subsequently terminated pursuant to the Act only when the number
of shareholders of record is reduced to fewer than 300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Michael G. Tiscia
- -----------------------------
Michael G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
<PAGE> 9
[LOGO APPEARS HERE]
Comptroller of the Currency Administrator of National Banks
Northeastern District
1114 Avenue of the Americas, Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the
above-referenced Bank's Articles of Association. The OCC has amended its records
to reflect that effective November 24, 1997, the corporate title of New
Trust Company, National Association, Charter Number 23548, was changed to
"ChaseManhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
does it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights to any previously used title is
the responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal or state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours,
/s/ Linda Leickel
- -----------------------------
Linda Leickel
Senior Licensing Analyst
Charter No.: 23548
Control No.: 97 NE 04 010 w/97 NE 01 022
<PAGE> 10
EXHIBIT 16(4)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETING. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. Section 7.2001. If, for any cause, an election of directors is
not made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
SECTION 1.2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special meeting
may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R.
Section 7.2001.
SECTION 1.3. NOMINATIONS OF DIRECTORS. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder.
Nominations not made in accordance herewith may, in his/her discretion, be
disregarded by the Chairperson of the meeting, and upon his/her instructions,
the vote tellers may disregard all votes cast for each such nominee.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
SECTION 1.5 QUORUM. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. 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
<PAGE> 11
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
ARTICLE II. DIRECTORS
SECTION 2.1. BOARD OF DIRECTORS. The board of directors ("board") shall have the
power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
SECTION 2.2. NUMBER. The board shall consist of not less than five nor more than
twenty-five persons, the exact number within such minimum and maximum limits to
be fixed and determined from time to time by resolution of a majority of the
full board or by resolution of a majority of the shareholders at any meeting
thereof; provided, however, that a majority of the full board may not increase
the number of directors to a number which: (1) exceeds by more than two the
number of directors last elected by shareholders where such number was 15 or
less; and (2) exceeds by more than four the number of directors last elected by
shareholders where such number was 16 or more, but in no event shall the number
of directors exceed 25.
SECTION 2.3. ORGANIZATION MEETING. The Secretary shall notify the
directors-elect of their election and of the time at which they are required to
meet at the main office of the Association to organize the new board and elect
and appoint officers of the Association for the succeeding year. Such meeting
shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such
meeting, there shall not be a quorum, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
SECTION 2.4. REGULAR MEETINGS. The time and location of regular meetings of the
board shall be set by the board. Such meetings may be held without notice. Any
business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
SECTION 2.6. ACTION BY THE BOARD. Except as otherwise provided by law, corporate
action to be taken by the board shall mean such action at a meeting of the
board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members of
the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
SECTION 2.7. WAIVER OF NOTICE. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him or her.
SECTION 2.8. QUORUM AND MANNER OF ACTING. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.9. VACANCIES. In the event a majority of the full board increases the
number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy
<PAGE> 12
in the board for any other cause, a director may be appointed to fill such
vacancy by vote of a majority of the remaining directors then in office.
SECTION 2.10. REMOVAL OF DIRECTORS. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
ARTICLE III. COMMITTEES
SECTION 3.1. EXECUTIVE COMMITTEE. There may be an executive committee consisting
of the Chairperson or Co-Chairperson of the board and not less than two other
directors appointed by the board annually or more often. Subject to the
limitations in Section 3.4(g) of these by-laws, the executive committee shall
have the maximum authority permitted by law.
SECTION 3.2. AUDIT COMMITTEE. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
SECTION 3.3. OTHER COMMITTEES. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
SECTION 3.4. GENERAL. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall
meet at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given.
Notice of every special meeting shall be given either by mailing such notice to
each member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing of
any meeting, whether prior or subsequent to such meeting, or attendance at such
meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to
the authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or
these by-laws, a quorum at any meeting of any committee shall be one-third of
the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
ARTICLE IV. OFFICERS AND EMPLOYEES
SECTION 4.1. CHAIRPERSON OF THE BOARD. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as
Co-Chairperson of the board to serve at its pleasure. Such person shall preside
at all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
<PAGE> 13
SECTION 4.2. PRESIDENT. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or
Co-Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
SECTION 4.3. VICE PRESIDENT. The board may appoint one or more Vice Presidents.
Each Vice President shall have such powers and duties as may be assigned by the
board.
SECTION 4.4. SECRETARY. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
SECTION 4.5. OTHER OFFICERS. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
SECTION 4.6. RESIGNATION. An officer may resign at any time by delivering notice
to the Association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V. FIDUCIARY ACTIVITIES
SECTION 5.1. TRUST COMMITTEE. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
SECTION 5.2. TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
SECTION 5.3. TRUST AUDIT COMMITTEE. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
SECTION 5.4. FIDUCIARY FILES. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
<PAGE> 14
ARTICLE VI. STOCK AND STOCK CERTIFICATES
SECTION 6.1. TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares. The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
SECTION 6.2. STOCK CERTIFICATES. Certificates of stock shall bear the signature
of the Chairperson or Co-Chairpersons of the board or President (which may be
engraved, printed or impressed), and shall be signed manually or by facsimile
process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or
any other officer appointed by the board for that purpose, to be known as an
authorized officer, and the seal of the Association shall be engraved thereon.
Each certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the Association properly endorsed. In case
any such officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such before such certificate is
issued, it may be issued by the Association with the same effect as if such
officer had not ceased to be such at the time of its issue. The corporate seal
may be a facsimile, engraved or printed.
ARTICLE VII. CORPORATE SEAL
SECTION 7.1. CORPORATE SEAL. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
by-laws.
SECTION 8.3. RECORDS. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
SECTION 8.4. CORPORATE GOVERNANCE PROCEDURES. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX. INDEMNIFICATION
SECTION 9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a
<PAGE> 15
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or an officer of the
Association or is or was serving at the request of the Association as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Association to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Association to provide
broader indemnification rights than such law permitted the Association to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section 9.3 of these by-laws with respect to proceedings to enforce rights to
indemnification, the Association shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the board.
SECTION 9.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
SECTION 9.3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1 or
9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
SECTION 9.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
<PAGE> 16
SECTION 9.5. INSURANCE. The Association may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 9.6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE ASSOCIATION. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
ARTICLE X. BY-LAWS
SECTION 10.1. INSPECTION. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
SECTION 10.2. AMENDMENTS. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may amend
or repeal the by-laws even though the by-laws may be amended or repealed by its
board.
<PAGE> 17
EXHIBIT 16(6)
Consent for Records of Governmental Agencies
to be Made Available to the Commission
The undersigned, Chase Manhattan Trust Company, National Association,
pursuant to Section 321(b) of The Trust Indenture Act of 1939, hereby authorizes
the Board of Governors of the Federal Reserve System, the Federal Reserve Banks,
the Treasury Department, the Comptroller of the Currency and the Federal Deposit
Insurance Corporation, under such conditions as they may prescribe, to make
available to the Commission such reports, records or other information as they
may have available with respect to the undersigned as a prospective trustee
under an indenture to be qualified under the aforesaid Trustee Indenture Act of
1939 and to make through their examiners or other employees for the use of the
Commission, examinations of the undersigned prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust
Indenture Act of 1939, consents that reports of examination by the Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Commission upon request therefor.
Dated this 26th day of July, 1999.
Chase Manhattan Trust Company,
National Association
By: \s\ Catherine Lenhardt
-----------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 18
EXHIBIT 16(7)
Chase Manhattan Trust Company, National Association
Statement of Condition
March 31,1999
<TABLE>
<CAPTION>
($000)
------
<S> <C>
Assets
Cash and Due From Banks $ 6,195
Securities Available for Sale 3,027
Premises and Fixed Assets 647
Intangible Assets 159,849
---------
Total Assets $ 169,718
=========
Liabilities
Sundry Liabilities and Accrued Expenses $ 985
---------
Stockholder's Equity
Common Stock $ 5,000
Surplus 156,892
Retained Earnings 6,841
---------
Total Stockholder's Equity $ 168,733
---------
Total Liabilities and Stockholder's Equity $ 169,718
=========
</TABLE>
<PAGE> 1
EXHIBIT 25.3
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) ____X___
----------------------------------------
CHASE MANHATTAN TRUST COMPANY, NATIONAL ASSOCIATION
(Exact name of trustee as specified in its charter)
29-2933369
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
ONE OXFORD CENTER, SUITE 1100
301 GRANT STREET, PITTSBURGH, PA 15219
(Address of principal executive offices) (Zip Code)
WILLIAM H. MCDAVID
THE CHASE MANHATTAN BANK
GENERAL COUNSEL
270 PARK AVENUE
NEW YORK, NEW YORK 10017
TEL: (212) 270-2611
(Name, address and telephone number of agent for service)
--------------------------------------------
ROHM AND HAAS COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 23-1028370
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
100 INDEPENDENCE MALL WEST
PHILADELPHIA, PA 19106
(Address of principal executive offices) (Zip Code)
7.85% NOTES DUE 2029
(Title of the indenture securities)
<PAGE> 2
GENERAL
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 the Currency, Washington, D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
NO RESPONSES ARE INCLUDED FOR ITEMS 3-15 OF THIS FORM T-1 BECAUSE THE OBLIGOR IS
NOT IN DEFAULT AS PROVIDED UNDER ITEM 13.
ITEM 16. LIST OF EXHIBITS
LIST BELOW ALL EXHIBITS FILED AS A PART OF THIS STATEMENT OF ELIGIBILITY.
A COPY OF THE ARTICLES OF ASSOCIATION OF THE TRUSTEE AS NOW IN EFFECT.
A COPY OF THE CERTIFICATE OF AUTHORITY OF THE TRUSTEE (PREVIOUSLY KNOWN AS NEW
TRUST COMPANY, NATIONAL ASSOCIATION,) TO COMMENCE BUSINESS. ALSO INCLUDED IN
EXHIBIT 16(2) ARE LETTERS DATED NOVEMBER 24, 1997 FROM THE COMPTROLLER OF THE
CURRENCY AUTHORIZING THE EXERCISE OF FIDUCIARY POWERS BY THE TRUSTEE AND
ACKNOWLEDGING THE NAME CHANGE OF THE TRUSTEE.
THE AUTHORIZATION OF THE TRUSTEE TO EXERCISE CORPORATE TRUST IS CONTAINED IN
EXHIBIT 16(2).
A COPY OF THE BY-LAWS OF THE TRUSTEE AS NOW IN EFFECT.
NOT APPLICABLE
THE TRUSTEE'S CONSENT REQUIRED BY SECTION 321(b) OF THE ACT.
A COPY OF THE LATEST REPORT OF CONDITION OF THE TRUSTEE, PUBLISHED PURSUANT TO
LAW OR THE REQUIREMENTS OF ITS SUPERVISING OR EXAMINING AUTHORITY.
NOT APPLICABLE
NOT APPLICABLE
<PAGE> 3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, Chase Manhattan 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
Philadelphia and State of Pennsylvania, on the 26th day of July, 1999.
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
By \s\ Catherine Lenhardt
--------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 4
EXHIBIT 16(1)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
CHARTER NO. 23548
ARTICLES OF ASSOCIATION
For the purpose of organizing an Association to perform any lawful activities of
a national bank, the undersigned do enter into the following Articles of
Association:
FIRST. The title of this Association shall be Chase Manhattan Trust Company,
National Association (the "Association").
