UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of The Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): June 2, 2017

 

 

The Sherwin-Williams Company

(Exact name of registrant as specified in its charter)

 

 

 

Ohio   1-04851   34-0526850

(State or other jurisdiction

of incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

101 West Prospect Avenue

Cleveland, Ohio

    44115-1075

(Address of principal

executive offices)

    (Zip Code)

(216) 566-2000

(Registrant’s telephone number, including area code)

 

(Former name or former address, if changed since last report.)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

 

 

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

 

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

 

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

 

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging Growth Company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

Exchange Offers

On June 2, 2017, The Sherwin-Williams Company (“Sherwin-Williams”) settled its previously announced exchange offers and consent solicitations (the “Exchange Offers”) for (i) any and all 7.25% Notes due 2019 (the “Existing Valspar 2019 Notes”) issued by The Valspar Corporation (“Valspar”) and held by certain eligible holders for up to an aggregate principal amount of $300.0 million new 7.25% Senior Notes due 2019 (the “New Sherwin-Williams 2019 Notes”) issued by Sherwin-Williams and cash, (ii) any and all 4.20% Notes due 2022 (the “Existing Valspar 2022 Notes”) issued by Valspar and held by certain eligible holders for up to an aggregate principal amount of $400.0 million new 4.20% Senior Notes due 2022 (the “New Sherwin-Williams 2022 Notes”) issued by Sherwin-Williams and cash, (iii) any and all 3.30% Notes due 2025 (the “Existing Valspar 2025 Notes”) issued by Valspar and held by certain eligible holders for up to an aggregate principal amount of $250.0 million new 3.30% Senior Notes due 2025 (the “New Sherwin-Williams 2025 Notes”) issued by Sherwin-Williams and cash, (iv) any and all 3.95% Notes due 2026 (the “Existing Valspar 2026 Notes”) issued by Valspar and held by certain eligible holders for up to an aggregate principal amount of $350.0 million new 3.95% Senior Notes due 2026 (the “New Sherwin-Williams 2026 Notes”) issued by Sherwin-Williams and cash and (v) any and all 4.40% Notes due 2045 (the “Existing Valspar 2045 Notes”) issued by Valspar and held by certain eligible holders for up to an aggregate principal amount of $250.0 million new 4.40% Senior Notes due 2045 (the “New Sherwin-Williams 2045 Notes”) issued by Sherwin-Williams and cash, in each case, on the terms and subject to the conditions set forth in the Sherwin-Williams’ Offering Memorandum and Consent Solicitation Statement, dated May 2, 2017, as amended.

The Existing Valspar 2019 Notes, the Existing Valspar 2022 Notes, the Existing Valspar 2025 Notes, the Existing Valspar 2026 Notes and the Existing Valspar 2045 Notes are referred to herein collectively as the “Existing Valspar Notes.” The New Sherwin-Williams 2019 Notes, the New Sherwin-Williams 2022 Notes, the New Sherwin-Williams 2025 Notes, the New Sherwin-Williams 2026 Notes and the New Sherwin-Williams 2045 Notes are referred to herein collectively as the “New Sherwin-Williams Notes.” The Exchange Offers were made in connection with the acquisition of Valspar by Sherwin-Williams that closed on June 1, 2017.

New Sherwin-Williams Notes

Pursuant to the Exchange Offers, Sherwin-Williams issued approximately (i) $277,176,000 million in aggregate principal amount of New Sherwin-Williams 2019 Notes, (ii) $385,909,000 million in aggregate principal amount of New Sherwin-Williams 2022 Notes, (iii) $235,324,000 million in aggregate principal amount of New Sherwin-Williams 2025 Notes, (iv) $331,342,000 million in aggregate principal amount of New Sherwin-Williams 2026 Notes and (v) $248,354,000 million in aggregate principal amount of New Sherwin-Williams 2045 Notes.

The New Sherwin-Williams 2019 Notes mature on June 15, 2019 and bear interest at a rate of 7.25% per annum, payable semi-annually on June 15 and December 15 of each year. The New Sherwin-Williams 2022 Notes mature on January 15, 2022 and bear interest at a rate of 4.20% per annum, payable semi-annually on January 15 and July 15 of each year. The New Sherwin-Williams 2025 Notes mature on February 1, 2025 and bear interest at a rate of 3.30% per annum, payable semi-annually on February 1 and August 1 of each year. The New Sherwin-Williams 2026 Notes mature on January 15, 2026 and bear interest at a rate of 3.95% per annum, payable semi-annually on January 15 and July 15 of each year. The New Sherwin-Williams 2045 Notes mature on February 1, 2045 and bear interest at a rate of 4.40% per annum, payable semi-annually on February 1 and August 1 of each year.

The New Sherwin-Williams Notes are unsecured senior obligations of Sherwin-Williams and rank equally in right of payment with all of its other senior unsecured debt, are effectively subordinated to any of Sherwin-Williams’ secured debt to the extent of the value securing such debt and are structurally subordinated to the debt of Sherwin-Williams’ subsidiaries, including any debt of Valspar that remains outstanding. The New Sherwin-Williams Notes have not been registered under the Securities Act of 1933 (the “Securities Act”), and may not be offered or sold in the United States absent registration or an applicable exemption from the registration requirements of the Securities Act.


The terms of the New Sherwin-Williams Notes are governed by an indenture, dated as of July 31, 2015 (the “Base Indenture”), as supplemented with respect to the New Sherwin-Williams 2019 Notes by the eighth supplemental indenture, dated as of June 2, 2017 (the “Eighth Supplemental Indenture”), as supplemented with respect to the New Sherwin-Williams 2022 Notes by the ninth supplemental indenture, dated as of June 2, 2017 (the “Ninth Supplemental Indenture”), as supplemented with respect to the New Sherwin-Williams 2025 Notes by the tenth supplemental indenture, dated as of June 2, 2017 (the “Tenth Supplemental Indenture”), as supplemented with respect to the New Sherwin-Williams 2026 Notes by the eleventh supplemental indenture, dated as of June 2, 2017 (the “Eleventh Supplemental Indenture”), and as supplemented with respect to the New Sherwin-Williams 2045 Notes by the twelfth supplemental indenture, dated as of June 2, 2017 (the “Twelfth Supplemental Indenture,” and collectively with the Base Indenture, Eighth Supplemental Indenture, Ninth Supplemental Indenture, Tenth Supplemental Indenture and Eleventh Supplemental Indenture, the “Indenture”), in each case by and between Sherwin-Williams and Wells Fargo Bank, National Association, as trustee. The Indenture contains customary covenants that, among other things, limit the ability of Sherwin-Williams, with certain exceptions, to incur debt secured by liens, engage in sale and leaseback transactions and enter into certain consolidations, mergers and transfers of all or substantially all of the assets of Sherwin-Williams and its subsidiaries, taken as a whole. In addition, upon the occurrence of a “change of control,” as defined in the Indenture, Sherwin-Williams is required to offer to repurchase the New Sherwin-Williams Notes at 101% of the aggregate principal amount thereof, plus any accrued and unpaid interest, if any, to the repurchase date.

Sherwin-Williams may redeem the New Sherwin-Williams Notes of each series, in whole or in part, at Sherwin-Williams’ option, at any time and from time to time at a redemption price equal to the greater of (i) 100% of the principal amount of the New Sherwin-Williams Notes to be redeemed and (ii) as determined by the Quotation Agent (as defined in the Indenture), the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate (as defined in the Indenture) plus 50 basis points with respect to the New Sherwin-Williams 2019 Notes, 30 basis points with respect to the New Sherwin-Williams 2022 Notes, 25 basis points with respect to the New Sherwin-Williams 2025 Notes, 25 basis points with respect to the New Sherwin-Williams 2026 Notes and 35 basis points with respect to the New Sherwin-Williams 2045 Notes, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

Notwithstanding the foregoing, if (i) the New Sherwin-Williams 2022 Notes are redeemed on or after October 15, 2021 (the date that is three months prior to their maturity date), the New Sherwin-Williams 2022 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the New Sherwin-Williams 2022 Notes to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption, (ii) the New Sherwin-Williams 2025 Notes are redeemed on or after November 1, 2024 (the date that is three months prior to their maturity date), the New Sherwin-Williams 2025 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the New Sherwin-Williams 2025 Notes to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption, (iii) the New Sherwin-Williams 2026 Notes are redeemed on or after October 15, 2025 (the date that is three months prior to their maturity date), the New Sherwin-Williams 2026 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the New Sherwin-Williams 2026 Notes to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption and (iv) the New Sherwin-Williams 2045 Notes are redeemed on or after August 1, 2044 (the date that is six months prior to their maturity date), the New Sherwin-Williams 2045 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the New Sherwin-Williams 2045 Notes to be redeemed plus accrued and unpaid interest to, but not including, the date of redemption.

The Indenture contains customary events of default, including failure to make required payments of principal and interest, certain events of bankruptcy and insolvency and failure to make the required payment in connection with a Change of Control Triggering Event (as defined in the Indenture).

Registration Rights Agreement

In connection with the issuance of the New Sherwin-Williams Notes, Sherwin-Williams also entered into a registration rights agreement, dated June 2, 2017 (the “Registration Rights Agreement”), by and among Sherwin-Williams, as issuer, and each of Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, as dealer managers (the “Dealer Managers”).

 

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Under the Registration Rights Agreement, Sherwin-Williams agreed, among other things, to: (i) file an exchange offer registration statement with the Securities and Exchange Commission (the “SEC”) with respect to the New Sherwin-Williams Notes within 180 days after June 2, 2017 (the “Settlement Date”); (ii) cause such exchange offer registration statement to be declared effective by the SEC within 270 days after the Settlement Date; (iii) keep such exchange offer registration statement effective until the closing of the exchange offers; and (iv) subject to certain limitations, cause the exchange offers to be consummated not later than 365 days following the Settlement Date.

If, among other events, the exchange offers are not consummated on or prior to the 365th day following the Settlement Date, Sherwin-Williams would be required to pay special additional interest, in an amount equal to 0.25% per annum of the principal amount of the New Sherwin-Williams Notes, for the first 90 days following default. Thereafter, the amount of special additional interest will increase to 0.50% per annum until the default is cured.

The Dealer Managers have in the past performed, and may in the future from time to time perform, investment banking, financial advisory, lending or commercial banking services for Sherwin-Williams and its affiliates for which they have received, and may in the future receive, customary compensation and reimbursement of expenses.

The foregoing descriptions of the Eighth Supplemental Indenture, the Ninth Supplemental Indenture, the Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Registration Rights Agreement are qualified in their entirety by reference to the Eighth Supplemental Indenture, the Ninth Supplemental Indenture, the Tenth Supplemental Indenture, the Eleventh Supplemental Indenture, the Twelfth Supplemental Indenture and the Registration Rights Agreement, respectively, copies of which are filed as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5 and 10.1, respectively, to this Current Report on Form 8-K and are incorporated herein by reference.

Remaining Existing Valspar Notes

Following the consummation of the Exchange Offers, Valspar had outstanding approximately (i) $22,794,000 million in aggregate principal amount of Existing Valspar 2019 Notes, (ii) $14,091,000 million in aggregate principal amount of Existing Valspar 2022 Notes, (iii) $14,671,000 million in aggregate principal amount of Existing Valspar 2025 Notes, (iv) $18,658,000 million in aggregate principal amount of Existing Valspar 2026 Notes and (v) $1,631,000 million in aggregate principal amount of Existing Valspar 2045 Notes. The Existing Valspar Notes were issued under an indenture, dated as of April 24, 2002 (as supplemented and amended, the “Existing Valspar Notes Indenture”) by and among Valspar, U.S. Bank National Association, as Series Trustee, and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.), as Original Trustee. In connection with the Exchange Offers, Sherwin-Williams, on behalf of Valspar, solicited the consents of the holders of the Existing Valspar Notes to amend the Existing Valspar Notes Indenture to remove certain of the covenants, restrictive provisions and events of default. The Existing Valspar Notes are the senior unsecured obligations of Valspar.

 

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit

Number

  

Description

4.1    Eighth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.2    Ninth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.3    Tenth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)

 

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4.4    Eleventh Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.5    Twelfth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
10.1    Registration Rights Agreement, dated June 2, 2017, by and among Sherwin-Williams, as issuer, and each of Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, as dealer managers

 

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.

 

  THE SHERWIN-WILLIAMS COMPANY

Date: June 5, 2017

 

By:

 

/s/ Catherine M. Kilbane

Name: Catherine M. Kilbane

Title: Senior Vice President, General Counsel and Secretary

   

 

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Exhibit Index

 

Exhibit

Number

  

Description

4.1    Eighth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.2    Ninth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.3    Tenth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.4    Eleventh Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
4.5    Twelfth Supplemental Indenture, dated June 2, 2017, by and between Sherwin-Williams and Wells Fargo Bank, National Association as Trustee (including Form of Note)
10.1    Registration Rights Agreement, dated June 2, 2017, by and among Sherwin-Williams, as issuer, and each of Citigroup Global Markets Inc. and Wells Fargo Securities, LLC, as dealer managers

 

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Exhibit 4.1

EIGHTH SUPPLEMENTAL INDENTURE

THIS EIGHTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2017 (this “Supplemental Indenture”), is between The Sherwin-Williams Company, an Ohio corporation (the “Company”), and Wells Fargo Bank, National Association , a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”).

WITNESSETH

WHEREAS, pursuant to the Indenture, dated as of July 31, 2015, between the Company and the Trustee (the “Indenture”), the Company may from time to time issue and sell debt securities in one or more series;

WHEREAS, the Company desires to create and authorize a series of Notes entitled “7.25% Senior Notes due 2019”, limited initially to $ 277,176,000 in aggregate principal amount (the “2019 Notes”), and to provide the terms and conditions upon which the 2019 Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;

WHEREAS, the 2019 Notes are a series of Notes and are being issued under the Indenture, as supplemented by this Supplemental Indenture, and are subject to the terms contained therein and herein;

WHEREAS, the 2019 Notes are to be substantially in the form attached hereto as Exhibit  A ; and

WHEREAS, all acts and things necessary to make the 2019 Notes, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as provided in this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.

NOW, THEREFORE, in order to declare the terms and conditions upon which the 2019 Notes are executed, registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such 2019 Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and proportionate benefit of the Holders from time to time of the 2019 Notes, as follows:

Section 1.     Definitions . Terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given such terms in the Indenture.

Additional Interest ” means all “Additional Interest” then owing pursuant to the Registration Rights Agreement.

Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as of the time of determination, (a) if the obligation in respect of such Sale/Leaseback Transaction is a


Capital Lease Obligation, the amount of such obligation determined in accordance with GAAP and included in the financial statements of the lessee or (b) if the obligation in respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net Amount of Rent required to be paid by the lessee under such lease during the remaining term thereof (including any period for which the lease has been extended), discounted from the respective due dates thereof to such determination date at the rate per annum borne by the weighted average interest rate per annum borne by the Notes then outstanding under the Indenture compounded semiannually.

Change of Control ” means the occurrence of any of the following:

(1)    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act) (other than the Company or one of its Subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(2)    the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the assets of its Subsidiaries, taken as a whole, to one or more “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its Subsidiaries);

(3)    the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Voting Stock of the Company outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction;

(4)    the adoption of a plan relating to the liquidation or dissolution of the Company; or

(5)    the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Company immediately prior to that transaction.

 

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Change of Control Triggering Event ” means the occurrence of both (1) a Change of Control and (2) a Rating Event.

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Company and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the extent included in total assets, in each case as determined on a consolidated basis in accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the Company and its Subsidiaries which may properly be classified as current liabilities (including taxes accrued as estimated); (ii) current Indebtedness and current maturities of long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by Persons other than the Company or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items.

Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Supplemental Indenture, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

Exchange Notes ” means any notes issued in exchange for 2019 Notes pursuant to the Registration Rights Agreement or similar agreement.

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

Net Amount of Rent ” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty,

 

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such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated.

Permitted Lien ” means, with respect to any Person,

(a)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (including government contracts, but excluding contracts for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure performance, surety or appeal bonds to which such Person is a party or which are otherwise required of such Person, or deposits as security for contested taxes or import duties or for the payment of rent or other obligations of like nature, in each case incurred in the ordinary course of business;

(b)    Liens imposed by law, such as carriers’, warehousemen’s, laborers’, materialmen’s, landlords’, vendors’, workmen’s, operators’, producers’ and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings;

(c)    Liens for property taxes, assessments and other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings;

(d)    survey exceptions, encumbrances, easements, defects, irregularities or deficiencies in title to easements, or reservations of or with respect to, or rights of others for or with respect to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and other similar matters, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that, in all such cases, were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(e)    Liens existing on or provided for under the terms of agreements existing on February 1, 1996;

(f)    Liens on property at the time the Company or any of its Subsidiaries acquired the property or the entity owning such property, including any acquisition by means of a merger or consolidation with or into the Company; provided , however , that any such Lien may not extend to any other property owned by the Company or any of its Subsidiaries;

(g)    Liens securing a Hedging Obligation so long as such Hedging Obligation is of the type customarily entered into in connection with, and is entered into for the purpose of, limiting risk;

(h)    Liens on accounts receivable or inventory to secure working capital or revolving credit indebtedness incurred in the ordinary course of business;

(i)    Purchase Money Liens;

 

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(j)    Liens securing only Indebtedness of a Wholly Owned Subsidiary of the Company to the Company or one or more Wholly Owned Subsidiaries of the Company;

(k)    Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary of such Person;

(l)    Liens created, assumed or existing in connection with a tax-free financing;

(m)    Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Company or any of its Subsidiaries;

(n)    legal or equitable encumbrances deemed to exist by reason of negative pledges or the existence of any litigation or other legal proceeding and any related lis pendens filing (excluding any attachment prior to judgment, judgment lien or attachment lien in aid of execution on a judgment);

(o)    rights of a common owner of any interest in property held by such Person;

(p)    Liens placed upon any real property owned on the date of this Supplemental Indenture or thereafter acquired by the Company or any of its Subsidiaries securing Indebtedness in an amount up to 80% of the fair market value of such real property;

(q)    Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e) through (l) and (p); provided , however , that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the time the original Lien became a Permitted Lien under this Supplemental Indenture and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Principal Property ” means any manufacturing plant or manufacturing facility, located within the United States of America (other than its territories and possessions), owned or leased by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility or property is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries as an entirety.

Purchase Money Lien ” means a Lien on property securing Indebtedness incurred by the Company or any of its Subsidiaries to provide funds for all or any portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

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Rating Agencies ” means (1) each of Moody’s and S&P and (2) if any of Moody’s and S&P ceases to rate the 2019 Notes or fails to make a rating of the 2019 Notes publicly available for reasons outside of the Company’s control, a Substitute Rating Agency in lieu thereof.

Rating Event ” means the rating on the 2019 Notes is lowered by each of the Rating Agencies and the 2019 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day during the period commencing on the earlier of (i) the occurrence of the Change of Control and (ii) the first public announcement by the Company of any Change of Control and ending 60 days following consummation of such Change of Control (which period will be extended so long as the rating of the 2019 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies); provided that a Rating Event will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the request of the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Registration Rights Agreement ” means the registration rights agreement dated as of the date of this Supplemental Indenture, among the Company, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC.

Regulation S ” means Regulation S promulgated under the Securities Act.

Restricted Notes Legend ” has the meaning set forth in Section 9(d) herein.

Restricted Period ” shall have the meaning set forth in Section 9(c) herein.

Restricted Subsidiary ” means at any time any Subsidiary of the Company (i) substantially all the property of which is located, or substantially all of the business of which is carried on, within the United States of America (other than its territories or possessions) and (ii) that owns or leases a Principal Property or that, in the event of a Sale/Leaseback Transaction, will own or lease a Principal Property.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

S&P ” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., or any successor thereto.

Sale/Leaseback Transaction ” means an arrangement relating to Principal Property owned on the date of this Supplemental Indenture or thereafter acquired whereby the Company or any of its Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any of its Restricted Subsidiaries leases it from such Person.

 

6


Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors of the Company).

Transfer Restricted Note ” means any 2019 Note that bears or is required to bear the Restricted Notes Legend.

Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.

U.S. person ” means a “U.S. person” as defined in Regulation S.

Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company or one or more Wholly Owned Subsidiaries.

Section 2.     Creation and Authorization of Series .

(a)    There is hereby created and authorized the following new series of Notes to be issued under the Indenture, to be designated as the “7.25% Senior Notes due 2019.”

(b)    The 2019 Notes shall be limited initially to $ 277,176,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amount, the Company may, from time to time, without notice to or consent of the Holders of the 2019 Notes, increase the principal amount of the 2019 Notes that may be issued under this Supplemental Indenture and issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same terms (other than the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price), and will carry the same right to receive accrued and unpaid interest, as the 2019 Notes previously issued, and such additional notes will form a single series with the 2019 Notes, including for purposes of voting, redemptions and offers to purchase and will rank equally and ratably with the 2019 Notes previously issued; provided that if such additional notes are not fungible with the 2019 Notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number.

(c)    The date on which the principal is payable on the 2019 Notes shall be as provided in the form of security attached hereto as Exhibit A.

(d)    The 2019 Notes shall bear interest as provided in the form of security attached hereto as Exhibit A. The interest payment dates and the record dates for the determination of Holders of the 2019 Notes to whom such interest is payable shall be as provided in the form of security attached hereto as Exhibit A. Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the 2019 Notes. If Additional Interest is payable on the 2019 Notes, the Company shall provide an Officer’s Certificate to the Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in reasonable detail. The Trustee may provide a copy of such Officer’s Certificate or

 

7


other notice received from the Company relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest. If the Company has paid Additional Interest directly to the applicable Holder, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

(e)    The 2019 Notes shall be redeemable at the option of the Company as set forth in Section 4 of the form of security attached hereto as Exhibit A.

(f)    The 2019 Notes are not entitled to any sinking fund.

(g)    Upon a Change of Control Triggering Event, the Company shall be required to make an offer to repurchase the 2019 Notes as provided in Section 3 of this Supplemental Indenture.

(h)    The 2019 Notes will be issued only in fully registered form, without coupons, in denominations provided in Section 8 of the form of security attached hereto as Exhibit A.

(i)    Article 8 of the Indenture shall be applicable to the 2019 Notes. The covenants described in Sections 3, 4, 5 and 6 of this Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Indenture.

(j)    The 2019 Notes shall be issued in the form of a Global Note substantially in the form of Exhibit A attached hereto. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the 2019 Notes. Additional provisions applicable to the 2019 Notes issued in the form of a Global Note are set forth in Section 10 of the form of 2019 Note attached hereto as Exhibit A. To the extent inconsistent therewith, such provisions supersede the provisions set forth in Section 2.14 of the Indenture.

(k)    The Trustee, initial Paying Agent and Registrar for the 2019 Notes will be Wells Fargo Bank, National Association, and the initial place of payment (“Place of Payment”) will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415, Attn: Corporate Trust Operations.

(l)    The covenants and definitions set forth in the Indenture and the terms set forth in Article 5 of the Indenture shall be applicable to the 2019 Notes.

(m)    Except as otherwise set forth herein and in the 2019 Notes, the terms of the 2019 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.

Section 3.     Purchase of Notes upon a Change of Control Triggering Event .

(a)    If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the 2019 Notes as set forth in Section 4 of the form of security attached hereto

 

8


as Exhibit A, the Company shall be required to make an offer (the “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $1,000 or any integral multiple of $1,000 in excess thereof) of that Holder’s 2019 Notes on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of 2019 Notes repurchased, plus accrued and unpaid interest, if any, on the 2019 Notes repurchased up to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of the 2019 Notes with a copy to the Trustee describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the 2019 Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or with respect to Global Notes, to the extent permitted or required by the Applicable Procedures, sent electronically) or, if the notice is mailed or sent prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”). The notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

(b)    By 10:00 a.m., Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all 2019 Notes or portions of 2019 Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent (or, if the Company is acting as the Company’s own Paying Agent, segregate and hold in trust) an amount equal to the Change of Control Payment in respect of all 2019 Notes or portions of 2019 Notes properly tendered and (3) deliver or cause to be delivered to the Trustee the 2019 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2019 Notes or portions of 2019 Notes being repurchased.

(c)    The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the rating status of the Company, making any request upon any of the Rating Agencies or any Substitute Rating Agency, or determining whether any Rating Event has occurred.

(d)    The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all 2019 Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any 2019 Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture or this Supplemental Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(e)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2019

 

9


Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 3, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under this Section 3 by virtue of any such conflict.

Section 4.     Limitation on Liens . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, issue, incur, create, assume, guarantee or permit to exist any Indebtedness secured by a Lien on any Principal Property, or shares of capital stock of any Restricted Subsidiary, whether owned on the date of this Supplemental Indenture or thereafter acquired, unless the Company contemporaneously secures the 2019 Notes equally and ratably with (or prior to) such Indebtedness; provided that any Lien created for the benefit of the Holders of the 2019 Notes pursuant to this provision shall be automatically and unconditionally released and discharged upon release and discharge of the Lien that resulted in such provision becoming applicable. The preceding sentence shall not require the Company to secure the 2019 Notes if the Lien consists of the following:

(a)    Permitted Liens; or

(b)    Liens other than Permitted Liens, provided that the aggregate amount of all Indebtedness secured by Liens other than Permitted Liens shall not exceed 20% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of such Lien.

Section 5.     Limitation on Sale and Lease-Back Transactions . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any Principal Property unless (a) the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing Indebtedness in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction without securing the 2019 Notes pursuant to Section 4 of this Supplemental Indenture or (b) the Company, within six months from the effective date of such Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement of the 2019 Notes or other Indebtedness ranking pari passu with the 2019 Notes (excluding retirements as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity) an amount equal to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with a term of less than three years or (y) entering into any Sale/Leaseback Transaction between a Restricted Subsidiary and the Company or between Restricted Subsidiaries.

Section 6.     SEC Reports .

(a)    The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the

 

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Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or Section 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Company’s publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the date any information, document or report hereunder is required to be filed with the Trustee.

(b)    Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture or this Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.

Section 7.     Events of Default . The Events of Default in Section 6.01 of the Indenture shall be applicable to the 2019 Notes. In addition, the following shall be Events of Default with respect to the 2019 Notes:

(a)    failure to make the required Change of Control Payment when due and payable in accordance with the terms of Section 3 of this Supplemental Indenture; and

(b)    default in the performance or breach of any covenant of the Company in any of Sections 4, 5 or 6 of this Supplemental Indenture, which default continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from Holders of not less than 25% in aggregate principal amount of the 2019 Notes outstanding.

Section 8.     Transfer Restrictions .

(a)    The initial offering and sale of the 2019 Notes shall not be registered under the Securities Act or any state securities laws. The 2019 Notes shall be offered pursuant to exemptions from the registration requirements of the Securities Act in reliance upon Rule 144A and Regulation S promulgated under the Securities Act. For so long as any of the 2019 Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the

 

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Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such 2019 Notes, or to any prospective purchaser of such 2019 Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

(b)    The following provisions shall apply with respect to any proposed transfer of any Transfer Restricted Note prior to the expiration of the holding period applicable to sales of such 2019 Notes under Rule 144, and the Registrar shall refuse to register any transfer of such 2019 Notes not complying with the restrictions set forth in the Restricted Notes Legend and in this Section 8. In addition to the requirements set forth in Section 2.07 of the Indenture, Transfer Restricted Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 2.07 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Registrar may conclusively rely:

 

  (i)

if such Transfer Restricted Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit B hereto);

 

  (ii)

if such Transfer Restricted Notes are being transferred (1) to a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);

 

  (iii)

if such Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or

 

  (iv)

if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Company or the Trustee so requests.

(c)    A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such 2019 Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 8(c).

 

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(d)    The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 2.07 of the Indenture and Section 8 and Section 9 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(e)    If 2019 Notes are issued upon the registration of transfer, exchange or replacement of 2019 Notes not bearing the Restricted Notes Legend, the 2019 Notes so issued shall not bear such legend. If 2019 Notes are issued upon the registration or transfer, exchange or replacement of 2019 Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a 2019 Note, the 2019 Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an opinion of counsel, as may be reasonably required by the Company that neither the Restricted Notes Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such 2019 Notes are not “restricted securities” within the meaning of Rule 144 or that such 2019 Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a 2019 Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of a 2019 Note and the 2019 Note is subsequently held by an Affiliate of the Company, the Restricted Notes Legend shall be reinstated.

(f)    Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the same Global Note.

(g)    Notwithstanding the foregoing, in the event that any Transfer Restricted Notes are exchanged for Exchange Notes in connection with an effective registration statement pursuant to the Registration Rights Agreement, the Company shall issue and, at the direction of the Company, the Trustee shall authenticate the Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the exchange offer, which Exchange Notes shall not bear the Restricted Notes Legend, and the Registrar shall rescind any restriction on the transfer of such Exchange Notes.

Section 9.     Form of Notes/Legends .

(a)    The 2019 Notes are being offered only to (A) Persons reasonably believed to be QIBs in reliance on Rule 144A and (B) non U.S. persons in reliance on Regulation S. Such 2019

 

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Notes may thereafter be transferred to, among others, QIBs, and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Exchange Notes exchanged for interests in the Rule 144A Notes and the Regulation S Notes will be issued in the form of permanent Global Notes deposited with the Trustee as hereinafter provided, including the appropriate legend set forth in the form of security attached as Exhibit A (the “Exchange Global Notes”). The Exchange Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Exchange Global Notes may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate.

(b)    The 2019 Notes offered to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security attached as Exhibit A (the “Rule 144A Global Notes”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, or its nominee, as hereinafter provided.

