As
filed with the Securities and Exchange Commission on April 8, 2011
Registration No. 333-_____
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
RPM INTERNATIONAL INC.
(Exact name of registrant as specified in its charter)
|
|
|
Delaware
(State or other jurisdiction of
incorporation or organization)
|
|
02-0642224
(I.R.S. Employer
Identification No.)
|
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
(Address, including zip code, and telephone number, including area code, of registrants principal executive offices)
Edward W. Moore, Esq.
Vice President, General Counsel and Secretary
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
(Name, address, including zip code, and telephone number, including area code, of agent for service)
With a copy to:
Thomas F. McKee, Esq.
Calfee, Halter & Griswold LLP
1400 KeyBank Center
800 Superior Avenue
Cleveland, Ohio 44114-2688
(216) 622-8200
Approximate date of commencement of proposed sale to public:
From time to time after this
registration statement becomes effective.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following
box.
o
If any of the securities being registered on this Form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities
offered only in connection with dividend or interest reinvestment plans, check the
following
box.
þ
If this Form is filed to register additional securities for an offering pursuant to Rule
462(b) under the Securities Act, please check the following box and list the Securities Act
registration statement number of the earlier effective registration statement for the same
offering.
o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities
Act, check the following box and list the Securities Act registration number of the earlier
effective registration statement for the same offering.
o
If this Form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following box.
þ
If this Form is a post-effective amendment to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated
filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large
accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act. (Check One):
|
|
|
|
|
|
|
Large accelerated filer
þ
|
|
Accelerated filer
o
|
|
Non-accelerated filer
o
|
|
Smaller reporting company
o
|
|
|
|
|
(Do not check if a smaller reporting company)
|
|
|
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount to be Registered/Proposed Maximum Offering Price
|
|
|
Title of each Class of Securities to be
|
|
|
Per Unit/Proposed Maximum Aggregate Offering
|
|
|
Registered
|
|
|
Price/Amount of Registration Fee(1)
|
|
|
Debt Securities
|
|
|
|
|
|
|
|
Common Stock, par value $0.01 per share (2)
|
|
|
|
|
|
|
|
Preferred Stock, without par value
|
|
|
|
|
|
|
|
Warrants
|
|
|
|
|
|
|
|
Purchase Contracts
|
|
|
|
|
|
|
|
Units (3)
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
An indeterminate aggregate initial offering price and amount of the securities of each
identified class is being registered and may be offered and sold from time to time at
indeterminate prices. Separate consideration may or may not be received for securities that
are issuable upon exercise, conversion or exchange of other securities or that are issued in
units. In accordance with Rules 456(b) and 457(r), the registrant is deferring payment of all
of the registration fee.
|
|
(2)
|
|
Each share of common stock includes one common share purchase right as described under
Description of Capital Stock. No separate consideration will be received for the common
share purchase rights.
|
|
(3)
|
|
Any securities registered hereunder may be sold separately or as units with other securities
registered hereunder.
|
PROSPECTUS
RPM INTERNATIONAL INC.
Debt Securities
Common Stock
Preferred Stock
Warrants
Purchase Contracts
Units
We will provide the specific terms of these securities in supplements to this prospectus.
You should read this prospectus and the applicable supplement carefully before you invest.
Our common stock is traded on the New York Stock Exchange under the symbol RPM.
Investing in our securities involves risks. Please read the risk factors discussed or
incorporated by reference under the section of the prospectus
captioned Risk Factors on page 4.
Neither the Securities and Exchange Commission nor any state securities commission has
approved or disapproved of these securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal offense.
The
date of this prospectus is April 8, 2011.
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the Securities and
Exchange Commission (SEC) using a shelf registration procedure. Pursuant to that procedure and
under this prospectus, we may offer and sell:
|
|
|
Purchase Contracts; and
|
The securities described above may be offered and sold in one or more offerings. Each time we
offer and sell securities under the registration statement of which this prospectus is a part, we
will file with the SEC a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add, update, or change information
contained in this prospectus. You should carefully read this prospectus, and the applicable
prospectus supplement, together with the additional information described under the heading Where
You Can Find More Information, in their entirety. They contain information that you should
consider when making your investment decision.
The registration statement that contains this prospectus contains additional information about
our company and the securities offered under this prospectus. That registration statement can be
read at the SEC website or at the SEC offices mentioned under the heading Where You Can Find More
Information.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other information with the
SEC. The reports, proxy statements and other information that we file electronically with the SEC
are available to the public free of charge at the SECs website at www.sec.gov. You may also read
and copy any document we file with the SEC, at prescribed rates, at the SECs Public Reference Room
at 100 F Street, N.E., Room 1580, Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330
for further information on the operation of its Public Reference Room. You can also inspect our
reports, proxy statements and other information at the offices of the New York Stock Exchange, 20
Broad Street, New York, New York 10005.
We incorporate by reference into this prospectus the information we file with the SEC, which
means that we can disclose important information to you by referring you to those documents. The
information incorporated by reference is an important part of this prospectus. Some information
contained in this prospectus updates the information incorporated by reference into this
prospectus, and information that we subsequently file with the SEC will automatically update
information in this prospectus, as well as our other filings with the SEC. In other words, in the
case of a conflict or inconsistency between information in this prospectus and/or information
incorporated by reference into this prospectus, you should rely on the information contained in the
document that was filed later. We incorporate by reference the documents listed below and any
filings we make with the SEC under Sections 13(a), 13(c), 14, or 15(d) of the Securities Exchange
Act of 1934, as amended (the Exchange Act), after the initial filing of the registration
statement that contains this prospectus and prior to the time that we sell all the securities
offered under this prospectus, other than the portions of such documents that by statute, by
designation in such documents, or otherwise are not deemed to be filed with the SEC or are not
required to be incorporated herein by reference:
|
|
|
Annual report on Form 10-K for the year ended May 31, 2010;
|
|
|
|
Quarterly reports on Form 10-Q for the quarters ended August 31, 2010, November 30,
2010 and February 28, 2011;
|
1
|
|
|
Current reports on Form 8-K filed on June 4, 2010, July 23, 2010 and October 8,
2010;
|
|
|
|
The description of our common stock and rights to purchase shares of our common
stock contained in the Registration Statement on Form S-3 (Registration No.
333-108647), filed with the SEC on September 9, 2003, and any amendments and reports
filed for the purpose of updating that description; and
|
|
|
|
Our Registration Statement on Form 8-A, filed with the SEC on May 11, 2009, related
to the rights.
|
We will provide to each person, including any beneficial owner, to whom this prospectus is
delivered any or all of these filings (other than an exhibit to a filing unless that exhibit is
specifically incorporated by reference into that filing) at no cost, upon written or oral request.
You may request these documents by writing to or telephoning us at the following address and
number:
Corporate Secretary
RPM International Inc.
2628 Pearl Road
P.O. Box 777
Medina, Ohio 44258
(330) 273-5090
You should rely only on the information incorporated by reference or set forth in this
prospectus or the applicable prospectus supplement. We have not authorized anyone else to provide
you with additional or different information. We may only use this prospectus to sell securities
if it is accompanied by a prospectus supplement. We are only offering these securities in states
where the offer is permitted. You should not assume that the information in this prospectus or the
applicable prospectus supplement is accurate as of any date other than the dates on the front of
those documents.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus (including the information incorporated by reference) contains, and any
accompanying prospectus supplement will contain, forward-looking statements. These statements
relate to our plans, expectations, estimates and beliefs of future events or our future financial
performance and involve known and unknown risks, uncertainties and other factors that may cause our
actual results, levels of activity, performance or achievements to be materially different from
those expressed or implied by any forward-looking statements. In some cases, you can identify
forward-looking statements by terminology such as may, will, could, would, should,
expect, plan, anticipate, target, project, intend, believe, estimate, predict,
potential, pro forma, seek or continue or the negative of those terms or other comparable
terminology. These statements are only predictions and we can give no assurance that such
expectations will prove to be correct. Some of the things that could cause our actual results to
differ substantially from our expectations are:
|
|
|
global markets and general economic conditions, including uncertainties surrounding
the volatility in financial markets, the availability of capital and the effect of
changes in interest rates, and the viability of banks and other financial institutions;
|
|
|
|
the prices, supply and capacity of raw materials, including assorted pigments,
resins, solvents, and other natural gas- and oil-based materials; packaging, including
plastic containers; and transportation services, including fuel surcharges;
|
|
|
|
continued growth in demand for our products;
|
|
|
|
legal, environmental and litigation risks inherent in our construction and chemicals
businesses and risks related to the adequacy of our insurance coverage for such
matters;
|
|
|
|
the effect of changes in interest rates;
|
|
|
|
the effect of fluctuations in currency exchange rates upon our foreign operations;
|
2
|
|
|
the effect of non-currency risks of investing in and conducting operations in
foreign countries, including those relating to domestic and international political,
social, economic and regulatory factors;
|
|
|
|
risks and uncertainties associated with our ongoing acquisition and divestiture
activities;
|
|
|
|
risks related to the adequacy of our contingent liability reserves;
|
|
|
|
risks and uncertainties associated with the SPHC bankruptcy proceedings; and
|
|
|
|
other factors referenced in this prospectus and any accompanying prospectus
supplement, including those set forth or referenced under the caption Risk Factors.
|
We undertake no obligation to publicly update or revise any forward-looking statements,
whether as a result of new information, future events or otherwise, after the date of this
prospectus to conform them to actual results. All of the forward-looking statements are qualified
in their entirety by reference to the factors discussed in and incorporated by reference into the
section captioned Risk Factors, and by any cautionary language in this prospectus and any
accompanying prospectus supplement. We caution you that these risk factors may not be exhaustive.
We operate in a continually changing business environment, and new risk factors emerge from time to
time. Management cannot predict such new risk factors, nor can it assess the impact, if any, of
such new risk factors on our businesses or the extent to which any factor or combination of
factors, may cause actual results to differ materially from those projected in any forward-looking
statements. In light of these risks, uncertainties and assumptions, the forward-looking events
discussed in this prospectus might not occur.
3
RISK FACTORS
Investing in our securities involves risks. Before deciding whether to purchase any of our
securities, you should carefully consider the risks involved in an investment in our securities, as
set forth in:
|
|
|
Item 1A, Risk Factors, in our Annual Report on Form 10-K for our fiscal year ended
May 31, 2010; and
|
|
|
|
the other risks described in any prospectus supplement or in any of the documents
incorporated by reference in this prospectus.
|
USE OF PROCEEDS
We intend to use the net proceeds from the sale of the securities for the repayment of debt
and for other general corporate purposes unless otherwise indicated in the applicable prospectus
supplement relating to a specific issuance of securities. Our general corporate purposes include,
but are not limited to, repayment, redemption or refinancing of debt, capital expenditures,
investments in or loans to subsidiaries and joint ventures, funding of possible acquisitions,
working capital, contributions to one or more of our pension plans, satisfaction of other
obligations and repurchase of our outstanding debt or equity securities. Pending any such use, the
net proceeds from the sale of the securities may be invested in short-term, investment grade,
interest-bearing instruments. We will include a more detailed description of the use of proceeds
of any specific offering in the applicable prospectus supplement relating to an offering of
securities under this prospectus.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of our earnings to our fixed charges for the periods
indicated:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Nine Months Ended
|
Fiscal Years Ended May 31,
|
|
|
|
February 28,
|
2006(1)
|
|
2007(2)
|
|
2008(3)
|
|
2009(4)
|
|
2010
|
|
2011(5)
|
|
|
5.40
|
|
1.42
|
|
3.66
|
|
4.67
|
|
4.14
|
|
|
|
(1)
|
|
Earnings were inadequate to cover fixed charges for the fiscal
year ended May 31, 2006. The coverage deficiency for that fiscal
year totaled $181.2 million. Fiscal year 2006 income from
continuing operations before taxes includes the unfavorable impact
of asbestos charges of $380.0 million.
|
|
(2)
|
|
Fiscal year 2007 income from continuing operations before taxes
includes the favorable impact of asbestos-related insurance
settlement income of $15.0 million.
|
|
(3)
|
|
Fiscal year 2008 income from continuing operations before taxes
includes the impact of asbestos-related charges
of $288.1 million.
|
|
(4)
|
|
Fiscal year 2009 income from continuing operations before taxes
includes the impact of goodwill and other intangible asset impairment
charges of $15.5 million.
|
|
(5)
|
|
Fiscal year 2011 income from continuing operations before taxes
includes the impact of the deconsolidation of Specialty Products
Holding Corp. (SPHC) on May 31, 2010.
|
For purposes of computing the ratios of earnings to fixed charges, earnings represent
income from continuing operations before taxes and cumulative effect of changes in accounting
principles plus fixed charges. Fixed charges consist of interest expense, amortization of debt
issuance costs and an estimation of the interest portion of rental expense.
4
DESCRIPTION OF CAPITAL STOCK
The following description of our capital stock, amended and restated certificate of
incorporation and amended and restated by-laws is a summary only and is subject to the complete
text of our amended and restated certificate of incorporation, amended and restated by-laws, and
the rights agreement between us and the rights agent named therein, which we have filed as exhibits
to this registration statement.
Common Stock
The following description of our common stock, together with the additional information
included in any applicable prospectus supplements, summarizes the material terms and provisions of
our common stock, but is not complete. For the complete terms of the common stock, please refer to
our amended and restated certificate of incorporation, our amended and restated by-laws and our
rights agreement, which are incorporated by reference into the registration statement that includes
this prospectus.
Our amended and restated certificate of incorporation authorizes us to issue up to 300,000,000
shares of common stock. As of April 1, 2011, there were
130,430,299 shares of common stock
outstanding, net of treasury shares, held by 26,163 direct registered stockholders.
Our common stock is traded on the New York Stock Exchange under the symbol RPM. The
transfer agent and registrar for our common stock is Wells Fargo Bank, N.A. Its address is P.O.
Box 64874, St. Paul, MN 55164-0874, and its telephone number is (800) 988-5238.
The holders of our common stock are entitled to one vote per share on all matters to be voted
upon by stockholders generally, including the election of directors. There are no cumulative
voting rights, and, as a result, a plurality of stockholders voting are able to elect directors.
The Company has adopted a majority voting policy with regard to the election of directors which
requires that any director who does not receive a majority of the votes cast for his or her
election tender their resignation to the board. Holders of common stock are entitled to receive
ratably dividends, if any, as may be declared from time to time by the board of directors out of
funds legally available for that purpose. In the event of our liquidation, dissolution or winding
up, the holders of common stock are entitled to share ratably in all assets remaining after payment
of liabilities, subject to prior distribution rights of outstanding shares of preferred stock, if
any. The holders of common stock have no preemptive or similar rights or other subscription
rights. There are no redemption or sinking fund provisions applicable to the common stock. All
outstanding shares of common stock are legally issued, fully paid and nonassessable.
Our amended and restated by-laws provide that special meetings of stockholders can be called
only by the chairman of the board, the president, the majority of the board and the chairman of the
board or the president at the written request of stockholders owning a majority of shares of voting
stock.
Preferred Stock
Our board of directors has the authority, without stockholder approval, to issue shares of
preferred stock in one or more series and to fix the number of shares and terms of each series.
The board may determine the designation and other terms of each series, including, among others:
5
The issuance of preferred stock, while providing desired flexibility in connection with
possible acquisitions and other corporate purposes, could adversely affect the voting power of
holders of common stock. It also could affect the likelihood that holders of common stock will
receive dividend payments and payments upon liquidation.
Rights Plan
On April 21, 2009, we entered into a rights agreement with National City Bank, as rights
agent. National City Banks duties and obligations under the rights agreement have since been
assumed by Wells Fargo Bank, N.A. In connection with the rights agreement, our board of directors
declared a dividend of one right for each outstanding share of common stock. Rights have been
issued in connection with each outstanding share of common stock, and rights will be issued in
connection with shares of common stock issued subsequently until the distribution date, and, in
certain circumstances, for shares of common stock issued after the distribution date referred to
below. Each right, when it becomes exercisable as described below, will entitle the registered
holder to purchase from us one-tenth of a share of common stock at a price of $7.00 or $70.00 per
whole share, subject to adjustment in certain circumstances. A more detailed description and the
terms of the rights are set forth in the rights agreement. The rights will not be exercisable
until the distribution date and will expire on the tenth annual anniversary of the rights
agreement, unless earlier redeemed or exchanged by us. Until a right is exercised, the holder, as
such, will have no rights as a stockholder, including the right to vote or to receive dividends.
Distribution Date
Under the rights agreement, the distribution date is the earlier of:
(1) the close of business on the tenth calendar day following the first date of public
announcement by us that a person or group, including any affiliate or associate of such
person or group, has acquired, or has obtained the right to acquire, beneficial ownership of
more than 15% of our outstanding voting securities (such person or group being an acquiring
person), unless provisions preventing accidental triggering of the distribution of the
rights apply; and
(2) the close of business on the tenth business day (or, unless the distribution date shall
have previously occurred, such later date, if any, as may be designated by our board of
directors) following the commencement of a tender or exchange offer for more than 15% of the
then-outstanding voting securities.
Triggering Event and Effect of Triggering Event
When there is an acquiring person, the rights will entitle each holder, other than such
acquiring person, of a right to purchase, at the purchase price, that number of shares of common
stock that at the time of such event would have a market value of twice the purchase price.
If we are acquired in a merger or other business combination by an acquiring person or an
affiliate or associate of an acquiring person, or if 50% or more of our assets or assets
representing 50% or more of our earning power are sold to an acquiring person or an affiliate or
associate of an acquiring person, each right will entitle its holder, other than rights
beneficially owned by such acquiring person, to purchase, for the purchase price, that number of
shares of common stock of such corporation which at the time of the transaction would have a market
value of twice the purchase price.
Any rights that are at any time beneficially owned by an acquiring person, or any affiliate or
associate of an acquiring person, will be null and void and nontransferable, and any holder of any
such right will be unable to exercise or transfer any such right.
Redemption and Exchange
At any time prior to the close of business on the distribution date, we may redeem the rights
in whole, but not in part, at a price of $0.001 per right, which amount shall be subject to
adjustment as provided in the rights agreement. Immediately upon the action of our board of
directors ordering the redemption of the rights, and without any further action and without any
notice, the right to exercise the rights will terminate and the only right of the holders of rights
will be to receive the redemption price.
6
In addition, at any time after the distribution date, our board of directors may elect to
exchange each right for consideration per right consisting of one share of common stock, subject to
adjustment.
Amendment
At any time prior to the distribution date, we may, without the approval of any holder of any
rights, supplement or further amend any provision of the rights agreement, including the date on
which the expiration date or distribution date shall occur, the definition of acquiring person or
the time during which the rights may be redeemed, except that no supplement or amendment shall be
made that changes the redemption price other than under certain adjustments therein.
Certain Effects of the Rights Agreement
The rights agreement is designed to protect our stockholders in the event of unsolicited
offers to acquire us and other coercive takeover tactics which, in the opinion of our board of
directors, could impair its ability to represent stockholder interests. The provisions of the
rights agreement may render an unsolicited takeover of us more difficult or less likely to occur or
might prevent such a takeover, even though such takeover may offer our stockholders the opportunity
to sell their stock at a price above the prevailing market rate and may be favored by a majority of
our stockholders.
Anti-takeover Effects of Certificate of Incorporation, By-Laws, and the Delaware General Corporation Law
General Corporation Law
There are provisions in our amended and restated certificate of incorporation, our amended and
restated by-laws, and the Delaware General Corporation Law that could discourage potential takeover
attempts. They could also make it more difficult for stockholders to change management. These
provisions could adversely affect the market price of our common stock. These provisions include:
Authorized but Unissued Stock
The authorized but unissued common stock and preferred stock may be issued without stockholder
approval (although the board of directors has represented that it will not issue any series of
preferred stock for any defensive or anti-takeover purpose without stockholder approval).
Authorized but unissued stock may be used for a variety of corporate purposes, including future
public offerings to raise additional capital, corporate acquisitions and employee benefit plans.
The existence of authorized but unissued common stock and preferred stock could render it more
difficult or discourage an attempt to obtain control of us by means of a proxy contest, tender
offer, merger or otherwise.
Staggered Board
Our board of directors is divided into three classes, with regular three-year staggered terms.
This classification system increases the difficulty of replacing a majority of the directors and
may tend to discourage a third-party from making a tender offer or otherwise attempting to gain
control of us. In addition, under Delaware law and our amended and restated certificate of
incorporation and amended and restated by-laws, our directors may be removed from office by the
stockholders only for cause and only in the manner provided for in our amended and restated
certificate of incorporation. These factors may maintain the incumbency of our board of directors.
Amendment of Certificate of Incorporation
Under Delaware law, in general, to amend a corporations certificate of incorporation, the
directors of the corporation must first adopt a resolution deeming the amendment advisable and then
the holders of a majority of the outstanding stock entitled to vote must vote in favor of the
amendment. Our amended and restated certificate of incorporation does not change the effect of
Delaware law in this regard, except that the provision in our amended and restated certificate of
incorporation regarding the number, election and terms of directors may not be repealed or amended
without the vote of the holders of not less than 80% of our voting stock, voting as a single class.
7
Amendment of By-Laws
Under Delaware law, the power to adopt, amend or repeal by-laws is conferred upon the
stockholders. A corporation may, however, in its certificate of incorporation also confer upon the
board of directors the power to adopt, amend or repeal its by-laws. Our amended and restated
certificate of incorporation and amended and restated by-laws grant our board of directors the
power to adopt, amend or repeal our by-laws at any meeting of the board. Our stockholders also may
adopt, amend or repeal our by-laws by a vote of a majority of our voting stock, except that the
provision in our amended and restated by-laws regarding the number, election and terms of directors
may not be repealed or amended without the vote of the holders of not less than 80% of our voting
stock, voting as a single class.
Stockholder Action by Written Consent; Special Meetings of Stockholders
Our amended and restated by-laws provide that no action that is required or permitted to be
taken by our stockholders at any annual or special meeting may be taken by written consent of
stockholders in lieu of a meeting, and that, unless otherwise prescribed by law, a special meeting
of stockholders may be called only by the chairman of the board, the president, a majority of the
board of directors or the chairman of the board or president at the written request of stockholders
holding a majority of our voting stock.