SECOND. The main office of the Association shall be in the City of Pittsburgh,
County of Allegheny, Commonwealth of Pennsylvania. The business of the
Association shall be limited to the fiduciary powers and the support of
activities incidental to the exercise of those powers. The Association will
obtain the prior written approval of the Office of the Comptroller of the
Currency before amending these Articles of Association to expand the scope of
its activities and services.
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, during the full term of his
directorship, 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. Any vacancy in the board of directors may
be filled by action of the shareholders or a majority of the remaining
directors.
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.
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 therefore in the by-laws, 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 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.
Advance notice of the meeting may be duly waived by the sole shareholder in
accordance with 12 C.F.R. 7.2001.
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.
FIFTH. The authorized amount of capital stock of this Association shall be five
million dollars ($5,000,000), divided into fifty thousand (50,000) shares of
common stock of the par value of one hundred dollars ($ 100) 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.
<PAGE> 5
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 to 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.
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.
SIXTH. The board of directors may appoint one of its members President of this
Association, and one of its members Chairperson of the board or two of its
members as Co-Chairpersons 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 by-laws.
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.
(4) Dismiss officers and employees.
(5) Require bonds from officers and employees and 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.
(8) Manage and administer the business and affairs of the Association.
(9) Adopt initial by-laws, not inconsistent with law or the Articles of
Association, for managing the business and regulating the affairs of
the Association.
(10) Amend or repeal by-laws, 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 to any other location permitted under applicable law, without
the approval of the shareholders, and 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.
EIGHTH. The corporate existence of this Association shall continue until
termination according to the laws of the United States.
NINTH. 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> 6
EXHIBIT 16(2)
Comptroller of the Currency
[PICTURE OF
TREASURY DEPARTMENT TREASURY DEPARTMENT OF THE UNITED STATES
APPEARS HERE]
Washington, D.C.
Whereas, satisfactory evidence has been presented to the Comptroller of
the Currency that NEW TRUST COMPANY, NATIONAL ASSOCIATION located in PITTSBURGH
State of PENNSYLVANIA has complied with all provisions of the statutes of the
United States required to be complied with before being authorized to
commence the business of banking as a National Banking Association;
Now, therefore, I hereby certify that the above named association is
authorized to commence the business of banking as a National Banking
Association.
In testimony whereof, witness my signature and seal of office this 24th
day of NOVEMBER 1997
SEAL APPEARS HERE] Charter No. 23548 [SIGNATURE APPEARS HERE]
<PAGE> 7
[LETTERHEAD OF COMPTROLLER OF THE CURRENCY APPEARS HERE]
November 24, 1997
Mr. Daryl J. Zupan
President and CEO New Trust Company, National Association
c/o Mellon Bank, N.A., Corporate Trust
Two Mellon Bank Center, Suite 325
Pittsburgh, Pennsylvania 15259
Re: Charter for a National Trust Ban, New Trust Company, National
Association, Pittsburgh, Pennsylvania
ACN 97 NE 01 0022
Dear Mr. Zupan:
The Comptroller of the Currency (OCC) has found that you have met all
conditions imposed by the OCC and completed all steps necessary to commence the
business of banking. Your charter certificate is enclosed. You are authorized to
commence business on November 24, 1997.
This letter also constitutes OCC authorization to exercise fiduciary powers.
You are reminded that several of the standard conditions contained in the
preliminary approval letter dated October 23, 1997 will continue to apply once
the bank opens and by opening, you agree to subject your association to these
conditions of operation. Some of the conditions bear reiteration here:
Regardless of the association's FDIC insurance status, the association
is subject to the Change in Bank Control Act (12 U.S.C. 1817(j)) by
virtue of its national bank charter. Please refer to item 4 in the list
of standard conditions sent with the preliminary approval letter.
The board of directors is responsible for regular review and update of
policies and procedures and for assuring ongoing compliance with them.
This includes maintaining an internal control system that ensures
compliance with the currency reporting and record keeping requirements
of the Bank Secrecy Act (BSA). The board is expected to train its
personnel in BSA procedures and designate one person or a group to
monitor day-to-day compliance.
<PAGE> 8
Mr. Daryl J. Zupan
Page two
The bank will not engage in full commercial powers authorized to
national banks without the OCC's prior approval. Following the
commencement of operations, bank management is urged to become familiar
with the requirements of the Securities Exchange Act of 1934 and Part
11 of the Comptroller's regulations relative to the registration of the
bank's equity securities and related periodic reports. These
requirements will be applicable to your bank when the number of
shareholders of record is maintained at 500 or more. Such registration
may be subsequently terminated pursuant to the Act only when the number
of shareholders of record is reduced to fewer than 300.
Should you have any questions regarding the supervision of your bank, please
contact the portfolio manager who will be responsible for OCC's ongoing
supervisory effort at your institution. You will be notified of the name and
number of the appropriate individual in the near future.
Sincerely,
/s/ Michael G. Tiscia
- ---------------------------
Michael G. Tiscia
Licensing Manager
Enclosure
cc: Official File
Field File
<PAGE> 9
[LOGO APPEARS HERE]
Comptroller of the Currency Administrator of National Banks
Northeastern District
1114 Avenue of the Americas, Suite 3900
New York, New York 10036
November 24, 1997
Joseph R. Bielawa
Vice President and Assistant General Counsel
The Chase Manhattan Bank
270 Park Avenue, 39th Floor
New York, New York 10017
Re: Change in Corporate Title
New Trust Company, National Association (Bank)
Pittsburgh, Pennsylvania
Dear Mr. Bielawa:
The Office of the Comptroller of the Currency (OCC) has received your
submission, concerning the change and amendment to Article First of the
above-referenced Bank's Articles of Association. The OCC has amended its records
to reflect that effective November 24, 1997, the corporate title of New
Trust Company, National Association, Charter Number 23548, was changed to
"ChaseManhattan Trust Company, National Association."
You are reminded that the OCC does not approve national bank name changes nor
does it maintain official titles or the retention of alternate titles. The use
of other titles or the retention of the rights to any previously used title is
the responsibility of the Bank's board of directors. Legal counsel should be
consulted to determine whether or not the new title, or any previously used
title, could be challenged by competing institutions under the provisions of
federal or state law.
A copy of the amended Article as accepted for filing is enclosed for the Bank's
records.
Very truly yours,
/s/ Linda Leickel
- ------------------------------
Linda Leickel
Senior Licensing Analyst
Charter No.: 23548
Control No.: 97 NE 04 010 w/97 NE 01 022
<PAGE> 10
EXHIBIT 16(4)
[CHASE LOGO]
CHASE MANHATTAN TRUST COMPANY,
NATIONAL ASSOCIATION
BY-LAWS
ARTICLE I. MEETINGS OF SHAREHOLDERS
SECTION 1.1. ANNUAL MEETING. The regular annual meeting of the shareholders to
elect directors and transact whatever other business may properly come before
the meeting, shall be held at the main office of the Association, or such other
place as the board may designate, and at such time in each year as may be
designated by the board of directors. Unless otherwise provided by law, notice
of the meeting may be waived by the Association's sole shareholder in accordance
with 12 C.F.R. Section 7.2001. If, for any cause, an election of directors is
not made on that date, or in the event of a legal holiday, on the next following
banking day, an election may be held on any subsequent day within 60 days of the
date fixed, to be designated by the board, or, if the directors fail to fix the
date, by shareholders representing two thirds of the shares issued and
outstanding.
SECTION 1.2. SPECIAL MEETINGS. Except as otherwise specifically provided by
statute, special meetings of the shareholders may be called for any purpose at
any time by a majority of the board of directors or by any one or more
shareholders owning, in the aggregate, not less than twenty-five percent of the
stock of the Association or by the Chairperson of the board of directors or the
President. Unless otherwise provided by law, advance notice of a special meeting
may be waived by the Association's Sole Shareholder in accordance with 12 C.F.R.
Section 7.2001.
SECTION 1.3. NOMINATIONS OF DIRECTORS. Nominations for election to the board of
directors may be made by the board of directors or by any stockholder of any
outstanding class of capital stock of the Association entitled to vote for the
election of directors. Nominations, other than those made by or on behalf of the
existing management of the Association, shall be made in writing and shall be
delivered or mailed to the President of the Association and to the Comptroller
of the Currency, Washington, D.C., not less than 14 days nor more than 50 days
prior to any meeting of shareholders called for the election of directors,
provided, however, that if less than 21 days' notice of the meeting is given to
shareholders, such nomination shall be mailed or delivered to the President of
the Association and to the Comptroller of the Currency not later than the close
of business on the seventh (7th) day following the day on which the notice of
meeting was mailed. Such notification shall contain the following information to
the extent known to the notifying shareholder.
(1) The name and address of each proposed nominee.
(2) The principal occupation of each proposed nominee.
(3) The total number of shares of capital stock of the Association
that will be voted for each proposed nominee.
(4) The name and residence address of the notifying shareholder.
(5) The number of shares of capital stock of the Association owned
by the notifying shareholder. Nominations not made in accordance herewith may,
in his/her discretion, be disregarded by the Chairperson of the meeting, and
upon his/her instructions, the vote tellers may disregard all votes cast for
each such nominee.
SECTION 1.4. PROXIES. Shareholders may vote at any meeting of the shareholders
by proxies duly authorized in writing, but no officer or employee of this
Association shall act as proxy. Proxies shall be valid only for one meeting to
be specified therein, and any adjournments of such meeting. Proxies shall be
dated and filed with the records of the meeting. Proxies with rubber stamped
facsimile signatures may be used and unexecuted proxies may be counted upon
receipt of a confirming telegram from the shareholder. Proxies meeting above
requirements submitted at any time during a meeting shall be accepted.
SECTION 1.5 QUORUM. A majority of the outstanding capital stock, represented in
person or by proxy, shall constitute a quorum at any meeting of shareholders,
unless otherwise provided by law, or by the shareholders or directors pursuant
to Section 10.2, but less than a quorum may adjourn any meeting, from time to
time, and the meeting may be held, as adjourned, without further notice. 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
<PAGE> 11
Articles of Association, or by the shareholders or directors pursuant to Section
10.2. Any action required or permitted to be taken by the shareholders may be
taken without a meeting by unanimous written consent of the shareholders to a
resolution authorizing the action. The resolution and the written consent shall
be filed with the minutes of the proceedings of the shareholders.
ARTICLE II. DIRECTORS
SECTION 2.1. BOARD OF DIRECTORS. The board of directors ("board") shall have the
power to manage and administer the business and affairs of the Association.
Except as expressly limited by law, all corporate powers of the Association
shall be vested in and may be exercised by the board.
SECTION 2.2. NUMBER. The board shall consist of not less than five nor more than
twenty-five persons, the exact number within such minimum and maximum limits to
be fixed and determined from time to time by resolution of a majority of the
full board or by resolution of a majority of the shareholders at any meeting
thereof; provided, however, that a majority of the full board may not increase
the number of directors to a number which: (1) exceeds by more than two the
number of directors last elected by shareholders where such number was 15 or
less; and (2) exceeds by more than four the number of directors last elected by
shareholders where such number was 16 or more, but in no event shall the number
of directors exceed 25.
SECTION 2.3. ORGANIZATION MEETING. The Secretary shall notify the
directors-elect of their election and of the time at which they are required to
meet at the main office of the Association to organize the new board and elect
and appoint officers of the Association for the succeeding year. Such meeting
shall be held on the day of the election or as soon thereafter as practicable,
and, in any event, within 30 days thereof. If, at the time fixed for such
meeting, there shall not be a quorum, the directors present may adjourn the
meeting, from time to time, until a quorum is obtained.