(c)    The 2019 Notes offered to non U.S. persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security as attached hereto as Exhibit A (the “Regulation S Global Notes” and, together with the Rule 144A Global Notes and the Exchange Global Notes, the “Global Notes”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary. Prior to the 40th day after the date the 2019 Notes are issued (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. The Regulation S Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

(d)    Unless and until (i) a 2019 Note issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) a 2019 Note issued as a Transfer Restricted Note is exchanged for an Exchange Note in connection with an effective registration statement pursuant to the Registration Rights Agreement or (iii) the Company receives an opinion of counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:

 

  (i)

each Transfer Restricted Note shall bear the following legend on the face thereof (the “Restricted Notes Legend”):

 

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

  (ii)

each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH

 

15


OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

Section 10.     Effect of Supplemental Indenture . The provisions of this Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Supplemental Indenture.

Section 11.     Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE 2019 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.     Trustee Not Responsible for Recitals or Issuance of 2019 Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture or of the 2019 Notes other than with respect to the Trustee’s authentication of the 2019 Notes and execution of this Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the 2019 Notes or the proceeds thereof.

Section 13.     Conflict with TIA . If any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provisions shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.

Section 14.     Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals shall be deemed to be their original signatures for all purposes.

[The remainder of this page is left blank intentionally]

 

16


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

THE SHERWIN-WILLIAMS COMPANY
By:  

/s/ Allen J. Mistysyn

  Name:   Allen J. Mistysyn
  Title:   Senior Vice President – Finance and Chief Financial Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ Gregory S. Clarke

  Name:   Gregory S. Clarke
  Title:   Vice President

 

[ Signature Page to Eighth Supplemental Indenture ]


Exhibit A

FORM OF LEGEND FOR GLOBAL NOTE

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

[Insert if Global Note: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY]

[FOR TRANSFER RESTRICTED NOTES: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE

 

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SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

Registered

No.

  

THE SHERWIN-WILLIAMS COMPANY

7.25% SENIOR NOTE DUE 2019

  

Registered

Rule 144A CUSIP

Reg S CUSIP

Unrestricted CUSIP

Original Issue Date:

    June 2, 2017

     

Maturity Date:

    June 15, 2019

  

Principal Amount:

    $ 277,176,000

        

Interest Rate:

    7.25%

     

Specified Currency:

    U.S. Dollars

  

Interest Payment Dates:

    June 15

    December 15

     

Regular Record Dates:

  June 1

  December 1

  

Redemption at Option of the Company:

 

Redemption Date(s)

      

Redemption Price(s)

    
At Any Time      As set forth in Section 4 on the reverse side hereof.   

This security (this “Security”) is a registered security of THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (together with its successors, if any, the “Company”). This

 

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Security is one of a series of Notes (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as the 7.25% Senior Notes due 2019. Subject to the provisions hereof, the Company, for value received, hereby promises to pay to [●] [Insert if Global Note: CEDE & CO.], or registered assigns, the Principal Amount set forth on the face hereof [Insert if Global Note: or such amount as may be set forth on the Schedule of Increases or Decreases of Interests in the Global Note attached hereto] on the Maturity Date shown above and to pay the premium, if any, and interest thereon, as described on the reverse hereof.

The principal of (and premium, if any) and interest on this Security are payable by the Company in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture by an authorized signatory thereof, this Security shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.

[The remainder of this page is left blank intentionally]

 

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THE SHERWIN-WILLIAMS COMPANY

Dated:                     

     
   

By:

 

 

     

Name:

     

Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein and referred to in the within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

By:

 

 

  Authorized Signatory

 

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REVERSE OF SECURITY

THE SHERWIN-WILLIAMS COMPANY

7.25% SENIOR NOTE DUE 2019

1.     This Security is one of the duly authorized issue of notes or other debt instruments (hereinafter called the “Notes”) of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of July 31, 2015, between the Company and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America (herein called the “Trustee”) and the Eighth Supplemental Indenture, dated as of June 2, 2017, between the Company and the Trustee (collectively, the “Indenture”), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee or the Company, any Paying Agent for this Security, the Company and the Holders of the Notes and the terms upon which the Notes are issued and are to be authenticated and delivered.

This Security is one of the series of Notes of the Company issued pursuant to the Indenture designated as the 7.25% Senior Notes due 2019 (the “2019 Notes”).

2.     A. The regular record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the applicable date specified as such on the face hereof (whether or not such date shall be a Business Day (as defined below)) immediately preceding such Interest Payment Date. If the Regular Record Date for the first Interest Payment Date occurs on or prior to the issue date of this Note, the Regular Record Date for such first Interest Payment Date shall be deemed the close of business on the day immediately preceding such Interest Payment Date. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. “Business Day” means, with respect to any Place of Payment, any day other than a Legal Holiday.

B.     The Company promises to pay interest on the Principal Amount at the rate per annum shown on the face hereof until the Principal Amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually in arrears on the Interest Payment Dates set forth on the face hereof (each such date, an “Interest Payment Date”), commencing June 15, 2017, and on the Maturity Date. Interest shall accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including December 15, 2016, to but excluding the next succeeding Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. If any payment is required to be made in respect of this Security on a date (including the Maturity Date, a redemption date, a Change of Control Payment Date or an Interest Payment Date) that is not a Business Day, the related payment shall be made on the next succeeding Business Day as if made on the date the payment is due, and no interest shall accrue on such payment for the intervening period.

 

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C.     The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the 2019 Notes and in the amounts set forth in the Registration Rights Agreement.

3.     As long as the 2019 Notes are represented by one or more Global Notes, all payments of interest will be made by the Company in immediately available funds to the accounts specified by the Depositary or a nominee of the Depositary. Otherwise, payments of interest on the 2019 Notes due on Interest Payment Dates will be made by immediately available funds to accounts with financial institutions in the United States specified by the Persons entitled thereto by notice given to the Paying Agent at least ten calendar days prior to the applicable Interest Payment Date or, if no such account is so specified, by check mailed to the Persons entitled thereto. Principal and any premium and (if such day is not an Interest Payment Date) interest payable at the Stated Maturity, on redemption or repayment of a 2019 Note will be paid in immediately available funds upon surrender of such 2019 Note at the Place of Payment. Initially, Wells Fargo Bank, National Association will be the Paying Agent and the Registrar with respect to the 2019 Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and a different Registrar and to approve any change in the office through which any Paying Agent or Registrar acts; provided that the Company shall at all times maintain a Paying Agent and Place of Payment for the 2019 Notes.

4.     At any time and from time to time, the 2019 Notes are redeemable, in whole or in part, at the option of the Company, on notice given as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2019 Notes to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 50 basis points, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

For purposes of determining the redemption price, the following definitions shall apply:

Comparable Treasury Issue ” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the 2019 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2019 Notes.

Comparable Treasury Price ” means, with respect to any redemption date, (A) the arithmetic average of the four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.

 

A-6


Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however , that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

Reference Treasury Dealer ” means each of (i) Citigroup Global Markets Inc. and Wells Fargo Securities, LLC or their respective affiliates that are Primary Treasury Dealers, and, in each case, their respective successors; and (ii) two other Primary Treasury Dealers selected by the Company; provided , however , that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third Business Day preceding such redemption date.

Treasury Rate ” means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication that is published by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the 2019 Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

If less than all of the 2019 Notes are to be redeemed, the 2019 Notes to be redeemed shall be selected in accordance with Section 3.02 of the Indenture.

Notice of redemption shall be given as provided in Section 3.03 of the Indenture. A notice of redemption may not be conditional. The Trustee shall not be responsible for the calculation of the redemption price for any such redemption. The Company shall calculate such redemption price and promptly notify the Trustee thereof.

 

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5.     If an Event of Default with respect to the 2019 Notes shall occur and be continuing, the principal and interest thereon of all of the 2019 Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

6.     The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes of each series under the Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding of each series to be affected thereby on behalf of the Holders of all Notes of such series. In addition, the Indenture permits the Company and the Trustee to enter into supplemental indentures to the Indenture, without the consent of Holders, for certain purposes, including to cure any ambiguity or to correct or supplement any provision contained in the Indenture and to make changes that do not adversely affect the rights of any Holder in any material respect. The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding of each series on behalf of the Holders of all Notes of such series, to waive certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any 2019 Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other 2019 Notes.

7.     No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Security at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.

8.     The authorized denominations of the 2019 Notes are $1,000 and any larger amount that is an integral multiple of $1,000. As provided in the Indenture and except as provided therein and herein, the 2019 Notes are exchangeable for a like aggregate principal amount of 2019 Notes of a different authorized denomination, as requested by the Holder surrendering the same.

9.     As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Note register, upon surrender of this Security for registration of transfer at the office of the Registrar or co-registrar designated by the Company for such purpose. Every 2019 Note presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly authorized in writing.

Prior to due presentment for registration of transfer, the Company, the Trustee, any Paying Agent and any Registrar may treat the Person in whose name this Security is registered as the absolute owner thereof for all purposes (subject to Section 2.A hereof), whether or not such

 

A-8


Security is overdue and notwithstanding any notation of ownership or other writing thereon, and neither the Company nor the Trustee nor any Paying Agent nor any Registrar shall be affected by notice to the contrary.

No service charge shall be made for any exchange or registration of transfer of any 2019 Note, with certain exceptions, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

10.     This Security is a Global Note. Accordingly, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of Persons other than participants).

So long as the Depositary or its nominee is the registered owner of this Security, the Depositary or that nominee, as the case may be, will be considered the sole legal owner or Holder of the 2019 Notes represented by this Security for all purposes of the 2019 Notes and the Indenture. Except as provided below, owners of beneficial interests in this Security (1) will not be entitled to have the 2019 Notes represented by this Security registered in their names, (2) will not receive or be entitled to receive physical delivery of certificated securities and (3) will not be considered the owners or Holders of the 2019 Notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee. Accordingly, each Person owning a beneficial interest in this Security must rely on the procedures of the Depositary and, if that Person is not a Depositary participant or indirect participant, on the procedures of the participant through which that Person owns its interest, to exercise any rights of a Holder of 2019 Notes under the Indenture or this Security.

Except as provided in Section 2.14(b) of the Indenture, beneficial interests in this Security may not be exchanged for certificated securities.

Payments with respect to the principal of and interest on this Security will be payable by the Trustee to or at the direction of the Depositary or its nominee in its capacity as the registered Holder of this Security under the Indenture. Under the terms of the Indenture, the Company and the Trustee may treat the Persons in whose names this Security are registered as the owners hereof for the purpose of receiving payment thereon (except as provided in Section 2.A hereof) and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the Paying Agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of beneficial ownership interests in this Security or for maintaining, supervising or reviewing any records relating to such beneficial ownership interests, (b) the payments to the beneficial owners of this Security of amounts paid to the Depositary or its nominee or (c) any other matter relating to the actions or practices of the Depositary, its nominee or any of its direct or indirect participants.

 

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11.     Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

12.     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE 2019 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

A-10


CERTIFICATE OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

Insert Taxpayer Identification No.:

 

 

Please print or typewrite name and address including zip code of assignee                                          the within 2019 Note and all rights thereunder, and hereby irrevocably constituting and appointing                      attorney to transfer said 2019 Note on the books of the Registrar with full power of substitution in the premises.

Dated:                     

 

NOTICE:

  

 

  

The signature to this assignment must correspond with the name as it appears upon the face of the within 2019 Note in every particular, without alteration or enlargement or any change whatever.

 

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OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this 2019 Note purchased by the Company pursuant to Section 3 of the Eighth Supplemental Indenture, check the box below:

☐  Section 3

If you want to elect to have only part of this 2019 Note purchased by the Company pursuant to Section 3 of the Eighth Supplemental Indenture, state the amount you elect to have purchased:

$         

Date:                     

 

Your Signature:

 

 

  (Sign exactly as your name appears on the face of this Note)

Tax Identification No.:                                                  

Signature Guarantee*:                                              

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-12


SCHEDULE OF INCREASES OR DECREASES OF INTERESTS IN THE GLOBAL NOTE

The initial principal amount of this Global Note is $[●]. The following increases or decreases in this Global Note have been made:

 

Date of Exchange

  

Amount of Decrease in

Principal Amount at

Maturity

of this Global Note

  

Amount of Increase in

Principal Amount at

Maturity

of this Global Note

  

Principal Amount at

Maturity

of this Global Note

Following such

decrease (or increase)

  

Signature of

Authorized Signatory

of Trustee or

Custodian

           
           

 

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EXHIBIT B

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF NOTES

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 7.25% Senior Notes due 2019 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry or definitive form by (the “Transferor”). The Transferor has requested the Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:

 

            

  

Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

            

  

Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit C to the Supplemental Indenture setting forth the terms of the Notes pursuant to the Indenture).

            

  

Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

            

  

Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and

 

B-1


  

based upon an opinion of counsel if the Company so requests).

Fill in blank or check appropriate item, as applicable.

 

B-2


Date:                     

 

[INSERT NAME OF TRANSFEROR]

 

By:

 

                                                                      

   

Name:

   

Title:

   

Address:

 

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EXHIBIT C

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH

TRANSFERS PURSUANT TO REGULATION S

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 7.25% Senior Notes due 2019 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry form by (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

(a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

(b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not

 

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a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through [Euroclear] [Clearstream].

 

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Date:                     

 

[INSERT NAME OF TRANSFEROR]

 

By:

 

                                                                      

   

Name:

   

Title:

   

Address:

 

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Exhibit 4.2

NINTH SUPPLEMENTAL INDENTURE

THIS NINTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2017 (this “Supplemental Indenture”), is between The Sherwin-Williams Company , an Ohio corporation (the “Company”), and Wells Fargo Bank, National Association , a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”).

WITNESSETH

WHEREAS, pursuant to the Indenture, dated as of July 31, 2015, between the Company and the Trustee (the “Indenture”), the Company may from time to time issue and sell debt securities in one or more series;

WHEREAS, the Company desires to create and authorize a series of Notes entitled “4.20% Senior Notes due 2022”, limited initially to $385,909,000 in aggregate principal amount (the “2022 Notes”), and to provide the terms and conditions upon which the 2022 Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;

WHEREAS, the 2022 Notes are a series of Notes and are being issued under the Indenture, as supplemented by this Supplemental Indenture, and are subject to the terms contained therein and herein;

WHEREAS, the 2022 Notes are to be substantially in the form attached hereto as Exhibit  A ; and

WHEREAS, all acts and things necessary to make the 2022 Notes, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as provided in this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.

NOW, THEREFORE, in order to declare the terms and conditions upon which the 2022 Notes are executed, registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such 2022 Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and proportionate benefit of the Holders from time to time of the 2022 Notes, as follows:

Section 1.     Definitions . Terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given such terms in the Indenture.

Additional Interest ” means all “Additional Interest” then owing pursuant to the Registration Rights Agreement.

Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as of the time of determination, (a) if the obligation in respect of such Sale/Leaseback Transaction is a


Capital Lease Obligation, the amount of such obligation determined in accordance with GAAP and included in the financial statements of the lessee or (b) if the obligation in respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net Amount of Rent required to be paid by the lessee under such lease during the remaining term thereof (including any period for which the lease has been extended), discounted from the respective due dates thereof to such determination date at the rate per annum borne by the weighted average interest rate per annum borne by the Notes then outstanding under the Indenture compounded semiannually.

Change of Control ” means the occurrence of any of the following:

(1)    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act) (other than the Company or one of its Subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(2)    the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the assets of its Subsidiaries, taken as a whole, to one or more “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its Subsidiaries);

(3)    the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Voting Stock of the Company outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction;

(4)    the adoption of a plan relating to the liquidation or dissolution of the Company; or

(5)    the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Company immediately prior to that transaction.

 

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Change of Control Triggering Event ” means the occurrence of both (1) a Change of Control and (2) a Rating Event.

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Company and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the extent included in total assets, in each case as determined on a consolidated basis in accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the Company and its Subsidiaries which may properly be classified as current liabilities (including taxes accrued as estimated); (ii) current Indebtedness and current maturities of long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by Persons other than the Company or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items.

Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Supplemental Indenture, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

Exchange Notes ” means any notes issued in exchange for 2022 Notes pursuant to the Registration Rights Agreement or similar agreement.

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

Net Amount of Rent ” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty,

 

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such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated.

Permitted Lien ” means, with respect to any Person,

(a)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (including government contracts, but excluding contracts for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure performance, surety or appeal bonds to which such Person is a party or which are otherwise required of such Person, or deposits as security for contested taxes or import duties or for the payment of rent or other obligations of like nature, in each case incurred in the ordinary course of business;

(b)    Liens imposed by law, such as carriers’, warehousemen’s, laborers’, materialmen’s, landlords’, vendors’, workmen’s, operators’, producers’ and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings;

(c)    Liens for property taxes, assessments and other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings;

(d)    survey exceptions, encumbrances, easements, defects, irregularities or deficiencies in title to easements, or reservations of or with respect to, or rights of others for or with respect to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and other similar matters, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that, in all such cases, were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(e)    Liens existing on or provided for under the terms of agreements existing on February 1, 1996;

(f)    Liens on property at the time the Company or any of its Subsidiaries acquired the property or the entity owning such property, including any acquisition by means of a merger or consolidation with or into the Company; provided , however , that any such Lien may not extend to any other property owned by the Company or any of its Subsidiaries;

(g)    Liens securing a Hedging Obligation so long as such Hedging Obligation is of the type customarily entered into in connection with, and is entered into for the purpose of, limiting risk;

(h)    Liens on accounts receivable or inventory to secure working capital or revolving credit indebtedness incurred in the ordinary course of business;

(i)    Purchase Money Liens;

 

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(j)    Liens securing only Indebtedness of a Wholly Owned Subsidiary of the Company to the Company or one or more Wholly Owned Subsidiaries of the Company;

(k)    Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary of such Person;

(l)    Liens created, assumed or existing in connection with a tax-free financing;

(m)    Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Company or any of its Subsidiaries;

(n)    legal or equitable encumbrances deemed to exist by reason of negative pledges or the existence of any litigation or other legal proceeding and any related lis pendens filing (excluding any attachment prior to judgment, judgment lien or attachment lien in aid of execution on a judgment);

(o)    rights of a common owner of any interest in property held by such Person;

(p)    Liens placed upon any real property owned on the date of this Supplemental Indenture or thereafter acquired by the Company or any of its Subsidiaries securing Indebtedness in an amount up to 80% of the fair market value of such real property;

(q)    Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e) through (l) and (p); provided , however , that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the time the original Lien became a Permitted Lien under this Supplemental Indenture and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Principal Property ” means any manufacturing plant or manufacturing facility, located within the United States of America (other than its territories and possessions), owned or leased by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility or property is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries as an entirety.

Purchase Money Lien ” means a Lien on property securing Indebtedness incurred by the Company or any of its Subsidiaries to provide funds for all or any portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

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Rating Agencies ” means (1) each of Moody’s and S&P and (2) if any of Moody’s and S&P ceases to rate the 2022 Notes or fails to make a rating of the 2022 Notes publicly available for reasons outside of the Company’s control, a Substitute Rating Agency in lieu thereof.

Rating Event ” means the rating on the 2022 Notes is lowered by each of the Rating Agencies and the 2022 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day during the period commencing on the earlier of (i) the occurrence of the Change of Control and (ii) the first public announcement by the Company of any Change of Control and ending 60 days following consummation of such Change of Control (which period will be extended so long as the rating of the 2022 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies); provided that a Rating Event will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the request of the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Registration Rights Agreement ” means the registration rights agreement dated as of the date of this Supplemental Indenture, among the Company, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC.

Regulation S ” means Regulation S promulgated under the Securities Act.

Restricted Notes Legend ” has the meaning set forth in Section 9(d) herein.

Restricted Period ” shall have the meaning set forth in Section 9(c) herein.

Restricted Subsidiary ” means at any time any Subsidiary of the Company (i) substantially all the property of which is located, or substantially all of the business of which is carried on, within the United States of America (other than its territories or possessions) and (ii) that owns or leases a Principal Property or that, in the event of a Sale/Leaseback Transaction, will own or lease a Principal Property.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

S&P ” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., or any successor thereto.

Sale/Leaseback Transaction ” means an arrangement relating to Principal Property owned on the date of this Supplemental Indenture or thereafter acquired whereby the Company or any of its Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any of its Restricted Subsidiaries leases it from such Person.

 

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Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors of the Company).

Transfer Restricted Note ” means any 2022 Note that bears or is required to bear the Restricted Notes Legend.

Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.

U.S. person ” means a “U.S. person” as defined in Regulation S.

Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company or one or more Wholly Owned Subsidiaries.

Section 2.     Creation and Authorization of Series .

(a)    There is hereby created and authorized the following new series of Notes to be issued under the Indenture, to be designated as the “4.20% Senior Notes due 2022.”

(b)    The 2022 Notes shall be limited initially to $385,909,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amount, the Company may, from time to time, without notice to or consent of the Holders of the 2022 Notes, increase the principal amount of the 2022 Notes that may be issued under this Supplemental Indenture and issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same terms (other than the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price), and will carry the same right to receive accrued and unpaid interest, as the 2022 Notes previously issued, and such additional notes will form a single series with the 2022 Notes, including for purposes of voting, redemptions and offers to purchase and will rank equally and ratably with the 2022 Notes previously issued; provided that if such additional notes are not fungible with the 2022 Notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number.

(c)    The date on which the principal is payable on the 2022 Notes shall be as provided in the form of security attached hereto as Exhibit A.

(d)    The 2022 Notes shall bear interest as provided in the form of security attached hereto as Exhibit A. The interest payment dates and the record dates for the determination of Holders of the 2022 Notes to whom such interest is payable shall be as provided in the form of security attached hereto as Exhibit A. Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the 2022 Notes. If Additional Interest is payable on the 2022 Notes, the Company shall provide an Officer’s Certificate to the Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in reasonable detail. The Trustee may provide a copy of such Officer’s Certificate or

 

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other notice received from the Company relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest. If the Company has paid Additional Interest directly to the applicable Holder, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

(e)    The 2022 Notes shall be redeemable at the option of the Company as set forth in Section 4 of the form of security attached hereto as Exhibit A.

(f)    The 2022 Notes are not entitled to any sinking fund.

(g)    Upon a Change of Control Triggering Event, the Company shall be required to make an offer to repurchase the 2022 Notes as provided in Section 3 of this Supplemental Indenture.

(h)    The 2022 Notes will be issued only in fully registered form, without coupons, in denominations provided in Section 8 of the form of security attached hereto as Exhibit A.

(i)    Article 8 of the Indenture shall be applicable to the 2022 Notes. The covenants described in Sections 3, 4, 5 and 6 of this Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Indenture.

(j)    The 2022 Notes shall be issued in the form of a Global Note substantially in the form of Exhibit A attached hereto. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the 2022 Notes. Additional provisions applicable to the 2022 Notes issued in the form of a Global Note are set forth in Section 10 of the form of 2022 Note attached hereto as Exhibit A. To the extent inconsistent therewith, such provisions supersede the provisions set forth in Section 2.14 of the Indenture.

(k)    The Trustee, initial Paying Agent and Registrar for the 2022 Notes will be Wells Fargo Bank, National Association, and the initial place of payment (“Place of Payment”) will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415, Attn: Corporate Trust Operations.

(l)    The covenants and definitions set forth in the Indenture and the terms set forth in Article 5 of the Indenture shall be applicable to the 2022 Notes.

(m)    Except as otherwise set forth herein and in the 2022 Notes, the terms of the 2022 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.

Section 3.     Purchase of Notes upon a Change of Control Triggering Event .

(a)    If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the 2022 Notes as set forth in Section 4 of the form of security attached hereto

 

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as Exhibit A, the Company shall be required to make an offer (the “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or any integral multiple of $1,000 in excess thereof) of that Holder’s 2022 Notes on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of 2022 Notes repurchased, plus accrued and unpaid interest, if any, on the 2022 Notes repurchased up to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of the 2022 Notes with a copy to the Trustee describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the 2022 Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or with respect to Global Notes, to the extent permitted or required by the Applicable Procedures, sent electronically) or, if the notice is mailed or sent prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”). The notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

(b)    By 10:00 a.m., Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all 2022 Notes or portions of 2022 Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent (or, if the Company is acting as the Company’s own Paying Agent, segregate and hold in trust) an amount equal to the Change of Control Payment in respect of all 2022 Notes or portions of 2022 Notes properly tendered and (3) deliver or cause to be delivered to the Trustee the 2022 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2022 Notes or portions of 2022 Notes being repurchased.

(c)    The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the rating status of the Company, making any request upon any of the Rating Agencies or any Substitute Rating Agency, or determining whether any Rating Event has occurred.

(d)    The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all 2022 Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any 2022 Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture or this Supplemental Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(e)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2022

 

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Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 3, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under this Section 3 by virtue of any such conflict.

Section 4.     Limitation on Liens . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, issue, incur, create, assume, guarantee or permit to exist any Indebtedness secured by a Lien on any Principal Property, or shares of capital stock of any Restricted Subsidiary, whether owned on the date of this Supplemental Indenture or thereafter acquired, unless the Company contemporaneously secures the 2022 Notes equally and ratably with (or prior to) such Indebtedness; provided that any Lien created for the benefit of the Holders of the 2022 Notes pursuant to this provision shall be automatically and unconditionally released and discharged upon release and discharge of the Lien that resulted in such provision becoming applicable. The preceding sentence shall not require the Company to secure the 2022 Notes if the Lien consists of the following:

(a)    Permitted Liens; or

(b)    Liens other than Permitted Liens, provided that the aggregate amount of all Indebtedness secured by Liens other than Permitted Liens shall not exceed 20% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of such Lien.

Section 5.     Limitation on Sale and Lease-Back Transactions . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any Principal Property unless (a) the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing Indebtedness in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction without securing the 2022 Notes pursuant to Section 4 of this Supplemental Indenture or (b) the Company, within six months from the effective date of such Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement of the 2022 Notes or other Indebtedness ranking pari passu with the 2022 Notes (excluding retirements as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity) an amount equal to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with a term of less than three years or (y) entering into any Sale/Leaseback Transaction between a Restricted Subsidiary and the Company or between Restricted Subsidiaries.

Section 6.     SEC Reports .

(a)    The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the

 

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Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or Section 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Company’s publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the date any information, document or report hereunder is required to be filed with the Trustee.

(b)    Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture or this Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.

Section 7.     Events of Default . The Events of Default in Section 6.01 of the Indenture shall be applicable to the 2022 Notes. In addition, the following shall be Events of Default with respect to the 2022 Notes:

(a)    failure to make the required Change of Control Payment when due and payable in accordance with the terms of Section 3 of this Supplemental Indenture; and

(b)    default in the performance or breach of any covenant of the Company in any of Sections 4, 5 or 6 of this Supplemental Indenture, which default continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from Holders of not less than 25% in aggregate principal amount of the 2022 Notes outstanding.

Section 8.     Transfer Restrictions .

(a)    The initial offering and sale of the 2022 Notes shall not be registered under the Securities Act or any state securities laws. The 2022 Notes shall be offered pursuant to exemptions from the registration requirements of the Securities Act in reliance upon Rule 144A and Regulation S promulgated under the Securities Act. For so long as any of the 2022 Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the

 

11


Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such 2022 Notes, or to any prospective purchaser of such 2022 Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

(b)    The following provisions shall apply with respect to any proposed transfer of any Transfer Restricted Note prior to the expiration of the holding period applicable to sales of such 2022 Notes under Rule 144, and the Registrar shall refuse to register any transfer of such 2022 Notes not complying with the restrictions set forth in the Restricted Notes Legend and in this Section 8. In addition to the requirements set forth in Section 2.07 of the Indenture, Transfer Restricted Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 2.07 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Registrar may conclusively rely:

 

  (i)

if such Transfer Restricted Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit B hereto);

 

  (ii)

if such Transfer Restricted Notes are being transferred (1) to a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);

 

  (iii)

if such Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or

 

  (iv)

if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Company or the Trustee so requests.

(c)    A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such 2022 Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 8(c).

 

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(d)    The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 2.07 of the Indenture and Section 8 and Section 9 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(e)    If 2022 Notes are issued upon the registration of transfer, exchange or replacement of 2022 Notes not bearing the Restricted Notes Legend, the 2022 Notes so issued shall not bear such legend. If 2022 Notes are issued upon the registration or transfer, exchange or replacement of 2022 Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a 2022 Note, the 2022 Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an opinion of counsel, as may be reasonably required by the Company that neither the Restricted Notes Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such 2022 Notes are not “restricted securities” within the meaning of Rule 144 or that such 2022 Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a 2022 Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of a 2022 Note and the 2022 Note is subsequently held by an Affiliate of the Company, the Restricted Notes Legend shall be reinstated.

(f)    Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the same Global Note.

(g)    Notwithstanding the foregoing, in the event that any Transfer Restricted Notes are exchanged for Exchange Notes in connection with an effective registration statement pursuant to the Registration Rights Agreement, the Company shall issue and, at the direction of the Company, the Trustee shall authenticate the Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the exchange offer, which Exchange Notes shall not bear the Restricted Notes Legend, and the Registrar shall rescind any restriction on the transfer of such Exchange Notes.

Section 9.     Form of Notes/Legends .

(a)    The 2022 Notes are being offered only to (A) Persons reasonably believed to be QIBs in reliance on Rule 144A and (B) non U.S. persons in reliance on Regulation S. Such 2022

 

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Notes may thereafter be transferred to, among others, QIBs, and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Exchange Notes exchanged for interests in the Rule 144A Notes and the Regulation S Notes will be issued in the form of permanent Global Notes deposited with the Trustee as hereinafter provided, including the appropriate legend set forth in the form of security attached as Exhibit A (the “Exchange Global Notes”). The Exchange Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Exchange Global Notes may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate.