Interested Stockholder Rule
We are a Delaware corporation and are subject to Section 203 of the Delaware General
Corporation Law, which regulates corporate acquisitions. Section 203 prevents an interested
stockholder, which is defined generally as a person owning 15% or more of a corporations voting
stock, or any affiliate or associate of that person, from engaging in a broad range of business
combinations with the corporation for three years after becoming an interested stockholder unless:
|
|
|
the board of directors of the corporation had previously approved either the
business combination or the transaction that resulted in the stockholders becoming an
interested stockholder;
|
|
|
|
upon completion of the transaction that resulted in the stockholders becoming an
interested stockholder, that person owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced, excluding shares owned
by persons who are directors and also officers and shares owned in employee stock plans
in which participants do not have the right to determine confidentially whether shares
held subject to the plan will be tendered; or
|
|
|
|
following the transaction in which that person became an interested stockholder, the
business combination is approved by the board of directors of the corporation and at a
meeting by the vote of holders of at least two-thirds of the outstanding voting stock
not owned by the interested stockholder.
|
Under Section 203, the restrictions described above also do not apply to specific business
combinations proposed by an interested stockholder following the announcement or notification of
designated extraordinary transactions involving the corporation and a person who had not been an
interested stockholder during the previous three years or who became an interested stockholder with
the approval of a majority of the corporations directors, if such extraordinary transaction is
approved or not opposed by a majority of the directors who were directors prior to any person
becoming an interested stockholder during the previous three years or were recommended for election
or elected to succeed such directors by a majority of such directors.
Section 203 may make it more difficult for a person who would be an interested stockholder to
effect various business combinations with a corporation for a three-year period.
Limitations on Liability; Indemnification of Officers and Directors
Under Delaware law and Article VIII of our amended and restated certificate of incorporation,
our directors will not be personally liable to us or our stockholders for monetary damages for
breach of fiduciary duty as a director, except, if required by Delaware law, for liability:
8
|
|
|
for any breach of the duty of loyalty to us or our stockholders;
|
|
|
|
for acts or omissions not in good faith or involving intentional misconduct or a
knowing violation of the law;
|
|
|
|
for unlawful payment of a dividend or unlawful stock purchases or redemptions; and
|
|
|
|
for any transaction from which the director derived an improper personal benefit.
|
As a result, neither we nor our stockholders have the right, through stockholders derivative
suits on our behalf, to recover monetary damages against a director for breach of fiduciary duty as
a director, including breaches resulting from grossly negligent behavior, except in the situations
described above.
Under Delaware law, Delaware corporations may indemnify directors and officers from liability
if the person acted in good faith and in a manner reasonably believed by such person to be in or
not opposed to the best interests of the corporation, and, with respect to any criminal actions, if
the person had no reason to believe his or her action was unlawful. In the case of an action by or
on behalf of a corporation, indemnification may not be made if the person seeking indemnification
is adjudged liable to the corporation, unless the Delaware Court of Chancery or the court in which
such action was brought determines upon application that, despite the adjudication but in view of
all the circumstances of the case, such person is fairly and reasonably entitled to
indemnification. The indemnification provisions of Delaware law require indemnification of any
director or officer who has been successful on the merits or otherwise in defense of any action,
suit or proceeding that he or she was a party to by reason of the fact that he or she is or was a
director or officer of the corporation. Delaware law permits corporations to advance amounts to
directors and officers in payment of expenses. The indemnification authorized by Delaware law is
not exclusive and is in addition to any other rights granted to directors under any by-law,
agreement, vote of stockholders or disinterested directors or otherwise.
Our indemnification arrangements are set forth in our amended and restated certificate of
incorporation. Article IX of our amended and restated certificate of incorporation provides that
we shall indemnify any person against all expenses, liability and loss reasonably incurred or
suffered by such person in connection with the defense of either any action, suit or proceeding to
which he or she may be a party defendant or any claim of liability asserted against such person by
reason of the fact that he or she is or was our director or he or she is or was serving at our
request as a director, officer, employee or agent of another corporation or of a partnership, joint
venture, trust or other enterprise, provided that he or she acted in good faith and in a manner he
or she reasonably believed to be in or not opposed to our best interests, and, with respect to any
criminal action or proceeding, if he or she had no reasonable cause to believe his or her action
was unlawful.
In addition, unless ordered by a court, indemnification shall be made by us only as authorized
in the specific case upon a determination that indemnification of the director or officer is proper
because the person has met the applicable standard of conduct under Delaware law. This
determination is made, with respect to a person who is a director or officer at the time of such
determination, by (i) a majority vote of the directors who are not parties to or threatened with
the action, even though less than a quorum, (ii) a committee of such directors designated by a
majority vote of such directors, even though less than a quorum, (iii) if there are no such
directors, or if such directors so direct, independent legal counsel in a written opinion or (iv)
the stockholders. The indemnification provided for in our amended and restated certificate of
incorporation is not exclusive of any other rights to which a director or officer may be entitled
to under any statute, our amended and restated certificate of incorporation, our amended and
restated by-laws, any agreement, a vote of stockholders or disinterested directors or otherwise.
We have also entered into indemnity agreements under which we have agreed, among other things, to
indemnify our directors and officers to the maximum extent then authorized or permitted by our
amended and restated certificate of incorporation or Delaware law.
9
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities (as defined below) sets forth
certain general terms and provisions of the Debt Securities to which any prospectus supplement may
relate. The particular terms of the Debt Securities offered by any prospectus supplement and the
extent, if any, to which such general provisions may apply to the Debt Securities so offered will
be described in the prospectus supplement relating to such Debt Securities. Accordingly, for a
description of the terms of a particular issue of Debt Securities, reference must be made to both
the prospectus supplement relating thereto and to the following description.
The Debt Securities will be issued under an indenture (the Indenture) dated as of February
14, 2008, between us and The Bank of New York Mellon Trust Company, N.A. (the Trustee). As used
in this prospectus, Debt Securities means the debentures, notes, bonds and other evidences of
indebtedness that we issue and the Trustee authenticates and delivers under the Indenture.
We have summarized certain terms and provisions of the Indenture in this section. The summary
is not complete. The Indenture is also an exhibit to the registration statement that included this
prospectus. You should read the Indenture for additional information before you buy any Debt
Securities. The summary that follows includes references to section numbers of the Indenture so
that you can more easily locate these provisions. Capitalized terms used but not defined in this
summary have the meanings specified in the Indenture.
General
The Debt Securities will be our direct unsecured obligations. The Indenture does not limit
the amount of Debt Securities that we may issue and permits us to issue Debt Securities from time
to time. Debt Securities issued under the Indenture will be issued as part of a series that has
been established by us pursuant to the Indenture (Section 2.01(b)). Unless a prospectus supplement
relating to Debt Securities states otherwise, the Indenture and the terms of the Debt Securities
will not contain any covenants designed to afford holders of any Debt Securities protection in a
highly leveraged or other transaction involving us that may adversely affect holders of the Debt
Securities.
A prospectus supplement relating to a series of Debt Securities being offered will include
specific terms relating to the offering. These terms will include some or all of the following:
|
|
|
the title and type of the Debt Securities;
|
|
|
|
any limit on the total principal amount of the Debt Securities;
|
|
|
|
the price at which the Debt Securities will be issued;
|
|
|
|
the date or dates on which the principal of and premium, if any, on the Debt
Securities will be payable;
|
|
|
|
|
the maturity date of the Debt Securities;
|
|
|
|
|
if the Debt Securities will bear interest, and if so:
|
|
|
|
the interest rate on the Debt Securities,
|
|
|
|
|
the date from which interest will accrue,
|
|
|
|
|
the record and interest payment dates for the Debt Securities or the
method of determining such rate,
|
|
|
|
|
the first interest payment date, and
|
|
|
|
|
any circumstances under which we may defer interest payments;
|
10
|
|
|
if the amount of principal, interest or premium, if any, with respect to the Debt
Securities may be determined with reference to an index or pursuant to a formula, the
manner in which such amounts will be determined;
|
|
|
|
any optional conversion provisions that would permit us or the Holders (as defined
below) of Debt Securities to elect to convert the Debt Securities prior to their final
maturity;
|
|
|
|
any optional redemption provisions that would permit us or the Holders (as defined
below) of Debt Securities to elect redemption of the Debt Securities prior to their
final maturity;
|
|
|
|
any sinking fund or analogous provisions that would obligate us to redeem, purchase
or repay the Debt Securities prior to their final maturity;
|
|
|
|
the currency or currencies in which the Debt Securities will be denominated and
payable, if other than U.S. dollars;
|
|
|
|
any provisions that would permit us or the Holders of the Debt Securities to elect
the currency or currencies in which the Debt Securities are paid;
|
|
|
|
whether the Debt Securities will be subordinated to our other debt;
|
|
|
|
any changes to or additional Events of Default (as defined below);
|
|
|
|
any changes to or additional covenants or provisions to the Indenture;
|
|
|
|
whether the Debt Securities will be issued in whole or in part in the form of Global
Securities and, if so, the Depositary for those Global Securities (a Global Security
means a Debt Security that we issue in accordance with the Indenture to represent all
or part of a series of Debt Securities);
|
|
|
|
any material United States federal income tax consequences of the Debt Securities;
and
|
|
|
|
any other terms of the Debt Securities (which terms shall not be prohibited by the
provisions of the Indenture).
|
A Holder means the person in whose name a particular Security is registered in the Security
Register (Section 1.01).
Payment and Transfer
In the prospectus supplement relating to a series of Debt Securities, we will designate a
Place of Payment where you can receive payment of the principal of and any premium and interest
on such Debt Securities or transfer such Debt Securities. There will be no service charge for any
registration of transfer or exchange of the Debt Securities, but we may require you to pay any tax
or other governmental charge payable in connection with a transfer or exchange of the Debt
Securities.
All funds which we pay to any paying agent for the payment of principal, interest or premium,
if any, with respect to the Debt Securities that remain unclaimed at the end of two years after
such principal, interest or premium shall have become due and payable will be repaid to us, and the
holders of such Debt Securities will thereafter look only to us for payment thereof.
Denominations
Unless the prospectus supplement states otherwise, the Debt Securities will be issued only in
registered form, without coupons, in denominations of $1,000 each, or multiples of $1,000.
11
Original Issue Discount
Debt Securities may be issued under the Indenture as Original Issue Discount Securities and
sold at a substantial discount below their stated principal amount. If a Debt Security is an
Original Issue Discount Security, that means that an amount less than the principal amount of the
Debt Security will be due and payable upon a declaration of acceleration of the maturity of the
Debt Security pursuant to the Indenture (Section 1.01). The prospectus supplement will describe
the federal income tax consequences and other special factors which should be considered prior to
purchasing any Original Issue Discount Securities.
Consolidation, Merger or Sale of Assets
The Indenture generally permits a consolidation or merger between us and another company. It
also permits the sale or transfer by us of all or substantially all of our property and assets and
the purchase by us of all or substantially all of the property and assets of another company.
These transactions are permitted if:
|
|
|
the resulting or acquiring company (if other than us) is a U.S. corporation,
partnership or trust which assumes, or has its parent company assume, all of our
responsibilities and liabilities under the Indenture, including the payment of all
amounts due on the Debt Securities and performance of the covenants in the Indenture;
and
|
|
|
|
immediately after the transaction, no Event of Default exists.
|
If we consolidate or merge with or into any other corporation or sell all or substantially all
of our assets according to the terms and conditions of the Indenture, the resulting or acquiring
corporation will be substituted for us in the Indenture with the same effect as if it had been an
original party to the Indenture. As a result, the successor corporation may exercise our rights
and powers under the Indenture, in our name or in its own name and we will be released from all our
liabilities and obligations under the Indenture and under the Debt Securities (Sections 11.01(a)
and (b)).
Satisfaction and Discharge; Defeasance and Covenant Defeasance
The following discussion of satisfaction and discharge, defeasance and covenant defeasance
will be applicable to a series of Debt Securities only if we choose to have them apply to that
series. If we do so choose, we will state that in the applicable prospectus supplement.
Satisfaction and Discharge.
The Indenture will be satisfied and discharged if:
|
|
|
we deliver to the Trustee all Debt Securities then outstanding for cancellation; or
|
|
|
|
all Debt Securities not delivered to the Trustee for cancellation have become due
and payable, are to become due and payable within one year upon their stated maturity
or are to be called for redemption within one year and we deposit an amount sufficient
to pay the principal, premium, if any, and interest to the date of maturity or
redemption as applicable, or deposit (in the case of Debt Securities that have become
due and payable), provided that in either case we have paid all other sums payable
under the Indenture.
|
Defeasance and Covenant Defeasance.
The Indenture provides, if such provision is made
applicable to the Debt Securities of a series, that:
|
|
|
to defease and be discharged from any and all obligations with respect
to any Debt Security of such series (except for the obligations to register the
transfer or exchange of such Debt Security, to replace temporary or mutilated,
destroyed, lost or stolen Debt Securities, to maintain an office or agency in
respect of the Debt Securities and to hold moneys for payment in trust)
(defeasance); or
|
12
|
|
|
to be released from our obligations with respect to certain restrictive
covenants that may be applicable for a particular series; and
|
|
|
|
that the Events of Default described in the third, fourth (only with respect to
those restrictive covenants that no longer apply), fifth and seventh bullets under
Events of Default, shall not be Events of Default under the Indenture with respect to
such series (covenant defeasance), upon the deposit with the Trustee (or other
qualifying trustee), in trust for such purpose, of money and/or certain U.S. government
obligations which through the payment of principal and interest in accordance with
their terms will provide money, in an amount sufficient to pay the principal of (and
premium, if any) and interest on such Debt Security, on the scheduled due dates.
|
In the case of defeasance, the holders of such Debt Securities are entitled to receive
payments in respect of such Debt Securities solely from such trust. Such a trust may only be
established if, among other things, we have delivered to the Trustee an opinion of counsel (as
specified in the Indenture) to the effect that the holders of the Debt Securities affected thereby
will not recognize income, gain or loss for federal income tax purposes as a result of such
defeasance or covenant defeasance and will be subject to federal income tax on the same amounts, in
the same manner and at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. Such opinion of counsel, in the case of defeasance described above,
must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable
federal income tax law occurring after the date of the Indenture.
Modification and Waiver
Under the Indenture, certain of our rights and obligations and certain of the rights of
Holders of the Debt Securities may be modified or amended with the consent of the Holders of a
majority in aggregate principal amount of the outstanding Debt Securities of each series of Debt
Securities affected by the modification or amendment. The following modifications and amendments
will not be effective against any Holder of any outstanding Debt Security affected thereby without
its consent:
|
|
|
a change in the stated maturity date of any payment of principal or interest;
|
|
|
|
a reduction in the principal amount, in the rate of interest or in any premium
payable upon redemption;
|
|
|
|
a reduction in the principal amount of an Original Issue Discount Security that
would be due and payable upon a declaration of acceleration of the maturity of a Debt
Security pursuant to the Indenture;
|
|
|
|
a change in the Place of Payment or currency in which any payment on the Debt
Securities is payable;
|
|
|
|
an impairment of a Holders right to sue us for the enforcement of certain payments
due on the Debt Securities;
|
|
|
|
a reduction in the percentage of outstanding Debt Securities required to consent to
a modification, waiver or amendment of the Indenture; and
|
|
|
|
a modification of any of the foregoing requirements or a reduction in the percentage
in principal amount of outstanding Debt Securities required to waive compliance with
certain provisions of the Indenture or to waive certain defaults under the Indenture
(Section 10.02).
|
Events of Default
The term Event of Default when used in the Indenture with respect to any series of Debt
Securities, means any of the following:
|
|
|
failure to pay interest (including defaulted interest, if any) on any Debt Security
of that series when due, and continuance of such default for a period of 30 days;
|
|
|
|
failure to pay the principal of or any premium on any Debt Security of that series
when due;
|
13
|
|
|
failure to make any sinking fund payment when and as due by the terms of a Debt
Security of that series, and continuance of such default for a period of 60 days;
|
|
|
|
default in the performance, or breach, of any covenant or warranty of the Company in
the Indenture (other than a covenant or warranty, a default in the performance or
breach of which is elsewhere specifically dealt with or which has expressly been
included in the Indenture solely for the benefit of one or more series of Debt
Securities other than that series), and continuance of such default or breach for a
period of 60 calendar days after there has been given and actually received by the
Company a Notice of Default with respect to such default or breach;
|
|
|
|
any nonpayment at maturity or other default is made under any agreement or
instrument relating to any other Indebtedness of the Company (the unpaid principal
amount of which is not less than the greater of $50 million or 10% of Consolidated
Stockholders Equity of the Company), and, in any such case, such default (A) continues
beyond any period of grace provided with respect thereto, (B) results in such
Indebtedness being accelerated or declared due and payable (or, in the case of
nonpayment, occurs at the final maturity of such Indebtedness), and (C) such
Indebtedness is not discharged, or such acceleration or declaration has not been
rescinded or annulled, within a period of 30 days after actual receipt by the Company
of a Notice of Default from the Trustee or the required Holders of such series;
provided, however, that if any such nonpayment or other default shall be cured, waived,
rescinded or annulled, then the Event of Default by reason thereof shall be deemed not
to have occurred;
|
|
|
|
certain events in bankruptcy, insolvency or reorganization; or
|
|
|
|
any other Event of Default that may be specified for the Debt Securities of that
series when that series is created (Section 8.01(a)).
|
If an Event of Default (other than the Event of Default referred to in the sixth bullet above)
for any series of Debt Securities occurs and continues, the Trustee or the Holders of at least 25%
in aggregate principal amount of the outstanding Debt Securities of the series may declare the
entire principal of all the Debt Securities of that series to be due and payable immediately. If
such a declaration occurs, the Holders of a majority of the aggregate principal amount of the
outstanding Debt Securities of that series can, subject to certain conditions, rescind the
declaration. Upon the occurrence of the Event of Default referred to in the sixth bullet above the
entire principal of, and interest and premium (if any) on, all the Debt Securities of each series
shall be due and payable immediately without any declaration or other act on the part of the
Trustee or any Holder (Section 8.01(b) and (c)).
The prospectus supplement relating to each series of Debt Securities that are Original Issue
Discount Securities will describe the particular provisions that relate to the acceleration of
maturity of a portion of the principal amount of such series when an Event of Default occurs and
continues.
An Event of Default for a particular series of Debt Securities does not necessarily constitute
an Event of Default for any other series of Debt Securities issued under the Indenture. The
Indenture requires us to file an Officers Certificate with the Trustee each fiscal year that
states that certain defaults do not exist under the terms of the Indenture (Section 6.05).
Other than its duties in the case of a default, a Trustee is not obligated to exercise any of
its rights or powers under the Indenture at the request or direction of any Holders, unless the
Holders offer the Trustee indemnification satisfactory to it (Section 9.02(e)). If such
indemnification is provided, then, subject to certain other rights of the Trustee, the Holders of a
majority in principal amount of the outstanding Debt Securities of any series may, with respect to
the Debt Securities of that series, direct the time, method and place of:
|
|
|
conducting any proceeding for any remedy available to the Trustee; or
|
|
|
|
exercising any trust or power conferred upon the Trustee (Section 8.06).
|
The Holder of a Debt Security of any series will have the right to begin any proceeding with
respect to the Indenture or for any other remedy under the Indenture (including the appointment of
a receiver or trustee), only if:
14
|
|
|
the Holder has previously given the Trustee written notice of a continuing Event of
Default with respect to the Debt Securities of that series;
|
|
|
|
the Holders of at least 25% in aggregate principal amount of the outstanding Debt
Securities of that series have made a written request of, and offered satisfactory
indemnification to, the Trustee to begin such proceeding;
|
|
|
|
the Holders have offered the Trustee indemnification to the Trustees satisfaction
with respect to compliance with the request;
|
|
|
|
the Trustee has not started such proceeding within 60 days after receiving the
request; and
|
|
|
|
the Trustee has not received directions inconsistent with such request from the
Holders of a majority in aggregate principal amount of the outstanding Debt Securities
of that series during those 60 days (Section 8.04).
|
However, the Holder of any Debt Security will have an absolute right to receive payment of
principal of and any premium and interest on the Debt Security when due and to institute suit to
enforce such payment (Section 8.09).
Street Name and Other Indirect Holders
Investors who hold securities in accounts at banks or brokers generally will not be recognized
by us as legal Holders of Debt Securities. This is called holding in Street Name. Instead, we
would recognize only the bank or broker, or the financial institution that the bank or broker uses
to hold its securities. These intermediary banks, brokers and other financial institutions pass
along principal, interest and other payments on the Debt Securities, either because they agree to
do so in their customer agreements or because they are legally required to. If you hold Debt
Securities in Street Name, you should check with your own institution to find out:
|
|
|
How it handles payments and notices;
|
|
|
|
Whether it imposes fees or charges;
|
|
|
|
How it would handle voting if applicable;
|
|
|
|
Whether and how you can instruct it to send you Debt Securities registered in your
own name so you can be a direct Holder as described below; and
|
|
|
|
If applicable, how it would pursue rights under your Debt Securities if there were a
default or other event triggering the need for Holders to act to protect their
interests.
|
Direct Holders
Our obligations, as well as the obligations of the Trustee under the Indenture and those of
any third parties employed by us or the Trustee under the Indenture, run only to persons who are
registered as Holders of Debt Securities issued under the Indenture. As noted above, we do not
have obligations to you if you hold in Street Name or other indirect means, either because you
choose to hold Debt Securities in that manner or because the Debt Securities are issued in the form
of global securities as described below. For example, once we make payment to the registered
Holder, we have no further responsibility for the payment even if that Holder is legally required
to pass the payment along to you as a Street Name customer but does not do so.
Book-Entry, Delivery and Form
We have obtained the information in this section concerning DTC, Clearstream Banking S.A., or
Clearstream, and Euroclear Bank S.A./N.V., as operator of the Euroclear System, or Euroclear,
and the book-entry system and procedures from sources that we believe to be reliable, but we take
no responsibility for the accuracy of this information.