SECTION 2.4. REGULAR MEETINGS. The time and location of regular meetings of the
board shall be set by the board. Such meetings may be held without notice. Any
business may be transacted at any regular meeting. The board may adopt any
procedures for the notice and conduct of any meetings as are not prohibited by
law.
SECTION 2.5. SPECIAL MEETINGS. Special meetings of the board may be called at
the request of the Chairperson or Co-Chairperson of the board, the President, or
three or more directors. Each member of the board shall be given notice stating
the time and place, by telegram, telephone, letter or in person, of each such
special meeting at least one day prior to such meeting. Any business may be
transacted at any special meeting.
SECTION 2.6. ACTION BY THE BOARD. Except as otherwise provided by law, corporate
action to be taken by the board shall mean such action at a meeting of the
board. Any action required or permitted to be taken by the board or any
committee of the board may be taken without a meeting if all members of the
board or the committee consent in writing to a resolution authorizing the
action. The resolution and the written consents thereto shall be filed with the
minutes of the proceedings of the board or committee. Any one or more members of
the board or any committee may participate in a meeting of the board or
committee by means of a conference telephone or similar communications equipment
allowing all persons participating in the meeting to hear each other at the same
time. Participation by such means shall constitute presence in person at such
meeting.
SECTION 2.7. WAIVER OF NOTICE. Notice of a special meeting need not be given to
any director who submits a signed waiver of notice, whether before or after the
meeting, or who attends the meeting without protesting, prior thereto or at its
commencement, the lack of notice to him or her.
SECTION 2.8. QUORUM AND MANNER OF ACTING. Except as otherwise required by law,
the Articles of Association or these by-laws, a majority of the directors shall
constitute a quorum for the transaction of any business at any meeting of the
board and the act of a majority of the directors present and voting at a meeting
at which a quorum is present shall be the act of the board. In the absence of a
quorum, a majority of the directors present may adjourn any meeting, from time
to time, until a quorum is present and no notice of any adjourned meeting need
be given. At any such adjourned meeting at which a quorum is present, any
business may be transacted which might have been transacted at the meeting as
originally called.
SECTION 2.9. VACANCIES. In the event a majority of the full board increases the
number of directors to a number which exceeds the number of directors last
elected by shareholders, as permitted by Section 2.2, directors may be appointed
to fill the resulting vacancies by vote of such majority of the full board. In
the event of a vacancy
<PAGE> 12
in the board for any other cause, a director may be appointed to fill such
vacancy by vote of a majority of the remaining directors then in office.
SECTION 2.10. REMOVAL OF DIRECTORS. The vacancy created by the removal of a
director pursuant to this Section may be filled by the board in accordance with
Section 2.9 of these by-laws or by the shareholders.
ARTICLE III. COMMITTEES
SECTION 3.1. EXECUTIVE COMMITTEE. There may be an executive committee consisting
of the Chairperson or Co-Chairperson of the board and not less than two other
directors appointed by the board annually or more often. Subject to the
limitations in Section 3.4(g) of these by-laws, the executive committee shall
have the maximum authority permitted by law.
SECTION 3.2. AUDIT COMMITTEE. There may be an audit committee composed of not
less than two directors, exclusive of any active officers, appointed by the
board annually or more often, whose duty it shall be to make an examination at
least once during each calendar year and within fifteen months of the last
examination into the affairs of the Association, or cause continuous suitable
examinations to be made, by auditors responsible only to the board, and to
report the results of any such examinations in writing to the board from time to
time. Such examinations shall include audits of the fiduciary business of the
Association as may be required by law or regulation.
SECTION 3.3. OTHER COMMITTEES. The board may appoint, from time to time, other
committees of one or more persons, for such purposes and with such powers as the
board may determine.
SECTION 3.4. GENERAL. (a) Each committee shall elect a Chairperson from among
the members thereof and shall also designate a Secretary of the committee, who
shall keep a record of its proceedings.
(b) Vacancies occurring from time to time in the membership of any
committee shall be filled by the board for the unexpired term of the member
whose departure causes such vacancy. The board may designate one or more
alternate members of any committee, who may replace any absent member or members
at any meeting of such committee.
(c) Each committee shall adopt its own rules of procedure and shall
meet at such stated times as it may, by resolution, appoint. It shall also meet
whenever called together by its Chairperson or the Chairperson of the board.
(d) No notice of regular meetings of any committee need be given.
Notice of every special meeting shall be given either by mailing such notice to
each member of such committee at his or her address, as the same appears in the
records of the Association, at least two days before the day of such meeting, or
by notifying each member on or before the day of such meeting by telephone or by
personal notice, or by leaving a written notice at his or her residence or place
of business on or before the day of such meeting. Waiver of notice in writing of
any meeting, whether prior or subsequent to such meeting, or attendance at such
meeting, shall be equivalent to notice of such meeting. Unless otherwise
indicated in the notice thereof, any and all business may be transacted at any
special meeting.
(e) All committees shall, with respect to all matters, be subject to
the authority and direction of the board and shall report to it when required.
(f) Unless otherwise required by law, the Articles of Association or
these by-laws, a quorum at any meeting of any committee shall be one-third of
the full membership and present shall be the act of the committee.
(g) No committee shall have authority to take any action which is
expressly required by law or regulation to be taken at a meeting of the board or
by a specified proportion of directors.
ARTICLE IV. OFFICERS AND EMPLOYEES
SECTION 4.1. CHAIRPERSON OF THE BOARD. The board shall appoint one of its
members to be the Chairperson of the board, or two persons to serve as
Co-Chairperson of the board to serve at its pleasure. Such person shall preside
at all meetings of the board. The Chairperson or Co-Chairpersons of the board
shall supervise the carrying out of the policies adopted or approved by the
board; shall have general executive powers, as well as the specific powers
conferred by these by-laws; and shall also have and may exercise such further
powers and duties as from time to time may be conferred upon, or assigned by the
board.
<PAGE> 13
SECTION 4.2. PRESIDENT. The board may appoint one of its members to be the
President of the Association. In the absence of the Chairperson or
Co-Chairpersons, the President shall preside at any meeting of the board. The
President shall have general executive powers, and shall have and may exercise
any and all other powers and duties pertaining by law, regulation, or practice
to the office of President, or imposed by these by-laws. The President shall
also have and may exercise such further powers and duties as from time to time
may be conferred, or assigned by the board.
SECTION 4.3. VICE PRESIDENT. The board may appoint one or more Vice Presidents.
Each Vice President shall have such powers and duties as may be assigned by the
board.
SECTION 4.4. SECRETARY. The board shall appoint a Secretary, Cashier, or other
designated officer who shall be Secretary of the board and of the Association,
and shall keep accurate minutes of all meetings. The Secretary shall attend to
the giving of all notices required by these by-laws; shall be custodian of the
corporate seal, records, documents and papers of the Association; shall provide
for the keeping of proper records of all transactions of the Association; shall
have and may exercise any and all other powers and duties pertaining by law,
regulation or practice, to the office of Cashier, or imposed by these by-laws;
and shall also perform such other duties as may be assigned from time to time,
by the board.
SECTION 4.5. OTHER OFFICERS. The board may appoint one or more Assistant Vice
Presidents, one or more Trust Officers, one or more Assistant Secretaries, one
or more Assistant Cashiers, one or more Managers and Assistant Managers of
branches and such other officers and attorneys in fact as from time to time may
appear to the board to be required or desirable to transact the business of the
Association. Such officers shall respectively exercise such powers and perform
such duties as pertain to their several offices, or as may be conferred upon, or
assigned to, them by the board, the Chairperson or Co-Chairpersons of the board,
or the President. The board may authorize an officer to appoint one or more
officers or assistant officers.
SECTION 4.6. RESIGNATION. An officer may resign at any time by delivering notice
to the Association. A resignation is effective when the notice is given unless
the notice specifies a later effective date.
ARTICLE V. FIDUCIARY ACTIVITIES
SECTION 5.1. TRUST COMMITTEE. There shall be a Trust Committee of this
Association composed of four or more members, who shall be capable and
experienced officers or directors of the Association. The Committee is charged
with the responsibility for the investment, retention, or disposition of assets
held in accounts with respect to which the Association has investment authority;
for the review of the assets of accounts for which the Association has
investment authority promptly after the acceptance of such an account and at
least once during every calendar year thereafter to determine the advisability
of retaining or disposing of such assets; for the determination of the manner in
which proxies received for accounts for which the Association has responsibility
for the voting of proxies shall be voted; for the determination of all
substantial questions involving discretionary authority of the Association of a
non-investment nature, including, but not limited to, distribution of principal
and/or income in respect of any account; for providing advice as to the
investment, retention, or disposition of assets in investment advisory accounts
maintained by the Association; for the making of such reports as this board
shall require; and for such other responsibilities as may be assigned by this
board. The Trust Committee, in discharging its aforementioned responsibilities,
may authorize officers of the Association to exercise such powers and under such
conditions as the Committee may from time to time prescribe.
SECTION 5.2. TRUST INVESTMENTS. Funds held in a fiduciary capacity shall be
invested according to the instrument establishing the fiduciary relationship and
local law. Where such instrument does not specify the character and class of
investments to be made and does not vest in the Association a discretion in the
matter, funds held pursuant to such instrument shall be invested in investments
in which corporate fiduciaries may invest under applicable law.
SECTION 5.3. TRUST AUDIT COMMITTEE. The board shall appoint a committee of at
least two directors, exclusive of any active officer of the association, which
shall, at least once during each calendar year make suitable audits of the
association's fiduciary activities or cause suitable audits to be made by
auditors responsible only to the board, and at such time shall ascertain whether
fiduciary powers have been administered according to law, Part 9 of the
Regulations of the Comptroller of the Currency, and sound fiduciary principles.
SECTION 5.4. FIDUCIARY FILES. There shall be maintained by the association all
fiduciary records necessary to assure that its fiduciary responsibilities have
been properly undertaken and discharged.
<PAGE> 14
ARTICLE VI. STOCK AND STOCK CERTIFICATES
SECTION 6.1. TRANSFERS. Shares of stock shall be transferable on the books of
the Association, and a transfer book shall be kept in which all transfers of
stock shall be recorded. Every person becoming a shareholder by such transfer
shall, in proportion to his or her shares, succeed to all rights of the prior
holder of such shares. The board may impose conditions upon the transfer of the
stock reasonably calculated to simplify the work of the Association with respect
to stock transfers, voting at shareholder meetings, and related matters and to
protect it against fraudulent transfers.
SECTION 6.2. STOCK CERTIFICATES. Certificates of stock shall bear the signature
of the Chairperson or Co-Chairpersons of the board or President (which may be
engraved, printed or impressed), and shall be signed manually or by facsimile
process by the Secretary, Assistant Secretary, Cashier, Assistant Cashier, or
any other officer appointed by the board for that purpose, to be known as an
authorized officer, and the seal of the Association shall be engraved thereon.
Each certificate shall recite on its face that the stock represented thereby is
transferable only upon the books of the Association properly endorsed. In case
any such officer who has signed or whose facsimile signature has been placed
upon such certificate shall have ceased to be such before such certificate is
issued, it may be issued by the Association with the same effect as if such
officer had not ceased to be such at the time of its issue. The corporate seal
may be a facsimile, engraved or printed.