(b)    The 2022 Notes offered to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security attached as Exhibit A (the “Rule 144A Global Notes”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, or its nominee, as hereinafter provided.

(c)    The 2022 Notes offered to non U.S. persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security as attached hereto as Exhibit A (the “Regulation S Global Notes” and, together with the Rule 144A Global Notes and the Exchange Global Notes, the “Global Notes”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary. Prior to the 40th day after the date the 2022 Notes are issued (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. The Regulation S Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

(d)    Unless and until (i) a 2022 Note issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) a 2022 Note issued as a Transfer Restricted Note is exchanged for an Exchange Note in connection with an effective registration statement pursuant to the Registration Rights Agreement or (iii) the Company receives an opinion of counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:

 

  (i)

each Transfer Restricted Note shall bear the following legend on the face thereof (the “Restricted Notes Legend”):

 

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

  (ii)

each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH

 

15


OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

Section 10.     Effect of Supplemental Indenture . The provisions of this Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Supplemental Indenture.

Section 11.     Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE 2022 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.     Trustee Not Responsible for Recitals or Issuance of 2022 Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture or of the 2022 Notes other than with respect to the Trustee’s authentication of the 2022 Notes and execution of this Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the 2022 Notes or the proceeds thereof.

Section 13.     Conflict with TIA . If any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provisions shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.

Section 14.     Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals shall be deemed to be their original signatures for all purposes.

[The remainder of this page is left blank intentionally]

 

16


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

THE SHERWIN-WILLIAMS COMPANY

By:

 

/s/ Allen J. Mistysyn

 

Name:

 

Allen J. Mistysyn

 

Title:

 

Senior Vice President – Finance and Chief Financial Officer

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:

 

/s/ Gregory S. Clarke

 

Name:

 

Gregory S. Clarke

 

Title:

 

Vice President

 

[ Signature Page to Ninth Supplemental Indenture ]


Exhibit A

FORM OF LEGEND FOR GLOBAL NOTE

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

[Insert if Global Note: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY]

[FOR TRANSFER RESTRICTED NOTES: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE

 

A-1


SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

Registered

No.

  

THE SHERWIN-WILLIAMS COMPANY

4.20% SENIOR NOTE DUE 2022

  

Registered

Rule 144A CUSIP

Reg S CUSIP

Unrestricted CUSIP

Original Issue Date:

    June 2, 2017

     

Maturity Date:

    January 15, 2022

  

Principal Amount:

    $385,909,000

        

Interest Rate:

    4.20%

     

Specified Currency:

    U.S. Dollars

  

Interest Payment Dates:

    January 15

    July 15

     

Regular Record Dates:

  January 1

  July 1

  

Redemption at Option of the Company:

 

Redemption Date(s)

       

Redemption Price(s)

    
At Any Time       As set forth in Section 4 on the reverse side hereof.   

This security (this “Security”) is a registered security of THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (together with its successors, if any, the “Company”). This

 

A-2


Security is one of a series of Notes (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as the 4.20% Senior Notes due 2022. Subject to the provisions hereof, the Company, for value received, hereby promises to pay to [●] [Insert if Global Note: CEDE & CO.], or registered assigns, the Principal Amount set forth on the face hereof [Insert if Global Note: or such amount as may be set forth on the Schedule of Increases or Decreases of Interests in the Global Note attached hereto] on the Maturity Date shown above and to pay the premium, if any, and interest thereon, as described on the reverse hereof.

The principal of (and premium, if any) and interest on this Security are payable by the Company in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture by an authorized signatory thereof, this Security shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.

[The remainder of this page is left blank intentionally]

 

A-3


   

THE SHERWIN-WILLIAMS COMPANY

Dated:

   
   

By:

 

 

     

Name:

     

Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein and referred to in the within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

By:

 

 

  Authorized Signatory

 

A-4


REVERSE OF SECURITY

THE SHERWIN-WILLIAMS COMPANY

4.20% SENIOR NOTE DUE 2022

1.     This Security is one of the duly authorized issue of notes or other debt instruments (hereinafter called the “Notes”) of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of July 31, 2015, between the Company and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America (herein called the “Trustee”) and the Ninth Supplemental Indenture, dated as of June 2, 2017, between the Company and the Trustee (collectively, the “Indenture”), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee or the Company, any Paying Agent for this Security, the Company and the Holders of the Notes and the terms upon which the Notes are issued and are to be authenticated and delivered.

This Security is one of the series of Notes of the Company issued pursuant to the Indenture designated as the 4.20% Senior Notes due 2022 (the “2022 Notes”).

2.     A. The regular record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the applicable date specified as such on the face hereof (whether or not such date shall be a Business Day (as defined below)) immediately preceding such Interest Payment Date. If the Regular Record Date for the first Interest Payment Date occurs on or prior to the issue date of this Note, the Regular Record Date for such first Interest Payment Date shall be deemed the close of business on the day immediately preceding such Interest Payment Date. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. “Business Day” means, with respect to any Place of Payment, any day other than a Legal Holiday.

B.     The Company promises to pay interest on the Principal Amount at the rate per annum shown on the face hereof until the Principal Amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually in arrears on the Interest Payment Dates set forth on the face hereof (each such date, an “Interest Payment Date”), commencing July 15, 2017, and on the Maturity Date. Interest shall accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including January 15, 2017, to but excluding the next succeeding Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. If any payment is required to be made in respect of this Security on a date (including the Maturity Date, a redemption date, a Change of Control Payment Date or an Interest Payment Date) that is not a Business Day, the related payment shall be made on the next succeeding Business Day as if made on the date the payment is due, and no interest shall accrue on such payment for the intervening period.

 

A-5


C.     The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the 2022 Notes and in the amounts set forth in the Registration Rights Agreement.

3.     As long as the 2022 Notes are represented by one or more Global Notes, all payments of interest will be made by the Company in immediately available funds to the accounts specified by the Depositary or a nominee of the Depositary. Otherwise, payments of interest on the 2022 Notes due on Interest Payment Dates will be made by immediately available funds to accounts with financial institutions in the United States specified by the Persons entitled thereto by notice given to the Paying Agent at least ten calendar days prior to the applicable Interest Payment Date or, if no such account is so specified, by check mailed to the Persons entitled thereto. Principal and any premium and (if such day is not an Interest Payment Date) interest payable at the Stated Maturity, on redemption or repayment of a 2022 Note will be paid in immediately available funds upon surrender of such 2022 Note at the Place of Payment. Initially, Wells Fargo Bank, National Association will be the Paying Agent and the Registrar with respect to the 2022 Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and a different Registrar and to approve any change in the office through which any Paying Agent or Registrar acts; provided that the Company shall at all times maintain a Paying Agent and Place of Payment for the 2022 Notes.

4.     At any time and from time to time, the 2022 Notes are redeemable, in whole or in part, at the option of the Company, on notice given as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2022 Notes to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 30 basis points, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

Notwithstanding the foregoing, if the 2022 Notes are redeemed on or after October 15, 2021 (the date that is three months prior to the Maturity Date), the 2022 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the 2022 Notes to be redeemed, plus accrued and unpaid interest to, but not including, the date of redemption.

For purposes of determining the redemption price, the following definitions shall apply:

Comparable Treasury Issue ” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the 2022 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2022 Notes.

Comparable Treasury Price ” means, with respect to any redemption date, (A) the arithmetic average of the four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and lowest such Reference Treasury Dealer Quotations or (B) if the

 

A-6


Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.

Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however , that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

Reference Treasury Dealer ” means each of (i) Citigroup Global Markets Inc. and Wells Fargo Securities, LLC or their respective affiliates that are Primary Treasury Dealers, and, in each case, their respective successors; and (ii) two other Primary Treasury Dealers selected by the Company; provided , however , that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third Business Day preceding such redemption date.

Treasury Rate ” means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication that is published by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the 2022 Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

If less than all of the 2022 Notes are to be redeemed, the 2022 Notes to be redeemed shall be selected in accordance with Section 3.02 of the Indenture.

 

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Notice of redemption shall be given as provided in Section 3.03 of the Indenture. A notice of redemption may not be conditional. The Trustee shall not be responsible for the calculation of the redemption price for any such redemption. The Company shall calculate such redemption price and promptly notify the Trustee thereof.

5.     If an Event of Default with respect to the 2022 Notes shall occur and be continuing, the principal and interest thereon of all of the 2022 Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

6.     The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes of each series under the Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding of each series to be affected thereby on behalf of the Holders of all Notes of such series. In addition, the Indenture permits the Company and the Trustee to enter into supplemental indentures to the Indenture, without the consent of Holders, for certain purposes, including to cure any ambiguity or to correct or supplement any provision contained in the Indenture and to make changes that do not adversely affect the rights of any Holder in any material respect. The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding of each series on behalf of the Holders of all Notes of such series, to waive certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any 2022 Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other 2022 Notes.

7.    No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Security at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.

8.     The authorized denominations of the 2022 Notes are $2,000 and any larger amount that is an integral multiple of $1,000. As provided in the Indenture and except as provided therein and herein, the 2022 Notes are exchangeable for a like aggregate principal amount of 2022 Notes of a different authorized denomination, as requested by the Holder surrendering the same.

9.     As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Note register, upon surrender of this Security for registration of transfer at the office of the Registrar or co-registrar designated by the Company for such purpose. Every 2022 Note presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly authorized in writing.

 

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Prior to due presentment for registration of transfer, the Company, the Trustee, any Paying Agent and any Registrar may treat the Person in whose name this Security is registered as the absolute owner thereof for all purposes (subject to Section 2.A hereof), whether or not such Security is overdue and notwithstanding any notation of ownership or other writing thereon, and neither the Company nor the Trustee nor any Paying Agent nor any Registrar shall be affected by notice to the contrary.

No service charge shall be made for any exchange or registration of transfer of any 2022 Note, with certain exceptions, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

10.     This Security is a Global Note. Accordingly, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of Persons other than participants).

So long as the Depositary or its nominee is the registered owner of this Security, the Depositary or that nominee, as the case may be, will be considered the sole legal owner or Holder of the 2022 Notes represented by this Security for all purposes of the 2022 Notes and the Indenture. Except as provided below, owners of beneficial interests in this Security (1) will not be entitled to have the 2022 Notes represented by this Security registered in their names, (2) will not receive or be entitled to receive physical delivery of certificated securities and (3) will not be considered the owners or Holders of the 2022 Notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee. Accordingly, each Person owning a beneficial interest in this Security must rely on the procedures of the Depositary and, if that Person is not a Depositary participant or indirect participant, on the procedures of the participant through which that Person owns its interest, to exercise any rights of a Holder of 2022 Notes under the Indenture or this Security.

Except as provided in Section 2.14(b) of the Indenture, beneficial interests in this Security may not be exchanged for certificated securities.

Payments with respect to the principal of and interest on this Security will be payable by the Trustee to or at the direction of the Depositary or its nominee in its capacity as the registered Holder of this Security under the Indenture. Under the terms of the Indenture, the Company and the Trustee may treat the Persons in whose names this Security are registered as the owners hereof for the purpose of receiving payment thereon (except as provided in Section 2.A hereof) and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the Paying Agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of beneficial ownership interests in this Security or for maintaining, supervising or

 

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reviewing any records relating to such beneficial ownership interests, (b) the payments to the beneficial owners of this Security of amounts paid to the Depositary or its nominee or (c) any other matter relating to the actions or practices of the Depositary, its nominee or any of its direct or indirect participants.

11.     Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

12.     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE 2022 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

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CERTIFICATE OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

Insert Taxpayer Identification No.:

 

 

Please print or typewrite name and address including zip code of assignee                                          the within 2022 Note and all rights thereunder, and hereby irrevocably constituting and appointing                      attorney to transfer said 2022 Note on the books of the Registrar with full power of substitution in the premises.

Dated:                     

 

NOTICE:

  

 

  

The signature to this assignment must correspond with the name as it appears upon the face of the within 2022 Note in every particular, without alteration or enlargement or any change whatever.

 

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OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this 2022 Note purchased by the Company pursuant to Section 3 of the Ninth Supplemental Indenture, check the box below:

☐  Section 3

If you want to elect to have only part of this 2022 Note purchased by the Company pursuant to Section 3 of the Ninth Supplemental Indenture, state the amount you elect to have purchased:

$         

Date:                     

 

Your Signature:  

 

  (Sign exactly as your name appears on the face of this Note)
Tax Identification No.:                                                   

Signature Guarantee*:                                                  

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

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SCHEDULE OF INCREASES OR DECREASES OF INTERESTS IN THE GLOBAL NOTE

The initial principal amount of this Global Note is $[●]. The following increases or decreases in this Global Note have been made:

 

Date of Exchange

  

Amount of Decrease in

Principal Amount at

Maturity

of this Global Note

  

Amount of Increase in

Principal Amount at

Maturity

of this Global Note

  

Principal Amount at

Maturity

of this Global Note

Following such

decrease (or increase)

  

Signature of

Authorized Signatory

of Trustee or

Custodian

           
           

 

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EXHIBIT B

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF NOTES

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 4.20% Senior Notes due 2022 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry or definitive form by (the “Transferor”). The Transferor has requested the Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:

 

            

  

Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

            

  

Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit C to the Supplemental Indenture setting forth the terms of the Notes pursuant to the Indenture).

            

  

Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

            

  

Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and

 

B-1


  

based upon an opinion of counsel if the Company so requests).

Fill in blank or check appropriate item, as applicable.

 

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Date:                     

 

[INSERT NAME OF TRANSFEROR]

 

By:

 

 

   

Name:

   

Title:

   

Address:

 

B-3


EXHIBIT C

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH

TRANSFERS PURSUANT TO REGULATION S

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 4.20% Senior Notes due 2022 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry form by (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

(a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

(b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not

 

C-1


a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through [Euroclear] [Clearstream].

 

C-2


Date:                     

 

[INSERT NAME OF TRANSFEROR]
  By:  

 

                      Name:
    Title:
    Address:

 

C-3

Exhibit 4.3

TENTH SUPPLEMENTAL INDENTURE

THIS TENTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2017 (this “Supplemental Indenture”), is between The Sherwin-Williams Company , an Ohio corporation (the “Company”), and Wells Fargo Bank, National Association , a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”).

WITNESSETH

WHEREAS, pursuant to the Indenture, dated as of July 31, 2015, between the Company and the Trustee (the “Indenture”), the Company may from time to time issue and sell debt securities in one or more series;

WHEREAS, the Company desires to create and authorize a series of Notes entitled “3.30% Senior Notes due 2025”, limited initially to $235,324,000 in aggregate principal amount (the “2025 Notes”), and to provide the terms and conditions upon which the 2025 Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;

WHEREAS, the 2025 Notes are a series of Notes and are being issued under the Indenture, as supplemented by this Supplemental Indenture, and are subject to the terms contained therein and herein;

WHEREAS, the 2025 Notes are to be substantially in the form attached hereto as Exhibit  A ; and

WHEREAS, all acts and things necessary to make the 2025 Notes, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as provided in this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.

NOW, THEREFORE, in order to declare the terms and conditions upon which the 2025 Notes are executed, registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such 2025 Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and proportionate benefit of the Holders from time to time of the 2025 Notes, as follows:

Section 1.     Definitions . Terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given such terms in the Indenture.

Additional Interest ” means all “Additional Interest” then owing pursuant to the Registration Rights Agreement.

Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as of the time of determination, (a) if the obligation in respect of such Sale/Leaseback Transaction is a


Capital Lease Obligation, the amount of such obligation determined in accordance with GAAP and included in the financial statements of the lessee or (b) if the obligation in respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net Amount of Rent required to be paid by the lessee under such lease during the remaining term thereof (including any period for which the lease has been extended), discounted from the respective due dates thereof to such determination date at the rate per annum borne by the weighted average interest rate per annum borne by the Notes then outstanding under the Indenture compounded semiannually.

Change of Control ” means the occurrence of any of the following:

(1)    the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act) (other than the Company or one of its Subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(2)    the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the assets of its Subsidiaries, taken as a whole, to one or more “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its Subsidiaries);

(3)    the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Voting Stock of the Company outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction;

(4)    the adoption of a plan relating to the liquidation or dissolution of the Company; or

(5)    the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Company immediately prior to that transaction.

 

2


Change of Control Triggering Event ” means the occurrence of both (1) a Change of Control and (2) a Rating Event.

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Company and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the extent included in total assets, in each case as determined on a consolidated basis in accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the Company and its Subsidiaries which may properly be classified as current liabilities (including taxes accrued as estimated); (ii) current Indebtedness and current maturities of long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by Persons other than the Company or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items.

Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Supplemental Indenture, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

Exchange Notes ” means any notes issued in exchange for 2025 Notes pursuant to the Registration Rights Agreement or similar agreement.

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

Net Amount of Rent ” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty,

 

3


such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated.

Permitted Lien ” means, with respect to any Person,

(a)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (including government contracts, but excluding contracts for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure performance, surety or appeal bonds to which such Person is a party or which are otherwise required of such Person, or deposits as security for contested taxes or import duties or for the payment of rent or other obligations of like nature, in each case incurred in the ordinary course of business;

(b)    Liens imposed by law, such as carriers’, warehousemen’s, laborers’, materialmen’s, landlords’, vendors’, workmen’s, operators’, producers’ and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings;

(c)    Liens for property taxes, assessments and other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings;

(d)    survey exceptions, encumbrances, easements, defects, irregularities or deficiencies in title to easements, or reservations of or with respect to, or rights of others for or with respect to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and other similar matters, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that, in all such cases, were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(e)    Liens existing on or provided for under the terms of agreements existing on February 1, 1996;

(f)    Liens on property at the time the Company or any of its Subsidiaries acquired the property or the entity owning such property, including any acquisition by means of a merger or consolidation with or into the Company; provided , however , that any such Lien may not extend to any other property owned by the Company or any of its Subsidiaries;

(g)    Liens securing a Hedging Obligation so long as such Hedging Obligation is of the type customarily entered into in connection with, and is entered into for the purpose of, limiting risk;

(h)    Liens on accounts receivable or inventory to secure working capital or revolving credit indebtedness incurred in the ordinary course of business;

(i)    Purchase Money Liens;

 

4


(j)    Liens securing only Indebtedness of a Wholly Owned Subsidiary of the Company to the Company or one or more Wholly Owned Subsidiaries of the Company;

(k)    Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary of such Person;

(l)    Liens created, assumed or existing in connection with a tax-free financing;

(m)    Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Company or any of its Subsidiaries;

(n)    legal or equitable encumbrances deemed to exist by reason of negative pledges or the existence of any litigation or other legal proceeding and any related lis pendens filing (excluding any attachment prior to judgment, judgment lien or attachment lien in aid of execution on a judgment);

(o)    rights of a common owner of any interest in property held by such Person;

(p)    Liens placed upon any real property owned on the date of this Supplemental Indenture or thereafter acquired by the Company or any of its Subsidiaries securing Indebtedness in an amount up to 80% of the fair market value of such real property;

(q)    Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e) through (l) and (p); provided , however , that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the time the original Lien became a Permitted Lien under this Supplemental Indenture and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Principal Property ” means any manufacturing plant or manufacturing facility, located within the United States of America (other than its territories and possessions), owned or leased by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility or property is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries as an entirety.

Purchase Money Lien ” means a Lien on property securing Indebtedness incurred by the Company or any of its Subsidiaries to provide funds for all or any portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

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Rating Agencies ” means (1) each of Moody’s and S&P and (2) if any of Moody’s and S&P ceases to rate the 2025 Notes or fails to make a rating of the 2025 Notes publicly available for reasons outside of the Company’s control, a Substitute Rating Agency in lieu thereof.

Rating Event ” means the rating on the 2025 Notes is lowered by each of the Rating Agencies and the 2025 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day during the period commencing on the earlier of (i) the occurrence of the Change of Control and (ii) the first public announcement by the Company of any Change of Control and ending 60 days following consummation of such Change of Control (which period will be extended so long as the rating of the 2025 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies); provided that a Rating Event will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the request of the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Registration Rights Agreement ” means the registration rights agreement dated as of the date of this Supplemental Indenture, among the Company, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC.

Regulation S ” means Regulation S promulgated under the Securities Act.

Restricted Notes Legend ” has the meaning set forth in Section 9(d) herein.

Restricted Period ” shall have the meaning set forth in Section 9(c) herein.

Restricted Subsidiary ” means at any time any Subsidiary of the Company (i) substantially all the property of which is located, or substantially all of the business of which is carried on, within the United States of America (other than its territories or possessions) and (ii) that owns or leases a Principal Property or that, in the event of a Sale/Leaseback Transaction, will own or lease a Principal Property.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

S&P ” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., or any successor thereto.

Sale/Leaseback Transaction ” means an arrangement relating to Principal Property owned on the date of this Supplemental Indenture or thereafter acquired whereby the Company or any of its Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any of its Restricted Subsidiaries leases it from such Person.

 

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Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors of the Company).

Transfer Restricted Note ” means any 2025 Note that bears or is required to bear the Restricted Notes Legend.

Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.

U.S. person ” means a “U.S. person” as defined in Regulation S.

Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company or one or more Wholly Owned Subsidiaries.

Section 2.     Creation and Authorization of Series .

(a)    There is hereby created and authorized the following new series of Notes to be issued under the Indenture, to be designated as the “3.30% Senior Notes due 2025.”

(b)    The 2025 Notes shall be limited initially to $235,324,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amount, the Company may, from time to time, without notice to or consent of the Holders of the 2025 Notes, increase the principal amount of the 2025 Notes that may be issued under this Supplemental Indenture and issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same terms (other than the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price), and will carry the same right to receive accrued and unpaid interest, as the 2025 Notes previously issued, and such additional notes will form a single series with the 2025 Notes, including for purposes of voting, redemptions and offers to purchase and will rank equally and ratably with the 2025 Notes previously issued; provided that if such additional notes are not fungible with the 2025 Notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number.

(c)    The date on which the principal is payable on the 2025 Notes shall be as provided in the form of security attached hereto as Exhibit A.

(d)    The 2025 Notes shall bear interest as provided in the form of security attached hereto as Exhibit A. The interest payment dates and the record dates for the determination of Holders of the 2025 Notes to whom such interest is payable shall be as provided in the form of security attached hereto as Exhibit A. Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the 2025 Notes. If Additional Interest is payable on the 2025 Notes, the Company shall provide an Officer’s Certificate to the Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in reasonable detail. The Trustee may provide a copy of such Officer’s Certificate or

 

7


other notice received from the Company relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest. If the Company has paid Additional Interest directly to the applicable Holder, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

(e)    The 2025 Notes shall be redeemable at the option of the Company as set forth in Section 4 of the form of security attached hereto as Exhibit A.

(f)    The 2025 Notes are not entitled to any sinking fund.

(g)    Upon a Change of Control Triggering Event, the Company shall be required to make an offer to repurchase the 2025 Notes as provided in Section 3 of this Supplemental Indenture.

(h)    The 2025 Notes will be issued only in fully registered form, without coupons, in denominations provided in Section 8 of the form of security attached hereto as Exhibit A.

(i)    Article 8 of the Indenture shall be applicable to the 2025 Notes. The covenants described in Sections 3, 4, 5 and 6 of this Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Indenture.

(j)    The 2025 Notes shall be issued in the form of a Global Note substantially in the form of Exhibit A attached hereto. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the 2025 Notes. Additional provisions applicable to the 2025 Notes issued in the form of a Global Note are set forth in Section 10 of the form of 2025 Note attached hereto as Exhibit A. To the extent inconsistent therewith, such provisions supersede the provisions set forth in Section 2.14 of the Indenture.

(k)    The Trustee, initial Paying Agent and Registrar for the 2025 Notes will be Wells Fargo Bank, National Association, and the initial place of payment (“Place of Payment”) will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415, Attn: Corporate Trust Operations.

(l)    The covenants and definitions set forth in the Indenture and the terms set forth in Article 5 of the Indenture shall be applicable to the 2025 Notes.

(m)    Except as otherwise set forth herein and in the 2025 Notes, the terms of the 2025 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.

Section 3.     Purchase of Notes upon a Change of Control Triggering Event .

(a)    If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the 2025 Notes as set forth in Section 4 of the form of security attached hereto

 

8


as Exhibit A, the Company shall be required to make an offer (the “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or any integral multiple of $1,000 in excess thereof) of that Holder’s 2025 Notes on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of 2025 Notes repurchased, plus accrued and unpaid interest, if any, on the 2025 Notes repurchased up to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of the 2025 Notes with a copy to the Trustee describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the 2025 Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or with respect to Global Notes, to the extent permitted or required by the Applicable Procedures, sent electronically) or, if the notice is mailed or sent prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”). The notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

(b)    By 10:00 a.m., Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all 2025 Notes or portions of 2025 Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent (or, if the Company is acting as the Company’s own Paying Agent, segregate and hold in trust) an amount equal to the Change of Control Payment in respect of all 2025 Notes or portions of 2025 Notes properly tendered and (3) deliver or cause to be delivered to the Trustee the 2025 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2025 Notes or portions of 2025 Notes being repurchased.

(c)    The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the rating status of the Company, making any request upon any of the Rating Agencies or any Substitute Rating Agency, or determining whether any Rating Event has occurred.

(d)    The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all 2025 Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any 2025 Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture or this Supplemental Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(e)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2025

 

9


Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 3, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under this Section 3 by virtue of any such conflict.

Section 4.     Limitation on Liens . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, issue, incur, create, assume, guarantee or permit to exist any Indebtedness secured by a Lien on any Principal Property, or shares of capital stock of any Restricted Subsidiary, whether owned on the date of this Supplemental Indenture or thereafter acquired, unless the Company contemporaneously secures the 2025 Notes equally and ratably with (or prior to) such Indebtedness; provided that any Lien created for the benefit of the Holders of the 2025 Notes pursuant to this provision shall be automatically and unconditionally released and discharged upon release and discharge of the Lien that resulted in such provision becoming applicable. The preceding sentence shall not require the Company to secure the 2025 Notes if the Lien consists of the following:

(a)    Permitted Liens; or

(b)    Liens other than Permitted Liens, provided that the aggregate amount of all Indebtedness secured by Liens other than Permitted Liens shall not exceed 20% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of such Lien.

Section 5.     Limitation on Sale and Lease-Back Transactions . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any Principal Property unless (a) the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing Indebtedness in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction without securing the 2025 Notes pursuant to Section 4 of this Supplemental Indenture or (b) the Company, within six months from the effective date of such Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement of the 2025 Notes or other Indebtedness ranking pari passu with the 2025 Notes (excluding retirements as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity) an amount equal to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with a term of less than three years or (y) entering into any Sale/Leaseback Transaction between a Restricted Subsidiary and the Company or between Restricted Subsidiaries.

Section 6.     SEC Reports .

(a)    The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the

 

10


Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or Section 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Company’s publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the date any information, document or report hereunder is required to be filed with the Trustee.

(b)    Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture or this Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.

Section 7.     Events of Default . The Events of Default in Section 6.01 of the Indenture shall be applicable to the 2025 Notes. In addition, the following shall be Events of Default with respect to the 2025 Notes:

(a)    failure to make the required Change of Control Payment when due and payable in accordance with the terms of Section 3 of this Supplemental Indenture; and

(b)    default in the performance or breach of any covenant of the Company in any of Sections 4, 5 or 6 of this Supplemental Indenture, which default continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from Holders of not less than 25% in aggregate principal amount of the 2025 Notes outstanding.

Section 8.     Transfer Restrictions .

(a)    The initial offering and sale of the 2025 Notes shall not be registered under the Securities Act or any state securities laws. The 2025 Notes shall be offered pursuant to exemptions from the registration requirements of the Securities Act in reliance upon Rule 144A and Regulation S promulgated under the Securities Act. For so long as any of the 2025 Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the

 

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Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such 2025 Notes, or to any prospective purchaser of such 2025 Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

(b)    The following provisions shall apply with respect to any proposed transfer of any Transfer Restricted Note prior to the expiration of the holding period applicable to sales of such 2025 Notes under Rule 144, and the Registrar shall refuse to register any transfer of such 2025 Notes not complying with the restrictions set forth in the Restricted Notes Legend and in this Section 8. In addition to the requirements set forth in Section 2.07 of the Indenture, Transfer Restricted Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 2.07 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Registrar may conclusively rely:

 

  (i)

if such Transfer Restricted Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit B hereto);

 

  (ii)

if such Transfer Restricted Notes are being transferred (1) to a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);

 

  (iii)

if such Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or

 

  (iv)

if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Company or the Trustee so requests.

(c)    A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such 2025 Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 8(c).

 

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(d)    The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 2.07 of the Indenture and Section 8 and Section 9 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(e)    If 2025 Notes are issued upon the registration of transfer, exchange or replacement of 2025 Notes not bearing the Restricted Notes Legend, the 2025 Notes so issued shall not bear such legend. If 2025 Notes are issued upon the registration or transfer, exchange or replacement of 2025 Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a 2025 Note, the 2025 Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an opinion of counsel, as may be reasonably required by the Company that neither the Restricted Notes Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such 2025 Notes are not “restricted securities” within the meaning of Rule 144 or that such 2025 Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a 2025 Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of a 2025 Note and the 2025 Note is subsequently held by an Affiliate of the Company, the Restricted Notes Legend shall be reinstated.

(f)    Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the same Global Note.

(g)    Notwithstanding the foregoing, in the event that any Transfer Restricted Notes are exchanged for Exchange Notes in connection with an effective registration statement pursuant to the Registration Rights Agreement, the Company shall issue and, at the direction of the Company, the Trustee shall authenticate the Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the exchange offer, which Exchange Notes shall not bear the Restricted Notes Legend, and the Registrar shall rescind any restriction on the transfer of such Exchange Notes.