15
Unless otherwise specified in the applicable prospectus supplement, the Debt Securities will
be issued as fully-registered global securities which will be deposited with, or on behalf of, DTC
and registered, at the request of DTC, in the name of Cede & Co. or such other name as may be
requested by an authorized representative of DTC. Beneficial interests in the global securities
will be represented through book-entry accounts of financial institutions acting on behalf of
beneficial owners as direct or indirect participants in DTC. Investors may elect to hold their
interests in the global securities through either DTC (in the United States) or (in Europe) through
Clearstream or through Euroclear. Investors may hold their interests in the global securities
directly if they are participants in such systems, or indirectly through organizations that are
participants in these systems. Interests held through Clearstream and Euroclear will be recorded
on DTCs books as being held by the U.S. depositary for each of Clearstream and Euroclear (the
U.S. Depositories), which U.S. Depositories will, in turn, hold interests on behalf of their
participants customers securities accounts. Unless otherwise specified in the applicable
prospectus supplement, beneficial interests in the global securities will be held in denominations
of $100,000 and multiples of $1,000 in excess thereof. Except as set forth below, the global
securities may be transferred, in whole and not in part, only to another nominee of DTC or to a
successor of DTC or its nominee.
Debt Securities represented by a global security can be exchanged for definitive securities in
registered form only if:
|
|
|
DTC notifies us that it is unwilling or unable to continue as depositary for that
global security;
|
|
|
|
at any time DTC ceases to be a clearing agency registered under the Exchange Act;
|
|
|
|
we in our sole discretion determine that that global security will be exchangeable
for definitive securities in registered form and notify the trustee of our decision;
|
|
|
|
an event of default with respect to the Debt Securities represented by that global
security has occurred and is continuing; or
|
|
|
|
other circumstances exist under which such an exchange is to be permitted as
established in accordance with the indenture in connection with issuing Debt
Securities.
|
A global security that can be exchanged as described in the preceding sentence will be
exchanged for definitive securities issued in authorized denominations in registered form for the
same aggregate amount. The definitive securities will be registered in the names of the owners of
the beneficial interests in the global security as directed by DTC.
We will make principal and interest payments on all Debt Securities represented by a global
security to the paying agent which in turn will make payment to DTC or its nominee, as the case may
be, as the sole registered owner and the sole holder of the Debt Securities represented by a global
security for all purposes under the Indenture. Accordingly, we, the trustee and any paying agent
will have no responsibility or liability for:
|
|
|
any aspect of DTCs records relating to, or payments made on account of, beneficial
ownership interests in a Debt Security represented by a global security;
|
|
|
|
any other aspect of the relationship between DTC and its participants or the
relationship between those participants and the owners of beneficial interests in a
global security held through those participants; or
|
|
|
|
the maintenance, supervision or review of any of DTCs records relating to those
beneficial ownership interests.
|
DTC has advised us that its current practice is to credit participants accounts on each
payment date with payments in amounts proportionate to their respective beneficial interests in the
principal amount of such global security as shown on DTCs records, upon DTCs receipt of funds and
corresponding detail information. The underwriters or agents for the Debt Securities represented
by a global security will initially designate the accounts to be credited. Payments by
participants to owners of beneficial interests in a global security will be governed by
16
standing instructions and customary practices, as is the case with securities held for
customer accounts registered in Street Name, and will be the sole responsibility of those
participants. Book-entry notes may be more difficult to pledge because of the lack of a physical
note.
DTC
So long as DTC or its nominee is the registered owner of a global security, DTC or its
nominee, as the case may be, will be considered the sole owner and holder of the Debt Securities
represented by that global security for all purposes of the Debt Securities. Owners of beneficial
interests in the Debt Securities will not be entitled to have Debt Securities registered in their
names, will not receive or be entitled to receive physical delivery of the Debt Securities in
definitive form and will not be considered owners or holders of Debt Securities under the
Indenture. Accordingly, each person owning a beneficial interest in a global security must rely on
the procedures of DTC and, if that person is not a DTC participant, on the procedures of the
participant through which that person owns its interest, to exercise any rights of a holder of Debt
Securities. The laws of some jurisdictions require that certain purchasers of securities take
physical delivery of the securities in certificated form. These laws may impair the ability to
transfer beneficial interests in a global security. Beneficial owners may experience delays in
receiving distributions on their Debt Securities since distributions will initially be made to DTC
and must then be transferred through the chain of intermediaries to the beneficial owners account.
We understand that, under existing industry practices, if we request holders to take any
action, or if an owner of a beneficial interest in a global security desires to take any action
which a holder is entitled to take under the Indenture, then DTC would authorize the participants
holding the relevant beneficial interests to take that action and those participants would
authorize the beneficial owners owning through such participants to take that action or would
otherwise act upon the instructions of beneficial owners owning through them.
Beneficial interests in a global security will be shown on, and transfers of those ownership
interests will be effected only through, records maintained by DTC and its participants for that
global security. The conveyance of notices and other communications by DTC to its participants and
by its participants to owners of beneficial interests in the Debt Securities will be governed by
arrangements among them, subject to any statutory or regulatory requirements in effect.
DTC has advised us that it is a limited-purpose trust company organized under the New York
banking law, a banking organization within the meaning of the New York Banking Law, a member of
the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform
Commercial Code, and a clearing agency registered under the Exchange Act.
DTC holds the securities of its participants and facilitates the clearance and settlement of
securities transactions among its participants in such securities through electronic book-entry
changes in accounts of its participants. The electronic book-entry system eliminates the need for
physical certificates. DTCs participants include securities brokers and dealers, including
underwriters, banks, trust companies, clearing corporations and certain other organizations.
Banks, brokers, dealers, trust companies and others that clear through or maintain a custodial
relationship with a participant, either directly or indirectly, also have access to DTCs
book-entry system. The rules applicable to DTC and its participants are on file with the SEC.
DTC has advised us that the above information with respect to DTC has been provided to its
participants and other members of the financial community for informational purposes only and is
not intended to serve as a representation, warranty or contract modification of any kind.
Clearstream
Clearstream has advised us that it is incorporated under the laws of Luxembourg as a
professional depositary. Clearstream holds securities for its participating organizations, or
Clearstream Participants, and facilitates the clearance and settlement of securities transactions
between Clearstream Participants through electronic book-entry changes in accounts of Clearstream
Participants, thereby eliminating the need for physical movement of certificates. Clearstream
provides to Clearstream Participants, among other things, services for safekeeping, administration,
clearance and settlement of internationally traded securities and securities lending and borrowing.
Clearstream interfaces with domestic securities markets in several countries. As a professional
depositary,
17
Clearstream is subject to regulation by the Luxembourg Commission for the Supervision of the
Financial Sector (Commission de Surveillance du Secteur Financier). Clearstream Participants are
recognized financial institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporations and certain other organizations.
Clearstreams U.S. Participants are limited to securities brokers and dealers and banks. Indirect
access to Clearstream is also available to others, such as banks, brokers, dealers and trust
companies that clear through or maintain a custodial relationship with a Clearstream Participant
either directly or indirectly.
Distributions with respect to debt securities held beneficially through Clearstream will be
credited to cash accounts of Clearstream Participants in accordance with its rules and procedures,
to the extent received by the U.S. Depositary for Clearstream.
Euroclear
Euroclear has advised us that it was created in 1968 to hold securities for participants of
Euroclear, or Euroclear Participants, and to clear and settle transactions between Euroclear
Participants through simultaneous electronic book-entry delivery against payment, thereby
eliminating the need for physical movement of certificates and any risk from lack of simultaneous
transfers of securities and cash. Euroclear performs various other services, including securities
lending and borrowing and interacts with domestic markets in several countries. Euroclear is
operated by Euroclear Bank S.A./N.V., or the Euroclear Operator, under contract with Euroclear
plc, a U.K. corporation. All operations are conducted by the Euroclear Operator, and all Euroclear
securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear Operator,
not Euroclear plc. Euroclear plc establishes policy for Euroclear on behalf of Euroclear
Participants. Euroclear Participants include banks, including central banks, securities brokers
and dealers and other professional financial intermediaries. Indirect access to Euroclear is also
available to other firms that clear through or maintain a custodial relationship with a Euroclear
Participant, either directly or indirectly.
The Euroclear Operator is a Belgian bank. As such it is regulated by the Belgian Banking,
Finance and Insurance Commission (La Commission Bancaire, Financiere et des Assurances) and the
National Bank of Belgium (Banque Nationale de Belgique).
Securities clearance accounts and cash accounts with the Euroclear Operator are governed by
the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the
Euroclear System, and applicable Belgian law, which we will refer to herein as the Terms and
Conditions. The Terms and Conditions govern transfers of securities and cash within Euroclear,
withdrawals of securities and cash from Euroclear, and receipts of payments with respect to
securities in Euroclear. All securities in Euroclear are held on a fungible basis without
attribution of specific certificates to specific securities clearance accounts. The Euroclear
Operator acts under the Terms and Conditions only on behalf of Euroclear Participants, and has no
record of or relationship with persons holding through Euroclear Participants.
Distributions with respect to Debt Securities held beneficially through Euroclear will be
credited to the cash accounts of Euroclear Participants in accordance with the Terms and
Conditions, to the extent received by the U.S. Depositary for Euroclear.
Euroclear has further advised us that investors that acquire, hold and transfer interests in
the Debt Securities by book-entry through accounts with the Euroclear Operator or any other
securities intermediary are subject to the laws and contractual provisions governing their
relationship with their intermediary, as well as the laws and contractual provisions governing the
relationship between such an intermediary and each other intermediary, if any, standing between
themselves and the global securities.
What is a Global Security?
A global security is a special type of indirectly held Debt Security as described above under
Street Name and Other Indirect Holders. If we choose to issue Debt Securities in the form of
global securities, the ultimate beneficial owners can only hold the Debt Securities in Street
Name. We would do this by requiring that the global security be registered in the name of a
financial institution we select and by requiring that the Debt Securities included in the global
security not be transferred to the name of any other direct Holder unless the special
18
circumstances described below occur. The financial institution that acts as the sole direct
Holder of the global security is called the depositary. Any person wishing to own a Debt
Security issued in the form of a global security must do so indirectly by virtue of an account with
a broker, bank or other financial institution that in turn has an account with the depositary. The
applicable prospectus supplement will indicate whether a series of Debt Securities will be issued
only in the form of global securities and, if so, will describe the specific terms of the
arrangement with the depositary.
Special Investor Considerations for Global Securities
As an indirect holder, an investors rights relating to a global security will be governed by
the account rules of the investors financial institution and of the depositary, as well as general
laws relating to securities transfers. We do not recognize this type of investor as a holder of
Debt Securities and instead deal only with the depositary that holds the global security.
An investor should be aware that if a series of Debt Securities are issued only in the form of
global securities:
|
|
|
The investor cannot get Debt Securities of that series registered in his or her own
name;
|
|
|
|
The investor cannot receive physical certificates for his or her interest in the
Debt Securities of that series;
|
|
|
|
The investor will be a Street Name holder and must look to his or her own bank or
broker for payments on the Debt Securities of that series and protection of his or her
legal rights relating to the Debt Securities of that series, as described under
Street Name and Other Indirect Holders;
|
|
|
|
The investor may not be able to sell interests in the Debt Securities of that series
to some insurance companies and other institutions that are required by law to own
their securities in the form of physical certificates; and
|
|
|
|
The depositarys policies will govern payments, transfers, exchange and other
matters relating to the investors interest in the global security. We and the Trustee
have no responsibility for any aspect of the depositarys actions or for its records of
ownership interests in the global security. We and the Trustee also do not supervise
the depositary in any way.
|
Special Situations When The Global Security Will be Terminated
In a few special situations, a global security will terminate, and interests in it will be
exchanged for physical certificates representing Debt Securities. After that exchange, the choice
of whether to hold Debt Securities directly or in Street Name will be up to the investor.
Investors must consult their own bank or brokers to find out how to have their interests in Debt
Securities transferred to their own name, so that they will be direct Holders. The rights of
Street Name investors and direct Holders in Debt Securities have been previously described in
subsections entitled Street Name and Other Indirect Holders and Direct Holders.
The special situations for termination of a global security are:
|
|
|
When the depositary notifies us that it is unwilling, unable or no longer qualified
to continue as depositary, and we do not appoint a successor depositary;
|
|
|
|
When an Event of Default on the series of Debt Securities has occurred and has not
been cured; and
|
|
|
|
At any time if we decide to terminate a global security.
|
The applicable prospectus supplement may also list additional situations for terminating a
global security that would apply only to the particular series of Debt Securities covered by the
prospectus supplement. When a global security terminates, only the depositary is responsible for
deciding the names of the institutions that will be the initial direct Holders.
19
DESCRIPTION OF OTHER SECURITIES
We will set forth in the applicable prospectus supplement a description of any warrants,
purchase contracts, or units that may be offered pursuant to this prospectus.
PLAN OF DISTRIBUTION
We may sell any combination of the securities offered pursuant to this prospectus through
agents, through underwriters or dealers or directly to one or more purchasers, or through a
combination of these methods.
Underwriters, dealers and agents that participate in the distribution of the securities
offered pursuant to this prospectus may be underwriters as defined in the Securities Act of 1933
(the Securities Act) and any discounts or commissions received by them from us and any profit on
the resale of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act. If a material arrangement with any underwriter, broker,
dealer or agent is entered into for the sale of the offered securities, a prospectus supplement
will be filed, if necessary, under the Securities Act disclosing the material terms and conditions
of such arrangement. Any underwriters or agents will be identified and their compensation
(including underwriting discount) will be described in the prospectus supplement. The prospectus
supplement will also describe other terms of the offering, including any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchanges on which the offered
securities may be listed.
The distribution of the securities offered under this prospectus may occur from time to time
in one or more transactions at a fixed price or prices, which may be changed, at market prices
prevailing at the time of sale, at prices related to such prevailing market prices or at negotiated
prices.
If the prospectus supplement indicates, we will authorize dealers or our agents to solicit
offers by certain institutions to purchase offered securities from us pursuant to contracts that
provide for payment and delivery on a future date. We must approve all institutions, but they may
include, among others:
|
|
|
commercial and savings banks;
|
|
|
|
investment companies; and
|
|
|
|
educational and charitable institutions.
|
An institutional purchasers obligations under any contract to purchase our securities will
only be subject to the condition that the purchase of the offered securities at the time of
delivery is allowed by the laws that govern the purchaser. The dealers and our agents will not be
responsible for the validity or performance of these contracts.
We may have agreements with the underwriters, dealers and agents to indemnify them against
certain civil liabilities, including liabilities under the Securities Act, or to contribute with
respect to payments which the underwriters, dealers or agents may be required to make as a result
of those certain civil liabilities.
When we issue the securities offered by this prospectus, they may be new securities without an
established trading market. If we sell a security offered by this prospectus to an underwriter for
public offering and sale, the underwriter may make a market for that security, but the underwriter
will not be obligated to do so and could discontinue any market making without notice at any time.
Therefore, we cannot give any assurances to you concerning the liquidity of any security offered by
this prospectus.
Underwriters and agents and their affiliates may be customers of, engage in transactions with,
or perform services for us or our subsidiaries in the ordinary course of their businesses.
20
VALIDITY OF SECURITIES
The validity of the securities described in this prospectus has been passed upon by Calfee,
Halter & Griswold LLP, 1400 KeyBank Center, 800 Superior Avenue, Cleveland, Ohio 44114.
EXPERTS
The consolidated financial statements of RPM International Inc. incorporated by reference in
RPM International Inc.s Annual Report (Form 10-K) for the year ended May 31, 2010 (including the
schedule appearing therein), and the effectiveness of RPM International Inc.s internal control
over financial reporting as of May 31, 2010 have been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their reports thereon incorporated by reference
therein, and incorporated herein by reference. Such consolidated financial statements and
managements assessment of the effectiveness of internal control as of May 31, 2010 are
incorporated herein by reference in reliance upon such reports given on the authority of such firm
as experts in accounting and auditing.
21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14.
Other Expenses of Issuance and Distribution
The following is an estimate, subject to future contingencies, of the expenses to be incurred
by the registrant in connection with the issuance and distribution of the securities being
registered:
|
|
|
|
|
|
|
Per Offering(1)
|
|
Registration fee
|
|
$
|
(2
|
)
|
Legal fees and expenses
|
|
|
80,000
|
|
Trustee fees and expenses
|
|
|
5,000
|
|
Accounting fees and expenses
|
|
|
150,000
|
|
Printing and engraving fees
|
|
|
100,000
|
|
Rating agency fees
|
|
|
330,000
|
|
Miscellaneous
|
|
|
35,000
|
|
|
|
|
|
Total
|
|
$
|
700,000
|
|
|
|
|
|
|
|
|
(1)
|
|
Because an indeterminate amount of securities is covered by this registration statement, the
expenses in connection with the issuance and distribution of the securities are not currently
determinable. The amounts shown are estimates of expenses for a single offering of securities
under the registration statement, but do not limit the amount of securities that may be
offered.
|
|
(2)
|
|
Deferred in accordance with Rules 456(b) and 457(r).
|
Item 15.
Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of Delaware (the DGCL) sets forth
the conditions and limitations governing the indemnification of officers, directors and other
persons. Section 145 provides that a corporation shall have the power to indemnify any person who
was or is a party or is threatened to be made a party to any threatened, pending or completed
action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an
action by or in the right of the corporation) by reason of the fact that the person is or was a
director, officer, employee or agent of the corporation or was serving at the request of the
corporation in a similar capacity with another corporation or other entity, against expenses
(including attorneys fees), judgments, fines and amounts paid in settlement incurred in connection
therewith if the person acted in good faith and in a manner that the person reasonably believed to
be in the best interests of the corporation. With respect to a suit by or in the right of the
corporation, indemnity may be provided to the foregoing persons under Section 145 on a basis
similar to that set forth above, except that no indemnity may be provided in respect of any claim,
issue or matter as to which such person has been adjudged to be liable to the corporation unless
and to the extent that the Delaware Court of Chancery or the court in which such action, suit or
proceeding was brought determines that despite the adjudication of liability, but in view of all
the circumstances of the case, such person is entitled to indemnity for such expenses as the court
deems proper. Moreover, Section 145 provides for mandatory indemnification of a director, officer,
employee or agent of the corporation to the extent that such person has been successful in defense
of any such action, suit or proceeding and provides that a corporation may pay the expenses of an
officer or director in defending an action, suit or proceeding upon receipt of an undertaking to
repay such amounts if it is ultimately determined that such person is not entitled to be
indemnified. Section 145 establishes provisions for determining that a given person is entitled to
indemnification, and also provides that the indemnification provided by or granted under Section
145 is not exclusive of any rights to indemnity or advancement of expenses to which such person may
be entitled under any by-law, agreement, vote of stockholders or disinterested directors or
otherwise.
Section 102(b)(7) of the DGCL permits corporations to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary damages for breach of
the directors duty of care. Specifically, this section provides that a director of a corporation
shall not be personally liable to the corporation or its
22
stockholders for monetary damages for breach of fiduciary duty as a director, except for
liability (i) for any breach of the directors duty of loyalty to the corporation or its
stockholders, (ii) for acts or omissions not in good faith that involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL or (iv) for any transaction from
which the director derived an improper personal benefit. Accordingly, Article VIII of the
Registrants Amended and Restated Certificate of Incorporation (the Certificate of Incorporation)
provides that to the full extent permitted by the DGCL, no director of the Registrant will be
personally liable to the Registrant or its stockholders for or with respect to any acts or
omissions in the performance of his or her duties as a director of the Registrant.
Article IX of the Certificate of Incorporation provides in part that the Registrant shall
indemnify any director or officer who was or is a party or is threatened to be made a party to, or
is involved in, any threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative, by reason of the fact that he or she is or was a
director or officer of the Registrant, or is or was serving at the request of the Registrant, as a
director, officer, employee or agent of certain other entities, 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 person in connection with such action, suit
or proceeding.
Both the DGCL and Article IX of the Certificate of Incorporation provide that the Registrant
may maintain insurance to cover losses incurred pursuant to liability of directors and officers of
the Registrant. The Registrant has purchased a Directors and Officers Liability Insurance Policy,
which insures the directors and officers against certain liabilities that might arise in connection
with their respective positions with the Registrant.
The Registrant has entered into Indemnification Agreements with each of its directors and
officers providing for additional indemnification protection beyond that provided by the Directors
and Officers Liability Insurance Policy. In the Indemnification Agreements, the Registrant has
agreed, subject to certain exceptions, to indemnify and hold harmless the director or officer to
the maximum extent then authorized or permitted by the provisions of the Certificate of
Incorporation, the DGCL, or by any amendment(s) thereto.
Item 16.
Exhibits
See Exhibit Index.
Item 17.
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 facts or events arising after the effective date of the
registration statement (or the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered
(if the total dollar value of securities offered would not exceed that which was registered) and
any deviation from the low or high end of the estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the Calculation of Registration Fee table in the effective
registration statement; and
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such information in
the registration statement;
provided, however
, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii) of this section do not
apply if the registration statement is on Form S-3 or Form F-3 and the information required to be
included in a post-effective amendment by
23
those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose 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.
(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.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the registrant is relying on Rule 430B (§230.430B of this chapter):
(A) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) (§230.424(b)(3) of
this chapter) shall be deemed to be part of the registration statement as of the date the filed
prospectus was deemed part of and included in the registration statement; and
(B) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
(§230.424(b)(2), (b)(5), or (b)(7) of this chapter) as part of a registration statement in reliance
on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
(§230.415(a)(1)(i), (vii), or (x) of this chapter) for the purpose of providing the information
required by section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included
in the registration statement as of the earlier of the date such form of prospectus is first used
after effectiveness or the date of the first contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and
any person that is at that date an underwriter, such date shall be deemed to be a new effective
date of the registration statement relating to the securities in the registration statement to
which that prospectus relates, and the offering of such securities at that time shall be deemed to
be the initial
bona fide
offering thereof.
Provided, however
, that no statement made in a
registration statement or prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the registration statement or
prospectus that is part of the registration statement will, as to a purchaser with a time of
contract of sale prior to such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration statement or made in any
such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of the registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on behalf of
the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
24
(b) The undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrants 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 plans 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) 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.