ARTICLE VII. CORPORATE SEAL
SECTION 7.1. CORPORATE SEAL. The Chairperson, the President, the Cashier, the
Secretary or any Assistant Cashier or Assistant Secretary, or other officer
thereunto designated by the board, shall have authority to affix the corporate
seal to any document requiring such seal, and to attest the same. Such seal
shall be substantially in the following form: A circle, with the words "Chase
Manhattan Trust Company, National Association" within such circle.
ARTICLE VIII. MISCELLANEOUS PROVISIONS
SECTION 8.1. FISCAL YEAR. The fiscal year of the Association shall be the
calendar year.
SECTION 8.2. EXECUTION OF INSTRUMENTS. All agreements, indentures, mortgages,
deeds, conveyances, transfers, certificates, declarations, receipts, discharges,
releases, satisfactions, settlements, petitions, schedules, accounts,
affidavits, bonds, undertakings, proxies and other instruments or documents may
be signed, executed, acknowledged, verified, delivered or accepted on behalf of
the Association by the Chairperson or Co-Chairpersons of the board, or the
President, or any Vice Chairperson, or any Managing Director, or any Vice
President, or any Assistant Vice President, or the Chief Financial Officer, or
the Controller, or the Secretary, or the Cashier, or, if in connection with
exercise of fiduciary powers of the Association, by any of those officers or by
any Trust Officer. Any such instruments may also be executed, acknowledged,
verified, delivered or accepted on behalf of the Association in such other
manner and by such other officers as the board may from time to time direct. The
provisions of this Section 8.2 are supplementary to any other provision of these
by-laws.
SECTION 8.3. RECORDS. The Articles of Association, the by-laws and the
proceedings of all meetings of the shareholders, the board, and standing
committees of the board, shall be recorded in appropriate minute books provided
for that purpose. The minutes of each meeting shall be signed by the Secretary,
Cashier or other officer appointed to act as Secretary of the meeting.
SECTION 8.4. CORPORATE GOVERNANCE PROCEDURES. To the extent not inconsistent
with applicable Federal banking law, bank safety and soundness or these by-laws,
the corporate governance procedures found in the Delaware General Corporation
Law shall be followed by the Association.
ARTICLE IX. INDEMNIFICATION
SECTION 9.1. RIGHT TO INDEMNIFICATION. Each person who was or is made a party or
is threatened to be made a
<PAGE> 15
party to or is otherwise involved in any action, suit or proceeding, whether
civil, criminal, administrative or investigative (hereinafter a "proceeding"),
by reason of the fact that he or she is or was a director or an officer of the
Association or is or was serving at the request of the Association as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, including service with respect to an
employee benefit plan (hereinafter an "indemnitee"), whether the basis of such
proceeding is alleged action in an official capacity as a director, officer,
employee or agent or in any other capacity while serving as a director, officer,
employee or agent, shall be indemnified and held harmless by the Association to
the fullest extent authorized by the Delaware General Corporation Law, as the
same exists or may hereafter be amended (but, in the case of any such amendment,
only to the extent that such amendment permits the Association to provide
broader indemnification rights than such law permitted the Association to
provide prior to such amendment), against all expense, liability and loss
(including attorneys' fees, judgments, fines, ERISA excise taxes or penalties
and amounts paid in settlement) reasonably incurred or suffered by such
indemnitee in connection therewith; provided, however, that, except as provided
in Section 9.3 of these by-laws with respect to proceedings to enforce rights to
indemnification, the Association shall indemnify any such indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only
if such proceeding (or part thereof) was authorized by the board.
SECTION 9.2. RIGHT TO ADVANCEMENT OF EXPENSES. The right to indemnification
conferred in Section 9.1 of these by-laws shall include the right to be paid by
the Association the expenses (including attorney's fees) incurred in defending
any such proceeding in advance of its final disposition (hereinafter an
"advancement of expenses"); provided, however, that, if the Delaware General
Corporation Law requires, an advancement of expenses incurred by an indemnitee
in his or her capacity as a director or officer (and not in any other capacity
in which service was or is rendered by such indemnitee, including, without
limitation, service to an employee benefit plan) shall be made only upon
delivery to the Association of an undertaking (hereinafter an "undertaking"), by
or on behalf of such indemnitee, to repay all amounts so advanced if it shall
ultimately be determined by final judicial decision from which there is no
further right to appeal (hereinafter a "final adjudication") that such
indemnitee is not entitled to be indemnified for such expenses under this
Section 9.2 or otherwise. The rights to indemnification and to the advancement
of expenses conferred in Sections 9.1 and 9.2 of these by-laws shall be contract
rights and such rights shall continue as to an indemnitee who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
indemnitee's heirs, executors and administrators.
SECTION 9.3. RIGHT OF INDEMNITEE TO BRING SUIT. If a claim under Section 9.1 or
9.2 of these by-laws is not paid in full by the Association within sixty (60)
days after a written claim has been received by the Association except in the
case of a claim for an advancement of expenses, in which case the applicable
period shall be twenty (20) days, the indemnitee may at any time thereafter
bring suit against the Association to recover the unpaid amount of the claim. If
successful in whole or in part in any such suit, or in a suit brought by the
Association to recover an advancement of expenses pursuant to the terms of an
undertaking, the indemnitee shall be entitled to be paid also the expense of
prosecuting or defending such suit. In (1) any suit brought by the indemnitee to
enforce a right to indemnification hereunder (but not in a suit brought by the
indemnitee to enforce a right to an advancement of expenses) it shall be a
defense that, and (2) any suit brought by the Association to recover an
advancement of expenses pursuant to the terms of an undertaking, the Association
shall be entitled to recover such expenses upon a final adjudication that, the
indemnitee has not met any applicable standard for indemnification set forth in
the Delaware General Corporation Law. Neither the failure of the Association
(including the board, the Association's independent legal counsel, or its
shareholders) to have made a determination prior to the commencement of such
suit that indemnification of the indemnitee is proper in the circumstances
because the indemnitee has met the applicable standard of conduct set forth in
the Delaware General Corporation Law, nor an actual determination by the
Association (including the board, the Association's independent legal counsel,
or its shareholders) that the indemnitee has not met such applicable standard of
conduct, shall create a presumption that the indemnitee has not met the
applicable standard of conduct or, in the case of such a suit brought by the
indemnitee, be a defense to such suit. In any suit brought by the indemnitee to
enforce a right to indemnification or to an advancement of expenses hereunder,
or brought by the Association to recover an advancement of expenses pursuant to
the terms of an undertaking, the burden of proving that the indemnitee is not
entitled to be indemnified, or to such advancement of expenses, under this
Article IX or otherwise shall be on the Association.
SECTION 9.4. NON-EXCLUSIVITY OF RIGHTS. The rights to indemnification and to the
advancement of expenses conferred in this Article IX shall not be exclusive of
any other right which any person may have or hereafter acquire under any
statute, the Association's Articles of Association, by-laws, agreement, vote of
shareholders or disinterested directors or otherwise.
<PAGE> 16
SECTION 9.5. INSURANCE. The Association may maintain insurance, at its expense,
to protect itself and any director, officer, employee or agent of the
Association or another corporation, partnership, joint venture, trust or other
enterprise against any expense, liability or loss, whether or not the
Association would have the power to indemnify such person against such expense,
liability or loss under the Delaware General Corporation Law.
SECTION 9.6. INDEMNIFICATION OF EMPLOYEES AND AGENTS OF THE ASSOCIATION. The
Association may, to the extent authorized from time to time by the board, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Association to the fullest extent of the provisions of this Article
IX with respect to the indemnification and advancement of expenses of directors
and officers of the Association.
ARTICLE X. BY-LAWS
SECTION 10.1. INSPECTION. A copy of the by-laws, with all amendments, shall at
all times be kept in a convenient place at the main office of the Association,
and shall be open for inspection to all shareholders during banking hours.
SECTION 10.2. AMENDMENTS. The by-laws may be amended, altered or repealed, at
any regular meeting of the board by a vote of a majority of the total number of
the directors except as provided below. The Association's shareholders may amend
or repeal the by-laws even though the by-laws may be amended or repealed by its
board.
<PAGE> 17
EXHIBIT 16(6)
Consent for Records of Governmental Agencies
to be Made Available to the Commission
The undersigned, Chase Manhattan Trust Company, National Association,
pursuant to Section 321(b) of The Trust Indenture Act of 1939, hereby authorizes
the Board of Governors of the Federal Reserve System, the Federal Reserve Banks,
the Treasury Department, the Comptroller of the Currency and the Federal Deposit
Insurance Corporation, under such conditions as they may prescribe, to make
available to the Commission such reports, records or other information as they
may have available with respect to the undersigned as a prospective trustee
under an indenture to be qualified under the aforesaid Trustee Indenture Act of
1939 and to make through their examiners or other employees for the use of the
Commission, examinations of the undersigned prospective Trustee.
The undersigned also, pursuant to Section 321(b) of said Trust
Indenture Act of 1939, consents that reports of examination by the Federal,
State, Territorial or District authorities may be furnished by such authorities
to the Commission upon request therefor.
Dated this 26th day of July, 1999.
Chase Manhattan Trust Company,
National Association
By: \s\ Catherine Lenhardt
-----------------------------------
Catherine Lenhardt
Assistant Vice President
<PAGE> 18
EXHIBIT 16(7)
Chase Manhattan Trust Company, National Association
Statement of Condition
March 31,1999
<TABLE>
<CAPTION>
($000)
------
<S> <C>
Assets
Cash and Due From Banks $ 6,195
Securities Available for Sale 3,027
Premises and Fixed Assets 647
Intangible Assets 159,849
---------
Total Assets $ 169,718
=========
Liabilities
Sundry Liabilities and Accrued Expenses $ 985
---------
Stockholder's Equity
Common Stock $ 5,000
Surplus 156,892
Retained Earnings 6,841
---------
Total Stockholder's Equity $ 168,733
---------
Total Liabilities and Stockholder's Equity $ 169,718
=========
</TABLE>
<PAGE> 1
Exhibit 99.1
LETTER OF TRANSMITTAL
ROHM AND HAAS COMPANY
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the Securities
Act of 1933, as amended
Pursuant to the Prospectus dated , 1999
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK CITY
TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE
WITHDRAWN PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
The Exchange Agent for the Exchange Offer is:
Chase Manhattan Trust Company, N.A.
By Registered or Certified Mail: Facsimile Transmissions
Chase Manhattan Trust Company, N.A. (Eligible Institutions Only)
55 Water Street (212) 638-7375
Room 234
New York, New York 10041
Attention: Carlos Estevez
By Hand or Overnight Delivery To Confirm by Telephone
Chase Manhattan Trust Company, N.A. or for Information Call:
55 Water Street Carlos Estevez
Room 234 (212) 638-0828
New York, New York 10041
Attention: Carlos Estevez
----------------
DELIVERY OF THIS LETTER OF TRANSMITTAL TO AN ADDRESS OTHER THAN AS SET
FORTH ABOVE OR TRANSMISSION OF THIS LETTER OF TRANSMITTAL VIA FACSIMILE TO A
NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID DELIVERY.
THE INSTRUCTIONS CONTAINED HEREIN SHOULD BE READ CAREFULLY BEFORE THIS
LETTER OF TRANSMITTAL IS COMPLETED.
Capitalized terms used but not defined herein shall have the same meaning
given them in the Prospectus (as defined below).