Section 9.     Form of Notes/Legends .

(a)    The 2025 Notes are being offered only to (A) Persons reasonably believed to be QIBs in reliance on Rule 144A and (B) non U.S. persons in reliance on Regulation S. Such 2025

 

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Notes may thereafter be transferred to, among others, QIBs, and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Exchange Notes exchanged for interests in the Rule 144A Notes and the Regulation S Notes will be issued in the form of permanent Global Notes deposited with the Trustee as hereinafter provided, including the appropriate legend set forth in the form of security attached as Exhibit A (the “Exchange Global Notes”). The Exchange Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Exchange Global Notes may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate.

(b)    The 2025 Notes offered to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security attached as Exhibit A (the “Rule 144A Global Notes”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, or its nominee, as hereinafter provided.

(c)    The 2025 Notes offered to non U.S. persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security as attached hereto as Exhibit A (the “Regulation S Global Notes” and, together with the Rule 144A Global Notes and the Exchange Global Notes, the “Global Notes”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary. Prior to the 40th day after the date the 2025 Notes are issued (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. The Regulation S Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

(d)    Unless and until (i) a 2025 Note issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) a 2025 Note issued as a Transfer Restricted Note is exchanged for an Exchange Note in connection with an effective registration statement pursuant to the Registration Rights Agreement or (iii) the Company receives an opinion of counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:

 

  (i)

each Transfer Restricted Note shall bear the following legend on the face thereof (the “Restricted Notes Legend”):

 

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

  (ii)

each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH

 

15


OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

Section 10.     Effect of Supplemental Indenture . The provisions of this Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Supplemental Indenture.

Section 11.     Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE 2025 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.     Trustee Not Responsible for Recitals or Issuance of 2025 Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture or of the 2025 Notes other than with respect to the Trustee’s authentication of the 2025 Notes and execution of this Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the 2025 Notes or the proceeds thereof.

Section 13.     Conflict with TIA . If any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provisions shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.

Section 14.     Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals shall be deemed to be their original signatures for all purposes.

[The remainder of this page is left blank intentionally]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

THE SHERWIN-WILLIAMS COMPANY
By:  

/s/ Allen J. Mistysyn

  Name:   Allen J. Mistysyn
  Title:  

Senior Vice President – Finance and

Chief Financial Officer

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee
By:  

/s/ Gregory S. Clarke

  Name:   Gregory S. Clarke
  Title:   Vice President

 

[ Signature Page to Tenth Supplemental Indenture ]


Exhibit A

FORM OF LEGEND FOR GLOBAL NOTE

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.    

[Insert if Global Note: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY]

[FOR TRANSFER RESTRICTED NOTES: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE

 

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SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

Registered

No.

  

THE SHERWIN-WILLIAMS COMPANY

3.30% SENIOR NOTE DUE 2025

  

Registered

Rule 144A CUSIP

Reg S CUSIP

Unrestricted CUSIP

Original Issue Date:

    June 2, 2017

     

Maturity Date:

     February 1, 2025

  

Principal Amount:

    $235,324,000

        

Interest Rate:

    3.30%

     

Specified Currency:

     U.S. Dollars

  

Interest Payment Dates:

    February 1

    August 1

     

Regular Record Dates:

  January 15

  July 15

  

Redemption at Option of the Company:

 

Redemption Date(s)

      

Redemption Price(s)

    
At Any Time      As set forth in Section 4 on the reverse side hereof.   

This security (this “Security”) is a registered security of THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (together with its successors, if any, the “Company”). This

 

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Security is one of a series of Notes (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as the 3.30% Senior Notes due 2025. Subject to the provisions hereof, the Company, for value received, hereby promises to pay to [●] [Insert if Global Note: CEDE & CO.], or registered assigns, the Principal Amount set forth on the face hereof [Insert if Global Note: or such amount as may be set forth on the Schedule of Increases or Decreases of Interests in the Global Note attached hereto] on the Maturity Date shown above and to pay the premium, if any, and interest thereon, as described on the reverse hereof.

The principal of (and premium, if any) and interest on this Security are payable by the Company in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture by an authorized signatory thereof, this Security shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.

[The remainder of this page is left blank intentionally]

 

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THE SHERWIN-WILLIAMS COMPANY

Dated:

     
   

By:

 

 

     

Name:

     

Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein and referred to in the within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

By:

 

 

  Authorized Signatory

 

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REVERSE OF SECURITY

THE SHERWIN-WILLIAMS COMPANY

3.30% SENIOR NOTE DUE 2025

1.     This Security is one of the duly authorized issue of notes or other debt instruments (hereinafter called the “Notes”) of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of July 31, 2015, between the Company and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America (herein called the “Trustee”) and the Tenth Supplemental Indenture, dated as of June 2, 2017, between the Company and the Trustee (collectively, the “Indenture”), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee or the Company, any Paying Agent for this Security, the Company and the Holders of the Notes and the terms upon which the Notes are issued and are to be authenticated and delivered.

This Security is one of the series of Notes of the Company issued pursuant to the Indenture designated as the 3.30% Senior Notes due 2025 (the “2025 Notes”).

2.     A. The regular record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the applicable date specified as such on the face hereof (whether or not such date shall be a Business Day (as defined below)) immediately preceding such Interest Payment Date. If the Regular Record Date for the first Interest Payment Date occurs on or prior to the issue date of this Note, the Regular Record Date for such first Interest Payment Date shall be deemed the close of business on the day immediately preceding such Interest Payment Date. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. “Business Day” means, with respect to any Place of Payment, any day other than a Legal Holiday.

B.     The Company promises to pay interest on the Principal Amount at the rate per annum shown on the face hereof until the Principal Amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually in arrears on the Interest Payment Dates set forth on the face hereof (each such date, an “Interest Payment Date”), commencing August 1, 2017, and on the Maturity Date. Interest shall accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including February 1, 2017, to but excluding the next succeeding Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. If any payment is required to be made in respect of this Security on a date (including the Maturity Date, a redemption date, a Change of Control Payment Date or an Interest Payment Date) that is not a Business Day, the related payment shall be made on the next succeeding Business Day as if made on the date the payment is due, and no interest shall accrue on such payment for the intervening period.

 

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C.     The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the 2025 Notes and in the amounts set forth in the Registration Rights Agreement.

3.     As long as the 2025 Notes are represented by one or more Global Notes, all payments of interest will be made by the Company in immediately available funds to the accounts specified by the Depositary or a nominee of the Depositary. Otherwise, payments of interest on the 2025 Notes due on Interest Payment Dates will be made by immediately available funds to accounts with financial institutions in the United States specified by the Persons entitled thereto by notice given to the Paying Agent at least ten calendar days prior to the applicable Interest Payment Date or, if no such account is so specified, by check mailed to the Persons entitled thereto. Principal and any premium and (if such day is not an Interest Payment Date) interest payable at the Stated Maturity, on redemption or repayment of a 2025 Note will be paid in immediately available funds upon surrender of such 2025 Note at the Place of Payment. Initially, Wells Fargo Bank, National Association will be the Paying Agent and the Registrar with respect to the 2025 Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and a different Registrar and to approve any change in the office through which any Paying Agent or Registrar acts; provided that the Company shall at all times maintain a Paying Agent and Place of Payment for the 2025 Notes.

4.     At any time and from time to time, the 2025 Notes are redeemable, in whole or in part, at the option of the Company, on notice given as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2025 Notes to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 25 basis points, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

Notwithstanding the foregoing, if the 2025 Notes are redeemed on or after November 1, 2024 (the date that is three months prior to the Maturity Date), the 2025 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the 2025 Notes to be redeemed, plus accrued and unpaid interest to, but not including, the date of redemption.

For purposes of determining the redemption price, the following definitions shall apply:

Comparable Treasury Issue ” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the 2025 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2025 Notes.

Comparable Treasury Price ” means, with respect to any redemption date, (A) the arithmetic average of the four Reference Treasury Dealer Quotations for such redemption date,

 

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after excluding the highest and lowest such Reference Treasury Dealer Quotations or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.

Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however , that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

Reference Treasury Dealer ” means each of (i) Citigroup Global Markets Inc. and Wells Fargo Securities, LLC or their respective affiliates that are Primary Treasury Dealers, and, in each case, their respective successors; and (ii) two other Primary Treasury Dealers selected by the Company; provided , however , that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third Business Day preceding such redemption date.

Treasury Rate ” means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication that is published by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the 2025 Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

If less than all of the 2025 Notes are to be redeemed, the 2025 Notes to be redeemed shall be selected in accordance with Section 3.02 of the Indenture.

 

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Notice of redemption shall be given as provided in Section 3.03 of the Indenture. A notice of redemption may not be conditional. The Trustee shall not be responsible for the calculation of the redemption price for any such redemption. The Company shall calculate such redemption price and promptly notify the Trustee thereof.

5.     If an Event of Default with respect to the 2025 Notes shall occur and be continuing, the principal and interest thereon of all of the 2025 Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

6.     The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes of each series under the Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding of each series to be affected thereby on behalf of the Holders of all Notes of such series. In addition, the Indenture permits the Company and the Trustee to enter into supplemental indentures to the Indenture, without the consent of Holders, for certain purposes, including to cure any ambiguity or to correct or supplement any provision contained in the Indenture and to make changes that do not adversely affect the rights of any Holder in any material respect. The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding of each series on behalf of the Holders of all Notes of such series, to waive certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any 2025 Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other 2025 Notes.

7.    No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Security at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.

8.     The authorized denominations of the 2025 Notes are $2,000 and any larger amount that is an integral multiple of $1,000. As provided in the Indenture and except as provided therein and herein, the 2025 Notes are exchangeable for a like aggregate principal amount of 2025 Notes of a different authorized denomination, as requested by the Holder surrendering the same.

9.     As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Note register, upon surrender of this Security for registration of transfer at the office of the Registrar or co-registrar designated by the Company for such purpose. Every 2025 Note presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly authorized in writing.

 

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Prior to due presentment for registration of transfer, the Company, the Trustee, any Paying Agent and any Registrar may treat the Person in whose name this Security is registered as the absolute owner thereof for all purposes (subject to Section 2.A hereof), whether or not such Security is overdue and notwithstanding any notation of ownership or other writing thereon, and neither the Company nor the Trustee nor any Paying Agent nor any Registrar shall be affected by notice to the contrary.

No service charge shall be made for any exchange or registration of transfer of any 2025 Note, with certain exceptions, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

10.     This Security is a Global Note. Accordingly, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of Persons other than participants).

So long as the Depositary or its nominee is the registered owner of this Security, the Depositary or that nominee, as the case may be, will be considered the sole legal owner or Holder of the 2025 Notes represented by this Security for all purposes of the 2025 Notes and the Indenture. Except as provided below, owners of beneficial interests in this Security (1) will not be entitled to have the 2025 Notes represented by this Security registered in their names, (2) will not receive or be entitled to receive physical delivery of certificated securities and (3) will not be considered the owners or Holders of the 2025 Notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee. Accordingly, each Person owning a beneficial interest in this Security must rely on the procedures of the Depositary and, if that Person is not a Depositary participant or indirect participant, on the procedures of the participant through which that Person owns its interest, to exercise any rights of a Holder of 2025 Notes under the Indenture or this Security.

Except as provided in Section 2.14(b) of the Indenture, beneficial interests in this Security may not be exchanged for certificated securities.

Payments with respect to the principal of and interest on this Security will be payable by the Trustee to or at the direction of the Depositary or its nominee in its capacity as the registered Holder of this Security under the Indenture. Under the terms of the Indenture, the Company and the Trustee may treat the Persons in whose names this Security are registered as the owners hereof for the purpose of receiving payment thereon (except as provided in Section 2.A hereof) and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the Paying Agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of beneficial ownership interests in this Security or for maintaining, supervising or

 

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reviewing any records relating to such beneficial ownership interests, (b) the payments to the beneficial owners of this Security of amounts paid to the Depositary or its nominee or (c) any other matter relating to the actions or practices of the Depositary, its nominee or any of its direct or indirect participants.

11.     Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

12.     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE 2025 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

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CERTIFICATE OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

Insert Taxpayer Identification No.:

 

 

Please print or typewrite name and address including zip code of assignee                                          the within 2025 Note and all rights thereunder, and hereby irrevocably constituting and appointing                      attorney to transfer said 2025 Note on the books of the Registrar with full power of substitution in the premises.

Dated:                     

 

NOTICE:

  

 

  

The signature to this assignment must correspond with the name as it appears upon the face of the within 2025 Note in every particular, without alteration or enlargement or any change whatever.

 

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OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this 2025 Note purchased by the Company pursuant to Section 3 of the Tenth Supplemental Indenture, check the box below:

☐  Section 3

If you want to elect to have only part of this 2025 Note purchased by the Company pursuant to Section 3 of the Tenth Supplemental Indenture, state the amount you elect to have purchased:

$         

Date:                     

 

Your Signature:  

 

  (Sign exactly as your name appears on the face of this Note)
Tax Identification No.:                                                   

Signature Guarantee*:                                                  

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

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SCHEDULE OF INCREASES OR DECREASES OF INTERESTS IN THE GLOBAL NOTE

The initial principal amount of this Global Note is $[●]. The following increases or decreases in this Global Note have been made:

 

Date of Exchange

 

Amount of Decrease in
Principal Amount at

Maturity

of this Global Note

 

Amount of Increase in
Principal Amount at

Maturity
of this Global Note

 

Principal Amount at

Maturity
of this Global Note
Following such

decrease (or increase)

 

Signature of
Authorized Signatory
of Trustee or
Custodian

       
       

 

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EXHIBIT B

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF NOTES

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 3.30% Senior Notes due 2025 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $          principal amount of Notes held in book-entry or definitive form by (the “Transferor”). The Transferor has requested the Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:

 

            

  

Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

            

  

Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit C to the Supplemental Indenture setting forth the terms of the Notes pursuant to the Indenture).

            

  

Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

            

  

Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and

 

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based upon an opinion of counsel if the Company so requests).

Fill in blank or check appropriate item, as applicable.

 

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Date:                     

 

[INSERT NAME OF TRANSFEROR]

By:

 

 

 

Name:

 

Title:

 

Address:

 

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EXHIBIT C

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH

TRANSFERS PURSUANT TO REGULATION S

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 3.30% Senior Notes due 2025 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry form by (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

(a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

(b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not

 

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a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through [Euroclear] [Clearstream].

 

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Date:                     

 

[INSERT NAME OF TRANSFEROR]

By:

 

 

 

Name:

 

Title:

 

Address:

 

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Exhibit 4.4

ELEVENTH SUPPLEMENTAL INDENTURE

THIS ELEVENTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2017 (this “Supplemental Indenture”), is between The Sherwin-Williams Company , an Ohio corporation (the “Company”), and Wells Fargo Bank, National Association , a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”).

WITNESSETH

WHEREAS, pursuant to the Indenture, dated as of July 31, 2015, between the Company and the Trustee (the “Indenture”), the Company may from time to time issue and sell debt securities in one or more series;

WHEREAS, the Company desires to create and authorize a series of Notes entitled “3.95% Senior Notes due 2026”, limited initially to $331,342,000 in aggregate principal amount (the “2026 Notes”), and to provide the terms and conditions upon which the 2026 Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;

WHEREAS, the 2026 Notes are a series of Notes and are being issued under the Indenture, as supplemented by this Supplemental Indenture, and are subject to the terms contained therein and herein;

WHEREAS, the 2026 Notes are to be substantially in the form attached hereto as Exhibit  A ; and

WHEREAS, all acts and things necessary to make the 2026 Notes, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as provided in this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.

NOW, THEREFORE, in order to declare the terms and conditions upon which the 2026 Notes are executed, registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such 2026 Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and proportionate benefit of the Holders from time to time of the 2026 Notes, as follows:

Section 1.     Definitions . Terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given such terms in the Indenture.

Additional Interest ” means all “Additional Interest” then owing pursuant to the Registration Rights Agreement.

Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as of the time of determination, (a) if the obligation in respect of such Sale/Leaseback Transaction is a


Capital Lease Obligation, the amount of such obligation determined in accordance with GAAP and included in the financial statements of the lessee or (b) if the obligation in respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net Amount of Rent required to be paid by the lessee under such lease during the remaining term thereof (including any period for which the lease has been extended), discounted from the respective due dates thereof to such determination date at the rate per annum borne by the weighted average interest rate per annum borne by the Notes then outstanding under the Indenture compounded semiannually.

Change of Control ” means the occurrence of any of the following:

(1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act) (other than the Company or one of its Subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the assets of its Subsidiaries, taken as a whole, to one or more “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its Subsidiaries);

(3) the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Voting Stock of the Company outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction;

(4) the adoption of a plan relating to the liquidation or dissolution of the Company; or

(5) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Company immediately prior to that transaction.

 

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Change of Control Triggering Event ” means the occurrence of both (1) a Change of Control and (2) a Rating Event.

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Company and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the extent included in total assets, in each case as determined on a consolidated basis in accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the Company and its Subsidiaries which may properly be classified as current liabilities (including taxes accrued as estimated); (ii) current Indebtedness and current maturities of long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by Persons other than the Company or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items.

Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Supplemental Indenture, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

Exchange Notes ” means any notes issued in exchange for 2026 Notes pursuant to the Registration Rights Agreement or similar agreement.

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

Net Amount of Rent ” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty,

 

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such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated.

Permitted Lien ” means, with respect to any Person,

(a)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (including government contracts, but excluding contracts for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure performance, surety or appeal bonds to which such Person is a party or which are otherwise required of such Person, or deposits as security for contested taxes or import duties or for the payment of rent or other obligations of like nature, in each case incurred in the ordinary course of business;

(b)    Liens imposed by law, such as carriers’, warehousemen’s, laborers’, materialmen’s, landlords’, vendors’, workmen’s, operators’, producers’ and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings;

(c)    Liens for property taxes, assessments and other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings;

(d)    survey exceptions, encumbrances, easements, defects, irregularities or deficiencies in title to easements, or reservations of or with respect to, or rights of others for or with respect to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and other similar matters, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that, in all such cases, were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(e)    Liens existing on or provided for under the terms of agreements existing on February 1, 1996;

(f)    Liens on property at the time the Company or any of its Subsidiaries acquired the property or the entity owning such property, including any acquisition by means of a merger or consolidation with or into the Company; provided , however , that any such Lien may not extend to any other property owned by the Company or any of its Subsidiaries;

(g)    Liens securing a Hedging Obligation so long as such Hedging Obligation is of the type customarily entered into in connection with, and is entered into for the purpose of, limiting risk;

(h)    Liens on accounts receivable or inventory to secure working capital or revolving credit indebtedness incurred in the ordinary course of business;

(i)    Purchase Money Liens;

 

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(j)    Liens securing only Indebtedness of a Wholly Owned Subsidiary of the Company to the Company or one or more Wholly Owned Subsidiaries of the Company;

(k)    Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary of such Person;

(l)    Liens created, assumed or existing in connection with a tax-free financing;

(m)    Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Company or any of its Subsidiaries;

(n)    legal or equitable encumbrances deemed to exist by reason of negative pledges or the existence of any litigation or other legal proceeding and any related lis pendens filing (excluding any attachment prior to judgment, judgment lien or attachment lien in aid of execution on a judgment);

(o)    rights of a common owner of any interest in property held by such Person;

(p)    Liens placed upon any real property owned on the date of this Supplemental Indenture or thereafter acquired by the Company or any of its Subsidiaries securing Indebtedness in an amount up to 80% of the fair market value of such real property;

(q)    Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e) through (l) and (p); provided , however , that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the time the original Lien became a Permitted Lien under this Supplemental Indenture and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Principal Property ” means any manufacturing plant or manufacturing facility, located within the United States of America (other than its territories and possessions), owned or leased by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility or property is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries as an entirety.

Purchase Money Lien ” means a Lien on property securing Indebtedness incurred by the Company or any of its Subsidiaries to provide funds for all or any portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

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Rating Agencies ” means (1) each of Moody’s and S&P and (2) if any of Moody’s and S&P ceases to rate the 2026 Notes or fails to make a rating of the 2026 Notes publicly available for reasons outside of the Company’s control, a Substitute Rating Agency in lieu thereof.

Rating Event ” means the rating on the 2026 Notes is lowered by each of the Rating Agencies and the 2026 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day during the period commencing on the earlier of (i) the occurrence of the Change of Control and (ii) the first public announcement by the Company of any Change of Control and ending 60 days following consummation of such Change of Control (which period will be extended so long as the rating of the 2026 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies); provided that a Rating Event will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the request of the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Registration Rights Agreement ” means the registration rights agreement dated as of the date of this Supplemental Indenture, among the Company, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC.

Regulation S ” means Regulation S promulgated under the Securities Act.

Restricted Notes Legend ” has the meaning set forth in Section 9(d) herein.

Restricted Period ” shall have the meaning set forth in Section 9(c) herein.

Restricted Subsidiary ” means at any time any Subsidiary of the Company (i) substantially all the property of which is located, or substantially all of the business of which is carried on, within the United States of America (other than its territories or possessions) and (ii) that owns or leases a Principal Property or that, in the event of a Sale/Leaseback Transaction, will own or lease a Principal Property.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

S&P ” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., or any successor thereto.

Sale/Leaseback Transaction ” means an arrangement relating to Principal Property owned on the date of this Supplemental Indenture or thereafter acquired whereby the Company or any of its Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any of its Restricted Subsidiaries leases it from such Person.

 

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Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors of the Company).

Transfer Restricted Note ” means any 2026 Note that bears or is required to bear the Restricted Notes Legend.

Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.

U.S. person ” means a “U.S. person” as defined in Regulation S.

Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company or one or more Wholly Owned Subsidiaries.

Section 2.     Creation and Authorization of Series .

(a)    There is hereby created and authorized the following new series of Notes to be issued under the Indenture, to be designated as the “3.95% Senior Notes due 2026.”

(b)    The 2026 Notes shall be limited initially to $331,342,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amount, the Company may, from time to time, without notice to or consent of the Holders of the 2026 Notes, increase the principal amount of the 2026 Notes that may be issued under this Supplemental Indenture and issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same terms (other than the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price), and will carry the same right to receive accrued and unpaid interest, as the 2026 Notes previously issued, and such additional notes will form a single series with the 2026 Notes, including for purposes of voting, redemptions and offers to purchase and will rank equally and ratably with the 2026 Notes previously issued; provided that if such additional notes are not fungible with the 2026 Notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number.

(c)    The date on which the principal is payable on the 2026 Notes shall be as provided in the form of security attached hereto as Exhibit A.

(d)    The 2026 Notes shall bear interest as provided in the form of security attached hereto as Exhibit A. The interest payment dates and the record dates for the determination of Holders of the 2026 Notes to whom such interest is payable shall be as provided in the form of security attached hereto as Exhibit A. Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the 2026 Notes. If Additional Interest is payable on the 2026 Notes, the Company shall provide an Officer’s Certificate to the Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in reasonable detail. The Trustee may provide a copy of such Officer’s Certificate or

 

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other notice received from the Company relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest. If the Company has paid Additional Interest directly to the applicable Holder, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

(e)    The 2026 Notes shall be redeemable at the option of the Company as set forth in Section 4 of the form of security attached hereto as Exhibit A.

(f)    The 2026 Notes are not entitled to any sinking fund.

(g)    Upon a Change of Control Triggering Event, the Company shall be required to make an offer to repurchase the 2026 Notes as provided in Section 3 of this Supplemental Indenture.

(h)    The 2026 Notes will be issued only in fully registered form, without coupons, in denominations provided in Section 8 of the form of security attached hereto as Exhibit A.

(i)    Article 8 of the Indenture shall be applicable to the 2026 Notes. The covenants described in Sections 3, 4, 5 and 6 of this Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Indenture.

(j)    The 2026 Notes shall be issued in the form of a Global Note substantially in the form of Exhibit A attached hereto. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the 2026 Notes. Additional provisions applicable to the 2026 Notes issued in the form of a Global Note are set forth in Section 10 of the form of 2026 Note attached hereto as Exhibit A. To the extent inconsistent therewith, such provisions supersede the provisions set forth in Section 2.14 of the Indenture.

(k)    The Trustee, initial Paying Agent and Registrar for the 2026 Notes will be Wells Fargo Bank, National Association, and the initial place of payment (“Place of Payment”) will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415, Attn: Corporate Trust Operations.

(l)    The covenants and definitions set forth in the Indenture and the terms set forth in Article 5 of the Indenture shall be applicable to the 2026 Notes.

(m)    Except as otherwise set forth herein and in the 2026 Notes, the terms of the 2026 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.

Section 3.     Purchase of Notes upon a Change of Control Triggering Event .

(a)    If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the 2026 Notes as set forth in Section 4 of the form of security attached hereto

 

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as Exhibit A, the Company shall be required to make an offer (the “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or any integral multiple of $1,000 in excess thereof) of that Holder’s 2026 Notes on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of 2026 Notes repurchased, plus accrued and unpaid interest, if any, on the 2026 Notes repurchased up to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of the 2026 Notes with a copy to the Trustee describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the 2026 Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or with respect to Global Notes, to the extent permitted or required by the Applicable Procedures, sent electronically) or, if the notice is mailed or sent prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”). The notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

(b)    By 10:00 a.m., Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all 2026 Notes or portions of 2026 Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent (or, if the Company is acting as the Company’s own Paying Agent, segregate and hold in trust) an amount equal to the Change of Control Payment in respect of all 2026 Notes or portions of 2026 Notes properly tendered and (3) deliver or cause to be delivered to the Trustee the 2026 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2026 Notes or portions of 2026 Notes being repurchased.

(c)    The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the rating status of the Company, making any request upon any of the Rating Agencies or any Substitute Rating Agency, or determining whether any Rating Event has occurred.

(d)    The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all 2026 Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any 2026 Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture or this Supplemental Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(e)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2026

 

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Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 3, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under this Section 3 by virtue of any such conflict.

Section 4.     Limitation on Liens . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, issue, incur, create, assume, guarantee or permit to exist any Indebtedness secured by a Lien on any Principal Property, or shares of capital stock of any Restricted Subsidiary, whether owned on the date of this Supplemental Indenture or thereafter acquired, unless the Company contemporaneously secures the 2026 Notes equally and ratably with (or prior to) such Indebtedness; provided that any Lien created for the benefit of the Holders of the 2026 Notes pursuant to this provision shall be automatically and unconditionally released and discharged upon release and discharge of the Lien that resulted in such provision becoming applicable. The preceding sentence shall not require the Company to secure the 2026 Notes if the Lien consists of the following:

(a)    Permitted Liens; or

(b)    Liens other than Permitted Liens, provided that the aggregate amount of all Indebtedness secured by Liens other than Permitted Liens shall not exceed 20% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of such Lien.

Section 5.     Limitation on Sale and Lease-Back Transactions . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any Principal Property unless (a) the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing Indebtedness in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction without securing the 2026 Notes pursuant to Section 4 of this Supplemental Indenture or (b) the Company, within six months from the effective date of such Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement of the 2026 Notes or other Indebtedness ranking pari passu with the 2026 Notes (excluding retirements as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity) an amount equal to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with a term of less than three years or (y) entering into any Sale/Leaseback Transaction between a Restricted Subsidiary and the Company or between Restricted Subsidiaries.

Section 6.     SEC Reports .

(a)    The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the

 

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Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or Section 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Company’s publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the date any information, document or report hereunder is required to be filed with the Trustee.

(b)    Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture or this Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.

Section 7.     Events of Default . The Events of Default in Section 6.01 of the Indenture shall be applicable to the 2026 Notes. In addition, the following shall be Events of Default with respect to the 2026 Notes:

(a)    failure to make the required Change of Control Payment when due and payable in accordance with the terms of Section 3 of this Supplemental Indenture; and

(b)    default in the performance or breach of any covenant of the Company in any of Sections 4, 5 or 6 of this Supplemental Indenture, which default continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from Holders of not less than 25% in aggregate principal amount of the 2026 Notes outstanding.

Section 8.     Transfer Restrictions .

(a)    The initial offering and sale of the 2026 Notes shall not be registered under the Securities Act or any state securities laws. The 2026 Notes shall be offered pursuant to exemptions from the registration requirements of the Securities Act in reliance upon Rule 144A and Regulation S promulgated under the Securities Act. For so long as any of the 2026 Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the

 

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Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such 2026 Notes, or to any prospective purchaser of such 2026 Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

(b)    The following provisions shall apply with respect to any proposed transfer of any Transfer Restricted Note prior to the expiration of the holding period applicable to sales of such 2026 Notes under Rule 144, and the Registrar shall refuse to register any transfer of such 2026 Notes not complying with the restrictions set forth in the Restricted Notes Legend and in this Section 8. In addition to the requirements set forth in Section 2.07 of the Indenture, Transfer Restricted Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 2.07 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Registrar may conclusively rely:

 

  (i)

if such Transfer Restricted Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit B hereto);

 

  (ii)

if such Transfer Restricted Notes are being transferred (1) to a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);

 

  (iii)

if such Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or

 

  (iv)

if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Company or the Trustee so requests.

(c)    A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such 2026 Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 8(c).

 

12


(d)    The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 2.07 of the Indenture and Section 8 and Section 9 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(e)    If 2026 Notes are issued upon the registration of transfer, exchange or replacement of 2026 Notes not bearing the Restricted Notes Legend, the 2026 Notes so issued shall not bear such legend. If 2026 Notes are issued upon the registration or transfer, exchange or replacement of 2026 Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a 2026 Note, the 2026 Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an opinion of counsel, as may be reasonably required by the Company that neither the Restricted Notes Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such 2026 Notes are not “restricted securities” within the meaning of Rule 144 or that such 2026 Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a 2026 Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of a 2026 Note and the 2026 Note is subsequently held by an Affiliate of the Company, the Restricted Notes Legend shall be reinstated.