25
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements
for filing on Form S-3 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Cleveland, State of Ohio, on this 8th day of April, 2011.
|
|
|
|
|
|
RPM INTERNATIONAL INC.
|
|
|
By:
|
/s/ Frank C. Sullivan
|
|
|
|
Frank C. Sullivan
|
|
|
|
Chairman and Chief Executive Officer
|
|
|
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below, hereby
constitutes and appoints Frank C. Sullivan, Ronald A. Rice, Robert L. Matejka, and Edward W. Moore,
or any one of them, his or her true and lawful attorneys-in-fact and agents, each with full power
of substitution and resubstitution for him or her in his or her name, place and stead, in any and
all capacities, to sign any or all amendments or post-effective amendments to this Registration
Statement, and to file the same, with exhibits thereto and other documents in connection therewith,
with the Securities and Exchange Commission, granting unto such attorneys-in-fact and agents, or
any of them, full power and authority to do and perform each and every act and thing requisite and
necessary in connection with such matters and hereby ratifying and confirming all that each of such
attorneys-in-fact and agents or his or her substitute or substitutes may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities indicated on this
8th day of April, 2011.
|
|
|
Signature
|
|
Title
|
|
|
|
/s/ Frank C. Sullivan
Frank C. Sullivan
|
|
Chairman, Chief Executive Officer and a
Director
(Principal Executive Officer)
|
|
|
|
/s/ Robert L. Matejka
Robert L. Matejka
|
|
Senior Vice President and Chief
Financial Officer
(Principal Financial Officer)
|
|
|
|
/s/ Barry M. Slifstein
Barry M. Slifstein
|
|
Vice President and Controller
(Principal
Accounting Officer)
|
|
|
|
/s/ Thomas C. Sullivan
Thomas C. Sullivan
|
|
Chairman Emeritus and a Director
|
|
|
|
/s/ John P. Abizaid
John P. Abizaid
|
|
Director
|
|
|
|
/s/ Bruce A. Carbonari
Bruce A. Carbonari
|
|
Director
|
|
|
|
Signature
|
|
Title
|
|
|
|
/s/ David A. Daberko
David A. Daberko
|
|
Director
|
|
|
|
/s/ James A. Karman
James A. Karman
|
|
Director
|
|
|
|
/s/ Donald K. Miller
Donald K. Miller
|
|
Director
|
|
|
|
/s/ Frederick R. Nance
Frederick R. Nance
|
|
Director
|
|
|
|
/s/ William A. Papenbrock
William A. Papenbrock
|
|
Director
|
|
|
|
/s/ Charles A. Ratner
Charles A. Ratner
|
|
Director
|
|
|
|
/s/ William B. Summers, Jr.
William B. Summers, Jr.
|
|
Director
|
|
|
|
/s/ Dr. Jerry Sue Thornton
Dr. Jerry Sue Thornton
|
|
Director
|
|
|
|
/s/ Joseph P. Viviano
Joseph P. Viviano
|
|
Director
|
EXHIBIT INDEX
|
|
|
No.
|
|
Description
|
1.1
|
|
Form of Underwriting Agreement (1)
|
|
|
|
4.1
|
|
Indenture, dated as of February 14, 2008, between the Company and The Bank of New York Mellon
Trust Company, N.A.
|
|
|
|
4.2
|
|
Form of Debt Securities (1)
|
|
|
|
4.3
|
|
Form of Warrant Agreement (1)
|
|
|
|
4.4
|
|
Form of Common Stock Warrant Certificate (1)
|
|
|
|
4.5
|
|
Form of Debt Securities Warrant Certificate (1)
|
|
|
|
4.6
|
|
Rights Agreement by and between the Company and Wells Fargo Bank, N.A. (as successor to
National City Bank thereunder), dated as of April 21, 2009, which is incorporated herein by
reference to Exhibit 4.1 to the Companys Current Report on Form 8-K as filed with the
Commission on April 27, 2009.
|
|
|
|
4.7
|
|
Form of Specimen Certificate for Common Stock, which is incorporated herein by reference to
Exhibit 4.3 to the Companys Registration Statement on Form S-8 (File No. 333-101501), as
filed with the Commission on November 27, 2002.
|
|
|
|
5.1
|
|
Opinion of Calfee, Halter & Griswold LLP (filed herewith)
|
|
|
|
5.2
|
|
Opinion of Harter, Secrest & Emery LLP (filed herewith)
|
|
|
|
12
|
|
Computation of Ratio of Earnings to Fixed Charges
|
|
|
|
23.1
|
|
Consent of Calfee, Halter & Griswold LLP (
included as part of Exhibit 5.1
)
|
|
|
|
23.2
|
|
Consent of Independent Registered Public Accounting Firm Ernst & Young LLP
|
|
|
|
23.3
|
|
Consent of Crawford & Winiarski
|
|
|
|
24
|
|
Powers of Attorney (
included in signature page
)
|
|
|
|
25
|
|
Statement of Eligibility under the Trust Indenture Act of 1939 of The Bank of New York Trust
Company, N.A., as Trustee
|
|
|
|
(1)
|
|
To be filed by amendment or incorporated by reference in connection with the offering of the
offered securities.
|
|
Exhibit 4.1
RPM International Inc., Issuer
and
The Bank of New York Trust Company, N.A., Trustee
Indenture
Dated
as of February
14, 2008
DEBT SECURITIES
RPM International Inc.
Debt Securities
Cross Reference Sheet
1
This Cross Reference Sheet shows the location in the
Indenture of the provisions inserted pursuant
to Sections 310 318(a), inclusive, of the
Trust Indenture Act of 1939, as amended.
|
|
|
Trust Indenture Act
|
|
Sections of Indenture
|
§310(a)(1)
|
|
9.08
|
(a)(2)
|
|
9.08
|
(a)(3)
|
|
Inapplicable
|
(a)(4)
|
|
Inapplicable
|
(a)(5)
|
|
9.08
|
(b)
|
|
9.07 and 9.09
|
(c)
|
|
Inapplicable
|
§311(a)
|
|
9.12
|
(b)
|
|
9.12
|
(c)
|
|
Inapplicable
|
§312(a)
|
|
7.01 and 7.02
|
(b)
|
|
7.02
|
(c)
|
|
7.02
|
§313(a)
|
|
7.03
|
(b)
|
|
7.03
|
(c)
|
|
7.03
|
(d)
|
|
7.03
|
§314(a)
|
|
7.04
|
(a)(4)
|
|
1.01
|
(b)
|
|
Inapplicable
|
(c)(l)
|
|
13.05
|
(c)(2)
|
|
13.05
|
(c)(3)
|
|
Inapplicable
|
(d)
|
|
Inapplicable
|
(e)
|
|
13.05
|
(f)
|
|
Inapplicable
|
§315 (a)
|
|
9.01
|
(b)
|
|
8.08
|
(c)
|
|
9.01
|
(d)
|
|
9.01
|
(e)
|
|
8.07
|
§316 (a)
|
|
1.01
|
|
|
|
1
|
|
The Cross Reference Sheet is not part of the
Indenture.
|
|
|
|
Trust Indenture Act
|
|
Sections of Indenture
|
(a)(l)(A)
|
|
8.01 and 8.06
|
(a)(l)(B)
|
|
8.01
|
(a)(2)
|
|
Inapplicable
|
(b)
|
|
8.09
|
(c)
|
|
13.11
|
§317(a)(1)
|
|
8.02
|
(a)(2)
|
|
8.02
|
(b)
|
|
6.03
|
§318(a)
|
|
13.08
|
(2)
TABLE OF CONTENTS
|
|
|
|
|
ARTICLE
I. DEFINITIONS
|
|
|
8
|
|
|
|
|
|
|
Section 1.01.
Certain Terms Defined.
|
|
|
8
|
|
|
|
|
|
|
ARTICLE
II. THE SECURITIES
|
|
|
17
|
|
|
|
|
|
|
Section 2.01.
Designation and Amount of Securities.
|
|
|
17
|
|
Section 2.02.
Form of Securities and Trustees Certificate of Authentication
.
|
|
|
18
|
|
Section 2.03.
Date and Denominations.
|
|
|
19
|
|
Section 2.04.
Execution, Authentication and Delivery of Securities.
|
|
|
19
|
|
Section 2.05.
Registration of Transfer and Exchange.
|
|
|
20
|
|
Section 2.06.
Temporary Securities.
|
|
|
22
|
|
Section 2.07.
Mutilated, Destroyed, Lost, and Stolen Securities.
|
|
|
23
|
|
Section 2.08.
Cancellation of Surrendered Securities.
|
|
|
23
|
|
Section 2.09.
Payment of Interest; Interest Rights Preserved.
|
|
|
24
|
|
Section 2.10.
Persons Deemed Owners.
|
|
|
25
|
|
Section 2.11.
Computation of Interest.
|
|
|
25
|
|
Section 2.12.
CUSIP Numbers.
|
|
|
25
|
|
|
|
|
|
|
ARTICLE
III. REDEMPTION OF SECURITIES
|
|
|
26
|
|
|
|
|
|
|
Section 3.01.
Applicability of Article.
|
|
|
26
|
|
Section 3.02.
Election to Redeem; Notice to Trustee.
|
|
|
26
|
|
Section 3.03.
Deposit of Redemption Price.
|
|
|
27
|
|
Section 3.04.
Securities Payable on Redemption Date.
|
|
|
27
|
|
Section 3.05.
Securities Redeemed in Part.
|
|
|
27
|
|
|
|
|
|
|
ARTICLE
IV. SINKING FUNDS
|
|
|
28
|
|
|
|
|
|
|
Section 4.01.
Applicability of Article.
|
|
|
28
|
|
Section 4.02.
Satisfaction of Sinking Fund Payments With Securities.
|
|
|
28
|
|
Section 4.03.
Redemption of Securities for Sinking Fund.
|
|
|
28
|
|
|
|
|
|
|
ARTICLE
V. DEFEASANCE AND COVENANT DEFEASANCE
|
|
|
29
|
|
|
|
|
|
|
Section 5.01.
Companys Option to Effect Defeasance or Covenant Defeasance.
|
|
|
29
|
|
Section 5.02.
Defeasance and Discharge.
|
|
|
29
|
|
Section 5.03.
Covenant Defeasance.
|
|
|
29
|
|
Section 5.04.
Conditions to Defeasance or Covenant Defeasance.
|
|
|
30
|
|
Section 5.05.
Deposited Money and U.S. Government Obligations to be Held in Trust;
Other Miscellaneous Provisions.
|
|
|
31
|
|
Section 5.06.
Reinstatement.
|
|
|
32
|
|
|
|
|
|
|
ARTICLE
VI. PARTICULAR COVENANTS OF THE COMPANY
|
|
|
32
|
|
|
|
|
|
|
Section 6.01.
Payment of Principal, Premium and Interest on Securities.
|
|
|
32
|
|
Section 6.02.
Maintenance of Office or Agency.
|
|
|
33
|
|
Section 6.03.
Money for Securities Payments to be Held in Trust.
|
|
|
33
|
|
Section 6.04.
Existence.
|
|
|
34
|
|
Section 6.05.
Compliance Certificate.
|
|
|
34
|
|
Section 6.06.
Waiver of Certain Covenants.
|
|
|
35
|
|
Section 6.07.
Calculation of Original Issue Discount.
|
|
|
35
|
|
|
|
|
|
|
ARTICLE
VII. SECURITIES HOLDERS LIST AND REPORTS BY THE COMPANY AND THE
TRUSTEE
|
|
|
36
|
|
|
|
|
|
|
Section 7.01.
Company to Furnish Trustee Names and Addresses of Holders.
|
|
|
36
|
|
Section 7.02.
Preservation of Information; Communication to Holders.
|
|
|
36
|
|
Section 7.03.
Reports by Trustee.
|
|
|
36
|
|
Section 7.04.
Reports by Company.
|
|
|
37
|
|
(i)
|
|
|
|
|
ARTICLE
VIII. DEFAULT
|
|
|
37
|
|
|
|
|
|
|
Section 8.01.
Event of Default.
|
|
|
37
|
|
Section 8.02.
Covenant of Company to Pay to Trustee Whole Amount Due on Securities
on Default in Payment of Interest or Principal; Suits for Enforcement by Trustee
|
|
|
40
|
|
Section 8.03.
Application of Money Collected by Trustee
|
|
|
41
|
|
Section 8.04.
Limitation on Suits by Holders of Securities
|
|
|
42
|
|
Section 8.05.
Rights and Remedies Cumulative; Delay or Omission in Exercise of
Rights not a Waiver of Event of Default
|
|
|
42
|
|
Section 8.06.
Rights of Holders of Majority in Principal Amount of Outstanding
Securities to Direct Trustee
|
|
|
43
|
|
Section 8.07.
Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee
|
|
|
43
|
|
Section 8.08.
Notice of Defaults
|
|
|
43
|
|
Section 8.09.
Unconditional Right of Holders to Receive Principal, Premium, and Interest
|
|
|
43
|
|
Section 8.10.
Restoration of Rights and Remedies
|
|
|
43
|
|
Section 8.11.
Trustee May File Proofs of Claims
|
|
|
44
|
|
|
|
|
|
|
ARTICLE
IX. CONCERNING THE TRUSTEE
|
|
|
44
|
|
|
|
|
|
|
Section 9.01.
Certain Duties and Responsibilities
|
|
|
44
|
|
Section 9.02.
Certain Rights of Trustee
|
|
|
45
|
|
Section 9.03.
Not Responsible for Recitals or Issuance of Securities
|
|
|
47
|
|
Section 9.04.
May Hold Securities
|
|
|
47
|
|
Section 9.05.
Money Held in Trust
|
|
|
47
|
|
Section 9.06.
Compensation and Reimbursement
|
|
|
48
|
|
Section 9.07.
Disqualification; Conflicting Interests
|
|
|
48
|
|
Section 9.08.
Corporate Trustee Required; Eligibility
|
|
|
48
|
|
Section 9.09.
Resignation and Removal; Appointment of Successor
.
|
|
|
49
|
|
Section 9.10.
Acceptance of Appointment by Successor
|
|
|
50
|
|
Section 9.11.
Merger, Conversion, Consolidation, or Succession to Business
|
|
|
51
|
|
Section 9.12.
Preferential Collection of Claims Against Company
|
|
|
52
|
|
Section 9.13.
Appointment of Authenticating Agent
|
|
|
52
|
|
Section 9.14.
Trustees Application for Instructions from the Company
|
|
|
53
|
|
|
|
|
|
|
ARTICLE
X. SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
|
|
|
54
|
|
|
|
|
|
|
Section 10.01.
Purposes for Which Supplemental Indentures May Be Entered Into
Without Consent of Holders
|
|
|
54
|
|
Section 10.02.
Modification of Indenture with Consent of Holders of at Least a
Majority in Principal Amount of Outstanding Securities
|
|
|
55
|
|
Section 10.03.
Execution of Supplemental Indentures
|
|
|
56
|
|
Section 10.04.
Effect of Supplemental Indentures
|
|
|
56
|
|
Section 10.05.
Conformity with Trust Indenture Act
|
|
|
56
|
|
Section 10.06.
Reference in Securities to Supplemental Indentures.
|
|
|
56
|
|
|
|
|
|
|
ARTICLE
XI. CONSOLIDATION, MERGER, SALE, OR TRANSFER
|
|
|
57
|
|
|
|
|
|
|
Section 11.01.
Consolidations and Mergers of Company and Sales Permitted Only on
Certain Terms
|
|
|
57
|
|
|
|
|
|
|
ARTICLE
XII. SATISFACTION AND DISCHARGE OF INDENTURE
|
|
|
57
|
|
|
|
|
|
|
Section 12.01.
Satisfaction and Discharge of Indenture
|
|
|
57
|
|
Section 12.02.
Application of Trust Money
|
|
|
58
|
|
|
|
|
|
|
ARTICLE
XIII. SUBORDINATION
|
|
|
58
|
|
|
|
|
|
|
ARTICLE
XIV. MISCELLANEOUS PROVISIONS
|
|
|
60
|
|
|
|
|
|
|
Section 14.01.
Successors and Assigns of Company Bound by Indenture
|
|
|
60
|
|
(ii)
|
|
|
|
|
Section 14.02.
Service of Required Notice to Trustee and Company
|
|
|
60
|
|
Section 14.03.
Service of Required Notice to Holders; Waiver
|
|
|
61
|
|
Section 14.04.
Indenture and Securities to be Construed in Accordance with the Laws
of the State of New York
|
|
|
61
|
|
Section 14.05.
Compliance Certificates and Opinions
|
|
|
61
|
|
Section 14.06.
Form of Documents Delivered to Trustee
|
|
|
62
|
|
Section 14.07.
Payments Due on Non-Business Days
|
|
|
62
|
|
Section 14.08.
Provisions Required by Trust Indenture Act to Control
|
|
|
62
|
|
Section 14.09.
Invalidity of Particular Provisions
|
|
|
62
|
|
Section 14.10.
Indenture May be Executed In Counterparts
|
|
|
63
|
|
Section 14.11.
Acts of Holders; Record Dates
|
|
|
63
|
|
Section 14.12.
Effect of Headings and Table of Contents
|
|
|
65
|
|
Section 14.13.
Benefits of Indenture
|
|
|
65
|
|
Section 14.14.
Waiver of Jury Trial
|
|
|
65
|
|
Section 14.15.
Force Majeure
|
|
|
65
|
|
(iii)
Indenture
,
dated as of February 14, 2008 between RPM International Inc., a corporation duly
organized and existing under the laws of the state of Delaware (the Company), and The Bank of New
York Trust Company, N.A., a national banking association, (herein called the Trustee).
Recitals
A. The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its unsecured debentures, notes, and other evidences of
indebtedness (the Securities), to be issued in one or more series as in this Indenture provided.
B. The Securities of each series will be in substantially the form set forth below, or in such
other form as may 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.
[Form of Face of Security]
[Insert any legend required by the Internal
Revenue Code and the regulations thereunder.]
CUSIP No.
, a corporation duly organized and existing under the laws of the [state] of
(hereinafter called the Company, which term includes any successor Person under the
Indenture hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of $
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, on
and
in each year, commencing on
, at the
rate of
% per annum, until the principal hereof is paid or made available for payment
[if
applicable, insert
: , and at the rate of
% per annum on any overdue principal and premium
and on any overdue installment of interest]. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, which will 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 will be given to
Holders of Securities of this series not less than 10 calendar 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 will 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 will bear interest at the rate of _% per annum which will 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 will be payable on demand. Any such interest on any overdue
principal that is not so paid on demand will bear interest at the rate of _% per annum which will
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 will also be payable on demand.]
Payment of the principal of (and premium, if any) and
[if applicable, insert:
any such
interest on this Security will be made at the office or agency of the Company maintained for the
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 appears in the Security Register].
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE REVERSE HEREOF. SUCH
PROVISIONS WILL FOR ALL PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS PLACE.
This Security will not be valid or become obligatory for any purpose until the certificate of
authentication herein has been signed manually by the Trustee under the Indenture referred to on
the reverse side hereof.
IN WITNESS WHEREOF, this instrument has been duly executed in accordance with the Indenture.
-2-
[Form of Reverse of Security]
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities) and is to be issued in one or more series under an Indenture, dated as of
, 2008 (herein called the Indenture ), between the Company and The Bank of New York
Trust Company, N.A., 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
if applicable, insert:
, limited in
aggregate principal amount to
$
].
[If
applicable, insert:
The Securities of this series are subject to redemption upon
not less than 30 calendar days notice by mail,
[if applicable, insert
: (a) on
in each 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 (b)]
at any time [
if applicable, insert:
on or after
,
], 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 [
If applicable, insert:
on or before
,
%, and if redeemed during the 12-month period beginning
of the years
indicated,
|
|
|
|
|
|
|
Year
|
|
Redemption
Price
|
|
Year
|
|
Redemption
Price
|
|
|
|
|
|
|
|
and thereafter at a Redemption Price equal to _% of the principal amount, together in the case of
any such redemption
[if applicable, insert:
(whether through operation of the sinking fund
or otherwise)] with accrued interest to the Redemption Date, but interest installments whose
Stated Maturity is on or prior to such Redemption Date will be payable to the Holders of such
Securities, or one or more Predecessor Securities, of record at the close of business on the
relevant 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 calendar days notice by mail, [
if applicable, insert
: (a) on
in each year commencing with the year
and ending with the year
through operation of the
sinking fund for this series at the following Redemption Prices (expressed as percentages of the
principal amount) applicable to redemption
-3-
through operation of the sinking fund and (b)] at any time [
if applicable,
insert:
on or after
,
] as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the principal amount)
applicable to redemption otherwise than through operation of the sinking fund: If redeemed
[If
applicable, insert:
on or before
,
___%, and if redeemed]
during the 12-month period beginning
of the years indicated,
|
|
|
|
|
|
|
Year
|
|
|
|
Redemption Price For
Redemption Through
Operation of the
Sinking Fund
|
|
Redemption Price For
Redemption Otherwise
Than Through Operation
of the Sinking Fund
|
|
|
|
|
|
|
|
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.].
[If applicable, insert:
Notwithstanding the foregoing, the Company may not, prior to
, redeem any Securities of this series as contemplated by [if
applicable,
insert:
Clause (b) 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.]
[
If applicable, insert:
The sinking fund for this series provides for the redemption
on
in each year beginning with the year
and ending with the year
of [
if
applicable, insert
: 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 [
if applicable, insert:
mandatory"] sinking fund payments may be credited against subsequent
[if applicable,
insert:
mandatory"] sinking fund payments otherwise required to be made [
if applicable,
insert:
in the inverse order in which they become due"].].
[
If the Security is subject to redemption of any kind, insert
: In the event of
redemption of this Security in part only, a new Security or Securities of this series and of like
tenor for the unredeemed portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.]