<PAGE> 2
This Letter of Transmittal is to be completed either if (a) certificates
are to be forwarded herewith or (b) tenders are to be made pursuant to the
procedures for tender by book-entry transfer set forth under "The Exchange
Offer--Procedures for Tendering Outstanding Debt" in the Prospectus and an
Agent's Message (as defined below) is not delivered. Certificates, or book-entry
confirmation of a book-entry transfer of such Outstanding Debt into the Exchange
Agent's account at The Depository Trust Company ("DTC"), as well as this Letter
of Transmittal (or facsimile thereof), properly completed and duly executed,
with any required signature guarantees, and any other documents required by this
Letter of Transmittal, must be received by the Exchange Agent at its address set
forth herein on or prior to the Expiration Date. Tenders by book-entry transfer
also may be made by delivering an Agent's Message in lieu of this Letter of
Transmittal. The term "book-entry confirmation" means a confirmation of a
book-entry transfer of Outstanding Debt into the Exchange Agent's account at
DTC. The term "Agent's Message" means a message, transmitted by DTC to and
received by the Exchange Agent and forming a part of a book-entry confirmation,
which states that DTC has received an express acknowledgment from the tendering
participant, which acknowledgment states that such participant has received and
agrees to be bound by this Letter of Transmittal and that Rohm and Haas Company,
a Delaware corporation (the "Company"), may enforce this Letter of Transmittal
against such participant.
Holders (as defined below) of Outstanding Debt whose certificates (the
"Certificates") for such Outstanding Debt are not immediately available or who
cannot deliver their Certificates and all other required documents to the
Exchange Agent on or prior to the expiration date of the exchange offer (the
"Expiration Date") or who cannot complete the procedures for book-entry transfer
on a timely basis, must tender their Outstanding Debt according to the
guaranteed delivery procedures set forth in "The Exchange Offer--Procedures for
Tendering Outstanding Debt" in the Prospectus.
DELIVERY OF DOCUMENTS TO THE BOOK-ENTRY TRANSFER FACILITY DOES NOT
CONSTITUTE DELIVERY TO THE EXCHANGE AGENT.
NOTE: SIGNATURES MUST BE PROVIDED BELOW
PLEASE READ THE ACCOMPANYING INSTRUCTIONS CAREFULLY
ALL TENDERING HOLDERS COMPLETE THIS BOX:
DESCRIPTION OF OUTSTANDING DEBT
- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
If blank, please print name and address Outstanding Debt
of registered Holder(s) (Attach additional list if necessary)
- ---------------------------------------------------------------------------------
Aggregate Principal Amount
Principal of Outstanding
Amount of Debt Tendered
Certificate Outstanding (if less than
Number(s)* Debt all)**
- ------------------------------------------------------------------------------------
<S> <C> <C> <C>
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------
Total:
- ------------------------------------------------------------------------------------
</TABLE>
* Need not be completed by book-entry Holders.
** Outstanding Debt may be tendered in whole or in part in minimum
denominations of $100,000 and in multiples of $1,000 in excess thereof. All
Outstanding Debt held shall be deemed tendered unless a lesser number is
specified in this column. See Instruction 4.
(BOXES BELOW TO BE CHECKED BY ELIGIBLE INSTITUTIONS ONLY)
[_] CHECK HERE IF TENDERED OUTSTANDING DEBT IS BEING DELIVERED BY BOOK-ENTRY
TRANSFER MADE TO THE ACCOUNT MAINTAINED BY THE EXCHANGE AGENT WITH DTC AND
COMPLETE THE FOLLOWING:
Name of Tendering Institution ______________________________________________
DTC Account Number __________________ Transaction Code Number _____________
[_] CHECK HERE AND ENCLOSE A PHOTOCOPY OF THE NOTICE OF GUARANTEED
DELIVERY IF TENDERED OUTSTANDING DEBT IS BEING DELIVERED PURSUANT TO A
NOTICE OF GUARANTEED DELIVERY PREVIOUSLY SENT TO THE EXCHANGE AGENT AND
COMPLETE THE
2
<PAGE> 3
FOLLOWING (SEE INSTRUCTION 1):
Name(s) of Registered Holder(s) ____________________________________________
Window Ticket Number (if any) ______________________________________________
Date of Execution of Notice of Guaranteed Delivery _________________________
Name of Institution which Guaranteed Delivery ______________________________
If Guaranteed Delivery is to be made by Book-Entry Transfer:
Name of Tendering Institution ______________________________________________
DTC Account Number __________________ Transaction Code Number _____________
[_] CHECK HERE IF TENDERED BY BOOK-ENTRY TRANSFER AND NON-EXCHANGED OUTSTANDING
DEBT IS TO BE RETURNED BY CREDITING THE DTC ACCOUNT NUMBER SET FORTH ABOVE.
[_] CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10 ADDITIONAL
COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR SUPPLEMENTS
THERETO.
Name:
______________________________________________________________
Address: ______________________________________________________________________
3
<PAGE> 4
Ladies and Gentlemen:
The undersigned hereby tenders to Rohm and Haas Company, a Delaware
corporation (the "Company"), the above described principal amount of the
Company's % [Notes][Debentures] due (the "Outstanding Debt") in exchange for
an equivalent amount of the Company's % [Notes][Debentures] due (the
"Exchange Debt"), which have been registered under the Securities Act of 1933,
as amended (the "Securities Act"), upon the terms and subject to the conditions
set forth in the Prospectus dated , 1999 (as the same may be amended or
supplemented from time to time, the "Prospectus"), receipt of which is hereby
acknowledged, and in this Letter of Transmittal (which, together with the
Prospectus, constitute the "Exchange Offer").
Subject to and effective upon the acceptance for exchange of all or any
portion of the Outstanding Debt tendered herewith in accordance with the terms
and conditions of the Exchange Offer (including, if the Exchange Offer is
extended or amended, the terms and conditions of any such extension or
amendment), the undersigned hereby sells, assigns and transfers to or upon the
order of the Company all right, title and interest in and to such Outstanding
Debt as is being tendered herewith. The undersigned hereby irrevocably
constitutes and appoints the Exchange Agent as its agent and attorney-in-fact
(with full knowledge that the Exchange Agent is also acting as agent of the
Company in connection with the Exchange Offer) with respect to the tendered
Outstanding Debt, with full power of substitution (such power of attorney being
deemed to be an irrevocable power coupled with an interest) subject only to the
right of withdrawal described in the Prospectus, to (i) deliver Certificates for
Outstanding Debt to the Company together with all accompanying evidences of
transfer and authenticity to, or upon the order of, the Company, upon receipt by
the Exchange Agent, as the undersigned's agent, of the Exchange Debt to be
issued in exchange for such Outstanding Debt, (ii) present Certificates for such
Outstanding Debt for transfer, and to transfer the Outstanding Debt on the books
of the Company, and (iii) receive for the account of the Company all benefits
and otherwise exercise all rights of beneficial ownership of such Outstanding
Debt, all in accordance with the terms and conditions of the Exchange Offer.
The undersigned hereby represents and warrants that the undersigned has
full power and authority to tender, exchange, sell, assign and transfer the
Outstanding Debt tendered hereby and that, when the same is accepted for
exchange, the Company will acquire good, marketable and unencumbered title
thereto, free and clear of all liens, restrictions, charges and encumbrances,
and that the Outstanding Debt tendered hereby is not subject to any adverse
claims or proxies. The undersigned will, upon request, execute and deliver any
additional documents deemed by the Company or the Exchange Agent to be necessary
or desirable to complete the exchange, assignment and transfer of the
Outstanding Debt tendered hereby, and the undersigned will comply with its
obligations under the Registration Rights Agreement. The undersigned has read
and agrees to all of the terms of the Exchange Offer.
The name(s) and address(es) of the registered Holder(s) of the Outstanding
Debt tendered hereby should be printed above, if they are not already set forth
above, as they appear on the Certificates representing such Outstanding Debt.
The Certificate number(s) and the Outstanding Debt that the undersigned wishes
to tender should be indicated in the appropriate boxes above.
If any tendered Outstanding Debt is not exchanged pursuant to the Exchange
Offer for any reason, or if Certificates are submitted for more Outstanding Debt
than are tendered or accepted for exchange, Certificates for such nonexchanged
or nontendered Outstanding Debt will be returned (or, in the case of Outstanding
Debt tendered by book-entry transfer, such Outstanding Debt will be credited to
an account maintained at DTC), without expense to the tendering Holder, promptly
following the expiration or termination of the Exchange Offer.
The undersigned understands that tenders of Outstanding Debt pursuant to
any one of the procedures described in "The Exchange Offer--Procedures for
Tendering Outstanding Debt" in the Prospectus and in the instructions attached
hereto will, upon the Company's acceptance for exchange of such tendered
Outstanding Debt, constitute a binding agreement between the undersigned and the
Company upon the terms and subject to the conditions of the Exchange Offer. The
undersigned recognizes that, under certain circumstances set forth in the
Prospectus, the Company may not be required to accept for exchange any of the
Outstanding Debt tendered hereby.
4
<PAGE> 5
Unless otherwise indicated herein in the box entitled "Special Issuance
Instructions" below, the undersigned hereby directs that the Exchange Debt be
issued in the name(s) of the undersigned or, in the case of a book-entry
transfer of Outstanding Debt, that such Exchange Debt be credited to the account
indicated above maintained at DTC. If applicable, substitute Certificates
representing Outstanding Debt not exchanged or not accepted for exchange will be
issued to the undersigned or, in the case of a book-entry transfer of
Outstanding Debt, will be credited to the account indicated above maintained at
DTC. Similarly, unless otherwise indicated under "Special Delivery
Instructions," please deliver Exchange Debt to the undersigned at the address
shown below the undersigned's signature.
By tendering Outstanding Debt and executing this Letter of Transmittal or
effecting delivery of an Agent's Message in lieu thereof, the undersigned hereby
represents and agrees that (i) the undersigned is not an "affiliate" of the
Company, (ii) any Exchange Debt to be received by the undersigned is being
acquired in the ordinary course of its business, (iii) the undersigned has no
arrangement or understanding with any person to participate in a distribution
(within the meaning of the Securities Act) of Exchange Debt to be received in
the Exchange Offer, and (iv) if the undersigned is not a broker-dealer, the
undersigned is not engaged in, and does not intend to engage in, a distribution
(within the meaning of the Securities Act) of such Exchange Debt. The Company
may require the undersigned, as a condition to the undersigned's eligibility to
participate in the Exchange Offer, to furnish to the Company (or an agent
thereof) in writing information as to the number of "beneficial owners" within
the meaning of Rule 13d-3 under the Exchange Act on behalf of whom the
undersigned holds the Outstanding Debt to be exchanged in the Exchange Offer. If
the undersigned is a broker-dealer that will receive Exchange Debt for its own
account in exchange for Outstanding Debt, it represents that the Outstanding
Debt to be exchanged for Exchange Debt was acquired by it as a result of
market-making activities or other trading activities and acknowledges that it
will deliver a Prospectus in connection with any resale of such Exchange Debt;
however, by so acknowledging and by delivering a Prospectus, the undersigned
will not be deemed to admit that it is an "underwriter" within the meaning of
the Securities Act.