(f)    Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the same Global Note.

(g)    Notwithstanding the foregoing, in the event that any Transfer Restricted Notes are exchanged for Exchange Notes in connection with an effective registration statement pursuant to the Registration Rights Agreement, the Company shall issue and, at the direction of the Company, the Trustee shall authenticate the Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the exchange offer, which Exchange Notes shall not bear the Restricted Notes Legend, and the Registrar shall rescind any restriction on the transfer of such Exchange Notes.

Section 9.     Form of Notes/Legends .

(a)    The 2026 Notes are being offered only to (A) Persons reasonably believed to be QIBs in reliance on Rule 144A and (B) non U.S. persons in reliance on Regulation S. Such 2026

 

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Notes may thereafter be transferred to, among others, QIBs, and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Exchange Notes exchanged for interests in the Rule 144A Notes and the Regulation S Notes will be issued in the form of permanent Global Notes deposited with the Trustee as hereinafter provided, including the appropriate legend set forth in the form of security attached as Exhibit A (the “Exchange Global Notes”). The Exchange Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Exchange Global Notes may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate.

(b)    The 2026 Notes offered to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security attached as Exhibit A (the “Rule 144A Global Notes”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, or its nominee, as hereinafter provided.

(c)    The 2026 Notes offered to non U.S. persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security as attached hereto as Exhibit A (the “Regulation S Global Notes” and, together with the Rule 144A Global Notes and the Exchange Global Notes, the “Global Notes”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary. Prior to the 40th day after the date the 2026 Notes are issued (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. The Regulation S Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

(d)    Unless and until (i) a 2026 Note issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) a 2026 Note issued as a Transfer Restricted Note is exchanged for an Exchange Note in connection with an effective registration statement pursuant to the Registration Rights Agreement or (iii) the Company receives an opinion of counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:

 

  (i)

each Transfer Restricted Note shall bear the following legend on the face thereof (the “Restricted Notes Legend”):

 

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

  (ii)

each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH

 

15


OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

Section 10.     Effect of Supplemental Indenture . The provisions of this Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Supplemental Indenture.

Section 11.     Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE 2026 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.     Trustee Not Responsible for Recitals or Issuance of 2026 Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture or of the 2026 Notes other than with respect to the Trustee’s authentication of the 2026 Notes and execution of this Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the 2026 Notes or the proceeds thereof.

Section 13.     Conflict with TIA . If any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provisions shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.

Section 14.     Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals shall be deemed to be their original signatures for all purposes.

[The remainder of this page is left blank intentionally]

 

16


IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

THE SHERWIN-WILLIAMS COMPANY

By:

 

/s/ Allen J. Mistysyn

 

Name:

 

Allen J. Mistysyn

 

Title:

 

Senior Vice President – Finance and

Chief Financial Officer

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:

 

/s/ Gregory S. Clarke

 

Name:

 

Gregory S. Clarke

 

Title:

 

Vice President

 

[ Signature Page to Eleventh Supplemental Indenture ]


Exhibit A

FORM OF LEGEND FOR GLOBAL NOTE

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

[Insert if Global Note: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY]

[FOR TRANSFER RESTRICTED NOTES: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE

 

A-1


SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

Registered

No.

  

THE SHERWIN-WILLIAMS COMPANY

3.95% SENIOR NOTE DUE 2026

  

Registered

Rule 144A CUSIP

Reg S CUSIP

Unrestricted CUSIP

Original Issue Date:

    June 2, 2017

     

Maturity Date:

    January 15, 2026

  

Principal Amount:

    $331,342,000

        

Interest Rate:

    3.95%

     

Specified Currency:

    U.S. Dollars

  

Interest Payment Dates:

    January 15

    July 15

     

Regular Record Dates:

  January 1

  July 1

  

Redemption at Option of the Company:

 

Redemption Date(s)

       

Redemption Price(s)

    
At Any Time       As set forth in Section 4 on the reverse side hereof.   

This security (this “Security”) is a registered security of THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (together with its successors, if any, the “Company”). This

 

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Security is one of a series of Notes (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as the 3.95% Senior Notes due 2026. Subject to the provisions hereof, the Company, for value received, hereby promises to pay to [●] [Insert if Global Note: CEDE & CO.], or registered assigns, the Principal Amount set forth on the face hereof [Insert if Global Note: or such amount as may be set forth on the Schedule of Increases or Decreases of Interests in the Global Note attached hereto] on the Maturity Date shown above and to pay the premium, if any, and interest thereon, as described on the reverse hereof.

The principal of (and premium, if any) and interest on this Security are payable by the Company in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture by an authorized signatory thereof, this Security shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.

[The remainder of this page is left blank intentionally]

 

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THE SHERWIN-WILLIAMS COMPANY

Dated:                    

     
   

By:

 

 

     

Name:

     

Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein and referred to in the within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

By:

 

 

  Authorized Signatory

 

A-4


REVERSE OF SECURITY

THE SHERWIN-WILLIAMS COMPANY

3.95% SENIOR NOTE DUE 2026

1.     This Security is one of the duly authorized issue of notes or other debt instruments (hereinafter called the “Notes”) of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of July 31, 2015, between the Company and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America (herein called the “Trustee”) and the Eleventh Supplemental Indenture, dated as of June 2, 2017, between the Company and the Trustee (collectively, the “Indenture”), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee or the Company, any Paying Agent for this Security, the Company and the Holders of the Notes and the terms upon which the Notes are issued and are to be authenticated and delivered.

This Security is one of the series of Notes of the Company issued pursuant to the Indenture designated as the 3.95% Senior Notes due 2026 (the “2026 Notes”).

2.     A. The regular record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the applicable date specified as such on the face hereof (whether or not such date shall be a Business Day (as defined below)) immediately preceding such Interest Payment Date. If the Regular Record Date for the first Interest Payment Date occurs on or prior to the issue date of this Note, the Regular Record Date for such first Interest Payment Date shall be deemed the close of business on the day immediately preceding such Interest Payment Date. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. “Business Day” means, with respect to any Place of Payment, any day other than a Legal Holiday.

B.     The Company promises to pay interest on the Principal Amount at the rate per annum shown on the face hereof until the Principal Amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually in arrears on the Interest Payment Dates set forth on the face hereof (each such date, an “Interest Payment Date”), commencing July 15, 2017, and on the Maturity Date. Interest shall accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including January 15, 2017, to but excluding the next succeeding Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. If any payment is required to be made in respect of this Security on a date (including the Maturity Date, a redemption date, a Change of Control Payment Date or an Interest Payment Date) that is not a Business Day, the related payment shall be made on the next succeeding Business Day as if made on the date the payment is due, and no interest shall accrue on such payment for the intervening period.

 

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C.     The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the 2026 Notes and in the amounts set forth in the Registration Rights Agreement.

3.     As long as the 2026 Notes are represented by one or more Global Notes, all payments of interest will be made by the Company in immediately available funds to the accounts specified by the Depositary or a nominee of the Depositary. Otherwise, payments of interest on the 2026 Notes due on Interest Payment Dates will be made by immediately available funds to accounts with financial institutions in the United States specified by the Persons entitled thereto by notice given to the Paying Agent at least ten calendar days prior to the applicable Interest Payment Date or, if no such account is so specified, by check mailed to the Persons entitled thereto. Principal and any premium and (if such day is not an Interest Payment Date) interest payable at the Stated Maturity, on redemption or repayment of a 2026 Note will be paid in immediately available funds upon surrender of such 2026 Note at the Place of Payment. Initially, Wells Fargo Bank, National Association will be the Paying Agent and the Registrar with respect to the 2026 Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and a different Registrar and to approve any change in the office through which any Paying Agent or Registrar acts; provided that the Company shall at all times maintain a Paying Agent and Place of Payment for the 2026 Notes.

4.     At any time and from time to time, the 2026 Notes are redeemable, in whole or in part, at the option of the Company, on notice given as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2026 Notes to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 25 basis points, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

Notwithstanding the foregoing, if the 2026 Notes are redeemed on or after October 15, 2025 (the date that is three months prior to the Maturity Date), the 2026 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the 2026 Notes to be redeemed, plus accrued and unpaid interest to, but not including, the date of redemption.

For purposes of determining the redemption price, the following definitions shall apply:

Comparable Treasury Issue ” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the 2026 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2026 Notes.

Comparable Treasury Price ” means, with respect to any redemption date, (A) the arithmetic average of the four Reference Treasury Dealer Quotations for such redemption date,

 

A-6


after excluding the highest and lowest such Reference Treasury Dealer Quotations or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.

Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however , that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

Reference Treasury Dealer ” means each of (i) Citigroup Global Markets Inc. and Wells Fargo Securities, LLC or their respective affiliates that are Primary Treasury Dealers, and, in each case, their respective successors; and (ii) two other Primary Treasury Dealers selected by the Company; provided , however , that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third Business Day preceding such redemption date.

Treasury Rate ” means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication that is published by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the 2026 Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

If less than all of the 2026 Notes are to be redeemed, the 2026 Notes to be redeemed shall be selected in accordance with Section 3.02 of the Indenture.

 

A-7


Notice of redemption shall be given as provided in Section 3.03 of the Indenture. A notice of redemption may not be conditional. The Trustee shall not be responsible for the calculation of the redemption price for any such redemption. The Company shall calculate such redemption price and promptly notify the Trustee thereof.

5.     If an Event of Default with respect to the 2026 Notes shall occur and be continuing, the principal and interest thereon of all of the 2026 Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

6.     The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes of each series under the Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding of each series to be affected thereby on behalf of the Holders of all Notes of such series. In addition, the Indenture permits the Company and the Trustee to enter into supplemental indentures to the Indenture, without the consent of Holders, for certain purposes, including to cure any ambiguity or to correct or supplement any provision contained in the Indenture and to make changes that do not adversely affect the rights of any Holder in any material respect. The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding of each series on behalf of the Holders of all Notes of such series, to waive certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any 2026 Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other 2026 Notes.

7.    No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Security at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.

8.     The authorized denominations of the 2026 Notes are $2,000 and any larger amount that is an integral multiple of $1,000. As provided in the Indenture and except as provided therein and herein, the 2026 Notes are exchangeable for a like aggregate principal amount of 2026 Notes of a different authorized denomination, as requested by the Holder surrendering the same.

9.     As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Note register, upon surrender of this Security for registration of transfer at the office of the Registrar or co-registrar designated by the Company for such purpose. Every 2026 Note presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly authorized in writing.

 

A-8


Prior to due presentment for registration of transfer, the Company, the Trustee, any Paying Agent and any Registrar may treat the Person in whose name this Security is registered as the absolute owner thereof for all purposes (subject to Section 2.A hereof), whether or not such Security is overdue and notwithstanding any notation of ownership or other writing thereon, and neither the Company nor the Trustee nor any Paying Agent nor any Registrar shall be affected by notice to the contrary.

No service charge shall be made for any exchange or registration of transfer of any 2026 Note, with certain exceptions, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

10.     This Security is a Global Note. Accordingly, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of Persons other than participants).

So long as the Depositary or its nominee is the registered owner of this Security, the Depositary or that nominee, as the case may be, will be considered the sole legal owner or Holder of the 2026 Notes represented by this Security for all purposes of the 2026 Notes and the Indenture. Except as provided below, owners of beneficial interests in this Security (1) will not be entitled to have the 2026 Notes represented by this Security registered in their names, (2) will not receive or be entitled to receive physical delivery of certificated securities and (3) will not be considered the owners or Holders of the 2026 Notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee. Accordingly, each Person owning a beneficial interest in this Security must rely on the procedures of the Depositary and, if that Person is not a Depositary participant or indirect participant, on the procedures of the participant through which that Person owns its interest, to exercise any rights of a Holder of 2026 Notes under the Indenture or this Security.

Except as provided in Section 2.14(b) of the Indenture, beneficial interests in this Security may not be exchanged for certificated securities.

Payments with respect to the principal of and interest on this Security will be payable by the Trustee to or at the direction of the Depositary or its nominee in its capacity as the registered Holder of this Security under the Indenture. Under the terms of the Indenture, the Company and the Trustee may treat the Persons in whose names this Security are registered as the owners hereof for the purpose of receiving payment thereon (except as provided in Section 2.A hereof) and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the Paying Agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of beneficial ownership interests in this Security or for maintaining, supervising or

 

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reviewing any records relating to such beneficial ownership interests, (b) the payments to the beneficial owners of this Security of amounts paid to the Depositary or its nominee or (c) any other matter relating to the actions or practices of the Depositary, its nominee or any of its direct or indirect participants.

11.     Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

12.     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE 2026 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

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CERTIFICATE OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

Insert Taxpayer Identification No.:

 

 

Please print or typewrite name and address including zip code of assignee                                          the within 2026 Note and all rights thereunder, and hereby irrevocably constituting and appointing                      attorney to transfer said 2026 Note on the books of the Registrar with full power of substitution in the premises.

Dated:                     

 

NOTICE:

  

 

  

The signature to this assignment must correspond with the name as it appears upon the face of the within 2026 Note in every particular, without alteration or enlargement or any change whatever.

 

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OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this 2026 Note purchased by the Company pursuant to Section 3 of the Eleventh Supplemental Indenture, check the box below:

☐  Section 3

If you want to elect to have only part of this 2026 Note purchased by the Company pursuant to Section 3 of the Eleventh Supplemental Indenture, state the amount you elect to have purchased:

$         

Date:                     

 

Your Signature:  

 

  (Sign exactly as your name appears on the face of this Note)
Tax Identification No.:                                                  

Signature Guarantee*:                                                  

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

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SCHEDULE OF INCREASES OR DECREASES OF INTERESTS IN THE GLOBAL NOTE

The initial principal amount of this Global Note is $[●]. The following increases or decreases in this Global Note have been made:

 

Date of Exchange

  

Amount of Decrease in

Principal Amount at

Maturity

of this Global Note

  

Amount of Increase in

Principal Amount at
Maturity

of this Global Note

  

Principal Amount at
Maturity

of this Global Note

Following such

decrease (or increase)

  

Signature of

Authorized Signatory

of Trustee or

Custodian

           
           

 

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EXHIBIT B

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF NOTES

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 3.95% Senior Notes due 2026 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $          principal amount of Notes held in book-entry or definitive form by (the “Transferor”). The Transferor has requested the Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:

 

            

 

Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

            

 

Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit C to the Supplemental Indenture setting forth the terms of the Notes pursuant to the Indenture).

            

 

Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

            

 

Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and

 

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based upon an opinion of counsel if the Company so requests).

Fill in blank or check appropriate item, as applicable.

 

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Date:                     

 

 

[INSERT NAME OF TRANSFEROR]

   

By:

 

 

     

Name:

     

Title:

     

Address:

 

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EXHIBIT C

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH

TRANSFERS PURSUANT TO REGULATION S

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 3.95% Senior Notes due 2026 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry form by (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

(a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

(b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not

 

C-1


a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through [Euroclear] [Clearstream].

 

C-2


Date:                     

 

 

[INSERT NAME OF TRANSFEROR]

   

By:

 

 

     

Name:

     

Title:

     

Address:

 

C-3

Exhibit 4.5

TWELFTH SUPPLEMENTAL INDENTURE

THIS TWELFTH SUPPLEMENTAL INDENTURE, dated as of June 2, 2017 (this “Supplemental Indenture”), is between The Sherwin-Williams Company , an Ohio corporation (the “Company”), and Wells Fargo Bank, National Association , a national banking association organized and existing under the laws of the United States of America, as trustee (the “Trustee”).

WITNESSETH

WHEREAS, pursuant to the Indenture, dated as of July 31, 2015, between the Company and the Trustee (the “Indenture”), the Company may from time to time issue and sell debt securities in one or more series;

WHEREAS, the Company desires to create and authorize a series of Notes entitled “4.40% Senior Notes due 2045”, limited initially to $248,354,000 in aggregate principal amount (the “2045 Notes”), and to provide the terms and conditions upon which the 2045 Notes are to be executed, registered, authenticated, issued and delivered, the Company has duly authorized the execution and delivery of this Supplemental Indenture;

WHEREAS, the 2045 Notes are a series of Notes and are being issued under the Indenture, as supplemented by this Supplemental Indenture, and are subject to the terms contained therein and herein;

WHEREAS, the 2045 Notes are to be substantially in the form attached hereto as Exhibit  A ; and

WHEREAS, all acts and things necessary to make the 2045 Notes, when executed by the Company and authenticated and delivered by or on behalf of the Trustee as provided in this Supplemental Indenture, the valid, binding and legal obligations of the Company, and to make this Supplemental Indenture a legal, binding and enforceable agreement, have been done and performed.

NOW, THEREFORE, in order to declare the terms and conditions upon which the 2045 Notes are executed, registered, authenticated, issued and delivered, and in consideration of the foregoing premises and the purchase of such 2045 Notes by the Holders thereof, the Company and the Trustee mutually covenant and agree, for the benefit of each other and for the equal and proportionate benefit of the Holders from time to time of the 2045 Notes, as follows:

Section 1.     Definitions . Terms used in this Supplemental Indenture and not defined herein shall have the respective meanings given such terms in the Indenture.

Additional Interest ” means all “Additional Interest” then owing pursuant to the Registration Rights Agreement.

Attributable Indebtedness ” in respect of a Sale/Leaseback Transaction means, as of the time of determination, (a) if the obligation in respect of such Sale/Leaseback Transaction is a


Capital Lease Obligation, the amount of such obligation determined in accordance with GAAP and included in the financial statements of the lessee or (b) if the obligation in respect of such Sale/Leaseback Transaction is not a Capital Lease Obligation, the total Net Amount of Rent required to be paid by the lessee under such lease during the remaining term thereof (including any period for which the lease has been extended), discounted from the respective due dates thereof to such determination date at the rate per annum borne by the weighted average interest rate per annum borne by the Notes then outstanding under the Indenture compounded semiannually.

Change of Control ” means the occurrence of any of the following:

(1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is used in Section 13(d) of the Exchange Act) (other than the Company or one of its Subsidiaries) becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the Voting Stock of the Company or other Voting Stock into which the Voting Stock of the Company is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares;

(2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and the assets of its Subsidiaries, taken as a whole, to one or more “persons” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its Subsidiaries);

(3) the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the outstanding Voting Stock of the Company or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Voting Stock of the Company outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction;

(4) the adoption of a plan relating to the liquidation or dissolution of the Company; or

(5) the first day on which a majority of the members of the Board of Directors of the Company are not Continuing Directors.

Notwithstanding the foregoing, a transaction shall not be deemed to involve a Change of Control if (i) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (ii) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Voting Stock of the Company immediately prior to that transaction.

 

2


Change of Control Triggering Event ” means the occurrence of both (1) a Change of Control and (2) a Rating Event.

Clearstream ” means Clearstream Banking, société anonyme, or any successor securities clearing agency.

Consolidated Net Tangible Assets ” means, as of any date of determination, the sum of the amounts that would appear on a consolidated balance sheet of the Company and its Subsidiaries for the total assets (less accumulated depletion, depreciation or amortization, allowances for doubtful receivables, other applicable reserves and other properly deductible items) of the Company and its Subsidiaries, determined on a consolidated basis in accordance with GAAP, after giving effect to purchase accounting and after deducting therefrom, to the extent included in total assets, in each case as determined on a consolidated basis in accordance with GAAP (without duplication): (i) the aggregate amount of liabilities of the Company and its Subsidiaries which may properly be classified as current liabilities (including taxes accrued as estimated); (ii) current Indebtedness and current maturities of long-term Indebtedness; (iii) minority interests in the Company’s Subsidiaries held by Persons other than the Company or a Wholly Owned Subsidiary of the Company; and (iv) unamortized debt discount and expenses and other unamortized deferred charges, goodwill, patents, trademarks, service marks, trade names, copyrights, licenses, organization or developmental expenses and other intangible items.

Continuing Director ” means, as of any date of determination, any member of the Board of Directors of the Company who (1) was a member of such Board of Directors on the date of this Supplemental Indenture, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) was nominated for election, elected or appointed to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board of Directors at the time of such nomination, election or appointment (either by a specific vote or by approval of the Company’s proxy statement in which such member was named as a nominee for election as a director, without objection to such nomination).

Euroclear ” means Euroclear Bank S.A./N.Y., as operator of Euroclear systems Clearance System or any successor securities clearing agency.

Exchange Notes ” means any notes issued in exchange for 2045 Notes pursuant to the Registration Rights Agreement or similar agreement.

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

Net Amount of Rent ” as to any lease for any period means the aggregate amount of rent payable by the lessee with respect to such period after excluding amounts required to be paid on account of maintenance and repairs, insurance, taxes, assessments, water rates and similar charges. In the case of any lease that is terminable by the lessee upon the payment of a penalty,

 

3


such net amount shall also include the amount of such penalty, but no rent shall be considered as payable under such lease subsequent to the first date upon which it may be so terminated.

Permitted Lien ” means, with respect to any Person,

(a)    pledges or deposits by such Person under worker’s compensation laws, unemployment insurance laws or similar legislation, or good faith deposits in connection with bids, tenders, contracts (including government contracts, but excluding contracts for the payment of Indebtedness) or leases to which such Person is a party, or deposits to secure public or statutory obligations of such Person or deposits of cash or United States government bonds to secure performance, surety or appeal bonds to which such Person is a party or which are otherwise required of such Person, or deposits as security for contested taxes or import duties or for the payment of rent or other obligations of like nature, in each case incurred in the ordinary course of business;

(b)    Liens imposed by law, such as carriers’, warehousemen’s, laborers’, materialmen’s, landlords’, vendors’, workmen’s, operators’, producers’ and mechanics’ Liens, in each case for sums not yet due or being contested in good faith by appropriate proceedings;

(c)    Liens for property taxes, assessments and other governmental charges or levies not yet delinquent or that are being contested in good faith by appropriate proceedings;

(d)    survey exceptions, encumbrances, easements, defects, irregularities or deficiencies in title to easements, or reservations of or with respect to, or rights of others for or with respect to, licenses, rights-of-way, sewers, electric and other utility lines and usages, telegraph and telephone lines, pipelines, surface use, operation of equipment, permits, servitudes and other similar matters, or zoning or other restrictions as to the use of real property or Liens incidental to the conduct of the business of such Person or to the ownership of its properties that, in all such cases, were not incurred in connection with Indebtedness and that do not in the aggregate materially adversely affect the value of said properties or materially impair their use in the operation of the business of such Person;

(e)    Liens existing on or provided for under the terms of agreements existing on February 1, 1996;

(f)    Liens on property at the time the Company or any of its Subsidiaries acquired the property or the entity owning such property, including any acquisition by means of a merger or consolidation with or into the Company; provided , however , that any such Lien may not extend to any other property owned by the Company or any of its Subsidiaries;

(g)    Liens securing a Hedging Obligation so long as such Hedging Obligation is of the type customarily entered into in connection with, and is entered into for the purpose of, limiting risk;

(h)    Liens on accounts receivable or inventory to secure working capital or revolving credit indebtedness incurred in the ordinary course of business;

(i)    Purchase Money Liens;

 

4


(j)    Liens securing only Indebtedness of a Wholly Owned Subsidiary of the Company to the Company or one or more Wholly Owned Subsidiaries of the Company;

(k)    Liens on property or shares of stock of another Person at the time such other Person becomes a Subsidiary of such Person; provided , however , that such Liens are not created, incurred or assumed in connection with, or in contemplation of, such other Person becoming such a Subsidiary of such Person;

(l)    Liens created, assumed or existing in connection with a tax-free financing;

(m)    Liens resulting from the deposit of funds or evidences of Indebtedness in trust for the purpose of defeasing Indebtedness of the Company or any of its Subsidiaries;

(n)    legal or equitable encumbrances deemed to exist by reason of negative pledges or the existence of any litigation or other legal proceeding and any related lis pendens filing (excluding any attachment prior to judgment, judgment lien or attachment lien in aid of execution on a judgment);

(o)    rights of a common owner of any interest in property held by such Person;

(p)    Liens placed upon any real property owned on the date of this Supplemental Indenture or thereafter acquired by the Company or any of its Subsidiaries securing Indebtedness in an amount up to 80% of the fair market value of such real property;

(q)    Liens to secure any refinancing, refunding, extension, renewal or replacement (or successive refinancings, refundings, extensions, renewals or replacements), as a whole, or in part, of any Indebtedness secured by any Lien referred to in the foregoing clauses (e) through (l) and (p); provided , however , that (i) such new Lien shall be limited to all or part of the same property that secured the original Lien (plus improvements on such property) and (ii) the Indebtedness secured by such Lien at such time is not increased to any amount greater than the sum of (A) the outstanding principal amount or, if greater, committed amount of the Indebtedness described under clauses (e) through (l) and (p) at the time the original Lien became a Permitted Lien under this Supplemental Indenture and (B) an amount necessary to pay any fees and expenses, including premiums, related to such refinancing, refunding, extension, renewal or replacement.

Principal Property ” means any manufacturing plant or manufacturing facility, located within the United States of America (other than its territories and possessions), owned or leased by the Company or any Restricted Subsidiary, unless, in the opinion of the Board of Directors, such plant, facility or property is not of material importance to the total business conducted by the Company and its Restricted Subsidiaries as an entirety.

Purchase Money Lien ” means a Lien on property securing Indebtedness incurred by the Company or any of its Subsidiaries to provide funds for all or any portion of the cost of acquiring, constructing, altering, expanding, improving or repairing such property or assets used in connection with such property.

QIB ” means a “qualified institutional buyer” as defined in Rule 144A.

 

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Rating Agencies ” means (1) each of Moody’s and S&P and (2) if any of Moody’s and S&P ceases to rate the 2045 Notes or fails to make a rating of the 2045 Notes publicly available for reasons outside of the Company’s control, a Substitute Rating Agency in lieu thereof.

Rating Event ” means the rating on the 2045 Notes is lowered by each of the Rating Agencies and the 2045 Notes are rated below an Investment Grade Rating by each of the Rating Agencies on any day during the period commencing on the earlier of (i) the occurrence of the Change of Control and (ii) the first public announcement by the Company of any Change of Control and ending 60 days following consummation of such Change of Control (which period will be extended so long as the rating of the 2045 Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies); provided that a Rating Event will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for purposes of the definition of Change of Control Triggering Event) if each Rating Agency making the reduction in rating does not publicly announce or confirm or inform the Trustee in writing at the request of the Company that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Registration Rights Agreement ” means the registration rights agreement dated as of the date of this Supplemental Indenture, among the Company, Citigroup Global Markets Inc. and Wells Fargo Securities, LLC.

Regulation S ” means Regulation S promulgated under the Securities Act.

Restricted Notes Legend ” has the meaning set forth in Section 9(d) herein.

Restricted Period ” shall have the meaning set forth in Section 9(c) herein.

Restricted Subsidiary ” means at any time any Subsidiary of the Company (i) substantially all the property of which is located, or substantially all of the business of which is carried on, within the United States of America (other than its territories or possessions) and (ii) that owns or leases a Principal Property or that, in the event of a Sale/Leaseback Transaction, will own or lease a Principal Property.

Rule 144 ” means Rule 144 promulgated under the Securities Act.

Rule 144A ” means Rule 144A promulgated under the Securities Act.

S&P ” means Standard & Poor’s Financial Services, LLC, a subsidiary of S&P Global Inc., or any successor thereto.

Sale/Leaseback Transaction ” means an arrangement relating to Principal Property owned on the date of this Supplemental Indenture or thereafter acquired whereby the Company or any of its Restricted Subsidiaries transfers such Principal Property to a Person and the Company or any of its Restricted Subsidiaries leases it from such Person.

 

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Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Section 3(a)(62) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors of the Company).

Transfer Restricted Note ” means any 2045 Note that bears or is required to bear the Restricted Notes Legend.

Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) as of any date, the capital stock of such person that is at the time entitled to vote generally in the election of the Board of Directors of such person.

U.S. person ” means a “U.S. person” as defined in Regulation S.

Wholly Owned Subsidiary ” means a Restricted Subsidiary all the Capital Stock of which (other than directors’ qualifying shares) is owned by the Company or one or more Wholly Owned Subsidiaries.

Section 2.     Creation and Authorization of Series .

(a)    There is hereby created and authorized the following new series of Notes to be issued under the Indenture, to be designated as the “4.40% Senior Notes due 2045.”

(b)    The 2045 Notes shall be limited initially to $248,354,000 in aggregate principal amount. Notwithstanding the foregoing initial aggregate principal amount, the Company may, from time to time, without notice to or consent of the Holders of the 2045 Notes, increase the principal amount of the 2045 Notes that may be issued under this Supplemental Indenture and issue such increased principal amount (or any portion thereof), in which case any additional notes so issued will have the same terms (other than the date of issuance and, under certain circumstances, the initial interest payment date, the date from which interest thereon will begin to accrue and the issue price), and will carry the same right to receive accrued and unpaid interest, as the 2045 Notes previously issued, and such additional notes will form a single series with the 2045 Notes, including for purposes of voting, redemptions and offers to purchase and will rank equally and ratably with the 2045 Notes previously issued; provided that if such additional notes are not fungible with the 2045 Notes for U.S. federal income tax purposes, the additional notes will have a separate CUSIP number.

(c)    The date on which the principal is payable on the 2045 Notes shall be as provided in the form of security attached hereto as Exhibit A.