[
If applicable, insert:
The Indenture contains provisions for defeasance at any time
of (a) the entire indebtedness evidenced by this Security or (b) certain restrictive
-4-
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 convertible into Common Stock or other securities of the Company,
specify the conversion features
]
[
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 will be equal to
[insert formula for
determining the amount]
. Upon payment (a) of the amount of principal so declared due and
payable and (b) of interest on any overdue principal and overdue interest, all of the Companys
obligations in respect of the payment of the principal of and interest, if any, on the Securities
of this series will 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 of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security will 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.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
will not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request and shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The foregoing will apply to
any
-5-
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or of the Indenture
will alter or impair the obligation of the Company, which is absolute and unconditional, to pay the
principal of and any premium and interest on this Security at the times, place, and rate, and in
the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Security is registerable in the Security Register, upon surrender of this Security
for registration of transfer at the office or agency of the Company in any place where the
principal of and any premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing,
and thereupon one or more new Securities of this series and of like tenor, of authorized
denominations and for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples 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 will be made for any such registration of transfer or exchange, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee, and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security shall be
overdue, and neither the Company, the Trustee, nor any such agent will be affected by notice to the
contrary.
All terms used in this Security that are defined in the Indenture will have the respective
meanings assigned to them in the Indenture.
This Security shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to conflicts of laws principles thereof.
-6-
C. The Trustees certificate of authentication will be in substantially the following form:
[Form of Trustees Certificate Of
Authentication for Securities]
Trustees Certificate of Authentication
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York Trust
|
|
|
|
|
|
|
Company, N.A., as Trustee
|
|
|
|
|
|
|
|
|
|
Dated:
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
D. Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the following form:
[Form of Legend for Global Securities]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SECURITY WILL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
E. All acts and things necessary to make the Securities, when the Securities have been
executed by the Company and authenticated by the Trustee and delivered as provided in this
Indenture, the valid, binding, and legal obligations of the Company and to constitute these
presents a valid indenture and agreement according to its terms, have been done and performed, and
the execution and delivery by the Company of this Indenture and the issue hereunder of the
Securities have in all respects been duly authorized; and the Company, in the exercise of legal
right and power in it vested, is executing and delivering this Indenture and proposes to make,
execute, issue, and deliver the Securities.
-7-
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
In order to declare the terms and conditions upon which the Securities are authenticated,
issued, and delivered, and in consideration of the premises and of the purchase and acceptance of
the Securities by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of the respective Holders from time to time of the Securities or of a series thereof, as
follows:
Article I.
DEFINITIONS
Section 1.01.
Certain Terms Defined.
(a) The terms defined in this Section 1.01 (except as herein otherwise expressly provided or
unless the context of this Indenture otherwise requires) for all purposes of this Indenture and of
any indenture supplemental hereto have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act, either directly or
by reference therein (except as herein otherwise expressly provided or unless the context of this
Indenture otherwise requires), have the respective meanings assigned to such terms in the Trust
Indenture Act as in force at the date of this Indenture as originally executed.
Act
:
The term Act, when used with respect to any Holder, has the meaning set forth in Section
14.11.
Affiliate:
The term Affiliate means, with respect to a particular Person, any Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with, such Person. For
purposes of this definition, control of a 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 of the foregoing.
Authenticating Agent:
The term Authenticating Agent means any Person authorized by the Trustee pursuant to Section
9.13 to act on behalf of the Trustee to authenticate Securities of one or more series.
Board of Directors:
The term Board of Directors means the Board of Directors of the Company or a duly authorized
committee of such Board.
-8-
Board Resolution:
The term Board Resolution means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification.
Business Day:
The term 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 required by law or executive order to close.
Capital Lease:
The term Capital Lease means, with respect to any Person, any lease of property (whether
real, personal, or mixed) by such Person or its Subsidiaries as lessee that would be capitalized on
a balance sheet of such Person or its Subsidiaries prepared in conformity with GAAP, other than, in
the case of such Person or its Subsidiaries, any such lease under which such Person or any of its
Subsidiaries is the lessor.
Capital Lease Obligations:
The term Capital Lease Obligations means, with respect to any Person, the capitalized amount
of all obligations of such Person and its Subsidiaries under Capital Leases, as determined on a
consolidated basis in conformity with GAAP.
Commission:
The term 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:
The term Common Stock means the common stock of the Company.
Company
:
The term Company means RPM International Inc., a Delaware corporation, until a successor
Person shall have become such pursuant to the applicable provisions of this Indenture, and
thereafter Company will mean such successor Person. The foregoing sentence shall likewise apply
to any subsequent such successor or successors.
-9-
Company Request or Company Order:
The term Company Request or Company Order means a written request or order signed in the
name of the Company by any two Responsible Officers of the Company, and delivered to the Trustee.
Consolidated Stockholders Equity
:
Consolidated Stockholders Equity means, at any time, the Consolidated Stockholders equity
of the Company and its Subsidiaries, determined on a consolidated basis at such time in accordance
with GAAP.
Corporate Trust Office:
Corporate Trust Office means the principal office of the Trustee at which at any time its
corporate trust business shall be administered, which office at the date hereof is located at 2 N.
LaSalle Street, Suite 1020, Chicago, IL 60602, Attention: Corporate Trust Administration, or such
other address as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or such other address as
such successor Trustee may designate from time to time by notice to the Holders and the Company).
Covenant Defeasance:
The term Covenant Defeasance has the meaning set forth in Section 5.03.
Default
:
The term Default means any event which, with notice or passage of time or both, would
constitute an Event of Default.
Defaulted Interest:
The term Defaulted Interest has the meaning set forth in Section 2.09.
Defeasance:
The term Defeasance has the meaning set forth in Section 5.02.
Defeasible Series:
The term Defeasible Series has the meaning set forth in Section 5.01.
Depositary:
The term Depositary means, with respect to Securities of any series issuable in whole or in
part in the form of one or more Global Securities, a clearing agency that is registered under the Exchange Act and is designated by the Company to act as
Depositary for such Securities as contemplated by Section 2.01.
-10-
Event of Default
:
The term Event of Default has the meaning set forth in Section 8.01(a).
Exchange Act:
The term Exchange Act means the Securities Exchange Act of 1934, as amended.
GAAP:
The term GAAP means generally accepted accounting principles in the United States of
America.
Global Security:
The term Global Security means a Security that evidences all or part of the Securities of
any series and is authenticated and delivered to, and registered in the name of, the Depositary for
such Securities or a nominee thereof.
Holder:
The term Holder means a person in whose name a particular Security is registered in the
Security Register.
Indebtedness
:
The term Indebtedness means, as to any Person (determined without duplication):
(i) indebtedness of such Person for money borrowed (whether by loan or the issuance and sale of
debt securities) or for the deferred purchase or acquisition price of property or services, other
than accounts payable (other than for borrowed money) incurred in the ordinary course of business;
(ii) obligations of such Person in respect of letters of credit or similar instruments issued or
accepted by banks and other financial institutions for the account of such Person (whether or not
such obligations are contingent); (iii) Capital Lease Obligations of such Person; (iv) obligations
of such Person to redeem or otherwise retire shares of capital stock of such Person; (v)
indebtedness of others of the type described in clause (i), (ii), (iii) or (iv) above secured by a
Lien on the property of such Person, whether or not the respective obligation so secured has been
assumed by such Person; and (vi) indebtedness of others of the type described in clause (i), (ii),
(iii) or (iv) above guaranteed by such Person.
Indenture:
The term Indenture means this Indenture, as this Indenture may be amended, supplemented, or
otherwise modified from time to time, including, for all purposes of this Indenture 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 will also include the terms of particular series of
Securities established as contemplated by Section 2.01.
-11-
Interest:
The term interest (i) when used with respect to an Original Issue Discount Security which by
its terms bears interest only after Maturity, means interest which accrues from and after and is
payable after Maturity and (ii) when used with respect to any Security, means the amount of all
interest accruing on such Security, including any default interest and any interest accruing after
any Event of Default that would have accrued but for the occurrence of such Event of Default.
Interest Payment Date:
The term Interest Payment Date when used with respect to any Security means the Stated
Maturity of an installment of interest on such Security.
Maturity:
The term Maturity when used with respect to any Security means the date on which the
principal of that 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.
Notice of Default:
The term Notice of Default means a written notice, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders at least 25% in principal
amount of the Outstanding Securities of the series in question, specifying that a default or breach
under Section 8.01(a)(iv) or 8.01(a)(v), as applicable, has occurred, and requiring it to be
remedied and stating that such notice is a Notice of Default hereunder.
Officers Certificate:
The term Officers Certificate means a certificate executed on behalf of the Company by two
officers of the Company (at least one of which shall be a Responsible Officer) and delivered to the
Trustee.
Opinion of Counsel:
The term Opinion of Counsel means an opinion in writing signed by legal counsel, who,
subject to any express provisions hereof, may be an employee of or counsel for the Company or any
Subsidiary.
-12-
Original Issue Discount Security:
The term 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 8.01(b).
Outstanding:
The term Outstanding means, when used with reference to Securities as of a particular time,
all Securities theretofore issued by the Company and authenticated and delivered by the Trustee
under this Indenture, except (a) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation, (b) Securities for the payment or redemption of which 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 is acting
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, (c) Securities paid
pursuant to Section 2.07 or Securities 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 (d) Securities as to which Defeasance has been effected pursuant to Section
5.02;
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 will be deemed to be Outstanding will 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 to such date pursuant to Section 8.01(b), (ii) the principal amount of a Security
denominated in one or more foreign currencies or currency units will be the U.S. dollar equivalent,
determined in the manner contemplated by Section 2.01 on the date of original issuance of such
Security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S.
dollar equivalent on the date of original issuance of such Security of the amount determined as
provided in clause (i) above) of such Security, and (iii) Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such other obligor will be
disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee will
be protected in relying upon any such request, demand, authorization, direction, notice, consent,
or waiver, only Securities which a Responsible Officer of the Trustee actually knows to be so owned
will be so disregarded. Securities so owned which have been pledged in good faith may be regarded
as Outstanding if the pledgor establishes to the satisfaction of the Trustee the pledgees 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.
-13-
Paying Agent:
The term Paying Agent means any Person authorized by the Company to pay the principal of or
any premium or interest on any Securities on behalf of the Company.
Person:
The term Person means any individual, partnership, corporation, joint stock company,
business trust, trust, unincorporated association, joint venture, or other entity, or government or
political subdivision or agency thereof.
Place of Payment:
The term Place of Payment when used with respect to the Securities of any series means the
place or places where the principal of and any premium and interest on the Securities of that
series are payable as specified as contemplated by Section 2.01.
Predecessor Security:
The term Predecessor Security when used with respect to any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced by such Security;
and, for the purposes of this definition, any Security authenticated and delivered under Section
2.07 in exchange for or in lieu of a mutilated, destroyed, lost, or stolen Security will be deemed
to evidence the same debt as the mutilated, destroyed, lost, or stolen Security.
Redemption Date:
The term 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:
The term Redemption Price when used with respect to any Security to be redeemed means the
price (including premium, if any) at which it is to be redeemed pursuant to this Indenture.
Regular Record Date:
The term 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 2.01.
-14-
Responsible Officer:
Responsible Officer means (a) when used with respect to the Trustee, any vice president, any
assistant vice president, any senior trust officer or assistant trust officer, any trust officer, or any other officer associated with the corporate trust
department 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 such persons knowledge of and familiarity
with the particular subject and who shall have direct responsibility for the administration of this
Indenture, and (b) when used with respect to the Company, any of the chief executive officer, chief
administrative officer, chief financial officer, secretary or treasurer, or any of their functional
equivalents in executive responsibility.
Securities
:
The term Securities has the meaning set forth in the first recital of this Indenture and
more particularly means any Securities authenticated and delivered under this Indenture.
Security Register and Security Registrar
:
The terms Security Register and Security Registrar have the respective meanings set forth
in Section 2.05.
Special Record Date:
The term Special Record Date for the payment of any Defaulted Interest means a date fixed by
the Trustee pursuant to Section 2.09.
Stated Maturity
:
The term Stated Maturity when used with respect to any Security, any installment of interest
thereon, or any other amount payable under this Indenture or the Securities means the date
specified in this Indenture or such Security as the regularly scheduled date on which the principal
of such Security, such installment of interest, or such other amount, is due and payable.
Subsidiary
:
The term Subsidiary means, as applied with respect to any Person, any corporation,
partnership, or other business entity of which, in the case of a corporation, more than 50% of the
issued and outstanding capital stock having ordinary voting power to elect a majority of the board
of directors of such corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation has or might have voting power upon the occurrence of any
contingency), or, in the case of any partnership or other legal entity, more than 50% of the
ordinary equity capital interests, is at the time directly or indirectly owned or controlled by
such Person, by such Person and one or more of its other Subsidiaries, or by one or more of such
Persons other Subsidiaries.
-15-
Trust Indenture Act
:
The term Trust Indenture Act means the Trust Indenture Act of 1939, as amended, as in force
upon the date as of which this instrument was executed;
provided
,
however
, that in
the event the Trust Indenture Act of 1939 is amended after such date, Trust Indenture Act means,
to the extent required by any such amendment, the Trust Indenture Act of 1939 as so amended.
Trustee
:
The term Trustee means the Person named as the Trustee in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter Trustee will 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 will mean each Trustee with respect to Securities of that series.
U.S. Government Obligation
:
The term U.S. Government Obligation means (a) any security that is (i) a direct obligation
of the United States of America for the payment of which full faith and credit of the United States
of America is pledged or (ii) an obligation of a Person controlled or supervised by and acting as
an agency or instrumentality of the United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by the United States of America,
which, in either case (i) or (ii), is not callable or redeemable at the option of the issuer
thereof and (b) any depositary receipt issued by a bank (as defined in Section 3(a)(2) of the
Securities Act of 1933, as amended) as custodian with respect to any U.S. Government Obligation
specified in clause (a), which U.S. Government Obligation is held by such custodian for the account
of the holder of such depositary receipt, or with respect to any specific payment of principal of
or interest on any such U.S. Government Obligation,
provided
that (except as required by
law) such custodian is not authorized to make any deduction from the amount payable to the holder
of such depositary receipt from any amount received by the custodian in respect of the U.S.
Government Obligation or the specific payment of principal or interest evidenced by such depositary
receipt.
(b) The words Article and Section refer to an Article and Section, respectively,
of this Indenture. 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. Certain terms used principally in Articles V, VI, and IX are defined in those
Articles. Terms in the singular include the plural and terms in the plural include the singular.
-16-
Article II.
THE SECURITIES
Section 2.01.
Designation and Amount of Securities.
(a) The aggregate principal amount of Securities that may be authenticated and delivered under
this Indenture is unlimited.
(b) The Securities may be issued in one or more series. There will be established in or
pursuant to a Board Resolution and, subject to Section 2.04, set forth or determined in the manner
provided in an Officers Certificate, or established in one or more indentures supplemental hereto,
prior to the issuance of Securities of any series: (i) the title of the Securities of the series
(which will distinguish the Securities of the series from Securities of any other series); (ii) 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 the exchange for, or in lieu of, other Securities of the
series pursuant to Section 2.05, 2.06, 2.07, 3.05, or 10.06 and except for any Securities which,
pursuant to Section 2.04, are deemed never to have been authenticated and delivered hereunder);
(iii) the Person to whom any interest on a Security of the series will 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; (iv) the date or dates on which the
principal of the Securities of the series is payable; (v) the rate or rates at which the Securities
of the series will bear interest, if any, the date or dates from which such interest will accrue,
the Interest Payment Dates on which any such interest will be payable, and the Regular Record Date
for any interest payable on any Interest Payment Date; (vi) the place or places where the principal
of and any premium and interest on Securities of the series will be payable; (vii) 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, in whole or in part, at the option of the Company and, if
other than by a Board Resolution, the manner in which any election by the Company to redeem the
Securities shall be evidenced; (viii) 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 will be redeemed or purchased, in whole or in
part, pursuant to such obligation; (ix) if other than denominations of $1,000 and integral
multiples thereof, the denominations in which Securities of the series will be issuable; (x) the
currency, currencies, or currency units in which payment of the principal of and any premium and
interest on any Securities of the series will be payable if other than the currency of the United
States of America and the manner of determining the equivalent thereof in the currency of the
United States of America for purposes of the definition of Outstanding in Section 1.01; (xi) if
the amount of payments of principal of or any premium or interest on any Securities of the series
may be determined with reference to an index, based upon a formula, or in some other manner, the
manner in which such amounts will be determined; (xii) if the principal of or any premium or
interest on any Securities of the series is to be payable, at the election of the Company or a Holder thereof, in one or more currencies or
-17-
currency units other than that or those in which the Securities are stated to be payable, the currency, currencies, or
currency units in which payment of the principal of and any premium and interest on Securities of
such series as to which such election is made will be payable, and the periods within which and the
terms and conditions upon which such election is to be made; (xiii) if other than the principal
amount thereof, the portion of the principal amount of Securities of the series which will be
payable upon declaration of acceleration of the Maturity thereof pursuant to Section 8.01(b); (xiv)
if applicable, that the Securities of the series will be subject to either or both of Defeasance or
Covenant Defeasance as provided in Article V, provided that no series of Securities that is
convertible into Common Stock pursuant to Section 2.01(b)(xvi) or convertible into or exchangeable
for any other securities pursuant to Section 2.01(b)(xvii) will be subject to Defeasance pursuant
to Section 5.02; (xv) if and as applicable, that the Securities of the series will be issuable in
whole or in part in the form of one or more Global Securities and, in such case, the Depositary or
Depositaries for such Global Security or Global Securities and any circumstances other than those
set forth in Section 2.05 in which any such Global Security may be transferred to, and registered
and exchanged for Securities registered in the name of, a Person other than the Depositary for such
Global Security or a nominee thereof and in which any such transfer may be registered; (xvi) the
terms and conditions, if any, pursuant to which the Securities are convertible into Common Stock;
(xvii) the terms and conditions, if any, pursuant to which the Securities are convertible into or
exchangeable for any other securities, including (without limitation) securities of Persons other
than the Company; and (xviii) any other terms of, or provisions, covenants, rights or other matters
applicable to, the series (which terms, provisions, covenants, rights or other matters will not be
inconsistent with the provisions of this Indenture, except as permitted by Section 10.01(e)).
(c) All Securities of any one series will be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to the Board Resolution referred to below
and (subject to Section 2.04) set forth or determined in the manner provided in the Officers
Certificate referred to above or in any such indenture supplemental hereto.
(d) 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 will be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee concurrently with or prior to the
delivery of the Officers Certificate setting forth the terms of the series.
Section 2.02.
Form of Securities and Trustees Certificate of Authentication
.
(a) The Securities of each series will be in substantially the form set forth in or otherwise
contemplated by the recitals to this Indenture, with appropriate variations to reflect the specific
terms of such series. 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 will be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee concurrently
with or prior to the delivery of the Company Order contemplated by Section 2.04 for the authentication and delivery
of such Securities.
-18-
(b) The definitive Securities will be printed, lithographed, or engraved on steel engraved
borders or may be produced in any other manner permitted by the rules of any securities exchange on
which the Securities may be listed, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
(c) The Trustees certificate of authentication will be in substantially the form set forth in
the recitals to this Indenture.
(d) Every Global Security authenticated and delivered hereunder will bear a legend in
substantially the form set forth in the recitals to this Indenture.
Section 2.03.
Date and Denominations.
Each Security will be dated the date of its authentication. The Securities of each series
will be issuable only in registered form without coupons in such denominations as may be specified
as contemplated by Section 2.01. In the absence of any such specified denomination with respect
to the Securities of any series, the Securities of such series will be issuable in denominations of
$1,000 and integral multiples thereof.
Section 2.04.
Execution, Authentication and Delivery of Securities.
(a) The Securities will be executed on behalf of the Company by a Responsible Officer of the
Company and attested by the Treasurer, the Secretary, any Assistant Treasurer, or any Assistant
Secretary of the Company. The signature of any of these officers on the Securities may be manual
or facsimile.
(b) Only such Securities bearing the Trustees certificate of authentication, signed manually
by the Trustee, will be entitled to the benefits of this Indenture or be valid or obligatory for
any purpose. Such execution of the certificate of authentication by the Trustee upon any
Securities executed by the Company will be conclusive evidence that the Securities so authenticated
have been duly authenticated and delivered hereunder. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for cancellation as provided in
Section 2.08, for all purposes of this Indenture such Security will be deemed never to have been
authenticated and delivered hereunder and will never be entitled to the benefits of this Indenture.
(c) Securities bearing the manual or facsimile signatures of individuals who were at the time
of execution the proper officers (as specified in Section 2.03(a) above) of the Company will bind
the Company, notwithstanding that such individuals or any of them have ceased to hold such offices
prior to the authentication and delivery by the Trustee of such Securities or did not hold such
offices at the date of such Securities.
-19-
(d) 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 will 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 2.01 and 2.02, in authenticating
such Securities, and accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee will be provided with, and (subject to Section 9.01) will be fully
protected in relying upon, an Opinion of Counsel stating:
(i) if the form of such Securities has been established by or pursuant to a Board
Resolution as permitted by Section 2.02, that such form has been established in conformity
with the provisions of this Indenture,
(ii) if the terms of such Securities have been established by or pursuant to a Board
Resolution as permitted by Section 2.01, that such terms have been established in
conformity with the provisions of this Indenture,
(iii) 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 binding obligations of the Company enforceable in
accordance with their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium, or other laws relating to or affecting
creditors rights and by general principles of equity; and
(iv) that all laws and requirements in respect of the execution and delivery by the
Company of such Securities have been complied with.
The Trustee shall have the right to decline to authenticate and deliver any Securities under
this Section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken or if the Trustee in good faith shall determine that such action would expose the Trustee
to personal liability to existing Holders.
(e) Notwithstanding the provisions of Sections 2.01 and 2.04(d), if all Securities of a series
are not to be originally issued at one time, it will not be necessary to deliver the Officers
Certificate otherwise required pursuant to Section 2.01 or the Company Order and Opinion of Counsel
otherwise required pursuant to Section 2.04(d) at or prior to the time of authentication of each
Security of such series if such documents are delivered at or prior to the authentication upon
original issuance of the first Security of such series to be issued.
Section 2.05.
Registration of Transfer and Exchange.