The Company has agreed that, subject to the provisions of the Registration
Rights Agreement, the Prospectus, as it may be amended or supplemented from time
to time, may be used by a Participating Broker-Dealer (as defined below) in
connection with resales of Exchange Debt received in exchange for Outstanding
Debt, where such Outstanding Debt was acquired by such Participating
Broker-Dealer for its own account as a result of market-making activities or
other trading activities, for a period ending 180 days after the Expiration Date
(subject to extension under certain limited circumstances described in the
Prospectus) or, if earlier, when all such Exchange Debt has been disposed of by
such Participating Broker-Dealer. In that regard, each broker-dealer who
acquired Outstanding Debt for its own account as a result of market-making or
other trading activities (a "Participating Broker-Dealer"), by tendering such
Outstanding Debt and executing this Letter of Transmittal or effecting delivery
of an Agent's Message in lieu thereof, agrees that, upon receipt of notice from
the Company of the occurrence of any event or the discovery of any fact which
makes any statement contained in or incorporated by reference into the
Prospectus untrue in any material respect or which causes the Prospectus to omit
to state a material fact necessary in order to make the statements contained or
incorporated by reference therein, in light of the circumstances under which
they were made, not misleading or of the occurrence of certain other events
specified in the Registration Rights Agreement, such Participating Broker-Dealer
will suspend the sale of Exchange Debt pursuant to the Prospectus until the
Company has amended or supplemented the Prospectus to correct such misstatement
or omission and has furnished copies of the amended or supplemented Prospectus
to the Participating Broker-Dealer or the Company has given notice that the sale
of the Exchange Debt may be resumed, as the case may be. If the Company gives
such notice to suspend the sale of the Exchange Debt, it shall extend the
180-day period referred to above during which Participating Broker-Dealers are
entitled to use the Prospectus in connection with the resale of Exchange Debt by
the number of days during the period from and including the date of the giving
of such notice to and including the date when Participating Broker-Dealers shall
have received copies of the supplemented or amended Prospectus necessary to
permit resales of the Exchange Debt or to and including the date on which the
Company has given notice that the sale of Exchange Debt may be resumed, as the
case may be.
5
<PAGE> 6
As a result, a Participating Broker-Dealer who intends to use the
Prospectus in connection with resales of Exchange Debt received in exchange for
Outstanding Debt pursuant to the Exchange Offer must notify the Company, or
cause the Company to be notified, on or prior to the Expiration Date, that it is
a Participating Broker-Dealer. Such notice may be given in the space provided
above or may be delivered to the Exchange Agent at the address set forth in the
Prospectus under "The Exchange Offer--Exchange Agent."
The undersigned will, upon request, execute and deliver any additional
documents deemed by the Company to be necessary or desirable to complete the
sale, assignment and transfer of the Outstanding Debt tendered hereby. All
authority herein conferred or agreed to be conferred in this Letter of
Transmittal shall survive the death or incapacity of the undersigned and any
obligation of the undersigned hereunder shall be binding upon the heirs,
executors, administrators, personal representatives, trustees in bankruptcy,
legal representatives, successors and assigns of the undersigned. Except as
stated in the Prospectus, this tender is irrevocable.
The undersigned, by completing the box entitled "Description of Outstanding
Debt" above and signing this letter, will be deemed to have tendered the
Outstanding Debt as set forth in such box.
6
<PAGE> 7
IMPORTANT
HOLDERS: SIGN HERE
(Please Complete Substitute Form W-9 herein)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
Signature(s) of Holders(s)
Date: _______________________________
(Must be signed by the registered holder(s) exactly as name(s) appear(s) on
Certificate(s) for the Outstanding Debt hereby tendered or on a security
position listing or by person(s) authorized to become registered holder(s) by
certificates and documents transmitted herewith. If signature is by trustee,
executor, administrator, guardian, attorney-in-fact, officer of corporation or
other person acting in a fiduciary or representative capacity, please provide
the following information and see Instruction 2 below.)
Name(s):
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please Print)
Capacity (full title): _________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
Address:
________________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.: ___________________________________________________
(See Substitute Form W-9 herein)
GUARANTEE OF SIGNATURE(S)
(See Instruction 2 below)
Authorized Signature: __________________________________________________________
Name:
________________________________________________________________________________
________________________________________________________________________________
(Please Type or Print)
Title: _________________________________________________________________________
Name of Firm:
________________________________________________________________________________
Address:
________________________________________________________________________________
________________________________________________________________________________
(Include Zip Code)
Area Code and Telephone No.: ___________________________________________________
Date: _______________________________
7
<PAGE> 8
SPECIAL ISSUANCE INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange Debt or Outstanding Debt not tendered is to be
issued in the name of someone other than the registered Holder of the
Outstanding Debt whose name(s) appear(s) above.
[_] Outstanding Debt not tendered to:
[_] Exchange Debt to:
Name ______________________________
(Please Print)
Address ___________________________
____________________________________
____________________________________
(Include Zip Code)
____________________________________
(Tax Identification or
Social Security Number)
SPECIAL DELIVERY INSTRUCTIONS
(SIGNATURE GUARANTEE REQUIRED--
SEE INSTRUCTION 2)
TO BE COMPLETED ONLY if Exchange Debt or Outstanding Debt not tendered is to be
sent to someone other than the registered Holder of the Outstanding Debt whose
name(s) appear(s) above, or such registered Holder at an address other than
that shown above.
[_] Outstanding Debt not tendered to:
[_] Exchange Debt to:
Name ______________________________
(Please Print)
Address ___________________________
____________________________________
____________________________________
____________________________________
(Include Zip Code)
8
<PAGE> 9
INSTRUCTIONS
Forming Part of the Terms and Conditions of the Exchange Offer
1. Delivery of Letter of Transmittal and Certificates; Guaranteed Delivery
Procedures. This Letter of Transmittal is to be completed either if (a)
Certificates are to be forwarded herewith or (b) tenders are to be made pursuant
to the procedures for tender by book-entry transfer set forth in "The Exchange
Offer--Procedures for Tendering Outstanding Debt" in the Prospectus and an
Agent's Message is not delivered. Certificates, or timely confirmation of a
book-entry transfer of such Outstanding Debt into the Exchange Agent's account
at DTC, as well as this Letter of Transmittal (or facsimile thereof), properly
completed and duly executed, with any required signature guarantees, and any
other documents required by this Letter of Transmittal, must be received by the
Exchange Agent at its address set forth herein on or prior to the Expiration
Date. Tenders by book-entry transfer may also be made by delivering an Agent's
Message in lieu thereof. Outstanding Debt may be tendered in whole or in part in
minimum denominations of $100,000 and in integral multiples of $1,000 in excess
thereof.
Holders who wish to tender their Outstanding Debt and (i) whose Outstanding
Debt is not immediately available or (ii) who cannot deliver their Outstanding
Debt, this Letter of Transmittal and all other required documents to the
Exchange Agent on or prior to the Expiration Date or (iii) who cannot complete
the procedures for delivery by book-entry transfer on a timely basis, may tender
their Outstanding Debt by properly completing and duly executing a Notice of
Guaranteed Delivery pursuant to the guaranteed delivery procedures set forth in
"The Exchange Offer--Procedures for Tendering Outstanding Debt" in the
Prospectus. Pursuant to such procedures: (i) such tender must be made by or
through an Eligible Institution (as defined below); (ii) a properly completed
and duly executed Notice of Guaranteed Delivery, substantially in the form made
available by the Company, must be received by the Exchange Agent on or prior to
the Expiration Date; and (iii) the Certificates (or a book-entry confirmation)
representing all tendered Outstanding Debt, in proper form for transfer,
together with a Letter of Transmittal (or facsimile thereof), properly completed
and duly executed, with any required signature guarantees and any 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 execution of such Notice of Guaranteed Delivery, all as provided in "The
Exchange Offer--Procedures for Tendering Outstanding Debt" in the Prospectus.
The Notice of Guaranteed Delivery may be delivered by hand or transmitted
by facsimile or mail to the Exchange Agent, and must include a guarantee by an
Eligible Institution in the form set forth in such Notice of Guaranteed
Delivery. For Outstanding Debt to be properly tendered pursuant to the
guaranteed delivery procedure, the Exchange Agent must receive a Notice of
Guaranteed Delivery on or prior to the Expiration Date. As used herein and in
the Prospectus, "Eligible Institution" means a firm or other entity identified
in Rule 17Ad-15 under the Exchange Act as "an eligible guarantor institution,"
including (as such terms are defined therein) (i) a bank; (ii) a broker, dealer,
municipal securities broker or dealer or government securities broker or dealer;
(iii) a credit union; (iv) a national securities exchange, registered securities
association or clearing agency; or (v) a savings association that is a
participant in a Securities Transfer Association.
The method of delivery of Certificates, this Letter of Transmittal and all
other required documents is at the option and sole risk of the tendering Holder,
and the delivery will be deemed made only when actually received by the Exchange
Agent. If delivery is by mail, then registered mail with return receipt
requested, properly insured, or overnight delivery service is recommended. In
all cases, sufficient time should be allowed to ensure timely delivery.
The Company will not accept any alternative, conditional or contingent
tenders. Each tendering Holder, by execution of a Letter of Transmittal (or
facsimile thereof), waives any right to receive any notice of the acceptance of
such tender.
2. Guarantee of Signatures. No signature guarantee on this Letter of
Transmittal is required if:
i. this Letter of Transmittal is signed by the registered Holder
(which term, for purposes of this document, shall include any participant
in DTC whose name appears on a security position listing as the
9
<PAGE> 10
owner of the Outstanding Debt (the "Holder")) of Outstanding Debt tendered
herewith, unless such Holder(s) has completed either the box entitled
"Special Issuance Instructions" or the box entitled "Special Delivery
Instructions" above, or
ii. such Outstanding Debt is tendered for the account of a firm that
is an Eligible Institution.
In all other cases, an Eligible Institution must guarantee the signature(s)
on this Letter of Transmittal. See Instruction 5.
3. Inadequate Space. If the space provided in the box captioned
"Description of Outstanding Debt" is inadequate, the Certificate number(s)
and/or the principal amount of Outstanding Debt and any other required
information should be listed on a separate signed schedule which is attached to
this Letter of Transmittal.
4. Partial Tenders and Withdrawal Rights. Tenders of Outstanding Debt will
be accepted only in minimum denominations of $100,000 and in integral multiples
of $1,000. If less than all the Outstanding Debt evidenced by any Certificate
submitted is to be tendered, fill in the principal amount of Outstanding Debt
which is to be tendered in the box entitled "Principal Amount of Outstanding
Debt Tendered." In such case, new Certificate(s) for the remainder of the
Outstanding Debt that was evidenced by your old Certificate(s) will only be sent
to the Holder of the Outstanding Debt, promptly after the Expiration Date. All
Outstanding Debt represented by Certificates delivered to the Exchange Agent
will be deemed to have been tendered unless otherwise indicated.
Except as otherwise provided herein, tenders of Outstanding Debt may be
withdrawn at any time on or prior to the Expiration Date. In order for a
withdrawal to be effective on or prior to that time, a written or facsimile
transmission of such notice of withdrawal must be timely received by the
Exchange Agent at one of its addresses set forth above or in the Prospectus on
or prior to the Expiration Date. Any such notice of withdrawal must specify the
name of the person who tendered the Outstanding Debt to be withdrawn, the
aggregate principal amount of Outstanding Debt to be withdrawn, and (if
Certificates for Outstanding Debt have been tendered) the name of the registered
Holder of the Outstanding Debt as set forth on the Certificate for the
Outstanding Debt, if different from that of the person who tendered such
Outstanding Debt. If Certificates for the Outstanding Debt have been delivered
or otherwise identified to the Exchange Agent, then prior to the physical
release of such Certificates for the Outstanding Debt, the tendering Holder must
submit the serial numbers shown on the particular Certificates for the
Outstanding Debt to be withdrawn and the signature on the notice of withdrawal
must be guaranteed by an Eligible Institution, except in the case of Outstanding
Debt tendered for the account of an Eligible Institution. If Outstanding Debt
has been tendered pursuant to the procedures for book-entry transfer set forth
in the Prospectus under "The Exchange Offer--Procedures for Tendering
Outstanding Debt," the notice of withdrawal must specify the name and number of
the account at DTC to be credited with the withdrawal of Outstanding Debt, in
which case a notice of withdrawal will be effective if delivered to the Exchange
Agent by written, telegraphic, telex or facsimile transmission. Withdrawals of
tenders of Outstanding Debt may not be rescinded. Outstanding Debt properly
withdrawn will not be deemed validly tendered for purposes of the Exchange
Offer, but may be retendered at any subsequent time on or prior to the
Expiration Date by following any of the procedures described in the Prospectus
under "The Exchange Offer--Procedures for Tendering Outstanding Debt."