(d)    The 2045 Notes shall bear interest as provided in the form of security attached hereto as Exhibit A. The interest payment dates and the record dates for the determination of Holders of the 2045 Notes to whom such interest is payable shall be as provided in the form of security attached hereto as Exhibit A. Additional Interest will be payable in arrears on each Interest Payment Date following accrual in the same manner as regular interest on the 2045 Notes. If Additional Interest is payable on the 2045 Notes, the Company shall provide an Officer’s Certificate to the Trustee on or before the record date for each Interest Payment Date such Additional Interest is payable setting forth the accrual period and the amount of such Additional Interest in reasonable detail. The Trustee may provide a copy of such Officer’s Certificate or

 

7


other notice received from the Company relating to Additional Interest to any Holder upon request. Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office of the Trustee such a certificate, the Trustee may assume without inquiry that no such Additional Interest is payable. The Trustee shall not at any time be under any duty or responsibility to any Holder to determine whether any Additional Interest is payable, or with respect to the nature, extent, or calculation of the amount of any Additional Interest owed, or with respect to the method employed in such calculation of any Additional Interest. If the Company has paid Additional Interest directly to the applicable Holder, the Company shall deliver to the Trustee an Officer’s Certificate setting forth the particulars of such payment.

(e)    The 2045 Notes shall be redeemable at the option of the Company as set forth in Section 4 of the form of security attached hereto as Exhibit A.

(f)    The 2045 Notes are not entitled to any sinking fund.

(g)    Upon a Change of Control Triggering Event, the Company shall be required to make an offer to repurchase the 2045 Notes as provided in Section 3 of this Supplemental Indenture.

(h)    The 2045 Notes will be issued only in fully registered form, without coupons, in denominations provided in Section 8 of the form of security attached hereto as Exhibit A.

(i)    Article 8 of the Indenture shall be applicable to the 2045 Notes. The covenants described in Sections 3, 4, 5 and 6 of this Supplemental Indenture shall be subject to the covenant defeasance option set forth in Section 8.03 of the Indenture.

(j)    The 2045 Notes shall be issued in the form of a Global Note substantially in the form of Exhibit A attached hereto. The Company initially appoints The Depository Trust Company to act as Depositary with respect to the 2045 Notes. Additional provisions applicable to the 2045 Notes issued in the form of a Global Note are set forth in Section 10 of the form of 2045 Note attached hereto as Exhibit A. To the extent inconsistent therewith, such provisions supersede the provisions set forth in Section 2.14 of the Indenture.

(k)    The Trustee, initial Paying Agent and Registrar for the 2045 Notes will be Wells Fargo Bank, National Association, and the initial place of payment (“Place of Payment”) will be the office or agency of the Trustee located at MAC N9300-070, 600 South Fourth Street, Minneapolis, MN 55415, Attn: Corporate Trust Operations.

(l)    The covenants and definitions set forth in the Indenture and the terms set forth in Article 5 of the Indenture shall be applicable to the 2045 Notes.

(m)    Except as otherwise set forth herein and in the 2045 Notes, the terms of the 2045 Notes shall be as set forth in the Indenture, including those made part of the Indenture by reference to the TIA.

Section 3.     Purchase of Notes upon a Change of Control Triggering Event .

(a)    If a Change of Control Triggering Event occurs, unless the Company has exercised its option to redeem the 2045 Notes as set forth in Section 4 of the form of security attached hereto

 

8


as Exhibit A, the Company shall be required to make an offer (the “Change of Control Offer”) to each Holder to repurchase all or any part (equal to $2,000 or any integral multiple of $1,000 in excess thereof) of that Holder’s 2045 Notes on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of 2045 Notes repurchased, plus accrued and unpaid interest, if any, on the 2045 Notes repurchased up to, but not including, the date of repurchase (the “Change of Control Payment”). Within 30 days following any Change of Control Triggering Event or, at the option of the Company, prior to any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, a notice shall be mailed to Holders of the 2045 Notes with a copy to the Trustee describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase the 2045 Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (or with respect to Global Notes, to the extent permitted or required by the Applicable Procedures, sent electronically) or, if the notice is mailed or sent prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “Change of Control Payment Date”). The notice shall, if mailed or sent prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

(b)    By 10:00 a.m., Eastern Time on the Change of Control Payment Date, the Company shall, to the extent lawful, (1) accept for payment all 2045 Notes or portions of 2045 Notes properly tendered pursuant to the Change of Control Offer, (2) deposit with the Paying Agent (or, if the Company is acting as the Company’s own Paying Agent, segregate and hold in trust) an amount equal to the Change of Control Payment in respect of all 2045 Notes or portions of 2045 Notes properly tendered and (3) deliver or cause to be delivered to the Trustee the 2045 Notes properly accepted together with an Officers’ Certificate stating the aggregate principal amount of 2045 Notes or portions of 2045 Notes being repurchased.

(c)    The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase. Neither the Trustee nor any Paying Agent shall be responsible for monitoring the rating status of the Company, making any request upon any of the Rating Agencies or any Substitute Rating Agency, or determining whether any Rating Event has occurred.

(d)    The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the time and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all 2045 Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any 2045 Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture or this Supplemental Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(e)    The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the 2045

 

9


Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the provisions of this Section 3, the Company shall comply with those securities laws and regulations and shall not be deemed to have breached the Company’s obligations under this Section 3 by virtue of any such conflict.

Section 4.     Limitation on Liens . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, issue, incur, create, assume, guarantee or permit to exist any Indebtedness secured by a Lien on any Principal Property, or shares of capital stock of any Restricted Subsidiary, whether owned on the date of this Supplemental Indenture or thereafter acquired, unless the Company contemporaneously secures the 2045 Notes equally and ratably with (or prior to) such Indebtedness; provided that any Lien created for the benefit of the Holders of the 2045 Notes pursuant to this provision shall be automatically and unconditionally released and discharged upon release and discharge of the Lien that resulted in such provision becoming applicable. The preceding sentence shall not require the Company to secure the 2045 Notes if the Lien consists of the following:

(a)    Permitted Liens; or

(b)    Liens other than Permitted Liens, provided that the aggregate amount of all Indebtedness secured by Liens other than Permitted Liens shall not exceed 20% of Consolidated Net Tangible Assets calculated as of the date of the creation or incurrence of such Lien.

Section 5.     Limitation on Sale and Lease-Back Transactions . The Company shall not, and shall not permit any of its Restricted Subsidiaries to, enter into any Sale/Leaseback Transaction with respect to any Principal Property unless (a) the Company or such Restricted Subsidiary would be entitled to create a Lien on such Principal Property securing Indebtedness in an amount equal to the Attributable Indebtedness with respect to such Sale/Leaseback Transaction without securing the 2045 Notes pursuant to Section 4 of this Supplemental Indenture or (b) the Company, within six months from the effective date of such Sale/Leaseback Transaction, applies to the voluntary defeasance or retirement of the 2045 Notes or other Indebtedness ranking pari passu with the 2045 Notes (excluding retirements as a result of conversions or pursuant to mandatory sinking fund or mandatory prepayment provisions or by payment at maturity) an amount equal to the Attributable Indebtedness in respect of such Sale/Leaseback Transaction; provided that the foregoing will not prevent the Company or any Restricted Subsidiary from (x) entering into any Sale/Leaseback Transaction involving a lease with a term of less than three years or (y) entering into any Sale/Leaseback Transaction between a Restricted Subsidiary and the Company or between Restricted Subsidiaries.

Section 6.     SEC Reports .

(a)    The Company shall file with the Trustee, within 15 days after the Company is required to file the same with the SEC, after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the SEC may from time to time by rules and regulations prescribe) that the Company may be required to file with the SEC pursuant to Section 13 or Section 15(d) of the Exchange Act; or, if the Company is not required to file information, documents or reports pursuant to either of such sections, then the

 

10


Company shall file with the Trustee and the SEC, in accordance with rules and regulations prescribed from time to time by the SEC and within 15 days after such information, documents or reports are due with respect to a non-accelerated filer and after giving effect to any grace period provided by Rule 12b-25 under the Exchange Act, such information, documents or reports that may be required pursuant to Section 13 of the Exchange Act in respect of a security listed and registered on a national securities exchange as may be prescribed from time to time in such rules and regulations. Notwithstanding the foregoing, (i) the Company will be deemed to have furnished such information, documents or reports referred to above to the Trustee if the Company has filed such information, documents or reports with the SEC via the EDGAR filing system (or any successor system) or, if at any time the Company is no longer subject to reporting under Section 13 or Section 15(d) of the Exchange Act and is not permitted to file such information, documents or reports with the SEC, if the Company posts such information, documents or reports on the Company’s publicly available website and (ii) if at any time the Company is no longer subject to the reporting requirements of Section 13 or Section 15(d) of the Exchange Act, the Company will not be deemed to have failed to comply with any of its obligations under this Section 6(a) until 30 days after the date any information, document or report hereunder is required to be filed with the Trustee.

(b)    Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants under the Indenture or this Supplemental Indenture (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have been filed pursuant to the EDGAR filing system (or its successor) or postings to any website have occurred.

Section 7.     Events of Default . The Events of Default in Section 6.01 of the Indenture shall be applicable to the 2045 Notes. In addition, the following shall be Events of Default with respect to the 2045 Notes:

(a)    failure to make the required Change of Control Payment when due and payable in accordance with the terms of Section 3 of this Supplemental Indenture; and

(b)    default in the performance or breach of any covenant of the Company in any of Sections 4, 5 or 6 of this Supplemental Indenture, which default continues uncured for a period of 90 days after (i) the Company receives written notice from the Trustee or (ii) the Company and the Trustee receive written notice from Holders of not less than 25% in aggregate principal amount of the 2045 Notes outstanding.

Section 8.     Transfer Restrictions .

(a)    The initial offering and sale of the 2045 Notes shall not be registered under the Securities Act or any state securities laws. The 2045 Notes shall be offered pursuant to exemptions from the registration requirements of the Securities Act in reliance upon Rule 144A and Regulation S promulgated under the Securities Act. For so long as any of the 2045 Notes constitute “restricted securities” within the meaning of Rule 144(a)(3) promulgated under the

 

11


Securities Act, the Company shall, if the Company is not then subject to the reporting requirements of Section 13 or 15(d) of the Exchange Act, furnish to any Holder or beneficial owner of such 2045 Notes, or to any prospective purchaser of such 2045 Notes designated by such Holder or beneficial owner, in each case upon the written request of such Holder, beneficial owner or prospective purchaser, the information required to be provided pursuant to Rule 144A(d)(4) promulgated under the Securities Act.

(b)    The following provisions shall apply with respect to any proposed transfer of any Transfer Restricted Note prior to the expiration of the holding period applicable to sales of such 2045 Notes under Rule 144, and the Registrar shall refuse to register any transfer of such 2045 Notes not complying with the restrictions set forth in the Restricted Notes Legend and in this Section 8. In addition to the requirements set forth in Section 2.07 of the Indenture, Transfer Restricted Notes that are presented or surrendered for registration of transfer or exchange pursuant to Section 2.07 of the Indenture shall be accompanied by the following additional information and documents, as applicable, upon which the Registrar may conclusively rely:

 

  (i)

if such Transfer Restricted Notes are being delivered to the Registrar by a Holder for registration in the name of such Holder, without transfer, a certification from such Holder to that effect (in substantially the form of Exhibit B hereto);

 

  (ii)

if such Transfer Restricted Notes are being transferred (1) to a QIB in accordance with Rule 144 or (2) pursuant to an effective registration statement under the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B hereto);

 

  (iii)

if such Transfer Restricted Notes are being transferred pursuant to an exemption from registration in accordance with Rule 903 or Rule 904 of Regulation S, certifications to that effect from such Holder (in substantially the form of Exhibit B and Exhibit C hereto); or

 

  (iv)

if such Transfer Restricted Notes are being transferred in reliance on and in compliance with (1) an exemption from registration in accordance with Rule 144 under the Securities Act or (2) another exemption from the registration requirements of the Securities Act, a certification to that effect from such Holder (in substantially the form of Exhibit B attached hereto) and an opinion of counsel, certification or other evidence as may reasonably be required to that effect if the Company or the Trustee so requests.

(c)    A Holder of a beneficial interest in Regulation S Global Note who wishes to transfer its interest in such 2045 Note to a QIB in accordance with Rule 144A who takes delivery in the form of a beneficial interest in the Rule 144A Global Note shall deliver to the Registrar a certification to that effect (in substantially the form of Exhibit C attached hereto) upon which the Registrar may conclusively rely. After the expiration of the Restricted Period, interests in the Regulation S Global Note may be transferred without requiring the certification set forth in this Section 8(c).

 

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(d)    The transfer and exchange of Global Notes or beneficial interests therein shall be effected through the Depositary, in accordance with Section 2.07 of the Indenture and Section 8 and Section 9 hereof (including the restrictions on transfer set forth therein and herein) and the rules and procedures of the Depositary therefor, which shall include restrictions on transfer comparable to those set forth therein and herein to the extent required by the Securities Act; provided, however, that prior to the expiration of the Restricted Period, transfers and exchanges of beneficial interests in the Regulation S Global Note may be made pursuant to such restrictions only (1) to a Person that is not a U.S. person or for the account or benefit of a Person that is not a U.S. person within the meaning of Regulation S under the Securities Act or (2) to a QIB, in each case that hold such interests through Euroclear or Clearstream.

(e)    If 2045 Notes are issued upon the registration of transfer, exchange or replacement of 2045 Notes not bearing the Restricted Notes Legend, the 2045 Notes so issued shall not bear such legend. If 2045 Notes are issued upon the registration or transfer, exchange or replacement of 2045 Notes bearing the Restricted Notes Legend, or if a request is made to remove the Restricted Notes Legend on a 2045 Note, the 2045 Notes so issued shall bear the Restricted Notes Legend, or the Restricted Notes Legend shall not be removed, as the case may be, unless there is delivered to the Company such satisfactory evidence, which may include an opinion of counsel, as may be reasonably required by the Company that neither the Restricted Notes Legend nor the restrictions on transfer set forth therein are required to ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144 or Regulation S, that such 2045 Notes are not “restricted securities” within the meaning of Rule 144 or that such 2045 Notes were transferred pursuant to an effective registration statement under the Securities Act. Upon provision of such satisfactory evidence, the Trustee, at the direction of the Company, shall authenticate and deliver a 2045 Note that does not bear the Restricted Notes Legend. If a Restricted Notes Legend is removed from the face of a 2045 Note and the 2045 Note is subsequently held by an Affiliate of the Company, the Restricted Notes Legend shall be reinstated.

(f)    Notwithstanding anything herein to the contrary, neither the Trustee nor the Registrar shall have any responsibility to receive any letters, opinions or certifications, nor any responsibility to monitor compliance with any transfer restrictions, in connection with any transfer or exchange of any beneficial interest in a Global Note for a beneficial interest in the same Global Note.

(g)    Notwithstanding the foregoing, in the event that any Transfer Restricted Notes are exchanged for Exchange Notes in connection with an effective registration statement pursuant to the Registration Rights Agreement, the Company shall issue and, at the direction of the Company, the Trustee shall authenticate the Exchange Notes in exchange for Transfer Restricted Notes accepted for exchange in the exchange offer, which Exchange Notes shall not bear the Restricted Notes Legend, and the Registrar shall rescind any restriction on the transfer of such Exchange Notes.

Section 9.     Form of Notes/Legends .

(a)    The 2045 Notes are being offered only to (A) Persons reasonably believed to be QIBs in reliance on Rule 144A and (B) non U.S. persons in reliance on Regulation S. Such 2045

 

13


Notes may thereafter be transferred to, among others, QIBs, and purchasers in reliance on Regulation S, in each case, in accordance with the procedures described herein. Exchange Notes exchanged for interests in the Rule 144A Notes and the Regulation S Notes will be issued in the form of permanent Global Notes deposited with the Trustee as hereinafter provided, including the appropriate legend set forth in the form of security attached as Exhibit A (the “Exchange Global Notes”). The Exchange Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Exchange Global Notes may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate.

(b)    The 2045 Notes offered to QIBs in the United States of America in reliance on Rule 144A (the “Rule 144A Notes”) shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security attached as Exhibit A (the “Rule 144A Global Notes”), deposited with the Trustee, as custodian for the Depositary, duly executed by the Company and authenticated by the Trustee as hereinafter provided. The Rule 144A Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Rule 144A Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary, or its nominee, as hereinafter provided.

(c)    The 2045 Notes offered to non U.S. persons outside the United States of America (the “Regulation S Notes”) in reliance on Regulation S shall be issued in the form of a permanent global note including appropriate legends as set forth in the form of security as attached hereto as Exhibit A (the “Regulation S Global Notes” and, together with the Rule 144A Global Notes and the Exchange Global Notes, the “Global Notes”). Each Regulation S Global Note will be deposited upon issuance with, or on behalf of, the Trustee as custodian for the Depositary. Prior to the 40th day after the date the 2045 Notes are issued (such period through and including such 40th day, the “Restricted Period”), interests in the Regulation S Global Note may only be transferred to non U.S. persons pursuant to Regulation S, unless exchanged for interests in a Global Note in accordance with the transfer and certification requirements described herein. The Regulation S Global Note may be represented by more than one certificate, if so required by the Depositary’s rules regarding the maximum principal amount to be represented by a single certificate. The aggregate principal amount of the Regulation S Global Note may from time to time be increased or decreased by adjustments made on the records of the Trustee, as custodian for the Depositary or its nominee, as hereinafter provided.

(d)    Unless and until (i) a 2045 Note issued as a Transfer Restricted Note is sold under an effective registration statement, (ii) a 2045 Note issued as a Transfer Restricted Note is exchanged for an Exchange Note in connection with an effective registration statement pursuant to the Registration Rights Agreement or (iii) the Company receives an opinion of counsel satisfactory to it to the effect that neither such legend nor the related restrictions on transfer are required in order to maintain compliance with the provisions of the Securities Act:

 

  (i)

each Transfer Restricted Note shall bear the following legend on the face thereof (the “Restricted Notes Legend”):

 

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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

 

  (ii)

each Global Note shall bear the following legend on the face thereof:

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH

 

15


OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.    

Section 10.     Effect of Supplemental Indenture . The provisions of this Supplemental Indenture are intended to supplement those of the Indenture as in effect immediately prior to the execution and delivery hereof. The Indenture shall remain in full force and effect except to the extent that the provisions of the Indenture are expressly modified by the terms of this Supplemental Indenture.

Section 11.     Governing Law . THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE AND THE 2045 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

Section 12.     Trustee Not Responsible for Recitals or Issuance of 2045 Notes . The recitals contained herein shall be taken as statements of the Company, and the Trustee assumes no responsibility for their correctness. The Trustee makes no representations as to and shall not be responsible for the validity or sufficiency of this Supplemental Indenture or of the 2045 Notes other than with respect to the Trustee’s authentication of the 2045 Notes and execution of this Supplemental Indenture. The Trustee shall not be accountable for the use or application by the Company of the 2045 Notes or the proceeds thereof.

Section 13.     Conflict with TIA . If any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the TIA that is required under such Act to be a part of and govern this Supplemental Indenture, the latter provisions shall control. If any provision of this Supplemental Indenture modifies or excludes any provision of the TIA that may be so modified or excluded, the latter provision shall be deemed to apply to this Supplemental Indenture as so modified or to be excluded, as the case may be.

Section 14.     Counterparts . This Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original; but such counterparts shall together constitute but one and the same instrument. Signatures of the parties hereto transmitted by facsimile or PDF may be used in lieu of the originals shall be deemed to be their original signatures for all purposes.

[The remainder of this page is left blank intentionally]

 

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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed as of the day and year first above written.

 

THE SHERWIN-WILLIAMS COMPANY

By:

 

/s/ Allen J. Mistysyn

 

Name:

 

Allen J. Mistysyn

 

Title:

 

Senior Vice President – Finance and

Chief Financial Officer

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

By:

 

/s/ Gregory S. Clarke

 

Name:

 

Gregory S. Clarke

 

Title:

 

Vice President

 

[ Signature Page to Twelfth Supplemental Indenture ]


Exhibit A

FORM OF LEGEND FOR GLOBAL NOTE

UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE “DEPOSITARY”) AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.    

[Insert if Global Note: THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A NOMINEE OF THE DEPOSITARY. THIS NOTE IS EXCHANGEABLE FOR NOTES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH A SUCCESSOR DEPOSITARY]

[FOR TRANSFER RESTRICTED NOTES: THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE WITH THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF OR OF A BENEFICIAL INTEREST HEREIN, THE ACQUIRER (1) REPRESENTS THAT (A) IT AND ANY ACCOUNT FOR WHICH IT IS ACTING IS A “QUALIFIED INSTITUTIONAL BUYER” (WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT) AND THAT IT EXERCISES SOLE INVESTMENT DISCRETION WITH RESPECT TO EACH SUCH ACCOUNT, OR (B) IT IS NOT A “U.S. PERSON” (WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT) AND (2) AGREES FOR THE BENEFIT OF THE SHERWIN-WILLIAMS COMPANY THAT IT WILL NOT OFFER, SELL, PLEDGE OR OTHERWISE TRANSFER THIS NOTE OR ANY BENEFICIAL INTEREST HEREIN, EXCEPT IN ACCORDANCE WITH THE SECURITIES ACT AND ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES AND ONLY (A) TO THE SHERWIN-WILLIAMS COMPANY, (B) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BECOME EFFECTIVE UNDER THE SECURITIES ACT, (C) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (D) IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES ACT, (E) TO AN INSTITUTIONAL “ACCREDITED INVESTOR” WITHIN THE MEANING OF RULE 501(a)(1), (2), (3) OR (7) UNDER THE

 

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SECURITIES ACT THAT IS NOT A QUALIFIED INSTITUTIONAL BUYER AND THAT IS PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF ANOTHER INSTITUTIONAL ACCREDITED INVESTOR, IN EACH CASE IN A MINIMUM PRINCIPAL AMOUNT OF SECURITIES OF $250,000, OR (F) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT OR ANY OTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.

PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (2)(C) ABOVE OR (2)(D) ABOVE, A DULY COMPLETED AND SIGNED CERTIFICATE (THE FORM OF WHICH IS AN EXHIBIT TO THE INDENTURE) MUST BE DELIVERED TO THE TRUSTEE. PRIOR TO THE REGISTRATION OF ANY TRANSFER IN ACCORDANCE WITH (F) ABOVE, THE SHERWIN-WILLIAMS COMPANY RESERVES THE RIGHT TO REQUIRE THE DELIVERY OF SUCH LEGAL OPINIONS, CERTIFICATIONS OR OTHER EVIDENCE AS MAY REASONABLY BE REQUIRED IN ORDER TO DETERMINE THAT THE PROPOSED TRANSFER IS BEING MADE IN COMPLIANCE WITH THE SECURITIES ACT AND APPLICABLE STATE SECURITIES LAWS. NO REPRESENTATION IS MADE AS TO THE AVAILABILITY OF ANY RULE 144 EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.]

 

Registered

No.

  

THE SHERWIN-WILLIAMS COMPANY

4.40% SENIOR NOTE DUE 2045

  

Registered

Rule 144A CUSIP

Reg S CUSIP

Unrestricted CUSIP

Original Issue Date:

    June 2, 2017

     

Maturity Date:

    February 1, 2045

  

Principal Amount:

    $248,354,000

        

Interest Rate:

    4.40%

     

Specified Currency:

    U.S. Dollars

  

Interest Payment Dates:

    February 1

    August 1

     

Regular Record Dates:

  January 15

  July 15

  

Redemption at Option of the Company:

 

Redemption Date(s)

      

Redemption Price(s)

    
At Any Time      As set forth in Section 4 on the reverse side hereof.   

This security (this “Security”) is a registered security of THE SHERWIN-WILLIAMS COMPANY, an Ohio corporation (together with its successors, if any, the “Company”). This

 

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Security is one of a series of Notes (as defined on the reverse hereof) issued under the Indenture referred to on the reverse hereof designated as the 4.40% Senior Notes due 2045. Subject to the provisions hereof, the Company, for value received, hereby promises to pay to [●] [Insert if Global Note: CEDE & CO.], or registered assigns, the Principal Amount set forth on the face hereof [Insert if Global Note: or such amount as may be set forth on the Schedule of Increases or Decreases of Interests in the Global Note attached hereto] on the Maturity Date shown above and to pay the premium, if any, and interest thereon, as described on the reverse hereof.

The principal of (and premium, if any) and interest on this Security are payable by the Company in such coin or currency of the United States as at the time of payment shall be legal tender for the payment of public and private debts.

REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.

Unless the certificate of authentication hereon has been manually executed by or on behalf of the Trustee under the Indenture by an authorized signatory thereof, this Security shall not be entitled to any benefits under the Indenture, or be valid or obligatory for any purpose.

[The remainder of this page is left blank intentionally]

 

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    THE SHERWIN-WILLIAMS COMPANY
Dated:      
    By:  

 

      Name:
      Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein and referred to in the within-mentioned Indenture.

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

By:

 

 

  Authorized Signatory

 

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REVERSE OF SECURITY

THE SHERWIN-WILLIAMS COMPANY

4.40% SENIOR NOTE DUE 2045

1.     This Security is one of the duly authorized issue of notes or other debt instruments (hereinafter called the “Notes”) of the Company, of the series hereinafter specified, all issued or to be issued under and pursuant to the Indenture dated as of July 31, 2015, between the Company and Wells Fargo Bank, National Association, a national banking association organized and existing under the laws of the United States of America (herein called the “Trustee”) and the Twelfth Supplemental Indenture, dated as of June 2, 2017, between the Company and the Trustee (collectively, the “Indenture”), to which Indenture and all other indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, obligations and duties thereunder of the Trustee and any agent of the Trustee or the Company, any Paying Agent for this Security, the Company and the Holders of the Notes and the terms upon which the Notes are issued and are to be authenticated and delivered.

This Security is one of the series of Notes of the Company issued pursuant to the Indenture designated as the 4.40% Senior Notes due 2045 (the “2045 Notes”).

2.     A. The regular record date (the “Regular Record Date”) with respect to any Interest Payment Date (as defined below) shall be the applicable date specified as such on the face hereof (whether or not such date shall be a Business Day (as defined below)) immediately preceding such Interest Payment Date. If the Regular Record Date for the first Interest Payment Date occurs on or prior to the issue date of this Note, the Regular Record Date for such first Interest Payment Date shall be deemed the close of business on the day immediately preceding such Interest Payment Date. Interest which is payable, and is punctually paid or duly provided for, on any Interest Payment Date shall be paid to the Person in whose name this Security is registered at the close of business on the Regular Record Date next preceding such Interest Payment Date. “Business Day” means, with respect to any Place of Payment, any day other than a Legal Holiday.

B.     The Company promises to pay interest on the Principal Amount at the rate per annum shown on the face hereof until the Principal Amount hereof is paid or made available for payment or upon earlier redemption or repayment. The Company will pay interest semiannually in arrears on the Interest Payment Dates set forth on the face hereof (each such date, an “Interest Payment Date”), commencing August 1, 2017, and on the Maturity Date. Interest shall accrue from and including the most recent Interest Payment Date to which interest has been paid or duly provided for or, if no interest has been paid or duly provided for, from and including February 1, 2017, to but excluding the next succeeding Interest Payment Date. The amount of such interest payable on any Interest Payment Date shall be computed on the basis of a 360-day year of twelve 30-day months. If any payment is required to be made in respect of this Security on a date (including the Maturity Date, a redemption date, a Change of Control Payment Date or an Interest Payment Date) that is not a Business Day, the related payment shall be made on the next succeeding Business Day as if made on the date the payment is due, and no interest shall accrue on such payment for the intervening period.

 

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C.     The Company shall pay all Additional Interest, if any, on the applicable Interest Payment Date in the same manner as interest is paid on the 2045 Notes and in the amounts set forth in the Registration Rights Agreement.

3.     As long as the 2045 Notes are represented by one or more Global Notes, all payments of interest will be made by the Company in immediately available funds to the accounts specified by the Depositary or a nominee of the Depositary. Otherwise, payments of interest on the 2045 Notes due on Interest Payment Dates will be made by immediately available funds to accounts with financial institutions in the United States specified by the Persons entitled thereto by notice given to the Paying Agent at least ten calendar days prior to the applicable Interest Payment Date or, if no such account is so specified, by check mailed to the Persons entitled thereto. Principal and any premium and (if such day is not an Interest Payment Date) interest payable at the Stated Maturity, on redemption or repayment of a 2045 Note will be paid in immediately available funds upon surrender of such 2045 Note at the Place of Payment. Initially, Wells Fargo Bank, National Association will be the Paying Agent and the Registrar with respect to the 2045 Notes. The Company reserves the right at any time to vary or terminate the appointment of any Paying Agent or Registrar and to appoint additional or other Paying Agents and a different Registrar and to approve any change in the office through which any Paying Agent or Registrar acts; provided that the Company shall at all times maintain a Paying Agent and Place of Payment for the 2045 Notes.

4.     At any time and from time to time, the 2045 Notes are redeemable, in whole or in part, at the option of the Company, on notice given as provided in the Indenture, at a redemption price equal to the greater of (i) 100% of the principal amount of the 2045 Notes to be redeemed and (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, the date of redemption) discounted to the date of redemption on a semiannual basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus 35 basis points, plus, in either case, accrued and unpaid interest to, but not including, the date of redemption.

Notwithstanding the foregoing, if the 2045 Notes are redeemed on or after August 1, 2044 (the date that is six months prior to the Maturity Date), the 2045 Notes will be redeemed at a redemption price equal to 100% of the principal amount of the 2045 Notes to be redeemed, plus accrued and unpaid interest to, but not including, the date of redemption.

For purposes of determining the redemption price, the following definitions shall apply:

Comparable Treasury Issue ” means the United States Treasury security or securities selected by the Quotation Agent as having an actual or interpolated maturity comparable to the remaining term of the 2045 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2045 Notes.