(a) The Company will cause to be kept at the Corporate Trust Office 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
-20-
Security Register) in which, subject to such reasonable regulations as it may prescribe, the
Company will provide for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed Security Registrar for the purpose of registering Securities and
transfers of Securities as herein provided.
(b) Upon surrender for registration of transfer of any Security of any series at the office or
agency in a Place of Payment for that series, the Company will execute, and the Trustee will
authenticate and deliver, 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.
(c) 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 will execute, and the Trustee
will authenticate and deliver the Securities which the Holder making the exchange is entitled to
receive.
(d) Every Security presented or surrendered for registration of transfer or exchange will (if
so required by the Company or the Trustee) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer, in form reasonably satisfactory to the Company and the
Security Registrar duly executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge will be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax, assessment, fee 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 2.06, 3.05, or 10.06 not involving any
transfer. The Company will 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 calendar days
before the mailing of a notice of redemption of Securities of that series selected for redemption
under Section 3.02(c) and ending at the close of business on the day of such mailing or (ii) to
register the transfer of or exchange any Security so selected for redemption in whole or in part,
except, in the case of any Securities to be redeemed in part, the portion thereof not being
redeemed.
(e) All Securities issued upon any registration of transfer or exchange of Securities will be
valid obligations of the Company, evidencing the same debt, and entitled to the same benefits under
this Indenture, as the Securities surrendered upon such registration of transfer or exchange.
(f) Notwithstanding any other provision in this Indenture, no Global Security may be
transferred to, or registered or exchanged for Securities registered in the name of, any Person
other than the Depositary for such Global Security or any nominee thereof, and no such transfer may
be registered, unless (i) such Depositary (A) notifies the Company that it is unwilling or unable
to continue as Depositary for such Global Security or (B) ceases to be a clearing agency registered
under the Exchange Act, (ii) the Company executes and delivers to the Trustee a Company Order that
such Global Security shall be so transferable, registrable, and
exchangeable, and such transfers shall be registrable,
-21-
(iii) there shall have occurred and be continuing an Event of Default with respect to
the Securities evidenced by such Global Security, or (iv) there shall exist such other
circumstances, if any, as have been specified for this purpose as contemplated by Section 2.01.
Notwithstanding any other provision in this Indenture, a Global Security to which the restriction
set forth in the preceding sentence shall have ceased to apply may be transferred only to, and may
be registered and exchanged for Securities registered only in the name or names of, such Person or
Persons as the Depositary for such Global Security shall have directed and no transfer thereof
other than such a transfer may be registered. Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global Security to which the
restriction set forth in the first sentence of this Section 2.05(f) shall apply, whether pursuant
to this Section 2.05, Section 2.06, 2.07, 3.05, or 10.06 or otherwise, will be authenticated and
delivered in the form of, and will be, a Global Security.
(g) Each Holder of a Security agrees to indemnify the Company and the Trustee against any
liability that may result from the transfer, exchange or assignment of such Holders Security in
violation of any provision of this Indenture and/or applicable United States Federal or state
securities law.
(h) The Trustee shall have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this Indenture or under applicable law
with respect to any transfer of any interest in any Security (including any transfers between or
among Depositary Participants or beneficial owners of interests in any Global Security) other than
to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.
Section 2.06.
Temporary Securities.
Pending the preparation of definitive Securities of any series, the Company may execute and
register and upon Company Order the Trustee will authenticate and deliver temporary Securities
(printed, lithographed, or typewritten) of any authorized denomination, and substantially in the
form of the definitive Securities but with such omissions, insertions, and variations as may be
appropriate for temporary Securities, all as may be determined by the officers executing such
Securities as evidenced by their execution of such Securities;
provided
,
however
that the Company will use reasonable efforts to have definitive Securities of that series available
at the times of any issuance of Securities under this Indenture. Every temporary Security will be
executed and registered by the Company and be authenticated by the Trustee upon the same conditions
and in substantially the same manner, and with like effect, as the definitive Securities. The
Company will execute and register and furnish definitive Securities of such series as soon as
practicable and thereupon any or all temporary Securities of such series may be surrendered in
exchange therefor at the office or agency of the Company in the Place of Payment for that series,
and the Trustee will authenticate and deliver in exchange for such temporary Securities of such
series one or more definitive Securities of the same series, of
-22-
any authorized denominations, and of a like
aggregate principal amount and tenor. Such exchange will be made by the Company at its own expense
and without any charge to the Holder therefor. Until so exchanged, the temporary Securities of any
series will be entitled to the same benefits under this Indenture as definitive Securities of the
same series authenticated and delivered hereunder.
Section 2.07.
Mutilated, Destroyed, Lost, and Stolen Securities.
(a) If any mutilated Security is surrendered to the Trustee, the Company will execute and the
Trustee will 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.
(b) If there shall be delivered to the Company and the Trustee (i) evidence to their
satisfaction of the destruction, loss, or theft of any Security and (ii) such security or indemnity
as may be required by them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company will execute and the Trustee will 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.
(c) 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.
(d) Upon the issuance of any new Security under this Section 2.07, the Company may require the
payment of a sum sufficient to cover any tax, assessment, fee 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.
(e) Every new Security of any series issued pursuant to this Section 2.07 in exchange for any
mutilated Security or in lieu of any destroyed, lost, or stolen Security will constitute an
original additional contractual obligation of the Company, whether or not the mutilated, destroyed,
lost, or stolen Security shall be at any time enforceable by anyone, and will be entitled to all
the benefits of this Indenture equally and proportionately with any and all other Securities of
that series duly issued hereunder.
(f) The provisions of this Section 2.07 are exclusive and will preclude (to the extent lawful)
all other rights and remedies with respect to the replacement or payment of mutilated, destroyed,
lost, or stolen Securities.
Section 2.08.
Cancellation of Surrendered Securities.
All Securities surrendered for payment, redemption, registration of transfer or exchange, or
for credit against any sinking fund payment will, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and will be promptly cancelled by it.
-23-
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 will be promptly cancelled by the Trustee. No
Securities will be authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section 2.08, except as expressly permitted by this Indenture. The Trustee shall dispose
of all cancelled Securities in accordance with its customary procedures.
Section 2.09.
Payment of Interest; Interest Rights Preserved.
(a) Except as otherwise provided as contemplated by Section 2.01 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 will 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.
(b) Any interest on any Security of any series which is payable, but is not punctually paid or
duly provided for within 30 days following any applicable Interest Payment Date (herein called
Defaulted Interest) will forthwith cease to be payable to the Holder on the relevant regular
Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the
Company, at its election in each case, as provided in clause (i) or (ii) below:
(i) 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 will be fixed in the following manner. The Company will promptly
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 will deposit with the Trustee an amount of money equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or will 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 (i) provided. Thereupon the Trustee will fix a
Special Record Date for the payment of such Defaulted Interest which will be not more than
15 calendar days and not less than 10 calendar days prior to the date of the proposed
payment and not less than 10 calendar days after the receipt by the Trustee of the notice
of the proposed payment. The Trustee will promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, will 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 calendar days prior to
such Special Record Date. Notice of the proposed payment of such Defaulted Interest (and interest thereon, if any)
-24-
and the Special Record Date
therefor having been so mailed, such Defaulted Interest will 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 will no longer be
payable pursuant to the following clause (ii).
(ii) 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 (ii), such manner of payment shall be deemed practicable by the
Trustee.
(c) Subject to the foregoing provisions of this Section 2.09, each Security delivered under
this Indenture upon registration of transfer of or in exchange for or in lieu of any other Security
will carry the rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
Section 2.10.
Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the Company, the Trustee,
and any agent of the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of principal of and
any premium and (subject to Section 2.09) any interest on such Security and for all other purposes
whatsoever, whether or not such Security shall be overdue, and neither the Company, the Trustees
nor any agent of the Company or the Trustee will be affected by notice to the contrary.
Section 2.11.
Computation of Interest.
Except as otherwise specified as contemplated by Section 2.01 for Securities of any series,
interest on the Securities of each series will be computed on the basis of a 360-day year
consisting of twelve 30-day months.
Section 2.12.
CUSIP Numbers.
The Company in issuing any series of the Securities may use CUSIP numbers, if then generally
in use, and thereafter with respect to such series, the Trustee may use such numbers in any notice
of redemption or exchange with respect to such series
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 numbers. The Company will promptly notify the
Trustee of any change in the CUSIP numbers.
-25-
Article III.
REDEMPTION OF SECURITIES
Section 3.01.
Applicability of Article.
Securities of any series which are redeemable before their Stated Maturity will be redeemable
in accordance with their terms and (except as otherwise specified as contemplated by Section 2.01
for Securities of any series) in accordance with this Article III.
Section 3.02.
Election to Redeem; Notice to Trustee.
(a) The election of the Company to redeem any Securities will be evidenced by a Board
Resolution. In case of any redemption at the election of the Company, the Company will, at least
45 calendar 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 will furnish the Trustee with an Officers
Certificate evidencing compliance with such restriction.
(b) Notice to the applicable Holders of redemption of Securities to be redeemed at the
election of the Company will be given by the Company or, at the Companys request, by the Trustee
in the name and at the expense of the Company and will be irrevocable. Notice of redemption will
be given by mail, first class postage prepaid, not less than 30 or more than 60 calendar days prior
to the Redemption Date, to each Holder of Securities to be redeemed,
at the address appearing in
the Security Register, provided that if the Company requests the
Trustee to give such notice, such request shall be made at least
seven Business Days (unless a shorter period shall be satisfactory
to the Trustee) prior to the date such notice must be mailed. All notices of redemption will include the CUSIP number and will state
(i) the Redemption Date, (ii) the Redemption Price, (iii) if less than all the Outstanding
Securities of any series are to be redeemed, the identification (and, in the case of partial
redemption of any Securities, the principal amounts) of the particular Securities to be redeemed,
(iv) 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, (v) the place or places where such Securities are to be surrendered for payment of the
Redemption Price, (vi) that the redemption is for a sinking fund, if such is the case, and (vii)
the specific provision of this Indenture pursuant to which such Securities are to be redeemed.
(c) If less than all the Securities of any series are to be redeemed, the particular
Securities to be redeemed will be selected not more than 60 calendar 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 may deem fair and appropriate 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
-26-
Securities of such series of a denomination
larger than the minimum authorized denomination for Securities of that series. The Trustee will
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.
(d) For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities will 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 3.03.
Deposit of Redemption Price.
Prior to 10:00 a.m. (local time at the Place of Payment) on the Redemption Date specified in
the notice of redemption given as provided in Section 3.02, the Company will 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 6.03) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date) any accrued
interest on, all of the Securities that are to be redeemed on that date.
Section 3.04.
Securities Payable on Redemption Date.
(a) Notice of redemption having been given as aforesaid, the Securities so to be redeemed
will, on the Redemption Date, become due and payable at the Redemption Price therein specified, and
from and after such date (unless the Company defaults in the payment of the Redemption Price and
accrued interest) such Securities will cease to accrue interest. Upon surrender of any such
Security for redemption in accordance with said notice, such Security will be paid by the Company
at the Redemption Price, together with accrued interest to the Redemption Date; provided, however,
that unless otherwise specified as contemplated by Section 2.01, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will 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 in accordance with their terms and the provisions of Section 2.09.
(b) If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium will, until paid, bear interest from the Redemption Date
at the rate prescribed therefor in the Security.
Section 3.05.
Securities Redeemed in Part.
Any Security that is to be redeemed only in part will 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 will execute, and the
Trustee will 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.
-27-
Article IV.
SINKING FUNDS
Section 4.01.
Applicability of Article.
The provisions of this Article IV will be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 2.01 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 amount of any sinking fund payment may be subject to reduction as
provided in Section 4.02. Each sinking fund payment with respect to Securities of a particular
series will be applied to the redemption of Securities of such series as provided for by the terms
of Securities of such series.
Section 4.02.
Satisfaction of Sinking Fund Payments With Securities.
The Company (a) may deliver Outstanding Securities of a series (other than any previously
called for redemption) and (b) may apply as a credit Securities of a series which have been
redeemed either at the election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the terms of such
Securities, in each case in satisfaction of all or any part of any sinking fund payment with
respect to the Securities of such series required to be made pursuant to the terms of such
Securities as provided for by the terms of such series, provided that such Securities have not been
previously so credited. Such Securities will 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 will be reduced accordingly.
Section 4.03.
Redemption of Securities for Sinking Fund.
Not less than 60 calendar 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, that is to be satisfied by payment of cash and the portion thereof, if
any, that is to be satisfied by delivering and crediting Securities of that series pursuant to
Section 4.02 and will also deliver to the Trustee any Securities to be so delivered. Not less than
30 calendar days before each such sinking fund payment date, the Trustee will select the Securities
to be redeemed upon such sinking fund payment date in the manner specified in Section 3.02(c) 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 3.02(b). Such notice having been duly given, the redemption of
such Securities will be made upon the terms and in the manner stated in Sections 3.04 and 3.05.
-28-
Article V.
DEFEASANCE AND COVENANT DEFEASANCE
Section 5.01.
Companys Option to Effect Defeasance or Covenant Defeasance.
The Company may elect, at its option by Board Resolution at any time, to have either Section
5.02 or Section 5.03 applied to the Outstanding Securities of any series designated pursuant to
Section 2.01 as being defeasible pursuant to this Article V (hereinafter called Defeasible
Series), upon compliance with the conditions set forth below in this Article V,
provided
that Section 5.02 will not apply to any series of Securities that is convertible into Common Stock
pursuant to Section 2.01(b)(xvi) or convertible into or exchangeable for any other securities
pursuant to Section 2.01 (b)(xvii).
Section 5.02.
Defeasance and Discharge.
Upon the Companys exercise of the option provided in Section 5.01 to have this Section 5.02
applied to the Outstanding Securities of any Defeasible Series and subject to the proviso to
Section 5.01, the Company will be deemed to have been discharged from its obligations with respect
to the Outstanding Securities of such series as provided in this Section 5.02 on and after the date
the conditions set forth in Section 5.04 are satisfied (hereinafter called Defeasance). For this
purpose, such Defeasance means that the Company will be deemed to have paid and discharged the
entire indebtedness represented by the Outstanding Securities of such series and to have satisfied
all its other obligations under the Securities of such series and this Indenture insofar as the
Securities of such series are concerned (and the Trustee, at the expense of the Company, will
execute proper instruments acknowledging the same), subject to the following which will survive
until otherwise terminated or discharged hereunder: (a) the rights of Holders of Securities of such
series to receive, solely from the trust fund described in Section 5.04 and as more fully set forth
in Section 5.04, payments in respect of the principal of and any premium and interest on such
Securities of such series when payments are due, (b) the Companys obligations with respect to the
Securities of such series under Sections 2.05, 2.06, 2.07, 6.02, 6.03, and 10.06, (c) the rights,
powers, trusts, duties, and immunities of the Trustee hereunder, and (d) this Article V. Subject
to compliance with this Article V, the Company may exercise its option provided in Section 5.01 to
have this Section 5.02 applied to the Outstanding Securities of any Defeasible Series
notwithstanding the prior exercise of its option provided in Section 5.01 to have Section 5.03
applied to the Outstanding Securities of such series.
Section 5.03.
Covenant Defeasance.
Upon the Companys exercise of the option provided in Section 5.01 to have this Section 5.03
applied to the Outstanding Securities of any Defeasible Series,
(a) the Company will be released from its obligations under Section 6.04, Section 11.01, and the
-29-
provisions of any Supplemental Indenture specified in such Supplemental
Indenture, and (b) the occurrence of any event specified in Sections 8.01(a)(iii), 8.01(a)(iv)
(with respect to Section 6.04, Section 11.01, and the provisions of
any Supplemental Indenture specified in such Supplemental Indenture), 8.01(a)(v), and 8.01(a)(viii)
will be deemed not to be or result in an Event of Default, in each case with respect to the
Outstanding Securities of such series as provided in this Section on and after the date the
conditions set forth in Section 5.04 are satisfied (hereinafter called Covenant Defeasance). For
this purpose, such Covenant Defeasance means that the Company may omit to comply with and will have
no liability in respect of any term, condition, or limitation set forth in any such specified
Section (to the extent so specified in the case of Section 8.01(a)(iv)), whether directly or
indirectly by reason of any reference elsewhere herein to any such Section or by reason of any
reference in any such Section to any other provision herein or in any other document, but the
remainder of this Indenture and the Securities of such series will be unaffected thereby.
Section 5.04.
Conditions to Defeasance or Covenant Defeasance.
The following will be the conditions to application of either Section 5.02 or Section 5.03 to
the Outstanding Securities of any Defeasible Series:
(a) The Company shall irrevocably have deposited or caused to be deposited with the Trustee
(or another trustee that satisfies the requirements contemplated by Section 9.08 and agrees to
comply with the provisions of this Article V applicable to it) as trust funds in trust for the
benefit of the Holders of Outstanding Securities of such series (i) money in an amount, or (ii)
U.S. Government Obligations that through the scheduled payment of principal and interest in respect
thereof in accordance with their terms will provide, without reinvestment, not later than one day
before the due date of any payment, money in an amount, or (iii) a combination thereof, in each
case sufficient in the opinion of an independent firm of certified public accountants, to pay and
discharge, and which will be applied by the Trustee (or any such other qualifying trustee) to pay
and discharge, the principal of and any premium and interest on the Securities of such series on
the respective Stated Maturities or on any earlier date or dates on which the Securities of such
series shall be subject to redemption and the Company shall have given the Trustee irrevocable
instructions satisfactory to the Trustee to give notice to the Holders of the redemption of the
Securities of such series, all in accordance with the terms of this Indenture and the Securities of
such series.
(b) In the case of an election under Section 5.02, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of the Company) to the
effect that (i) the Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of this Indenture there has been a change in the
applicable Federal income tax law, in either case to the effect that, and based thereon, such
opinion shall confirm that, the Holders of the Outstanding Securities of such series will not
recognize gain or loss for Federal income tax purposes as a result of the deposit, Defeasance, and
discharge to be effected with respect to the Securities of such series and will be subject to Federal income tax on the same
amount, in the same manner, and at the same times as would be the case if such deposit, Defeasance,
and discharge were not to occur.
-30-
(c) In the case of an election under Section 5.03, the Company shall have delivered to the
Trustee an Opinion of Counsel (from a counsel who shall not be an employee of the Company) to the
effect that the Holders of the Outstanding Securities of such series will not recognize gain or
loss for Federal income tax purposes as a result of the deposit and Covenant Defeasance to be
effected with respect to the Securities of such series and will be subject to Federal income tax on
the same amount, in the same manner, and at the same times as would be the case if such deposit and
Covenant Defeasance were not to occur.
(d) The Company shall have delivered to the Trustee an Officers Certificate to the effect
that the Securities of such series, if then listed on any securities exchange, will not be delisted
solely as a result of such deposit.
(e) No Event of Default or event that (after notice or lapse of time or both) would become an
Event of Default shall have occurred and be continuing at the time of such deposit or, with regard
to any Event of Default or any such event specified in Sections 8.01(a)(vi) and (vii), at any time
on or prior to the 90th calendar day after the date of such deposit (it being understood that this
condition will not be deemed satisfied until after such 90th calendar day).
(f) Such Defeasance or Covenant Defeasance will not cause the Trustee to have a conflicting
interest within the meaning of the Trust Indenture Act (assuming all Securities are in default
within the meaning of such Act).
(g) Such Defeasance or Covenant Defeasance will not result in a breach or violation of, or
constitute a default under, any other agreement or instrument to which the Company is a party or by
which it is bound.
(h) The Company shall have delivered to the Trustee an Officers Certificate and an Opinion of
Counsel, each stating that all conditions precedent with respect to such Defeasance or Covenant
Defeasance have been complied with.
(i) Such Defeasance or Covenant Defeasance will not result in the trust arising from such
deposit constituting an investment company within the meaning of the Investment Company Act of
1940, as amended, unless such trust will be qualified under such Act or exempt from regulation
thereunder.
Section 5.05.
Deposited Money and U.S. Government Obligations to be Held in Trust; Other
Miscellaneous Provisions.
(a) Subject to the provisions of Section 6.03(e), all money and U.S. Government Obligations
(including the proceeds thereof) deposited with the Trustee or other qualifying trustee (solely for
purposes of this Section 5.05 and Section 5.06, the Trustee and any such other trustee are referred
to collectively as the Trustee) pursuant to Section 5.04 in respect of the Securities of any Defeasible Series will be held in trust
-31-
and applied by the Trustee, in accordance with the provisions of the Securities of such series and
this Indenture, to the payment, either directly or through any such Paying Agent (including the
Company acting as its own Paying Agent) as the Trustee may determine, to the Holders of Securities
of such series, of all sums due and to become due thereon in respect of principal and any premium
and interest, but money so held in trust need not be segregated from other funds except to the
extent required by law.
(b) The Company will pay and indemnify the Trustee against any tax, fee, or other charge
imposed on or assessed against the U.S. Government Obligations deposited pursuant to Section 5.04
or the principal and interest received in respect thereof other than any such tax, fee, or other
charge that by law is for the account of the Holders of Outstanding Securities.
(c) Notwithstanding anything in this Article V to the contrary, the Trustee will deliver or
pay to the Company from time to time upon a Company Request any money or U.S. Government
Obligations held by it as provided in Section 5.04 with respect to Securities of any Defeasible
Series that are in excess of the amount thereof that would then be required to be deposited to
effect an equivalent Defeasance or Covenant Defeasance with respect to the Securities of such
series.
Section 5.06.
Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in accordance with this
Article V with respect to the Securities of any series by reason of any order or judgment of any
court or governmental authority enjoining, restraining, or otherwise prohibiting such application,
then the Companys obligations under this Indenture and the Securities of such series will be
revived and reinstated as though no deposit had occurred pursuant to this Article V with respect to
Securities of such series until such time as the Trustee or Paying Agent is permitted to apply all
money held in trust pursuant to Section 5.05 with respect to Securities of such series in
accordance with this Article V;
provided
,
however
, that if the Company makes any
payment of principal of or any premium or interest on any Security of such series following the
reinstatement of its obligations, the Company will be subrogated to the rights of the Holders of
Securities of such series to receive such payment from the money so held in trust.
Article VI.