All questions as to the validity, form and eligibility (including time of
receipt) of such withdrawal notices will be determined by the Company, in its
sole discretion, whose determination shall be final and binding on all parties.
The Company, any affiliates or assigns of the Company, the Exchange Agent or any
other person shall not be under any duty to give any notification of any
irregularities in any notice of withdrawal or incur any liability for failure to
give any such notification. Any Outstanding Debt which has been tendered but
which is withdrawn will be returned to the Holder thereof without cost to such
Holder promptly after withdrawal.
5. Signatures on Letter of Transmittal, Assignments and Endorsements. If
this Letter of Transmittal is signed by the registered Holder(s) of the
Outstanding Debt tendered hereby, the signature(s) must correspond exactly with
the name(s) as written on the face of the Certificate(s) without alteration,
enlargement or any change whatsoever.
10
<PAGE> 11
If any Outstanding Debt tendered hereby is owned of record by two or more
joint owners, all of such owners must sign this Letter of Transmittal.
If any tendered Outstanding Debt is registered in different name(s) on
several Certificates, it will be necessary to complete, sign and submit as many
separate Letters of Transmittal (or facsimiles thereof) as there are different
registrations of Certificates.
If this Letter of Transmittal or any Certificates or bond powers are signed
by trustees, executors, administrators, guardians, attorneys-in-fact, officers
of corporations or others acting in a fiduciary or representative capacity, such
persons should so indicate when signing and, unless waived by the Company, must
submit proper evidence satisfactory to the Company, in its sole discretion, of
each such person's authority to so act.
When this Letter of Transmittal is signed by the registered owner(s) of the
Outstanding Debt listed and transmitted hereby, no endorsement(s) of
Certificate(s) or separate bond power(s) is required unless Exchange Debt is to
be issued in the name of a person other than the registered Holder(s).
Signature(s) on such Certificate(s) or bond power(s) must be guaranteed by an
Eligible Institution.
If this Letter of Transmittal is signed by a person other than the
registered owner(s) of the Outstanding Debt listed, the Certificates must be
endorsed or accompanied by appropriate bond powers, signed exactly as the name
or names of the registered owner(s) appear(s) on the Certificates, and also must
be accompanied by such opinions of counsel, certifications and other information
as the Company or the Trustee for the Outstanding Debt may require in accordance
with the restrictions on transfer applicable to the Outstanding Debt. Signatures
on such Certificates or bond powers must be guaranteed by an Eligible
Institution.
6. Special Issuance and Delivery Instructions. If Exchange Debt is to be
issued in the name of a person other than the signer of this Letter of
Transmittal, or if Exchange Debt is to be sent to someone other than the signer
of this Letter of Transmittal or to an address other than that shown above, the
appropriate boxes on this Letter of Transmittal should be completed.
Certificates for Outstanding Debt not exchanged will be returned by mail or, if
tendered by book-entry transfer, by crediting the account indicated above
maintained at DTC. See Instruction 4.
7. Irregularities. The Company will determine, in its sole discretion, all
questions as to the form of documents, validity, eligibility (including time of
receipt) and acceptance for exchange of any tender of Outstanding Debt, which
determination shall be final and binding on all parties. The Company reserves
the absolute right to reject any and all tenders determined by it not to be in
proper form or the acceptance of which, or exchange for which, may, in the view
of counsel to the Company be unlawful. The Company also reserves the absolute
right, subject to applicable law, to waive any of the conditions of the Exchange
Offer set forth in the Prospectus under "The Exchange Offer--Conditions to the
Exchange Offer" or any conditions or irregularities in any tender of Outstanding
Debt of any particular Holder whether or not similar conditions or
irregularities are waived in the case of other Holders. The Company's
interpretation of the terms and conditions of the Exchange Offer (including this
Letter of Transmittal and the instructions hereto) will be final and binding. No
tender of Outstanding Debt will be deemed to have been validly made until all
irregularities with respect to such tender have been cured or waived. The
Company, any affiliates or assigns of the Company, the Exchange Agent, or any
other person shall not be under any duty to give notification of any
irregularities in tenders or incur any liability for failure to give such
notification.
8. Questions, Requests for Assistance and Additional Copies. Questions and
requests for assistance may be directed to the Exchange Agent at its address and
telephone number set forth on the front of this Letter of Transmittal.
Additional copies of the Prospectus, the Notice of Guaranteed Delivery and the
Letter of Transmittal may be obtained from the Exchange Agent or from your
broker, dealer, commercial bank, trust company or other nominee.
11
<PAGE> 12
9. 31% Backup Withholding; Substitute Form W-9. Under the U.S. Federal
income tax law, a Holder whose tendered Outstanding Debt is accepted for
exchange is required to provide the Exchange Agent with such Holder's correct
taxpayer identification number ("TIN") on Substitute Form W-9 below. If the
Exchange Agent is not provided with the correct TIN, the Internal Revenue
Service (the "IRS") may subject the Holder or other payee to penalties. In
addition, payments to such Holders or other payees with respect to Outstanding
Debt exchanged pursuant to the Exchange Offer may be subject to 31% backup
withholding.
The box in Part 2 of the Substitute Form W-9 may 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 2 is checked, the
Holder or other payee must also complete the Certificate of Awaiting Taxpayer
Identification Number below in order to avoid backup withholding.
Notwithstanding that the box in Part 2 is checked and the Certificate of
Awaiting Taxpayer Identification Number is completed, the Exchange Agent will
withhold 31% of all payments made prior to the time a properly certified TIN is
provided to the Exchange Agent. The Exchange Agent will retain such amounts
withheld during the 60-day period following the date of the Substitute Form W-
9. If the Holder furnishes the Exchange Agent with its TIN within 60 days after
the date of the Substitute Form W-9, the amounts retained during the 60-day
period will be remitted to the Holder and no further amounts shall be retained
or withheld from payments made to the Holder thereafter. If, however, the Holder
has not provided the Exchange Agent with its TIN within such 60-day period,
amounts withheld will be remitted to the IRS as backup withholding. In addition,
31% of all payments made thereafter will be withheld and remitted to the IRS
until a correct TIN is provided.
The Holder is required to give the Exchange Agent the TIN (e.g., social
security number or employer identification number) of the registered owner of
the Outstanding Debt or of the last transferee appearing on the transfers
attached to, or endorsed on, the Outstanding Debt. If the Outstanding Debt is
registered in more than one name or is not 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.
Certain Holders (including, among others, corporations, financial
institutions and certain foreign persons) may not be subject to the backup
withholding and reporting requirements. Such Holders should nevertheless
complete the attached Substitute Form W-9 below, and write "exempt" on the face
thereof, to avoid possible erroneous backup withholding. A foreign person may
qualify as an exempt recipient by submitting a properly completed IRS Form W-8,
signed under penalties of perjury, attesting to that Holder's exempt status.
Please consult the enclosed "Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9" for additional guidance on which
Holders are exempt from backup withholding.
Backup withholding is not an additional U.S. Federal income tax. Rather,
the U.S. Federal income tax liability of a person 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.
10. Waiver of Conditions. The Company reserves the absolute right to waive
satisfaction of any or all conditions enumerated in the Prospectus.
11. No Conditional Tenders. No alternative, conditional or contingent
tenders will be accepted. All tendering Holders of Outstanding Debt, by
execution of this Letter of Transmittal, shall waive any right to receive notice
of the acceptance of Outstanding Debt for exchange.
Neither the Company, the Exchange Agent nor any other person is obligated
to give notice of any defect or irregularity with respect to any tender of
Outstanding Debt nor shall any of them incur any liability for failure to give
any such notice.
12. Lost, Destroyed or Stolen Certificates. If any Certificate(s)
representing Outstanding Debt have been lost, destroyed or stolen, the Holder
should promptly notify the Exchange Agent. The Holder will then be instructed as
to the steps that must be taken in order to replace the Certificate(s). This
Letter of Transmittal and related documents cannot be processed until the
procedures for replacing lost, destroyed or stolen Certificate(s) have been
followed.
12
<PAGE> 13
13. Security Transfer Taxes. Holders who tender their Outstanding Debt for
exchange will not be obligated to pay any transfer taxes in connection
therewith. If, however, Exchange Debt is to be delivered to, or is to be issued
in the name of, any person other than the registered Holder of the Outstanding
Debt tendered, or if a transfer tax is imposed for any reason other than the
exchange of Outstanding Debt in connection with the Exchange Offer, then the
amount of any such transfer tax (whether imposed on the registered Holder or any
other persons) will be payable by the tendering Holder. If satisfactory evidence
of payment of such taxes or exemption therefrom is not submitted with the Letter
of Transmittal, the amount of such transfer taxes will be billed directly to
such tendering Holder.
13
<PAGE> 14
PAYER'S NAME: CHASE MANHATTAN TRUST COMPANY, N.A.
SUBSTITUTE
Part 1--PLEASE PROVIDE
Form W-9 YOUR TIN IN THE BOX AT TIN: __________________
Department of the RIGHT AND CERTIFY BY Social Security Number
Treasury SIGNING AND DATING BELOW. or Employer
Internal Revenue Identification Number
Service
________________________________________________________________________________
Payer's Request for Part 2--TIN Applied For [_]
Taxpayer
Identification
Number ("TIN")
________________________________________________________________________________
Certification: Under penalties of perjury, I certify that:
(1) the number shown on this form is my correct Taxpayer Identification Number
(or I am waiting for a number to be issued to me); and
(2) I am not subject to backup withholding either because: (a) 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 (b) the IRS has notified me that I am no longer subject to
backup withholding.
Certification Instructions--You must cross out item (2) above if you have been
notified by the IRS that you are currently subject to backup withholding
because you have failed to report all interest and 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
were no longer subject to backup withholding, do not cross out item (2). (Also
see instructions in the enclosed Guidelines.)
________________________________________________________________________________
Signature ________________________________ Date ____________________________
NOTE: FAILURE TO COMPLETE AND RETURN THIS FORM MAY RESULT IN BACKUP WITHHOLDING
OF 31% OF ANY PAYMENTS MADE TO YOU IN CONNECTION WITH THE EXCHANGE OFFER.
PLEASE REVIEW THE ENCLOSED GUIDELINES FOR CERTIFICATION OF TAXPAYER
IDENTIFICATION NUMBER ON SUBSTITUTE FORM W-9 FOR ADDITIONAL DETAILS.