Comparable Treasury Price ” means, with respect to any redemption date, (A) the arithmetic average of the four Reference Treasury Dealer Quotations for such redemption date,

 

A-6


after excluding the highest and lowest such Reference Treasury Dealer Quotations or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such redemption date.

Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however , that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

Reference Treasury Dealer ” means each of (i) Citigroup Global Markets Inc. and Wells Fargo Securities, LLC or their respective affiliates that are Primary Treasury Dealers, and, in each case, their respective successors; and (ii) two other Primary Treasury Dealers selected by the Company; provided , however , that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any redemption date, the arithmetic average, as determined by the Quotation Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer at 3:30 p.m., New York City time on the third Business Day preceding such redemption date.

Treasury Rate ” means, with respect to any redemption date, the rate per annum equal to: (1) the yield, under the heading that represents the average for the immediately preceding week, appearing in the most recently published statistical release designated “H.15” or any successor publication that is published by the Board of Governors of the Federal Reserve System and that establishes yields on actively traded United States Treasury securities adjusted to constant maturity under the caption “Treasury Constant Maturities,” for the maturity corresponding to the Comparable Treasury Issue; provided that, if no maturity is within three months before or after the remaining term of the 2045 Notes to be redeemed, yields for the two published maturities most closely corresponding to the Comparable Treasury Issue shall be determined and the Treasury Rate shall be interpolated or extrapolated from those yields on a straight-line basis, rounding to the nearest month; or (2) if such release (or any successor release) is not published during the week preceding the calculation date or does not contain such yields, the rate per annum equal to the semiannual equivalent yield to maturity or interpolated (on a day count basis) of the applicable Comparable Treasury Issue, assuming a price for such Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. The Treasury Rate shall be calculated on the third Business Day preceding the redemption date.

If less than all of the 2045 Notes are to be redeemed, the 2045 Notes to be redeemed shall be selected in accordance with Section 3.02 of the Indenture.

 

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Notice of redemption shall be given as provided in Section 3.03 of the Indenture. A notice of redemption may not be conditional. The Trustee shall not be responsible for the calculation of the redemption price for any such redemption. The Company shall calculate such redemption price and promptly notify the Trustee thereof.

5.     If an Event of Default with respect to the 2045 Notes shall occur and be continuing, the principal and interest thereon of all of the 2045 Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

6.     The Indenture permits, with certain exceptions as therein provided, the Company and the Trustee to enter into supplemental indentures to the Indenture for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of the Indenture or of modifying in any manner the rights of the Holders of the Notes of each series under the Indenture with the consent of the Holders of not less than a majority in aggregate principal amount of the Notes at the time outstanding of each series to be affected thereby on behalf of the Holders of all Notes of such series. In addition, the Indenture permits the Company and the Trustee to enter into supplemental indentures to the Indenture, without the consent of Holders, for certain purposes, including to cure any ambiguity or to correct or supplement any provision contained in the Indenture and to make changes that do not adversely affect the rights of any Holder in any material respect. The Indenture also permits the Holders of a majority in aggregate principal amount of the Notes at the time outstanding of each series on behalf of the Holders of all Notes of such series, to waive certain past defaults and their consequences with respect to such series under the Indenture. Any such consent or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any 2045 Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security or such other 2045 Notes.

7.     No reference herein to the Indenture and no provision of this Security or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal and any premium of and any interest on this Security at the place, rate and respective times and in the coin or currency herein and in the Indenture prescribed.

8.     The authorized denominations of the 2045 Notes are $2,000 and any larger amount that is an integral multiple of $1,000. As provided in the Indenture and except as provided therein and herein, the 2045 Notes are exchangeable for a like aggregate principal amount of 2045 Notes of a different authorized denomination, as requested by the Holder surrendering the same.

9.     As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Security is registrable in the Note register, upon surrender of this Security for registration of transfer at the office of the Registrar or co-registrar designated by the Company for such purpose. Every 2045 Note presented or surrendered for registration of transfer, exchange or payment shall (if so required by the Company, the Trustee or the Registrar) be duly endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory to the Company, the Trustee and the Registrar, duly executed by the Holder or its attorney duly authorized in writing.

 

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Prior to due presentment for registration of transfer, the Company, the Trustee, any Paying Agent and any Registrar may treat the Person in whose name this Security is registered as the absolute owner thereof for all purposes (subject to Section 2.A hereof), whether or not such Security is overdue and notwithstanding any notation of ownership or other writing thereon, and neither the Company nor the Trustee nor any Paying Agent nor any Registrar shall be affected by notice to the contrary.

No service charge shall be made for any exchange or registration of transfer of any 2045 Note, with certain exceptions, but the Company may require payment of a sum sufficient to cover any transfer tax or similar governmental charge payable in connection therewith.

10.     This Security is a Global Note. Accordingly, this Security may not be transferred except as a whole by the Depositary to a nominee of the Depositary, by a nominee of the Depositary to the Depositary or another nominee of the Depositary or by the Depositary or any such nominee to a successor Depositary or a nominee of such a successor Depositary. Ownership of beneficial interests in this Security will be shown on, and the transfer of that ownership will be effected only through, records maintained by the applicable Depositary or its nominee (with respect to interest of participants) and the records of participants (with respect to interests of Persons other than participants).

So long as the Depositary or its nominee is the registered owner of this Security, the Depositary or that nominee, as the case may be, will be considered the sole legal owner or Holder of the 2045 Notes represented by this Security for all purposes of the 2045 Notes and the Indenture. Except as provided below, owners of beneficial interests in this Security (1) will not be entitled to have the 2045 Notes represented by this Security registered in their names, (2) will not receive or be entitled to receive physical delivery of certificated securities and (3) will not be considered the owners or Holders of the 2045 Notes represented by that beneficial interest under the Indenture for any purpose, including with respect to the giving of any direction, instruction or approval to the Trustee. Accordingly, each Person owning a beneficial interest in this Security must rely on the procedures of the Depositary and, if that Person is not a Depositary participant or indirect participant, on the procedures of the participant through which that Person owns its interest, to exercise any rights of a Holder of 2045 Notes under the Indenture or this Security.

Except as provided in Section 2.14(b) of the Indenture, beneficial interests in this Security may not be exchanged for certificated securities.

Payments with respect to the principal of and interest on this Security will be payable by the Trustee to or at the direction of the Depositary or its nominee in its capacity as the registered Holder of this Security under the Indenture. Under the terms of the Indenture, the Company and the Trustee may treat the Persons in whose names this Security are registered as the owners hereof for the purpose of receiving payment thereon (except as provided in Section 2.A hereof) and for any and all other purposes whatsoever. None of the Company, the Trustee, any Registrar, the Paying Agent or any agent of the Company or the Trustee will have any responsibility or liability for (a) any aspect of the records relating to or payments made on account of beneficial ownership interests in this Security or for maintaining, supervising or

 

A-9


reviewing any records relating to such beneficial ownership interests, (b) the payments to the beneficial owners of this Security of amounts paid to the Depositary or its nominee or (c) any other matter relating to the actions or practices of the Depositary, its nominee or any of its direct or indirect participants.

11.     Unless otherwise defined herein, all terms used in this Security which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

12.     THE INTERNAL LAW OF THE STATE OF NEW YORK WILL GOVERN AND BE USED TO CONSTRUE THE 2045 NOTES, WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

 

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CERTIFICATE OF TRANSFER

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto

Insert Taxpayer Identification No.:

 

 

Please print or typewrite name and address including zip code of assignee                                          the within 2045 Note and all rights thereunder, and hereby irrevocably constituting and appointing                      attorney to transfer said 2045 Note on the books of the Registrar with full power of substitution in the premises.

Dated:                     

 

NOTICE:

  

 

  

The signature to this assignment must correspond with the name as it appears upon the face of the within 2045 Note in every particular, without alteration or enlargement or any change whatever.

 

A-11


OPTION OF HOLDER TO ELECT PURCHASE

If you want to elect to have this 2045 Note purchased by the Company pursuant to Section 3 of the Twelfth Supplemental Indenture, check the box below:

☐  Section 3

If you want to elect to have only part of this 2045 Note purchased by the Company pursuant to Section 3 of the Twelfth Supplemental Indenture, state the amount you elect to have purchased:

$         

Date:                     

 

Your Signature:  

 

  (Sign exactly as your name appears on the face of this Note)
Tax Identification No.:                                                   

Signature Guarantee*:                                                  

 

*

Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).

 

A-12


SCHEDULE OF INCREASES OR DECREASES OF INTERESTS IN THE GLOBAL NOTE

The initial principal amount of this Global Note is $[●]. The following increases or decreases in this Global Note have been made:

 

Date of Exchange

 

Amount of Decrease in

Principal Amount at

Maturity

of this Global Note

 

Amount of Increase in

Principal Amount at

Maturity

of this Global Note

 

Principal Amount at

Maturity

of this Global Note

Following such

decrease (or increase)

 

Signature of

Authorized Signatory

of Trustee or

Custodian

       
       

 

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EXHIBIT B

FORM OF CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR

REGISTRATION OF TRANSFER OF NOTES

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 4.40% Senior Notes due 2045 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry or definitive form by (the “Transferor”). The Transferor has requested the Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with the Indenture relating to the above-captioned Notes and that the Transfer does not require registration under the Securities Act of 1933, as amended (the “Securities Act”), because:

 

            

  

Such Note or beneficial interest is being acquired for the Transferor’s own account without transfer.

            

  

Such Note or beneficial interest is being transferred to (i) a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act), in accordance with Rule 144A under the Securities Act, that is purchasing for its own account or for the account of another qualified institutional buyer, in each case to whom notice is given that the Transfer is being made in reliance on Rule 144A; or (ii) to a non-U.S. person in an offshore transaction in accordance with Rule 903 or Rule 904 of Regulation S under the Securities Act (and in the case of clause (ii), based upon an opinion of counsel if the Company or the Trustee so requests, together with a certification in substantially the form of Exhibit C to the Supplemental Indenture setting forth the terms of the Notes pursuant to the Indenture).

            

  

Such Note or beneficial interest is being transferred pursuant to (i) an exemption from the registration requirements of the Securities Act provided by Rule 144 or (ii) an effective registration statement under the Securities Act.

            

  

Such Note or beneficial interest is being transferred in reliance on and in compliance with another exemption from the registration requirements of the Securities Act (and

 

B-1


            

  

based upon an opinion of counsel if the Company so requests).

Fill in blank or check appropriate item, as applicable.

 

B-2


Date:                     

 

  [INSERT NAME OF TRANSFEROR]
    By:  

 

      Name:
      Title:
      Address:

 

B-3


EXHIBIT C

FORM OF CERTIFICATE TO BE DELIVERED IN CONNECTION WITH

TRANSFERS PURSUANT TO REGULATION S

Wells Fargo Corporate Trust-DAPS Reorg

600 Fourth Street South, 7th Floor

MAC N9300-070

Minneapolis, MN 55415

Phone: 1-800-344-5128

Fax: 1-866-969-1290

Email: dapsreorg@wellsfargo.com

Re: 4.40% Senior Notes due 2045 (the “Notes”) of THE SHERWIN-WILLIAMS COMPANY (the “Company”)

This Certificate relates to $         principal amount of Notes held in book-entry form by (the “Transferor”).

The Transferor has requested the Security Registrar by written order to exchange or register the transfer of a Note or Notes or beneficial interests therein (the “Transfer”) for an interest in the Regulation S Temporary Global Note to be held with [Euroclear] [Clearstream] through the Depositary (in each case as defined in the Indenture related to the above-referenced Notes).

In connection with such request and in respect of each such Note or beneficial interest therein, the Transferor does hereby certify that the Transferor is familiar with such Indenture and Establishment Action and that:

(a) the offer of such Notes or beneficial interests was not made to a person in the United States or for the benefit of a person in the United States (other than an Initial Purchaser);

(b) at the time the buy order was originated, the transferee was outside the United States or the Transferor and any person acting on its behalf reasonably believed that the transferee was outside the United States; or the transaction was executed in, on or through the facilities of a designated offshore securities market and neither the Transferor nor any person acting on its behalf knows that the transaction was prearranged with a buyer in the United States;

(c) no directed selling efforts have been made by the Transferor in the United States in contravention of the requirements of Rule 903(a) or Rule 904(a) of Regulation S under the U.S. Securities Act of 1933 (the “Securities Act”), as applicable;

(d) the transaction is not part of a plan or scheme to evade the registration requirements of the Securities Act; and

(e) if the proposed transfer is being made prior to the expiration of a 40-day “distribution compliance period” as defined in Regulation S under the Securities Act, the transfer is being made (a) to a person that is not a U.S. person or for the account or benefit of a person that is not

 

C-1


a U.S. person within the meaning of Regulation S under the Securities Act; or (b) to a “qualified institutional buyer” within the meaning of Rule 144A under the Securities Act, in each case that holds such Note or beneficial interests through [Euroclear] [Clearstream].

 

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Date:                     

 

  [INSERT NAME OF TRANSFEROR]
    By:  

 

      Name:
      Title:
      Address:

 

C-3

Exhibit 10.1

REGISTRATION RIGHTS AGREEMENT

by and between

The Sherwin-Williams Company, as Issuer,

and

Citigroup Global Markets Inc.,

and

Wells Fargo Securities, LLC, as Dealer Managers

Dated as of June 2, 2017

 

 


REGISTRATION RIGHTS AGREEMENT

This Registration Rights Agreement (this “ Agreement ”) is made and entered into this 2nd day of June, 2017, by and among The Sherwin-Williams Company, an Ohio corporation (the “ Company ”), and Citigroup Global Markets Inc. and Wells Fargo Securities, LLC (collectively, the “ Dealer Managers ”).

This Agreement is made pursuant to the Offering Memorandum and Consent Solicitation Statement dated May 2, 2017 (as amended or supplemented, the “ Offering Memorandum ”), which provides for the offers by the Company to exchange any and all of the outstanding 7.250% Notes due 2019, 4.200% Notes due 2022, 3.300% Notes due 2025, 3.950% Notes due 2026 and 4.400% Notes due 2045 (collectively, the “ Old Valspar Notes ”) issued by The Valspar Corporation, a Delaware corporation (“ Valspar ”), and held by certain eligible holders in exchange for newly issued debt securities of the Company (the “ New SHW Notes ”), in each case maturing on the same date and bearing an interest rate of the same amount per annum as the applicable series of Old Valspar Notes for which they are exchanged and cash, on the terms and subject to the conditions set forth in the Offering Memorandum. The execution of this Agreement is a condition to the consummation of the Original Exchange Offer (as defined below).

In consideration of the foregoing, the parties hereto agree as follows:

1. Definitions . As used in this Agreement, the following capitalized defined terms shall have the following meanings:

Additional Interest ” shall have the meaning set forth in Section  2.5 .

Affiliate ” shall mean an “ affiliate ” as that term is defined in Rule 405 under the Securities Act.

Agreement ” shall have the meaning set forth in the preamble.

Automatic Shelf Registration Statement ” shall mean an “automatic shelf registration statement” as that term is defined in Rule 405 under the Securities Act.

Company ” shall have the meaning set forth in the preamble and shall also include the Company’s successors.

Dealer Managers ” shall have the meaning set forth in the preamble.

Dealer Manager Agreement ” means the Dealer Manager Agreement, dated May 2, 2017, by and among the Company and the Dealer Managers.

Depositary ” shall mean The Depository Trust Company, or any other depositary appointed by the Company; provided, however, that such depositary must have an address in the Borough of Manhattan, in the City of New York.

Event Date ” shall have the meaning set forth in Section  2.5 .

 

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Exchange Date ” shall have the meaning set forth in the Dealer Manager Agreement.

Exchange Offer ” means the offer by the Company to exchange each Series of Registrable Securities for the corresponding Series of Exchange Securities pursuant to Section  2.1 .

Exchange Offer Registration Statement ” shall mean an exchange offer registration statement on Form S-4 (or, if applicable, on another appropriate form), and all amendments and supplements to such registration statement, including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed incorporated by reference therein.

Exchange Period ” shall have the meaning set forth in Section  2.1 .

Exchange Securities ” shall mean with respect to each series of New SHW Notes, a new series of notes maturing on the same date and bearing interest at the same rate per annum as the corresponding series of New SHW Notes (each such series of Exchange Securities, a “ Series of Exchange Securities ”), in each case issued by the Company under the Indenture, containing terms identical to the applicable Series of New SHW Notes in all material respects (except for references to certain additional interest rate provisions, restrictions on transfers and restrictive legends), to be offered to Holders of the applicable Series of New SHW Notes in exchange for the corresponding Series of Registrable Securities pursuant to the Exchange Offer.

Holder ” shall mean each Person who becomes the registered owner of Registrable Securities under the Indenture and each Participating Broker-Dealer that holds Exchange Securities for so long as such Participating Broker-Dealer is required to deliver a Prospectus in connection with any resale of such Exchange Securities.

Indenture ” shall mean the Indenture, dated as of July 31, 2015 between the Company and Wells Fargo Bank, N.A., as the trustee, as the same may be amended, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof.

Majority Holders ” shall mean the Holders of a majority of the aggregate principal amount of outstanding Registrable Securities; provided, that whenever the consent or approval of Holders of a specified percentage of Registrable Securities is required hereunder, Registrable Securities held by the Company or any Affiliate of the Company shall be disregarded in determining whether such consent or approval was given by the Holders of such required percentage amount. For purposes of this definition, “outstanding” shall have the meaning prescribed in Section  2.09 of the Indenture.

New SHW Notes ” shall have the meaning set forth in the preamble.

Offering Memorandum ” shall have the meaning set forth in the preamble.

Old Valspar Notes ” shall have the meaning set forth in the preamble.

Original Exchange Offer ” means the offer by the Company to exchange any and all outstanding Old Valspar Notes for New SHW Notes, on the terms and conditions set forth in the Offering Memorandum.

 

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Participating Broker-Dealers ” shall mean the Dealer Managers and any other broker-dealer which makes a market in the New SHW Notes and exchanges Registrable Securities in the Exchange Offer for Exchange Securities.

Person ” shall mean an individual, partnership (general or limited), corporation, limited liability company, trust or unincorporated organization, or a government or agency or political subdivision thereof.

Prospectus ” shall mean the prospectus included in a Registration Statement, including any preliminary prospectus, and any such prospectus as amended or supplemented by any prospectus supplement, including any such prospectus supplement with respect to the terms of the offering of any portion of the Registrable Securities covered by a Shelf Registration Statement, and by all other amendments and supplements to a prospectus, including post-effective amendments, and in each case including all material incorporated or deemed incorporated by reference therein.

Registrable Securities ” shall mean the New SHW Notes; provided, however, that the New SHW Notes shall cease to be Registrable Securities when (i) a Registration Statement with respect to such New SHW Notes shall have been declared or otherwise become effective under the Securities Act and such New SHW Notes shall have been disposed of pursuant to such Registration Statement, (ii) such New SHW Notes may be resold without restriction pursuant to Rule 144 (or any similar provision then in force, but not Rule 144A) under the Securities Act, (iii) such New SHW Notes shall have ceased to be outstanding or (iv) the Exchange Offer is consummated (except in the case of New SHW Notes which may not be exchanged in the Exchange Offer). Each of the series of New SHW Notes may be referred to herein as a “ Series of Registrable Securities .”

Registration Default ” shall have the meaning set forth in Section  2.5 .

Registration Expenses ” shall mean any and all expenses incident to performance of or compliance by the Company with this Agreement, including without limitation: (i) all SEC or Financial Industry Regulatory Authority (“ FINRA ”) registration and filing fees, (ii) all fees and expenses incurred in connection with compliance with state securities or blue sky laws, (iii) all expenses of any Persons in preparing or assisting in preparing, word processing, printing and distributing any Registration Statement, any Prospectus, any amendments or supplements thereto, any underwriting agreements, securities sales agreements and other documents relating to the performance of and compliance with this Agreement, (iv) all rating agency fees, (vi) the fees and disbursements of counsel for the Company and of the independent public accountants of the Company, including the expenses of any special audits or “cold comfort” letters required by or incident to such performance and compliance, (vi) the fees and expenses of the Trustee, and any escrow agent or custodian, (vii) the reasonable fees and expenses of counsel to the Dealer Managers in connection therewith, (viii) any fees and disbursements of the underwriters customarily required to be paid by issuers or sellers of securities and the fees and expenses of any special experts retained by the Company in connection with any Registration Statement, but excluding underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of Registrable Securities by a Holder.

 

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Registration Statement ” shall mean any registration statement of the Company which covers any of the Exchange Securities or Registrable Securities pursuant to the provisions of this Agreement, and all amendments and supplements to any such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed incorporated by reference therein.

SEC ” shall mean the United States Securities and Exchange Commission or any successor agency or government body performing the functions currently performed by the United States Securities and Exchange Commission.

Securities Act ” shall mean the Securities Act of 1933.

Securities Exchange Act ” shall mean the Securities Exchange Act of 1934.

Series of New SHW Notes ” shall mean each series of New SHW Notes.

Shelf Registration ” shall mean a registration effected pursuant to Section  2.2 .

Shelf Registration Statement ” shall mean a “shelf” registration statement of the Company pursuant to the provisions of Section  2.2 , including an Automatic Shelf Registration Statement, if applicable, which covers all of the Registrable Securities on an appropriate form under Rule 415 under the Securities Act, or any similar rule that may be adopted by the SEC, and all amendments and supplements to such Registration Statement, including post-effective amendments, in each case including the Prospectus contained therein, all exhibits thereto and all material incorporated or deemed incorporated by reference therein.

Trustee ” shall mean the trustee with respect to the Registrable Securities under the Indenture.

Trust Indenture Act ” shall mean the Trust Indenture Act of 1939.

Valspar ” shall have the meaning set forth in the preamble.

2. Registration Under the Securities Act .

2.1. Exchange Offer . Unless the Exchange Offer would violate applicable law or any applicable interpretation of the staff of the SEC, the Company shall, for the benefit of the Holders, at the Company’s cost, use its commercially reasonable efforts to (A) prepare and not later than 180 calendar days following the Exchange Date, file with the SEC an Exchange Offer Registration Statement on an appropriate form under the Securities Act with respect to a proposed Exchange Offer and the issuance and delivery to the Holders, in exchange for each Series of Registrable Securities, of a like principal amount of the corresponding Series of Exchange Securities, (B) cause the Exchange Offer Registration Statement to be declared effective under the Securities Act within 270 calendar days of the Exchange Date, (C) keep the Exchange Offer Registration Statement effective until the closing of the Exchange Offer and (D) cause the Exchange Offer to be consummated not later than 365 calendar days following the Exchange Date. After the effectiveness of the Exchange Offer Registration Statement, the Company shall promptly commence the Exchange Offer, it being the objective of such Exchange

 

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Offer to enable each Holder eligible and electing to exchange Registrable Securities for Exchange Securities (assuming that such Holder (a) is not an Affiliate of the Company, (b) is not a broker-dealer who tendered Old Valspar Notes acquired directly from Valspar for its own account in exchange for New SHW Notes, (c) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (d) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities) to transfer such Exchange Securities from and after their receipt without any limitations or restrictions under the Securities Act and under state securities or blue sky laws.

In order to participate in the Exchange Offer, each Holder must represent to the Company at the time of the consummation of the Exchange Offer (which representation shall be contained in the letter of transmittal or other document accompanying the Exchange Offer Registration Statement) that it (i) is not an Affiliate of the Company, (ii) is not a broker-dealer who tendered Old Valspar Notes acquired directly from Valspar for its own account in exchange for New SHW Notes, (iii) is acquiring the Exchange Securities in the ordinary course of such Holder’s business and (iv) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities.

In connection with the Exchange Offer, the Company shall:

(a) make available to each Holder a copy of the Prospectus forming part of the Exchange Offer Registration Statement, together with an appropriate letter of transmittal and related documents;

(b) keep the Exchange Offer open for acceptance for a period of not less than 20 business days after the date notice thereof is mailed to the Holders (or longer at the option of the Company or if required by applicable law) (such period referred to herein as the “ Exchange Period ”);

(c) utilize the services of the Depositary for the Exchange Offer;

(d) permit Holders to withdraw tendered Registrable Securities at any time prior to the expiration of the Exchange Period, by sending to the institution specified in the letter of transmittal or other applicable notice, a telegram, telex, facsimile transmission or letter setting forth the name of such Holder, the principal amount of Registrable Securities delivered for exchange, and a statement that such Holder is withdrawing such Holder’s election to have such Registrable Securities exchanged; and

(e) otherwise comply in all material respects with all applicable laws relating to the Exchange Offer.

The Exchange Securities shall be issued under (i) the Indenture or (ii) an indenture identical in all material respects to the Indenture and which, in either case, has been qualified under the Trust Indenture Act. The Indenture or such indenture shall provide that the Exchange Securities and the New SHW Notes shall vote and consent together on all matters as one class and that none of the Exchange Securities or the New SHW Notes will have the right to vote or consent as a separate class on any matter.

 

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As soon as reasonably practicable after the expiration of the Exchange Offer, the Company shall:

(i) accept for exchange all Registrable Securities duly tendered and not validly withdrawn pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer Registration Statement and the letter of transmittal which shall be an exhibit thereto;

(ii) deliver to the Trustee for cancellation all Registrable Securities so accepted for exchange; and

(iii) cause the Trustee promptly to authenticate and deliver Exchange Securities to each Holder of Registrable Securities so accepted for exchange in a principal amount equal to the principal amount of the corresponding Series of Registrable Securities of such Holder so accepted for exchange.

Interest on each Exchange Security will accrue from the last date on which interest was paid on the Registrable Security surrendered in exchange therefor or, if no interest has been paid on the Registrable Security, from the date of original issuance. The Exchange Offer shall not be subject to any conditions, other than (i) that the Exchange Offer, or the making of any exchange by a Holder, does not violate applicable law or any applicable interpretation of the staff of the SEC, (ii) the due tendering of Registrable Securities in accordance with the Exchange Offer, (iii) that each Holder of Registrable Securities exchanged in the Exchange Offer shall have represented that it (A) is not an Affiliate of the Company, (B) is not a broker-dealer who tendered Old Valspar Notes acquired directly from Valspar for its own account in exchange for New SHW Notes, (C) will acquire the Exchange Securities in the ordinary course of such Holder’s business and (D) is not engaged in and does not intend to engage in and has no arrangements or understandings with any Person to participate in the distribution of the Exchange Securities and shall have made such other representations as may be reasonably necessary under applicable SEC rules, regulations or interpretations to render the use of Form S-4 or other appropriate form under the Securities Act available and (iv) that no action or proceeding shall have been instituted or threatened in any court or by or before any governmental agency with respect to the Exchange Offer which, in the Company’s judgment, would reasonably be expected to impair the ability of the Company to proceed with the Exchange Offer. The Company will use its commercially reasonable efforts to cause the registrar for each Series of Registrable Securities to furnish the Dealer Managers with the names and addresses of the Holders to whom the Exchange Offer is made, and the Dealer Managers shall have the right to contact such Holders and otherwise facilitate the tender of Registrable Securities in the Exchange Offer.

2.2. Shelf Registration . (i) If, because of any changes in law, SEC rules or regulations or applicable interpretations thereof by the staff of the SEC, the Company determines upon the advice of its counsel that it is not permitted to effect the Exchange Offer as contemplated by Section  2.1 , (ii) if for any other reason the Exchange Offer is not consummated within 365 days after the original Exchange Date, or (iii) if a Holder notifies the Company in writing prior to the 20th day following the consummation of the Exchange Offer that it is not permitted by applicable law to participate in the Exchange Offer or participates in the Exchange Offer and

 

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does not receive fully tradable Exchange Securities pursuant to the Exchange Offer, then in case of each of clauses (i) through (iii) the Company shall, at its reasonable cost:

(a) As promptly as practicable, but no later than 60 days after being required to do so under Section  2.2 , file with the SEC, and thereafter shall use its commercially reasonable efforts to cause to become effective as promptly as practicable but no later than 270 days after being required to do so under Section  2.2 , a Shelf Registration Statement relating to the offer and sale of the Registrable Securities by the Holders from time to time in accordance with the methods of distribution elected by the Majority Holders participating in the Shelf Registration and set forth in such Shelf Registration Statement; provided, however, that nothing in this Section 2.2(a) shall require the filing of a Shelf Registration Statement prior to the deadline for filing the Exchange Offer Registration Statement set forth in Section  2.1 ; provided, further, that no Holder shall be entitled to be named as a selling security holder in the Shelf Registration Statement or to use the Prospectus forming a part thereof for resales of Registrable Securities unless such Holder has signed and returned to the Company a notice and questionnaire as distributed by the Company consenting to such Holder’s inclusion in the Prospectus as a selling security holder, evidencing such Holder’s agreement to be bound by the applicable provisions of this Agreement and providing such further information to the Company as the Company may reasonably request.

(b) Use its commercially reasonable efforts to keep the Shelf Registration Statement continuously effective in order to permit the Prospectus forming part thereof to be usable by Holders for a period of one year from the Exchange Date, or for such shorter period that will terminate when all Registrable Securities covered by the Shelf Registration Statement have been sold pursuant to the Shelf Registration Statement or cease to be outstanding or otherwise to be Registrable Securities.

(c) Notwithstanding any other provisions hereof, use its commercially reasonable efforts to ensure that (i) any Shelf Registration Statement and any amendment thereto, at the time each such registration statement or amendment thereto becomes effective, and any Prospectus as of the date thereof forming part thereof and any supplement thereto complies in all material respects with the Securities Act and the rules and regulations thereunder, (ii) any Shelf Registration Statement and any amendment thereto does not, when it becomes effective, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading and (iii) any Prospectus forming part of any Shelf Registration Statement, and any supplement to such Prospectus (as amended or supplemented from time to time) (each, as of the date thereof), does not include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements, in the light of the circumstances under which they were made, not misleading.