PARTICULAR COVENANTS OF THE COMPANY
Section 6.01.
Payment of Principal, Premium and Interest on Securities.
The Company, for the benefit of each series of Securities, will duly and punctually pay the
principal of and any premium and interest on the Securities of that series in accordance with the
terms of the Securities and this Indenture. The Principal Amount of, the Redemption Price (if any)
for and interest (including Defaulted Interest, if any) on the Securities shall be considered paid
on the applicable date due if on such date the Trustee or the Paying Agent holds, in accordance with this Indenture, money sufficient to
pay all such amounts then due.
-32-
Section 6.02.
Maintenance of Office or Agency.
(a) The Company will maintain in each Place of Payment for any series of Securities an office
or agency where Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or exchange, and where
notices 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, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices, and demands.
(b) 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 will in any manner relieve the Company of its obligation to
maintain an office or agency in each Place of Payment for Securities of any series for such
purposes. The Company will give prompt written notice to the Trustee of any such designation or
rescission and of any change in the location of any such other office or agency.
Section 6.03.
Money for Securities Payments to be Held in Trust.
(a) If the Company shall at any time act as its own Paying Agent with respect to any series of
Securities, it will, prior to 10:00 a.m. (local time at the Place of Payment) on the due date of
the principal of or any premium or interest on any of the Securities of that series, segregate and
hold in trust for the benefit of the Persons entitled thereto a sum sufficient to pay the principal
and any premium and interest so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided and will promptly notify the Trustee of its action or
failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for any series of Securities, it
will, prior to each due date of the principal of or any premium or interest on any Securities of
that series, deposit with a Paying Agent a sum sufficient to pay such amount, such sum to be held
as provided by the Trust Indenture Act, and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
(c) 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 will agree
with the Trustee, subject to the provisions of this Section 6.03, that such Paying Agent will (i)
comply with the provisions of the Trust Indenture Act applicable to
it as a Paying Agent and (ii) during the continuance of any default by
-33-
the Company (or any other obliger upon the Securities of that series) in the making of
any payment in respect of the Securities of that series, and upon the written request of the
Trustee, forthwith pay to the Trustee all sums held in trust by such Paying Agent for payment in
respect of the Securities of that series.
(d) 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
will be released from all further liability with respect to such money.
(e) Any money deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of or any premium or interest on any Security of any series
and remaining unclaimed for two years after such principal, premium, or interest has become due and
payable will be paid to the Company upon a Company Request (or, if then held by the Company, will
be discharged from such trust); and the Holder of such Security will 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, will thereupon cease;
provided
,
however
, that the Trustee or such Paying
Agent, before being required to make any such repayment, shall, 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, to be prepared by the Company, that such money remains unclaimed and that, after a date
specified therein, which will not be less than 30 calendar days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Company.
Section 6.04.
Existence.
Subject
to Article XI, the Company will do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory), and
franchises; provided, however, that the Company will not be required to preserve any such right or franchise if the Company determines that
the preservation thereof is no longer desirable in the conduct of the business of the Company.
Section 6.05.
Compliance Certificate.
The Company will deliver to the Trustee, within 120 calendar days after the end of each fiscal
year of the Company ending after the date hereof, an Officers Certificate stating whether or not
to the knowledge of the signing officers the Company is in default in the performance and
observance of any of the terms, provisions, and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and, if the Company is in default, specifying all such defaults and
the nature and status thereof of which such officers may have such knowledge.
-34-
Section 6.06.
Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term, provision, or
condition set forth in Section 6.04, and the provisions of any
Supplemental Indenture specified in such Supplemental Indenture, with respect to the Securities of
any series if the Holders of 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 will 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 will remain in full force and effect.
Section 6.07.
Calculation of Original Issue Discount.
The Company shall file with the Trustee promptly at the end of each calendar year (i) a
written notice specifying the amount of original issue discount (including daily rates and accrual
periods) accrued on Outstanding Securities as of the end of such year and (ii) such other specific
information relating to such original issue discount as may then be relevant under the Internal
Revenue Code of 1986, as amended from time to time.
-35-
Article VII.
SECURITIES HOLDERS LIST AND
REPORTS BY THE COMPANY AND THE TRUSTEE
Section 7.01.
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 more
than 15 calendar days after the applicable Regular Record Date, a list for each series of
Securities, in such form as the Trustee may reasonably require, of the names and addresses of the
Holders of Securities of such series as of such Regular Record Date and (b) at such other times as
the Trustee may request in writing, within 30 calendar 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 calendar 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 7.02.
Preservation of Information; Communication to Holders.
(a) The Trustee will 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 7.01 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 7.01
upon receipt of a new list so furnished.
(b) The rights of the 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, will 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 will 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 7.03.
Reports by Trustee.
(a) The Trustee will transmit to Holders such reports concerning the Trustee and its actions
under this Indenture as may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant thereto. If required by Section 313 (a) of the Trust Indenture Act, the
Trustee shall, within sixty days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the provisions of such Section
313(a).
-36-
(b) A copy of each such report will, at the time of such transmission to Holders, be filed by
the Trustee with each stock exchange upon which any Securities are listed, with the Commission, and
with the Company. The Company will promptly notify the Trustee when any Securities are listed on
any stock exchange or of any delisting thereof.
Section 7.04.
Reports by Company.
The Company will 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 will be filed with the Trustee
within 15 calendar days after the same is so required to be filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustees receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained therein, including the
Companys compliance with any of its covenants hereunder (as to which the Trustee is entitled to
conclusively rely exclusively on Officers Certificates).
Article VIII.
DEFAULT
Section 8.01.
Event of Default
.
(a) 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 may
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):
(i) default in the payment of any interest (including Defaulted Interest, if any) upon
any Security of that series when it becomes due and payable, and continuance of such
default for a period of 30 calendar days;
(ii) default in the payment of the principal of (or premium, if any, on) any Security
of that series when it becomes due and payable;
(iii) default in the making of any sinking fund payment when and as due by the terms
of a Security of that series, and continuance of such default for a period of 60 days;
(iv) 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 the performance or breach of which is elsewhere in this Section 8.01 specifically
dealt with or which has expressly been included in this Indenture solely for the benefit of
one or more series of Securities other than that series), and continuance of such default
or breach for a period of 60 calendar days after there has been given and actually received
by the Company a Notice of Default with respect to such default or breach;
-37-
(v) any nonpayment at maturity or other default is made under any agreement or
instrument relating to any other Indebtedness of the Company (the unpaid principal amount
of which is not less than the greater of $50 million or 10% of Consolidated Stockholders
Equity of the Company), and, in any such case, such default (A) continues beyond any period
of grace provided with respect thereto, (B) results in such Indebtedness being accelerated
or declared due and payable (or, in the case of nonpayment, occurs at the final maturity of
such Indebtedness), and (C) such Indebtedness is not discharged, or such acceleration or
declaration has not been rescinded or annulled, within a period of 30 days after actual
receipt by the Company of a Notice of Default from the Trustee or the required Holders of
such series; provided, however, that if any such nonpayment or other default shall be
cured, waived, rescinded or annulled, then the Event of Default by reason thereof shall be
deemed not to have occurred; provided, however, further, that, subject to the provisions of
Section 9.01 and 8.08, the Trustee will not be deemed to have knowledge of such nonpayment
or other default unless either (1) a Responsible Officer of the Trustee has actual
knowledge of nonpayment or other default or (2) the Trustee has received written notice
thereof from the Company, from any Holder, from the holder of any such Indebtedness or from
the trustee under the agreement or instrument relating to such Indebtedness;
(vi) 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 as 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
calendar days;
-38-
(vii) 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 with respect to the Company under any applicable
Federal or state bankruptcy, insolvency, reorganization, or other similar 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 other similar
official of the Company or of any substantial part of its property pursuant to any such
law, or the making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action; or
(viii) any other Event of Default provided with respect to Securities of that series.
(b) If an Event of Default (other than an Event of Default arising under Section 8.01(a)(vi)
or (vii)) with respect to Securities of any series at the time Outstanding occurs and is
continuing, then in every case the Trustee or the Holders of not less than 25% in principal amount
of the Outstanding Securities of that series may declare the principal amount (or, if any of the
Securities of that series are Original Issue Discount Securities, 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) will become immediately due and payable. If an Event of Default under Section 8.01(a)(vi)
or (vii) occurs, then the principal of, premium, if any, and accrued interest on the Securities
shall become immediately due and payable without any declaration or other act on the part of the
Trustee or any Holder.
(c) 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 VIII 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 (i) 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 any interest thereon at the
rate or rates prescribed therefor in such Securities, (C) to the extent that payment of such
interest is lawful, interest upon overdue interest at the rate or rates prescribed therefor in such
Securities, and (D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses, disbursements,
and advances of the Trustee and its agents
-39-
and counsel and (ii) all Events of Default with respect to Securities of that series, other
than the nonpayment 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 8.01(d). No
such rescission will affect any subsequent default or impair any right consequent thereon.
(d) The Holders of a majority in principal amount of the Outstanding Securities of any series
may on behalf of the Holders of all the Securities of such series waive any past default hereunder
with respect to such series and its consequences, except a default (i) in the payment of the
principal of or any premium or interest on any Security of such series or (ii) in respect of a
covenant or provision hereof which under Article X 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 will cease to exist, and any Event of Default arising therefrom will be deemed to have
been cured, for every purpose of this Indenture, but no such waiver will extend to any subsequent
or other default or impair any right consequent thereon. This Section 8.01(b) shall be in lieu of
Section 316(a)1(B) of the Trust Indenture Act and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 8.02.
Covenant of Company to Pay to Trustee Whole Amount Due on Securities on
Default in Payment of Interest or Principal; Suits for Enforcement by Trustee.
(a) The Company covenants that if (i) 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
calendar days or (ii) default is made in the payment of the principal of (or premium, if any, on)
any Security when it becomes due and payable, 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 any premium and interest and, to the extent that payment of such
interest will be legally enforceable, interest on any overdue principal and premium and on any
overdue interest, at the rate or rates prescribed therefor in such Securities, and, in addition
thereto, such further amount as will be sufficient to cover the costs and expenses of collection,
including the reasonable compensation, expenses, disbursements, and advances of the Trustee and its
agents and counsel.
(b) If an Event of Default with respect to Securities of any series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or in aid of the exercise of any power granted herein,
or to enforce any other proper remedy.
(c) In case of any judicial proceeding relative to the Company (or any other obliger upon the
Securities), its property or its creditors, the Trustee will be
entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the
-40-
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee will be authorized to collect and
receive any money or other property payable or deliverable on any such claims and to distribute the
same, and any custodian, receiver, assignee, trustee, liquidator, sequestrator, or other similar
official in any such judicial proceeding is hereby authorized by each Holder to make such payments
to the Trustee and, in the event that the Trustee consents 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 and its agents and counsel, and any other amounts due
the Trustee under Section 9.06.
(d) No provision of this Indenture will 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;
provided
,
however
, that the Trustee may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a creditors or other
similar committee.
(e) 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 will
be brought in its own name as trustee of an express trust, and any recovery of judgment will, after
provision for the payment of the reasonable compensation, expenses, disbursements, and advances of
the Trustee and 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 8.03.
Application of Money Collected by Trustee.
Any money collected by the Trustee pursuant to this Article VIII will be applied in the
following order, at the date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or any premium or interest, upon presentation of the Securities and
the notation thereon of the payment if only partially paid and upon surrender thereof if fully
paid:
|
|
|
|
|
|
|
FIRST:
|
|
To the payment of all amounts due the Trustee under Section 9.06;
|
|
|
|
|
|
|
|
SECOND:
|
|
To the payment of the amounts then due and unpaid for principal of and any
premium and interest on the Securities in respect of which or for the benefit
of which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and any premium and interest, respectively; and
|
-41-
Section 8.04.
Limitation on Suits by Holders of Securities
.
No Holder of any Security of any series will 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 (a) such Holder has previously given written
notice to the Trustee of a continuing Event of Default with respect to the Securities of that
series, (b) the Holders of not less than 25% in principal amount of the Outstanding Securities of
that series shall have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder, (c) such Holder or Holders have offered
to the Trustee indemnity satisfactory to the Trustee against the costs, expenses, and liabilities
to be incurred in compliance with such request, (d) the Trustee for 60 calendar days after its
receipt of such notice, request, and offer of indemnity has failed to institute any such
proceeding, and (e) 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 will 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 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 8.05.
Rights and Remedies Cumulative; Delay or Omission in Exercise of Rights not
a Waiver of Event of Default.
(a) Except as otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost, or stolen Securities in the last paragraph of Section 2.07, 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 will, 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, will not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
(b) 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 will 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 VIII 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.
-42-
Section 8.06.
Rights of Holders of Majority in Principal Amount of Outstanding Securities
to Direct Trustee.
The Holders of a majority in principal amount of the Outstanding Securities of any series will
have the right to direct the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the Securities of such series,
provided
that (a) such direction will not be in conflict
with any rule of law or with this Indenture and (b) the Trustee may take any other action deemed
proper by the Trustee which is not inconsistent with such direction.
Section 8.07.
Requirement of an Undertaking to Pay Costs in Certain Suits Under the
Indenture or Against the Trustee.
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 undertaking to pay the costs of such suit, and may
assess costs, including attorneys fees and expenses, against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act;
provided
that neither this
Section 8.07 nor the Trust Indenture Act will be deemed to authorize any court to require such an
undertaking or to make such an assessment in any suit instituted by the Trustee, a suit by a Holder
pursuant to Section 8.09 hereof, or a suit by Holders of more than 10% in aggregate principal
amount of the then Outstanding Securities.
Section 8.08.
Notice of Defaults.
If a Default occurs hereunder with respect to Securities of any series, the Trustee will 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 8.01(a)(iv) with respect to Securities of such series no such notice to
Holders will be given until at least 30 calendar days after the
occurrence thereof. The Company will give the Trustee notice of any
uncured Event of Default within 10 days after any Responsible Officer
of the Company becomes aware of or receives actual notice of such
Event of Default.
Section 8.09.
Unconditional Right of Holders to Receive Principal, Premium, and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any Security will have
the right, which is absolute and unconditional, to receive payment of the principal of and any
premium and (subject to Section 2.09) interest on such Security on the respective Stated Maturities
expressed in such Security (or, in the case of redemption, on the Redemption Date) and to institute
suit for the enforcement of any such payment, and such rights may not be impaired without the
consent of such Holder.
Section 8.10.
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
-43-
case, subject to any determination in such proceeding, the Company, the
Trustee, and the Holders will be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders will continue as
though no such proceeding had been instituted.
Section 8.11.
Trustee May File Proofs of Claims.
The Trustee may file such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements, and advances of the Trustee, its agents and counsel) and the
Holders allowed in any judicial proceeding relative to the Company or the Subsidiaries (or any
other obligor upon the Securities), their creditors or their property and shall be entitled and
empowered to collect and receive any monies or other property payable or deliverable on any such
claim and to distribute the same, and any custodian in any such judicial proceedings 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 to it for the reasonable compensation, expenses, disbursements, and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee hereunder. Nothing herein
contained 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.
Article IX.
CONCERNING THE TRUSTEE
Section 9.01.
Certain Duties and Responsibilities.
|
(a)
|
|
Except during the continuance of an Event of Default,
|
|
(1)
|
|
the Trustee undertakes to perform such
duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
|
|
|
(2)
|
|
in the absence of bad faith on its part,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and conforming to
the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee
shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein).
|
-44-
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise
such of the rights and powers vested in it by this Indenture, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the circumstances in the
conduct of his or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act, or its own wilful misconduct,
except that
|
(1)
|
|
this Subsection shall not be construed to
limit the effect of Subsection (a) of this Section;
|
|
|
(2)
|
|
the Trustee shall not be liable for any
error of judgement made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
|
|
|
(3)
|
|
the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority
in principal amount of the Outstanding Securities of any series,
determined as provided in Sections 1.01, 8.06 and 14.11, relating to
the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture with respect to the
Securities of such series; and
|
|
|
(4)
|
|
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.
|
(d) 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 9.02.
Certain Rights of Trustee.
Subject to the provisions of Section 9.01:
(a) the Trustee may conclusively rely and will be protected in acting or refraining from
acting upon, whether in its original or facsimile form, 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;
-45-
(b) any request or direction of the Company mentioned herein will be sufficiently evidenced by
a Company Request or Company Order and any resolution of the Board will be sufficiently evidenced
by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering, or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith
on its part, conclusively rely upon an Officers Certificate;
(d) the Trustee may consult with counsel of its selection and the advice of such counsel or
any Opinion of Counsel will 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 will 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 security or indemnity satisfactory to the
Trustee against the costs, expenses, and liabilities which might be incurred by it in compliance
with such request or direction;
(f) the Trustee will 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 will be entitled to examine the books, records, and premises of the Company,
personally or by agent or attorney at the sole cost of the Company and shall incur no liability or
additional liability of any kind by reason of such inquiry or investigation;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents, attorneys or independent contractors and the
Trustee will not be responsible for any misconduct or negligence on the part of any agent, attorney
or independent contractor appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be taken by
it in good faith and reasonably believed by it to be authorized or within the discretion or rights
or powers conferred upon it by this Indenture;
(i) the Trustee shall not be deemed to have notice of any Default or Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the
Securities and this Indenture;
-46-
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent, custodian and
other Person employed to act hereunder;
(k) the Trustee may request that the Company deliver an Officers Certificate setting forth
the names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which Officers Certificate may be signed by any person
authorized to sign an Officers Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded; and
(l) in no event shall the Trustee be responsible or liable for special, indirect, or
consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such loss or damage and
regardless of the form of action.
Section 9.03.
Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the Trustees certificates of
authentication, may be taken as the statements of the Company, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the Securities. The
Trustee or any Authenticating Agent will not be accountable for the use or application by the
Company of Securities or the proceeds thereof.
Section 9.04.
May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security Registrar, or any other
agent of the Company, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 9.07 and 9.12, 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.
Section 9.05.
Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from other funds except to
the extent required herein or by law. The Trustee will be under no liability for interest on any
money received by it hereunder except as otherwise agreed in writing with the Company.
-47-
Section 9.06.
Compensation and Reimbursement.
The Company will (a) pay to the Trustee from time to time such compensation for all services
rendered by it hereunder as the parties shall agree from time to time (which compensation will not
be limited to any provision of law in regard to the compensation of a trustee of an express trust);
(b) except as otherwise expressly provided herein, reimburse the Trustee upon its request for all
reasonable expenses, disbursements, and advances incurred or made by the Trustee in accordance with
provision of this Indenture (including the reasonable compensation and the expenses and
disbursements of agents and counsel), except any such expense, disbursement, or advance as shall be
determined to have been caused by its own negligence or willful misconduct; and (c) indemnify each
of the Trustee and any predecessor Trustee and their agents for, and hold them harmless against,
any and all loss, liability, claim, damage or expense, including taxes (other than taxes based on
the income of the Trustee) incurred without negligence or willful misconduct on its part arising
out of or in connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim (whether asserted by the
Company, any Holder or any other Person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder or in connection with enforcing the provisions
of this Section.
The Trustee shall have a lien prior to the Securities as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 9.06, except
with respect to funds held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 8.01(vi) or Section 8.01(vii), the expenses (including the reasonable charges
and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or state bankruptcy, insolvency or other
similar law.
The provisions of this Section shall survive the termination of this Indenture or the
resignation or removal of the Trustee.
Section 9.07.
Disqualification; Conflicting Interests.
If the Trustee has or acquires a conflicting interest within the meaning of the Trust
Indenture Act, the Trustee will either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the Trust Indenture Act and this Indenture.
Section 9.08.
Corporate Trustee Required; Eligibility.
There will at all times be one or more Trustees hereunder with respect to the Securities of
each series, at least one of which will be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least $50,000,000 and its
Corporate Trust Office or principal office in New York City, or any other major city in the United
States that is acceptable to the Company.
-48-
If such Person publishes reports of condition at least annually, pursuant to law or to the
requirements of a supervising or examining state or Federal authority, then for the purposes of
this Section 9.08, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition so published. If
at any time the Trustee shall cease to be eligible in accordance with the provisions of this
Section 9.08, it will resign promptly in the manner and with the effect hereinafter specified in
this Article IX.
Section 9.09.
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 IX will become effective until the acceptance of appointment by the
successor Trustee in accordance with the applicable requirements of Section 9.10.
(b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of resignation, the resigning Trustee may, at the expense of
the Company, 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. If the instrument of acceptance by a successor
Trustee required by Section 9.10 shall not have been delivered to the Trustee within 30 calendar
days after the giving of such notice of removal, the Trustee being removed may, at the expense of
the Company, petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to the Securities of such series.
(d) If, at any time, (i) the Trustee fails to comply with Section 9.07 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, (ii) the Trustee ceases to be eligible under Section 9.08 and fails to resign after
written request therefor by the Company or by any such Holder, or (iii) the Trustee becomes
incapable of acting or is adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property is appointed or any public officer takes 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, (A) the Company by a Board Resolution may remove the Trustee with respect to all
Securities or (B) subject to Section 8.07, 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.
-49-
(e) If the Trustee resigns, is removed, or becomes incapable of acting, or if a vacancy occurs
in the office of Trustee for any cause, with respect to the Securities of one or more series, the
Company by a Board Resolution will 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 will be only one Trustee with respect to the Securities of any particular series) and will
comply with the applicable requirements of Section 9.10. 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 is 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 will, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 9.10, 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 9.10, 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, at the
expense of the Company, petition any court of competent jurisdiction for the appointment of a
successor Trustee with respect to the Securities of such series.
(f) The Company will give notice of each resignation and each removal of the Trustee with
respect to the Securities of any series and each appointment of a successor Trustee with respect to
the Securities of any series to all holders of Securities of such series in the manner provided in
Section 13.03. Each notice will include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 9.10.