YOU MUST COMPLETE THE FOLLOWING CERTIFICATE IF YOU ARE AWAITING (OR WILL SOON
APPLY FOR) A TAXPAYER IDENTIFICATION NUMBER
CERTIFICATE OF AWAITING TAXPAYER IDENTIFICATION NUMBER
I certify under penalties of perjury that a taxpayer identification number has
not been issued to me, and either (a) I have mailed or delivered an application
to receive a taxpayer identification number to the appropriate Internal Revenue
Service Center or Social Security Administration Office or (b) I intend to mail
or deliver an application in the near future. I understand that if I do not
provide a taxpayer identification number by the time of the exchange,
thirty-one (31%) percent of all reportable payments made to me thereafter will
be withheld until I provide a number. Signature
________________________________ Date ____________________________
14
<PAGE> 1
Exhibit 99.2
NOTICE OF GUARANTEED DELIVERY
ROHM AND HAAS COMPANY
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the
Securities Act of 1933, as amended
Pursuant to the Prospectus dated , 1999
This Notice of Guaranteed Delivery, or one substantially equivalent to this
form, must be used to accept the Exchange Offer (as defined below) if (i)
certificates for the Company's % [Notes][Debentures] due (the "Outstanding
Debt") are not immediately available, (ii) Outstanding Debt, the Letter of
Transmittal and all other required documents cannot be delivered to The Bank of
New York (the "Exchange Agent") on or prior to the Expiration Date or (iii) the
procedures for delivery by book-entry transfer cannot be completed on a timely
basis. This Notice of Guaranteed Delivery may be delivered by hand, overnight
courier or mail, or transmitted by facsimile transmission, to the Exchange
Agent. See "The Exchange Offer--Procedures for Tendering Outstanding Debt" in
the Prospectus. In addition, in order to utilize the guaranteed delivery
procedure to tender Outstanding Debt pursuant to the Exchange Offer, a
completed, signed and dated Letter of Transmittal relating to the Outstanding
Debt (or facsimile thereof) must also be received by the Exchange Agent on or
prior to the Expiration Date. Capitalized terms not defined herein have the
meanings assigned to them in the Prospectus.
The Exchange Agent for the Exchange Offer is:
Chase Manhattan Trust Company, N.A.
By Registered or Certified Mail: Facsimile Transmissions:
Chase Manhattan Trust Company, N.A. (Eligible Institutions Only)
55 Water Street (212) 638-7375
Room 234
New York, New York 10041 To Confirm by Telephone
Attn: Carlos Estevez or for Information Call:
By Hand or Overnight Delivery: Carlos Estevez
Chase Manhattan Trust Company, N.A. (212) 638-0828
55 Water Street
Room 234
New York, New York 10041
Attn: Carlos Estevez
DELIVERY OF THIS NOTICE OF GUARANTEED DELIVERY TO AN ADDRESS OTHER THAN AS
SET FORTH ABOVE OR TRANSMISSION OF THIS NOTICE OF GUARANTEED DELIVERY VIA
FACSIMILE TO A NUMBER OTHER THAN AS SET FORTH ABOVE WILL NOT CONSTITUTE A VALID
DELIVERY.
THIS NOTICE OF GUARANTEED DELIVERY IS NOT TO BE USED TO GUARANTEE
SIGNATURES. IF A SIGNATURE ON A 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.
<PAGE> 2
Ladies and Gentlemen:
The undersigned hereby tenders to Rohm and Haas Company, a Delaware
corporation (the "Company"), upon the terms and subject to the conditions set
forth in the Prospectus dated , 1999 (as the same may be amended or supplemented
from time to time, the "Prospectus"), and the related Letter of Transmittal
(which together constitute the "Exchange Offer"), receipt of which is hereby
acknowledged, the aggregate principal amount of Outstanding Debt set forth below
pursuant to the guaranteed delivery procedures set forth in the Prospectus under
the caption "The Exchange Offer--Procedures for Tendering Outstanding Debt."
Aggregate Principal Amount Name(s) of Registered Holder(s): ___________
Amount Tendered: $____________* ____________________________________________
Certificate No(s) (if available): _____________________________________________
________________________________________________________________________________
$
________________________________________________________________________________
(Total Principal Amount Represented by Outstanding Debt Certificate(s))
If Outstanding Debt Notes will be tendered by book-entry transfer, provide the
following information:
DTC Account Number: ___________________________________________________________
Date: _________________________________________________________________________
*Must be in minimum denominations of $100,000 and in integral multiples of
$1,000 in excess thereof.
________________________________________________________________________________
All authority herein conferred or agreed to be conferred shall survive the
death or incapacity of the undersigned and every obligation of the undersigned
hereunder shall be binding upon the heirs, personal representatives, successors
and assigns of the undersigned.
________________________________________________________________________________
PLEASE SIGN HERE
X ___________________________________ _____________________________________
X ___________________________________ _____________________________________
Signature(s) of Owner(s) or Date
Authorized Signatory
Area Code and Telephone Number: _______________________________________________
Must be signed by the holder(s) of the Outstanding Debt as their name(s)
appear(s) on certificates for Outstanding Debt or on a security position
listing, or by person(s) authorized to become registered holder(s) by
endorsement and documents transmitted with this Notice of Guaranteed Delivery.
If signature is by a trustee, executor, administrator, guardian,
attorney-in-fact, officer or other person acting in a fiduciary or
representative capacity, such person must set forth his or her full title below
and, unless waived by the Company, provide proper evidence satisfactory to the
Company of such person's authority to so act.
<PAGE> 1
Exhibit 99.3
ROHM AND HAAS COMPANY
Instruction to Registered Holder and/or Depository
Trust Company Participant from Beneficial Owner
for
Offer to Exchange its
% [Notes][Debentures] due
which have been registered under the Securities Act
for any and all of its outstanding
% [Notes][Debentures] due
that were issued and sold in a transaction
exempt from registration under the
Securities Act of 1933, as amended
THE EXCHANGE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 5:00 P.M., NEW YORK
CITY TIME, ON , 1999, UNLESS THE OFFER IS EXTENDED. TENDERS MAY BE WITHDRAWN
PRIOR TO 5:00 P.M., NEW YORK CITY TIME, ON THE EXPIRATION DATE.
To Registered Holder and/or Depository Trust Company Participant:
The undersigned hereby acknowledges receipt of the Prospectus dated , 1999
(the "Prospectus") of Rohm and Haas Company, a Delaware corporation (the
"Company"), and the accompanying Letter of Transmittal (the "Letter of
Transmittal"), that together constitute the Company's offer (the "Exchange
Offer") to exchange its % [Notes][Debentures] due (the "Exchange Debt"), which
have been registered under the Securities Act of 1933, as amended (the
"Securities Act"), for all of its outstanding % [Notes][Debentures] due (the
"Outstanding Debt"). Capitalized terms used but not defined herein have the
meanings ascribed to them in the Prospectus.
This will instruct you, the registered holder and/or Depository Trust
Company Participant, as to the action to be taken by you relating to the
Exchange Offer with respect to the Outstanding Debt held by you for the account
of the undersigned.
The aggregate face amount of the Outstanding Debt held by you for the
account of the undersigned is (FILL IN AMOUNT):
$ of the % [Notes][Debentures] due .
With respect to the Exchange Offer, the undersigned hereby instructs you
(CHECK APPROPRIATE BOX):
[_] To TENDER the following Outstanding Debt held by you for the amount of the
undersigned (INSERT PRINCIPAL AMOUNT OF OUTSTANDING DEBT TO BE TENDERED
(IF LESS THAN ALL)):
$
[_] NOT to TENDER any Outstanding Debt held by you for the account of the
undersigned.
If the undersigned instructs you to tender the Outstanding Debt held by you
for the account of the undersigned, it is understood that you are authorized to
make, on behalf of the undersigned (and the undersigned, by its signature below,
hereby makes to you), the representations and warranties contained in the Letter
of Transmittal that are to be made with respect to the undersigned as a
beneficial owner, including but not limited to the representations, that (i) the
undersigned is not an "affiliate" of the Company, (ii) any Exchange Debt to be
received by the undersigned is being acquired in the ordinary course of its
business, (iii) the undersigned has no arrangement or understanding with any
person to participate in a distribution (within the meaning of the Securities
Act) of Exchange Debt to be received in the Exchange Offer, and (iv) if the
undersigned is not a broker-dealer, the undersigned is not engaged in, and does
not intend to engage in, a distribution (within the
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<PAGE> 2
meaning of the Securities Act) of such Exchange Debt. The Company may require
the undersigned, as a condition to the undersigned's eligibility to participate
in the Exchange Offer, to furnish to the Company (or an agent thereof) in
writing information as to the number of "beneficial owners" within the meaning
of Rule 13d-3 under the Exchange Act on behalf of whom the undersigned holds the
Outstanding Debt to be exchanged in the Exchange Offer. If the undersigned is a
broker-dealer that will receive Exchange Debt for its own account in exchange
for Outstanding Debt, it represents that the Outstanding Debt to be exchanged
for Exchange Debt was acquired by it as a result of market-making activities or
other trading activities and acknowledges that it will deliver a prospectus in
connection with any resale of such Exchange Debt; however, by so acknowledging
and by delivering a prospectus, the undersigned will not be deemed to admit that
it is an "underwriter" within the meaning of the Securities Act.
SIGN HERE
________________________________________________________________________________
Name of beneficial owner(s)
________________________________________________________________________________
________________________________________________________________________________
Signature
________________________________________________________________________________
________________________________________________________________________________
Name(s) (please print)
________________________________________________________________________________
________________________________________________________________________________
(Address)
________________________________________________________________________________
(Telephone Number)
________________________________________________________________________________
(Taxpayer Identification or Social Security Number)
________________________________________________________________________________
Date
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Please print name(s) and address(es)
Name(s):
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
Capacity:
_____________________________________________________________________
Address(es):
_____________________________________________________________________
_____________________________________________________________________
_____________________________________________________________________
GUARANTEE OF DELIVERY
(Not to be used for signature guarantee)
The undersigned, a firm or other entity identified in Rule 17Ad-15 under the
Securities Exchange Act of 1934, as amended, as an "eligible guarantor
instruction," including (as such terms are defined therein): (i) a bank; (ii) a
broker, dealer, municipal securities broker, government securities broker or
government securities dealer; (iii) a credit union; (iv) a national securities
exchange, registered securities association or clearing agency; or (v) a savings
association that is a participant in a Securities Transfer Association (each of
the foregoing being referred to as an "Eligible Institution"), hereby guarantees
to deliver to the Exchange Agent, at one of its addresses set forth above,
either the Outstanding Debt tendered hereby in proper form for transfer, or
confirmation of the book-entry transfer of such Outstanding Debt to the Exchange
Agent's account at The Depository Trust Company ("DTC"), pursuant to the
procedures for book-entry transfer set forth in the Prospectus, in either case
together with one or more properly completed and duly executed Letter(s) of
Transmittal (or facsimile thereof) and any other required documents within three
New York Stock Exchange trading days after the date of execution of this Notice
of Guaranteed Delivery.
The undersigned acknowledges that it must deliver the Letter(s) of Transmittal
(or facsimile thereof) and the Outstanding Debt tendered hereby to the Exchange
Agent within the time period set forth above and that failure to do so could
result in a financial loss to the undersigned.
_____________________________________ _____________________________________
Name of Firm
Authorized Signature
_____________________________________ _____________________________________
Address
Title
_____________________________________ (Please Type or Print)
Zip Code
Area Code and Telephone Number: ______________________ Date: __________________
NOTE: DO NOT SEND CERTIFICATES FOR OUTSTANDING DEBT WITH THIS FORM.
CERTIFICATES FOR OUTSTANDING DEBT SHOULD ONLY BE SENT WITH YOUR
LETTER OF TRANSMITTAL.