The Company further agrees, if necessary, to supplement or amend the Shelf Registration Statement, as required by Section 3(b) , and to furnish to the Holders of Registrable Securities copies of any such supplement or amendment promptly after its being used or filed with the SEC (other than with respect to any such supplement or amendment resulting solely from the incorporation by reference of any report filed under the Securities Exchange Act). In the event that the Exchange Offer is consummated within 365 days after the Exchange Date, the Company shall have no obligation to file a Shelf Registration Statement pursuant to Section 2.2(ii) .

 

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2.3. Expenses . The Company shall pay all Registration Expenses in connection with the registration pursuant to Section  2.1 or 2.2 . Each Holder shall pay all underwriting discounts and commissions and transfer taxes, if any, relating to the sale or disposition of such Holder’s Registrable Securities pursuant to the Shelf Registration Statement.

2.4. Effectiveness . An Exchange Offer Registration Statement pursuant to Section  2.1 will not be deemed to have become effective unless it has been declared effective by the SEC, and a Shelf Registration Statement pursuant to Section  2.2 will not be deemed to have become effective unless it has been declared effective by the SEC or has otherwise become effective under Rule 462 under the Securities Act or any other applicable rule; provided, however, that if, after such Registration Statement has been declared effective or has otherwise become effective, the offering of Registrable Securities pursuant to an Exchange Offer Registration Statement or a Shelf Registration Statement is interfered with by any stop order, injunction or other order or requirement of the SEC or any other governmental agency or court, such Registration Statement will be deemed not to have become effective during the period of such interference, until the offering of Registrable Securities pursuant to such Registration Statement may legally resume.

2.5. Interest . The Company agrees that in the event that (a) (i) if required, the Exchange Offer is not consummated on or prior to the 365th calendar day following the Exchange Date or (ii) if required, a Shelf Registration Statement has not become effective on or prior to the 270th calendar day following the date on which the Company became obligated to file such Shelf Registration Statement under Section  2.2 , or (b) if required, the Shelf Registration Statement has been filed and is declared or otherwise becomes effective but ceases to be effective or usable for a period of time that exceeds 120 days in the aggregate in any 12-month period in which it is required to be effective hereunder (each such event referred to in the preceding clauses (a) and (b), a “ Registration Default ”), the interest rate borne by the New SHW Notes affected thereby shall be increased (“ Additional Interest ”) immediately upon occurrence of a Registration Default by one-quarter of one percent (0.25%) per annum with respect to the first 90-day period while one or more Registration Defaults is continuing and will increase to a maximum of one-half of one percent (0.50%) per annum Additional Interest thereafter while one or more Registration Defaults is continuing until all Registration Defaults have been cured; provided that Additional Interest shall accrue only for those days that a Registration Default occurs and is continuing, including the date on which any Registration Default shall occur but not including the date on which all Registration Defaults have been cured. Such Additional Interest shall be calculated based on a year consisting of 360 days comprised of twelve 30-day months. Following the cure of all Registration Defaults the accrual of Additional Interest will cease, the interest rate will revert to the original rate and, upon any subsequent Registration Default following any such cure of all Registration Defaults, Additional Interest will begin accruing again at one-quarter of one percent (0.25%) per annum and will increase to a maximum of one-half of one percent (0.50%) per annum as provided above until all Registration Defaults have been cured. Additional Interest shall not be payable with respect to Registration Defaults for any period during which a Shelf Registration Statement is effective and usable by the Holders. Any Additional Interest shall constitute liquidated damages and shall be the exclusive remedy, monetary or otherwise, available to any Holder of New SHW Notes with respect to any Registration Default. The Company shall notify the Trustee within five business days after each and every date on which an event occurs in respect of which Additional Interest is required to be paid (an “ Event Date ”). Additional Interest shall be paid by depositing with the Trustee, in trust, for the benefit of the

 

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Holders of Registrable Securities, on or before the applicable semi-annual interest payment date, immediately available funds in sums sufficient to pay the Additional Interest then due. The Additional Interest due shall be payable on each interest payment date to the record Holder of New SHW Notes affected thereby entitled to receive the interest payment to be paid on such date as set forth in the Indenture. Each obligation to pay Additional Interest shall be deemed to accrue from and including the day following the applicable Event Date.

Notwithstanding anything else contained herein, no Additional Interest shall be payable in relation to the applicable Shelf Registration Statement or the related Prospectus if (i) such Additional Interest is payable solely as a result of (x) the filing of a post-effective amendment to such Shelf Registration Statement to incorporate annual audited or, if required by the rules and regulations under the Securities Act, quarterly unaudited financial information with respect to the Company where such post-effective amendment is not yet effective and needs to be declared or otherwise become effective to permit Holders to use the related Prospectus or (y) the Company notifies the Holder to suspend use (on one or more occasions) of the Shelf Registration Statement and the related Prospectus for a period not to exceed an aggregate of 120 days in any calendar year because of the occurrence of any material event or development with respect to the Company that, in the reasonable judgment of the Company , would be detrimental to the Company if so disclosed or would otherwise materially adversely affect a financing, acquisition, disposition, merger or other material transaction; provided, however, that in no event shall the Company be required to disclose the business purpose for such suspension. Notwithstanding the foregoing, the Company shall not be required to pay Additional Interest with respect to the New SHW Notes to any Holder if the failure arises from the Company’s failure to file, or cause to become effective, a Shelf Registration Statement within the time periods specified in this Section  2 by reason of the failure of such Holder to provide such information as (i) the Company may reasonably request, with reasonable prior written notice, for use in the Shelf Registration Statement or any Prospectus included therein to the extent the Company reasonably determines that such information is required to be included therein by applicable law, (ii) FINRA or the SEC may request in connection with such Shelf Registration Statement or (iii) is required to comply with the agreements of such Holder as contained herein to the extent compliance thereof is necessary for the Shelf Registration Statement to be declared or otherwise become effective, including, without limitation, a signed notice and questionnaire as distributed by the Company consenting to such Holder’s inclusion in the Prospectus as a selling security holder, evidencing such Holder’s agreement to be bound by the applicable provisions of this Agreement and providing such further information to the Company as the Company may reasonably request.

3. Registration Procedures . In connection with the obligations of the Company with respect to Registration Statements pursuant to Sections 2.1 and 2.2 , the Company shall:

(a) prepare and file with the SEC a Registration Statement, within the relevant time period specified in Section  2 , on the appropriate form under the Securities Act, which form (i) shall be selected by the Company, (ii) shall, in the case of a Shelf Registration, be available for the sale of the Registrable Securities by the eligible selling Holders thereof, and (iii) shall, at the time of effectiveness, comply as to form in all material respects with the requirements of the applicable form and include or incorporate by reference all financial statements required by the SEC to be filed therewith or incorporated by reference therein, and use its commercially

 

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reasonable efforts to cause such Registration Statement to become effective and remain effective in accordance with Section  2 ;

(b) subject to the Company’s right to suspend use of a Shelf Registration Statement contained in the second paragraph of Section  2.5 , prepare and file with the SEC such amendments and post-effective amendments to each Registration Statement as may be necessary under applicable law to keep such Registration Statement effective for the applicable period; and cause each Prospectus to be supplemented by any required prospectus supplement, and as so supplemented to be filed pursuant to Rule 424 (or any similar provision then in force) under the Securities Act and comply with the provisions of the Securities Act, the Securities Exchange Act and the rules and regulations thereunder applicable to them with respect to the disposition of all securities covered by each Registration Statement during the applicable period in accordance with the intended method or methods of distribution by the selling Holders thereof (including sales by any Participating Broker-Dealer); provided, however, that nothing contained herein shall imply that the Company is liable for any action or inaction of any Holder, including any Participating Broker-Dealer;

(c) in the case of a Shelf Registration, (i) notify each Holder of Registrable Securities, at least three business days prior to filing, that a Shelf Registration Statement (except in the case of an Automatic Shelf Registration Statement, in which case at least three business days prior to the inclusion of information regarding selling security holders in the Prospectus forming a part of such Automatic Shelf Registration Statement) with respect to the Registrable Securities is being filed and advise such Holders that the distribution of Registrable Securities will be made in accordance with the method selected by the Majority Holders participating in the Shelf Registration; (ii) furnish to each Holder of Registrable Securities, if any, without charge, as many copies of each Prospectus, including each preliminary Prospectus, and any amendment or supplement thereto and such other documents as such Holder or underwriter may reasonably request, including financial statements and schedules and, if the Holder so requests, all exhibits in order to facilitate the public sale or other disposition of the Registrable Securities; and (iii) hereby consent to the use of the Prospectus or any amendment or supplement thereto by each of the selling Holders of Registrable Securities in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto;

(d) in the case of a Shelf Registration, use its commercially reasonable efforts to register or qualify the Registrable Securities under all applicable state securities or “ blue sky ” laws of such jurisdictions as any Holder of Registrable Securities covered by a Shelf Registration Statement shall reasonably request by the time the Shelf Registration Statement is declared effective by the SEC or otherwise becomes effective, and do any and all other acts and things which may be reasonably necessary or advisable to enable each such Holder to consummate the disposition in each such jurisdiction of such Registrable Securities owned by such Holder; provided, however, that the Company shall not be required to (i) qualify as a foreign corporation or as a dealer in securities in any jurisdiction where it would not otherwise be required to qualify but for this Section 3(d) , (ii) take any action which would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject or (iii) make any changes to its certificate of incorporation or by-laws (or other organizational documents) or any agreement between it and holders of its ownership interests;

 

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(e) notify promptly counsel for the Holders and counsel for the Dealer Managers and, with respect to clauses (i), (iii), (iv) and (v) of this paragraph only, each Holder of Registrable Securities under a Shelf Registration or any Participating Broker-Dealer who has notified the Company that it is utilizing the Exchange Offer Registration Statement as provided in paragraph (f) below and, if requested by such Holder or Participating Broker-Dealer, confirm such advice in writing promptly (i) when a Registration Statement (other than an Automatic Shelf Registration Statement) has become effective and when any post-effective amendments and supplements thereto become effective, (ii) of any request by the SEC or any state securities authority for post-effective amendments and supplements to a Registration Statement and Prospectus or for additional information after the Registration Statement has become effective, (iii) of the issuance by the SEC or any state securities authority of any stop order suspending the effectiveness of a Registration Statement or the initiation of any proceedings for that purpose, (iv) of the happening of any event or the discovery of any facts during the period a Shelf Registration Statement is effective that requires any change in the Registration Statement or Prospectus so that, as of such date, the statements therein are not misleading and do not omit to state a material fact required to be stated therein to make the statements therein not misleading (in the case of the Prospectus, in the light of the circumstances under which they were made); provided, however, that such notice need not identify the event that requires such change, and (v) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities or the Exchange Securities, as the case may be, for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose;

(f) in the case of the Exchange Offer Registration Statement (i) include in the Exchange Offer Registration Statement a section entitled “ Plan of Distribution ” which section shall be reasonably acceptable to the Dealer Managers on behalf of the Participating Broker-Dealers, and which shall contain a summary statement of the positions taken or policies made by the staff of the SEC with respect to the potential “underwriter” status of any broker-dealer that holds Registrable Securities acquired for its own account as a result of market-making activities or other trading activities and that will be the beneficial owner (as defined in Rule 13d-3 under the Securities Exchange Act) of Exchange Securities to be received by such broker-dealer in the Exchange Offer, whether such positions or policies have been publicly disseminated by the staff of the SEC or such positions or policies, in the reasonable judgment of the Dealer Managers on behalf of the Participating Broker-Dealers and their counsel, represent the prevailing views of the staff of the SEC, including a statement that any such broker-dealer who receives Exchange Securities for Registrable Securities pursuant to the Exchange Offer may be deemed a statutory underwriter and must deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of such Exchange Securities, (ii) furnish to each Participating Broker-Dealer who has delivered to the Company the notice referred to in Section 3(e) , without charge, as many copies of each Prospectus included in the Exchange Offer Registration Statement, including any preliminary Prospectus, and any amendment or supplement thereto, as such Participating Broker-Dealer may reasonably request, (iii) hereby consent to the use of the Prospectus forming part of the Exchange Offer Registration Statement or any amendment or supplement thereto, by any Person subject to the prospectus delivery requirements of the SEC, including all Participating Broker-Dealers, in connection with the sale or transfer of the Exchange Securities covered by the Prospectus or any amendment or supplement thereto, and (iv) include in the transmittal letter or similar documentation to be executed by an exchange offeree in order to participate in the Exchange Offer (x) the following provision:

 

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“If the exchange offeree is a broker-dealer holding Registrable Securities acquired for its own account as a result of market-making activities or other trading activities, it will deliver a prospectus meeting the requirements of the Securities Act in connection with any resale of Exchange Securities received in respect of such Registrable Securities pursuant to the Exchange Offer;” and

(y) a statement to the effect that by a broker-dealer making the acknowledgment described in clause (x) and by delivering a Prospectus in connection with the exchange of Registrable Securities, the broker-dealer will not be deemed to admit that it is an underwriter within the meaning of the Securities Act;

(g) (i) in the case of an Exchange Offer, furnish counsel for the Dealer Managers and (ii) in the case of a Shelf Registration, furnish counsel for the Holders copies of any comment letters received from the SEC or any other request by the SEC or any state securities authority for amendments or supplements to a Registration Statement or Prospectus or for additional information;

(h) make every reasonable effort to obtain the withdrawal of any order suspending the effectiveness of a Registration Statement as soon as practicable;

(i) in the case of a Shelf Registration, furnish to each Holder of Registrable Securities upon request, and each underwriter, if any, without charge, at least one conformed copy of each Registration Statement and any post-effective amendment thereto, including financial statements and schedules (without documents incorporated therein by reference and all exhibits thereto, unless requested);

(j) in the case of a Shelf Registration, cooperate with the selling Holders of Registrable Securities to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restrictive legends; and enable such Registrable Securities to be in such denominations (consistent with the provisions of the Indenture) and registered in such names as the selling Holders or the underwriters, if any, may reasonably request at least three business days prior to the closing of any sale of Registrable Securities;

(k) in the case of a Shelf Registration, upon the occurrence of any event or the discovery of any facts, each as contemplated by Section 3(e)(iv) , as promptly as practicable after the occurrence of such an event, use its commercially reasonable efforts to prepare a supplement or post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities or Participating Broker-Dealers, such Prospectus will not contain at the time of such delivery an untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; at such time as such public disclosure is otherwise made or the Company determines that such disclosure is not necessary, in each case to correct any misstatement of a material fact or to include any omitted material fact, the Company agrees promptly to notify each Holder of such determination and to furnish each Holder such number of copies of the Prospectus as amended or supplemented, as such Holder may reasonably request;

 

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(l) obtain a CUSIP number for each Series of Exchange Securities not later than the effective date of a Registration Statement, and provide the Trustee with printed certificates for each Series of Exchange Securities or each Series of Registrable Securities, as the case may be, in a form eligible for deposit with the Depositary;

(m) unless the Indenture has been qualified under the Trust Indenture Act, (i) cause the Indenture to be qualified under the Trust Indenture Act in connection with the registration of the Exchange Securities or Registrable Securities, as the case may be, (ii) cooperate with the Trustee and the Holders to effect such changes to the Indenture as may be required for the Indenture to be so qualified in accordance with the terms of the Trust Indenture Act and (iii) execute, and use its commercially reasonable efforts to cause the Trustee to execute, all documents as may be required to effect such changes, and all other forms and documents required to be filed with the SEC to enable the Indenture to be so qualified in a timely manner;

(n) in the case of a Shelf Registration, enter into agreements (including, if requested, an underwriting agreement in customary form containing customary representations, warranties, terms and conditions; provided, that the Company shall not be required to enter into such agreement more than once with respect to each Series of Registrable Securities and may delay entering into such agreement until the consummation of any underwritten public offering of debt securities which the Company may have then undertaken) and take all other customary and appropriate actions in order to expedite or facilitate the disposition of such Registrable Securities and in such connection whether or not an underwriting agreement is entered into and whether or not the registration is an underwritten registration;

(o) in the case of a Shelf Registration or if a Prospectus is required to be delivered by any Participating Broker-Dealer in the case of an Exchange Offer, make available for inspection by a representative of the Holders of the Registrable Securities, any underwriters participating in any disposition pursuant to a Shelf Registration Statement, any Participating Broker-Dealer and counsel for the Holders, all relevant financial and other records, pertinent corporate documents and properties of the Company reasonably requested by any such Persons, and use commercially reasonable efforts to have the respective officers, directors, employees, and any other agents of the Company supply all relevant information reasonably requested by any such representative, underwriter, Participating Broker-Dealer or counsel for the Holders in connection with a Registration Statement, in each case, as is customary for similar due diligence investigations; provided, however, that any information that is designated in writing by the Company, in good faith, as confidential at the time of delivery of such information shall be kept confidential by the Holders, any underwriter, any Participating Broker-Dealer and any of their respective representatives, unless such disclosure is made in connection with a court proceeding or required by law, or such information becomes available to the public generally or through a third party without an accompanying obligation of confidentiality, provided, further, that prior notice shall be provided as practicable to the Company of the potential disclosure of any information in connection with a court proceeding or required by law to permit the Company to obtain a protective order or take such other action to prevent disclosure of such information;

(p) a reasonable time prior to the filing of any Exchange Offer Registration Statement or Shelf Registration Statement (other than an Automatic Shelf Registration Statement), any Prospectus forming a part thereof or of any other Prospectus covering Registrable Securities, any

 

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amendment to an Exchange Offer Registration Statement or Shelf Registration Statement or amendment or supplement to such Prospectus (other than with respect to any such amendment or supplement resulting solely from the incorporation by reference of any report filed under the Securities Exchange Act), provide copies of such document to the Dealer Managers, counsel for the Holders, if any, and make such changes in any Exchange Offer Registration Statement, Shelf Registration Statement, any such Prospectus or amendment or supplement thereto prior to the filing thereof as counsel for the Holders may reasonably request within three business days of being sent a draft thereof and make the representatives of the Company available for discussion of such documents as shall be reasonably requested by the Dealer Managers;

(q) in the case of a Shelf Registration, use its commercially reasonable efforts to cause the Registrable Securities to be rated by the appropriate rating agencies, if so requested by the Majority Holders, or if requested by the underwriter or underwriters of an underwritten offering of Registrable Securities, if any;

(r) otherwise comply with all applicable rules and regulations of the SEC and make available to its security holders, as soon as reasonably practicable, an earnings statement covering at least 12 months which shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder; and

(s) cooperate and assist in any filings required to be made with FINRA.

In the case of a Shelf Registration Statement, the Company may (as a condition to the participation of such Holder and the beneficial owner of Registrable Securities in the Shelf Registration and in addition to any other conditions to such participation set forth in this Agreement) require each Holder of Registrable Securities to furnish to the Company prior to the 30th day following the Company’s filing of such request for information with the Trustee for delivery to the Holders such information regarding the Holder and the proposed distribution by such Holder or beneficial owner of such Registrable Securities as the Company may from time to time reasonably request in writing.

In the case of a Shelf Registration Statement, each Holder agrees that, upon receipt of any notice from the Company of the happening of any event or the discovery of any facts, each of the kind described in Section 3(e)(iv) , such Holder will forthwith discontinue disposition of Registrable Securities pursuant to a Registration Statement until such Holder’s receipt of the copies of the supplemented or amended Prospectus contemplated by Section 3(k) , and, if so directed by the Company, such Holder will deliver to the Company (at its expense) all copies in such Holder’s possession, other than permanent file copies then in such Holder’s possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice.

If any of the Registrable Securities covered by any Shelf Registration Statement are to be sold in an underwritten offering, the underwriter or underwriters and manager or managers that will manage such offering will be selected by the Majority Holders of such Registrable Securities included in such offering and shall be acceptable to the Company. No Holder of Registrable Securities may participate in any underwritten offering hereunder unless such Holder (a) agrees to sell such Holder’s Registrable Securities on the basis provided in any underwriting arrangements approved by the Persons entitled hereunder to approve such arrangements and (b)

 

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completes and executes all questionnaires, powers of attorney, indemnities, underwriting agreements and other documents required under the terms of such underwriting arrangements.

4. Indemnification; Contribution .

(a) The Company agrees to indemnify and hold harmless, each Holder (including the Dealer Managers, if applicable, and each Participating Broker-Dealer) and each Person, if any, who controls any Holder within the meaning of Section  15 of the Securities Act or Section  20 of the Securities Exchange Act as follows:

(i) against any and all loss, liability, claim, damage and expense, as incurred, arising out of any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement pursuant to which Registrable Securities were registered under the Securities Act or the omission or alleged omission therefrom of a material fact required to be stated therein or necessary to make the statements therein not misleading, or arising out of any untrue statement or alleged untrue statement of a material fact contained in any Prospectus or the omission or alleged omission therefrom of a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading;

(ii) against any and all loss, liability, claim, damage and expense, as incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or of any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission; provided, that any such settlement is effected with the written consent of the Company; and

(iii) against any and all expense, as incurred (including the reasonable fees and disbursements of counsel chosen by any indemnified party), reasonably incurred in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue statement or omission, or any such alleged untrue statement or omission, to the extent that any such expense is not paid under subparagraph (i) or (ii) above;

provided , however , that this indemnity agreement shall not apply to any loss, liability, claim, damage or expense to the extent arising out of any untrue statement or omission or alleged untrue statement or omission made in reliance upon and in conformity with written information furnished to the Company by such Holder or any underwriter expressly for use in a Registration Statement or any Prospectus.

(b) Each Holder severally, but not jointly, agrees to indemnify and hold harmless the Company and the other selling Holders, and each of their respective directors and officers, and each Person, if any, who controls the Company or any other selling Holder within the meaning of Section  15 of the Securities Act or Section  20 of the Securities Exchange Act, against any and all loss, liability, claim, damage and expense described in the indemnity contained in Section 4(a) , as incurred, but only with respect to untrue statements or omissions, or alleged untrue statements

 

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or omissions, made in the Shelf Registration Statement or any Prospectus included therein in reliance upon and in conformity with written information with respect to such Holder furnished to the Company by such Holder expressly for use in the Shelf Registration Statement or such Prospectus.

(c) Each indemnified party shall give notice as promptly as reasonably practicable to each indemnifying party of any action or proceeding commenced against it in respect of which indemnity may be sought hereunder, but failure so to notify an indemnifying party shall not relieve such indemnifying party from any liability hereunder to the extent it is not materially prejudiced as a result thereof and in any event shall not relieve it from any liability which it may have otherwise than on account of this indemnity agreement; the indemnifying party shall assume the defense of such action or proceeding with counsel reasonably satisfactory to such indemnified party, and shall not be liable to such indemnified party under this Section  4 for any legal expenses subsequently incurred by such indemnified party in connection with the defense thereof. An indemnified party may participate at its own expense in the defense of such action; provided, however, that counsel to the indemnified party shall not (except with the consent of the indemnifying party) also be counsel to the indemnifying party. In no event shall the indemnifying party or parties be liable for the fees and expenses of more than one counsel (in addition to any local counsel) separate from their own counsel for all indemnified parties in connection with any one action or separate but similar or related actions in the same jurisdiction arising out of the same general allegations or circumstances. No indemnifying party shall, without the prior written consent of the indemnified parties, settle or compromise or consent to the entry of any judgment with respect to any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which indemnification or contribution could be sought under this Section  4 (whether or not the indemnified parties are actual or potential parties thereto), unless such settlement, compromise or consent (i) includes an unconditional release of each indemnified party from all liability arising out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

(d) If the indemnification provided for in this Section  4 is for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of any losses, liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such indemnified party, as incurred, in such proportion as is appropriate to reflect the relative fault of the Company on the one hand and the Holders on the other hand in connection with the statements or omissions which resulted in such losses, liabilities, claims, damages or expenses, and the relative benefit received by the indemnified party, on the one hand, and the indemnifying party, on the other hand, in connection with the Exchange Offer and the Shelf Registration, as well as any other relevant equitable considerations.

The relative fault of the Company on the one hand and the Holders on the other hand shall be determined by reference to, among other things, whether any such untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Holders and the parties’ relative intent,

 

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knowledge, access to information and opportunity to correct or prevent such statement or omission.

The Company and the Holders agree that it would not be just and equitable if contribution pursuant to this Section  4 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to above in this Section  4 . The aggregate amount of losses, liabilities, claims, damages and expenses incurred by an indemnified party and referred to above in this Section  4 shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in investigating, preparing or defending against any litigation, or any investigation or proceeding by any governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue statement or omission or alleged omission.

No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

For purposes of this Section  4 , each Person, if any, who controls a Holder within the meaning of Section  15 of the Securities Act or Section  20 of the Securities Exchange Act shall have the same rights to contribution as such Holder, and each director of the Company, and each Person, if any, who controls the Company within the meaning of Section  15 of the Securities Act or Section  20 of the Securities Exchange Act shall have the same rights to contribution as the Company.

5. Miscellaneous .

5.1. No Inconsistent Agreements . The Company has not entered into and the Company will not after the date of this Agreement enter into any agreement which is inconsistent with the rights granted to the Holders of Registrable Securities in this Agreement or otherwise conflicts with the provisions hereof. The rights granted to the Holders hereunder do not and will not for the term of this Agreement in any way conflict with the rights granted to the holders of the Company’s other issued and outstanding securities under any such agreements.

5.2. Amendments and Waivers . The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given unless the Company has obtained the written consent of Holders of at least a majority in aggregate principal amount of the outstanding Registrable Securities affected by such amendment, modification, supplement, waiver or departure.

5.3. Notices . All notices and other communications provided for or permitted hereunder shall be made in writing by hand delivery, registered first-class mail, telex, telecopier, or any courier guaranteeing overnight delivery (a) if to a Holder, at the most current address given by such Holder to the Company by means of a notice given in accordance with the provisions of this Section  5.3 , which address initially is the address set forth in the Dealer Manager Agreement with respect to the Dealer Managers; and (b) if to the Company, initially at the Company’s

 

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address set forth in the Dealer Manager Agreement, and thereafter at such other address of which notice is given in accordance with the provisions of this Section  5.3 .

All such notices and communications shall be deemed to have been duly given: at the time delivered by hand, if personally delivered; two business days after being deposited in the mail, postage prepaid, if mailed; when answered back, if telexed; when receipt is acknowledged, if telecopied; and on the next business day if timely delivered to an air courier guaranteeing overnight delivery.

Copies of all such notices, demands, or other communications shall be concurrently delivered by the Person giving the same to the Trustee under the Indenture, at the address specified in such Indenture.

5.4. Successor and Assigns . This Agreement shall inure to the benefit of and be binding upon the successors, assigns and transferees of each of the parties, including, without limitation and without the need for an express assignment, subsequent Holders; provided , that nothing herein shall be deemed to permit any assignment, transfer or other disposition of Registrable Securities in violation of the terms of the Dealer Manager Agreement, any note or global note representing such Registrable Securities or the Indenture. If any transferee of any Holder shall acquire Registrable Securities, in any manner, whether by operation of law or otherwise, such Registrable Securities shall be held subject to all of the terms of this Agreement, and by taking and holding such Registrable Securities such Person shall be conclusively deemed to have agreed to be bound by and to perform all of the terms and provisions of this Agreement, including the restrictions on resale set forth in this Agreement and, if applicable, the Dealer Manager Agreement, and such person shall be entitled to receive the benefits hereof.

5.5. Third Party Beneficiaries . The Dealer Managers (even if each Dealer Manager is not a Holder of Registrable Securities) shall be a third party beneficiary to the agreements made hereunder by the Company for the benefit of the Holders and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights or the rights of Holders hereunder. Each Holder of Registrable Securities shall be a third party beneficiary to the agreements made hereunder between the Company, on the one hand, and the Dealer Managers, on the other hand, and shall have the right to enforce such agreements directly to the extent it deems such enforcement necessary or advisable to protect its rights hereunder.

5.6. Restriction on Resales . Until the expiration of one year after the original issuance of the New SHW Notes, the Company will not, and will cause its “affiliates” (as such term is defined in Rule 144(a)(1) under the Securities Act) not to, resell any New SHW Notes which are “restricted securities” (as such term is defined under Rule 144(a)(3) under the Securities Act) that have been reacquired by any of them and shall immediately upon any purchase of any such New SHW Notes submit such to the Trustee for cancellation.

5.7. Counterparts . This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.

 

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5.8. Headings . The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof.

5.9. GOVERNING LAW . THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF.

5.10. Severability . In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby.

[ Signature Pages Follow ]

 

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IN WITNESS WHEREOF , the parties have executed this Agreement as of the date first written above.

 

THE SHERWIN-WILLIAMS COMPANY
By:  

/s/ Allen J. Mistysyn

Name:   Allen J. Mistysyn
Title:   Senior Vice President – Finance and Chief Financial Officer

 

[ Signature Page to Registration Rights Agreement ]


Confirmed and accepted as of the date first above written:

 

CITIGROUP GLOBAL MARKETS INC.
By:  

/s/ Adam D. Bordner

Name:   Adam D. Bordner
Title:   Vice President

 

[ Signature Page to Registration Rights Agreement ]


Confirmed and accepted as of the date first above written:

 

WELLS FARGO SECURITIES, LLC
By:  

/s/ Carolyn Hurley

Name:   Carolyn Hurley
Title:   Director

 

[ Signature Page to Registration Rights Agreement ]