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 will 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 will become effective and such successor Trustee,
without any further act, deed, or conveyance, will 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 will, upon payment of its charges, execute and deliver an instrument
transferring to such successor Trustee all the rights, powers, and duties of the retiring Trustee
and will duly assign, transfer, and deliver to such 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 will execute and deliver an indenture
supplemental hereto wherein such successor Trustee will accept such
appointment and which (i) will contain such provisions
-50-
as may 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, (ii) if the retiring
Trustee is not retiring with respect to all Securities, will contain such provisions as may 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 will continue to be vested in the retiring Trustee, and (iii) will add to
or change any of the provisions of this Indenture as may 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 will constitute such Trustees co-trustees of the
same trust and that each such Trustee will be trustee of a trust or trusts hereunder separate and
apart from any trust or trusts hereunder administered by any other such Trustees and upon the
execution and delivery of such supplemental indenture the resignation or removal of the retiring
Trustee will become effective to the extent provided therein and each such successor Trustee,
without any further act, deed, or conveyance, will 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 will 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 such successor Trustee, the Company will execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
applicable rights, powers, and trusts referred to in the preceding paragraphs of this Section 9.10.
(d) No successor Trustee will accept its appointment unless at the time of such acceptance
such successor Trustee is qualified and eligible under this Article IX.
Section 9.11.
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 may be a party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee, will be the successor of the Trustee hereunder, provided such
corporation is otherwise qualified and eligible under this Article IX, 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.
-51-
Section 9.12.
Preferential Collection of Claims Against Company.
If and when the Trustee is or becomes a creditor of the Company (or any other obligor upon the
Securities), the Trustee will be subject to the provisions of the Trust Indenture Act regarding the
collection of claims against the Company (or any such other obligor).
Section 9.13.
Appointment of Authenticating Agent.
(a) The Trustee may appoint an Authenticating Agent or Agents with respect to one or more
series of Securities which will be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon original issue and upon exchange, registration of transfer,
or partial redemption thereof or pursuant to Section 2.07, and Securities so authenticated will be
entitled to the benefits of this Indenture and will 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 Trustees certificate of
authentication, such reference will be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be acceptable to the
Company and shall at all times be a corporation organized and doing business under the laws of the
United States of America, any state thereof, or the District of Columbia, authorized under such
laws to act as Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or state authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes of this Section
9.13, the combined capital and surplus of such Authenticating Agent will 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 9.13, such Authenticating Agent will resign immediately in the manner and with the
effect specified in this Section 9.13.
(b) 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 may be a party, or any corporation succeeding to
all or substantially all the corporate agency or corporate trust business of an Authenticating
Agent, will continue to be an Authenticating Agent, provided such corporation is otherwise eligible
under this Section 9.13, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.
(c) 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
-52-
to be eligible in accordance with the provisions this Section 9.13, the Trustee may appoint a
successor Authenticating Agent which shall be acceptable to the Company and will 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 will 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 will be appointed unless eligible under the provisions of this Section 9.13.
(d) The Company agrees to pay to each Authenticating Agent from time to time reasonable
compensation for its services under this Section 9.13.
(e) If an appointment with respect to one or more series of Securities is made pursuant to
this Section 9.13, the Securities of such series may have endorsed thereon, in addition to the
Trustees certificate of authentication, an alternative form of certificate of authentication in
the following form:
This is one of the Securities of the series designated therein referred to in the within
mentioned Indenture.
|
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York Trust Company, N.A.,
as Trustee
|
|
|
|
|
|
|
|
|
|
|
|
Dated:
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
As Authenticating Agent
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
|
|
|
|
|
|
|
|
|
Authorized Signatory
|
|
|
Section 9.14.
Trustees Application for Instructions from the Company.
Any application by the Trustee for written instructions from the Company may, at the option of
the Trustee, set forth in writing any action proposed to be taken or omitted by the Trustee under
this Indenture and the date on and/or after which such action shall be taken or such omission shall
be effective. The Trustee shall not be liable for any action taken by, or omission of, the Trustee
in accordance with a proposal included in such application on or after the date specified in such
application (which date shall not be less than three Business Days after the date any officer of
the Company actually receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the effective date in the
case of an omission), the Trustee shall have received written instructions in response to such
application specifying the action to be taken or omitted.
-53-
Article X.
SUPPLEMENTAL INDENTURES AND CERTAIN ACTIONS
Section 10.01.
Purposes for Which Supplemental Indentures May Be Entered Into Without
Consent of Holders.
Without the consent of or notice to any Holders, the Company, when authorized by a Board
Resolution, and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(a) to evidence the succession of another Person to the Company and the assumption by any such
successor of the covenants of the Company herein and in the Securities, all to the extent otherwise
permitted hereunder;
(b) 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;
(c) to add any additional Events of Default;
(d) to add to or change any of the provisions of this Indenture to such extent as may be
necessary to permit or facilitate the issuance of Securities in bearer form, registrable or not
registrable as to principal, and with or without interest coupons, or to permit or facilitate the
issuance of Securities in uncertificated form;
(e) to add to, change, or eliminate any of the provisions of this Indenture in respect of one
or more series of Securities,
provided
that any such addition, change, or elimination (i)
will neither (A) apply to any Security of any series created prior to the execution of such
supplemental indenture and entitled to the benefit of such provision nor (B) modify the rights of
the Holder of any such Security with respect to such provision or (ii) will become effective only
when there is no such Security Outstanding;
(f) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and 2.02;
(g) 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 may be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of Section 9.10; or
(h) to cure any ambiguity, to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with respect to matters or questions arising under this Indenture,
provided
that such action pursuant to this clause (h) will not adversely affect the
interests of the Holders of Securities of any series in any material respect.
-54-
Section 10.02.
Modification of Indenture with Consent of Holders of at Least a Majority in
Principal Amount of Outstanding Securities.
(a) With the consent of the Holders of 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 will, without the
consent of the Holder of each Outstanding Security affected thereby:
(i) 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 Sections 8.01(b), or
change any Place of Payment where, or the coin or currency in which, any Security or any
premium or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date);
(ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of the Holders of which is required for any such supplemental
indenture, or the consent of the Holders of which 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
(iii) modify any of the provisions of this Section 10.02, Section 8.01(d) or Section
6.06, except to increase the percentage in principal amount of Holders required under any
such Section 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 (c) will not be deemed to
require the consent of any Holder with respect to changes in the references to the
Trustee and 6concomitant changes in this Section 10.02 and
Section 6.06, or the deletion of
this proviso, in accordance with the requirements of Sections 9.10 and 10.01(g).
(b) 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,
will be deemed not to affect the rights under this Indenture of the Holders of Securities of any
other series.
-55-
(c) It will not be necessary for any Act of Holders under this Section 10.02 to approve the
particular form of any proposed supplemental indenture, but it will be sufficient if such Act
approves the substance thereof.
Section 10.03.
Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any supplemental indenture
permitted by this Article X or the modifications thereby of the trusts created by this Indenture,
the Trustee will be provided with, and (subject to Section 9.01) will be fully protected in relying
upon, an Officers Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee may, but will not
be obligated to, enter into any such supplemental indenture which affects the Trustees own rights,
duties, or immunities under this Indenture or otherwise.
Section 10.04.
Effect of Supplemental Indentures
.
Upon the execution of any supplemental indenture under this Article X, this Indenture will be
modified in accordance therewith, and such supplemental indenture will form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or thereafter authenticated
and delivered hereunder will be bound thereby.
Section 10.05.
Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article X will conform to the
requirements of the Trust Indenture Act.
Section 10.06.
Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article X may, and will 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.
-56-
Article XI.
CONSOLIDATION, MERGER, SALE, OR TRANSFER
Section 11.01.
Consolidations and Mergers of Company and Sales Permitted Only on Certain
Terms.
(a) The Company shall not consolidate with or merge with or into any other Person, or transfer
(by lease, assignment, sale, or otherwise) all or substantially all of its properties and assets to
one or more Persons unless (i) either (A) the Company shall be the continuing or surviving Person
in such a consolidation or merger or (B) the Person or Persons (if other than the Company) formed
by such consolidation or into which the Company is merged or to which all or substantially all of
the properties and assets of the Company are transferred (the Company or such other Person or
Persons being referred to as the Surviving Person) shall be a corporation, partnership or trust
organized and validly existing under the laws of the United States, any state thereof, or the
District of Columbia, and shall expressly assume or have the parent corporation thereof expressly
assume, by an indenture supplement, all the obligations of the Company under the Securities and the
Indenture, (ii) immediately after the transaction and the incurrence or anticipated incurrence of
any Indebtedness to be incurred in connection therewith, no Default will exist, and (iii) an
Officers Certificate has been delivered to the Trustee to the effect that the conditions set forth
in the preceding clauses (i) and (ii) have been satisfied and an Opinion of Counsel (from a counsel
who shall not be an employee of the Company) has been delivered to the Trustee to the effect that
the conditions set forth in the preceding clause (i) have been satisfied.
(b) The Surviving Person will succeed to and be substituted for the Company with the same
effect as if it had been named herein as a party hereto, and thereafter the predecessor corporation
will be relieved of all obligations and covenants under this Indenture and the Securities.
Article XII.
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01.
Satisfaction and Discharge of Indenture.
This Indenture will upon a Company Request cease to be of further effect (except as to any
surviving rights of registration of transfer or exchange of Securities herein expressly provided
for), and the Trustee, at the expense of the Company, will execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when: (a) either (i) all Securities theretofore
authenticated and delivered (other than (A) Securities which have been destroyed, lost, or stolen
and which have been replaced or paid as provided in Section 2.07 and (B) Securities for the payment
of which 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
6.03) have been delivered to the Trustee for cancellation or (ii) all such Securities not
theretofore delivered to the Trustee for cancellation (A) have
become due and payable, (B) will become due and payable at
-57-
their Stated Maturity within one year, or (C) 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 clause (A), (B), or (C) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for such 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 any premium and interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or Redemption Date, as the case may
be; (b) the Company has paid or caused to be paid all other sums payable hereunder by the Company;
and (c) 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 satisfied. Notwithstanding the satisfaction
and discharge of this Indenture, the obligations of the Company to the Trustee under Section 9.06,
the obligations of the Company to any Authenticating Agent under Section 9.13, and, if money shall
have been deposited with the Trustee pursuant to subclause (ii) of clause (a) of this Section
12.01, the obligations of the Trustee under Sections 6.03(e) and 12.02, will survive such
satisfaction and discharge.
Section 12.02.
Application of Trust Money.
Subject to provisions of Section 6.03(e), all money deposited with the Trustee pursuant to
Section 12.01 will be held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal and any premium and interest for whose payment such money has
been deposited with the Trustee.
Article XIII.
SUBORDINATION
Sections 13.01 through 13.09.
Reserved
.
[Covenants and other subordination provisions
vary from issue to issue.]
Section 13.10.
Notice to Trustee
.
The Company shall give prompt written notice to the Trustee of any fact known to the Company
which would prohibit the making of any payment to or by the Trustee in respect of the Securities.
Failure to give such notice shall not affect the subordination of the Securities to Senior
Indebtedness. Notwithstanding the provisions of this or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless and until the
Trustee shall have received written notice thereof at the address specified in Section 14.02 from
the Company or a holder of Senior
-58-
Indebtedness or from any trustee or agent therefor; and, prior
to the receipt of any such written notice, the Trustee, subject to the provisions of Section 9.01,
shall be entitled in all respects to assume that no such facts exist; provided, however, that if a
Responsible Officer of the Trustee shall not have received, at least three Business Days prior to
the date upon which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the principal amount, accrued original issue
discount, Redemption Price or interest or premium, if any, as the case may be, in respect of any
Security), the notice with respect to such money provided for in this Section 13.10, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full power and authority
to receive such money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it within three
Business Days prior to such date.
Subject to the provisions of Section 9.01, the Trustee shall be entitled to rely on the
delivery to it of a written notice by a person representing himself to be a holder of Senior
Indebtedness (or a trustee or agent on behalf of such holder) to establish that such notice has
been given by a holder of Senior Indebtedness (or a trustee or agent on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence is required with
respect to the right of any person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article, the Trustee may request such person to furnish evidence
to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held by such
person, the extent to which such person is entitled to participate in such payment or distribution
and any other facts pertinent to the rights of such person under this Article, and if such evidence
is not furnished, the Trustee may defer any payment which it may be required to make for the
benefit of such person pursuant to the terms of this Indenture pending judicial determination as to
the rights of such person to receive such payment.
SECTION 13.11.
Reliance on Judicial Order or Certificate of Liquidating Agent
.
Upon any payment or distribution of assets of the Company referred to in this Article, the
Trustee, subject to the provisions of Section 9.01, and the Holders of the Securities shall be
entitled to conclusively rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a certificate of the trustee
in bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit of creditors,
agent or other person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to participate in such
payment or distribution, the holders of Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article.
-59-
SECTION 13.12.
Trustee Not Fiduciary for Holders of Senior Indebtedness
.
The Trustee shall not be deemed to owe any fiduciary duty to the holders of Senior
Indebtedness and shall not be liable to any such holders if the Trustee shall in good faith
mistakenly pay over or distribute to Holders of Securities or to the Company or to any other person
cash, property or securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise. With respect to the holders of Senior Indebtedness, the
Trustee undertakes to perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 13.13
Rights of Trustee as Holder of Senior Indebtedness; Preservation of
Trustees Rights
.
The Trustee or any Authenticating Agent in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Indebtedness which may at any time
be held by it, to the same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee or any Authenticating Agent of any of its rights as such
holder.
Nothing in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 9.06.
Article XIV.
MISCELLANEOUS PROVISIONS
Section 14.01.
Successors and Assigns of Company Bound by Indenture.
All the covenants, stipulations, promises, and agreements in this Indenture contained by or on
behalf of the Company will bind its successors and assigns, whether so expressed or not.
Section 14.02.
Service of Required Notice to Trustee and Company.
Any request, demand, authorization, direction, notice, consent, waiver, Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with (a) the Trustee by any Holder or by the Company will be sufficient for every purpose
hereunder if made, given, furnished, or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust Administration or (b) the Company by the Trustee or by any
Holder will be sufficient for every purpose hereunder (unless otherwise herein expressly provided)
if in writing and mailed, first-class postage prepaid, to the Company addressed to it at RPM
International Inc., P.O. Box 777, 2628 Pearl Road, Medina, Ohio 44528, Attention: General Counsel,
or at any other address previously furnished in writing to the Trustee by the Company.
-60-
Section 14.03.
Service of Required Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such notice will be
sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at his address as it appears in
the Security Register, not later than the latest date (if any, and not earlier than the earliest
date (if any), prescribed for the giving of such notice. In any case where notice to Holders is
given by mail, neither the failure to mail such notice, nor any defect in any notice so mailed, to
any particular Holder will 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 will be
the equivalent of such notice. Waivers of notice by Holders will be filed with the Trustee, but
such filing will 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 will be impracticable to give such notice by mail, then such notification as may be made
with the approval of the Trustee will constitute a sufficient notification for every purpose
hereunder.
Section 14.04.
Indenture and Securities to be Construed in Accordance with the Laws of the
State of New York
.
This Indenture and the Securities will be deemed to be a contract made under the laws of the
State of New York, and for all purposes will be construed in accordance with the laws of said State
without giving effect to principles of conflicts of laws of such State.
Section 14.05.
Compliance Certificates and Opinions.
Upon any application or demand by the Company to the Trustee to take any action under any of
the provisions of this Indenture, the Company shall furnish to the Trustee an Officers Certificate
stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such document is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (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 such person, he or she has made such examination or investigation
as is necessary to enable him or her to express an informed opinion as to whether or not such
covenant or condition has been complied with; and (4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
-61-
Section 14.06.
Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion with respect to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give an opinion as to
such matters in one or several documents. 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 14.07.
Payments Due on Non-Business Days.
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 (other than a provision of the Securities of any
series which specifically states that such provision will apply in lieu of this Section 14.07))
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 will accrue for the period from and after such Interest
Payment Date, Redemption Date, or Stated Maturity, as the case may be.
Section 14.08.
Provisions Required by Trust Indenture Act to Control.
If any provision of this Indenture limits, qualifies, or conflicts with the duties imposed on
any Person by Sections 310 to and including 317 of the Trust Indenture Act (including provisions
automatically deemed included in this Indenture pursuant to the Trust Indenture Act unless this
Indenture provides that such provisions are excluded), which are deemed to be a part of and govern
this Indenture, whether or not contained herein, then such imposed duties will control.
Section 14.09.
Invalidity of Particular Provisions.
In case any one or more of the provisions contained in this Indenture or in the Securities is
for any reason held to be invalid, illegal, or unenforceable in any respect, such invalidity,
illegality, or unenforceability will not affect any other provision of this Indenture or of the
Securities, but this Indenture and such Securities will be construed as if such invalid or illegal
or unenforceable provision had never been contained herein or therein.
-62-
Section 14.10.
Indenture May be Executed In Counterparts.
This instrument may be executed in any number of counterparts, each of which will be an
original, but such counterparts will together constitute but one and the same instrument.
Section 14.11.
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 will
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 will be sufficient for any purpose of this Indenture and conclusive in
favor of the Trustee and the Company, if made in the manner provided in this Section 14.11.
(b) The fact and date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof. Where such execution
is by a signer acting in a capacity other than his individual capacity, such certificate or
affidavit will 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 ownership of Securities will be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver, or other Act of
the Holder of any Security will bind every future Holder of the same Security and the Holder of
every Security issued upon the registration of transfer thereof or in exchange thereof 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.
(e) The Company may, in the circumstances permitted by the Trust Indenture Act, set any day as
the record date for the purpose of determining the Holders of Outstanding Securities of any series
entitled to give or take any request, demand, authorization, direction, notice, consent, waiver, or
other action provided or permitted by this Indenture to be given or taken by Holders of Securities
of such series. With regard to any record date set pursuant to this paragraph, the Holders of
Outstanding Securities of the relevant series at the close of business
-63-
on such record date (or their duly appointed
agents), and only such Persons, will be entitled to give or take the relevant action, whether or
not such Holders remain Holders after such record date. With regard to any action that may be
given or taken hereunder only by Holders of a requisite principal amount of Outstanding Securities
of any series (or their duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no such action
purported to be given or taken by any Holder will be effective hereunder unless given or taken on
or prior to such expiration date by Holders of the requisite principal amount of Outstanding
Securities of such series on such record date (or their duly appointed agents). On or prior to any
expiration date set pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph will prevent any Holder (or
any duly appointed agent thereof) from giving or taking, after any such expiration date, any action
identical to, or, at any time, contrary to or different from, the action or purported action to
which such expiration date relates, in which event the Company may set a record date in respect
thereof pursuant to this paragraph. Nothing in this Section 14.11(e) will be construed to render
ineffective any action taken at any time by the Holders (or their duly appointed agents) of the
requisite principal amount of Outstanding Securities of the relevant series on the date such action
is so taken. Notwithstanding the foregoing or the Trust Indenture Act, the Company will not set a
record date for, and the provisions of this Section 14.1l(e) will not apply with respect to, any
notice, declaration, or direction referred to in the next paragraph.
(f) Upon receipt by the Trustee from any Holder of Securities of a particular series of (a)
any notice of default or breach referred to in Section 8.01(a)(iv) or 8.01(a)(v) with respect to
Securities of such series, if such default or breach has occurred and is continuing and the Trustee
shall not have given such notice to the Company, (b) any declaration of acceleration referred to in
Section 8.01(b), if an Event of Default with respect to Securities of such series has occurred and
is continuing and the Trustee shall not have given such a declaration to the Company, or (c) any
direction referred to in Section 8.06 with respect to Securities of such series, if the Trustee
shall not have taken the action specified in such direction, then a record date will automatically
and without any action by the Company or the Trustee be set for determining the Holders of
Outstanding Securities of such series entitled to join in such notice, declaration, or direction,
which record date will be the close of business on the tenth calendar day following the day on
which the Trustee receives such notice, declaration, or direction. Promptly after such receipt by
the Trustee, and in any case not later than the fifth calendar day thereafter, the Trustee will
notify the Company and the Holders of Outstanding Securities of such series of any such record date
so fixed. The Holders of Outstanding Securities of such series on such record date (or their duly
appointed agents), and only such Persons, will be entitled to join in such notice, declaration, or
direction, whether or not such Holders remain Holders after such record date;
provided
that, unless such notice, declaration, or direction shall have become effective by virtue of
Holders of the requisite principal amount of Outstanding Securities of such series on such record
date (or their duly appointed agents) having joined therein on or prior to the 90th calendar day
after such record date, such notice, declaration, or direction will automatically and without any
action by any Person be cancelled and of no further effect. Nothing
in this Section 14.11(f) will be construed to prevent a Holder (or a duly
-64-
appointed agent thereof)
from giving, before or after the expiration of such 90-day period, a notice, declaration, or
direction contrary to or different from, or, after the expiration of such period, identical to, the
notice, declaration, or direction to which such record date relates, in which event a new record
date in respect thereof will be set pursuant to this Section 14.11(f). Nothing in this Section
14.11(f) will be construed to render ineffective any notice, declaration, or direction of the type
referred to in this Section 14.11(f) given at any time to the Trustee and the Company by Holders
(or their duly appointed agents) of the requisite principal amount of Outstanding Securities of the
relevant series on the date such notice, declaration, or direction is so given.
(g) Without limiting the foregoing, a Holder entitled hereunder to give or take any action
hereunder with regard to any particular Security may do so with regard to all or any part of the
principal amount of such Security or by one or more duly appointed agents each of which may do so
pursuant to such appointment with regard to all or any different part of such principal amount.
Section 14.12.
Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for convenience only and
will not affect the construction hereof.
Section 14.13.
Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, will 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 14.14.
Waiver of Jury Trial.
EACH OF THE COMPANY AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 14.15.
Force Majeure.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
-65-
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed, all as
of the day and year first above written.
|
|
|
|
|
|
|
|
|
RPM International Inc.
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ P. Kelly Tompkins
|
|
|
Name:
|
|
P. Kelly Tompkins
|
|
|
|
|
Title:
|
|
Exec.
Vice President, C.A.O.
|
|
|
|
|
|
|
|
|
|
|
|
The Bank of New York Trust Company,
N.A., as
Trustee
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Linda Garcia
|
|
|
Name:
|
|
Linda Garcia
|
|
|
|
|
Title:
|
|
Vice
President
|
|
|
-66-