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<SEC-DOCUMENT>0000950152-03-008012.txt : 20030829
<SEC-HEADER>0000950152-03-008012.hdr.sgml : 20030829
<ACCEPTANCE-DATETIME>20030829165112
ACCESSION NUMBER: 0000950152-03-008012
CONFORMED SUBMISSION TYPE: 10-K
PUBLIC DOCUMENT COUNT: 15
CONFORMED PERIOD OF REPORT: 20030531
FILED AS OF DATE: 20030829
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: RPM INTERNATIONAL INC/DE/
CENTRAL INDEX KEY: 0000110621
STANDARD INDUSTRIAL CLASSIFICATION: PAINTS, VARNISHES, LACQUERS, ENAMELS & ALLIED PRODUCTS [2851]
IRS NUMBER: 020642224
STATE OF INCORPORATION: DE
FISCAL YEAR END: 0531
FILING VALUES:
FORM TYPE: 10-K
SEC ACT: 1934 Act
SEC FILE NUMBER: 001-14187
FILM NUMBER: 03874624
BUSINESS ADDRESS:
STREET 1: 2628 PEARL RD
STREET 2: P O BOX 777
CITY: MEDINA
STATE: OH
ZIP: 44258
BUSINESS PHONE: 3302735090
MAIL ADDRESS:
STREET 1: 2628 PEARL RD
STREET 2: P O BOX 777
CITY: MEDINA
STATE: OH
ZIP: 44258
FORMER COMPANY:
FORMER CONFORMED NAME: RPM INTERNATIONAL INC/OH/
DATE OF NAME CHANGE: 20021015
FORMER COMPANY:
FORMER CONFORMED NAME: RPM INC/OH/
DATE OF NAME CHANGE: 19920703
FORMER COMPANY:
FORMER CONFORMED NAME: REPUBLIC POWDERED METALS INC
DATE OF NAME CHANGE: 19711027
</SEC-HEADER>
<DOCUMENT>
<TYPE>10-K
<SEQUENCE>1
<FILENAME>l02719ae10vk.txt
<DESCRIPTION>RPM INTERNATIONAL INC. | FORM 10-K
<TEXT>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
FORM 10-K
[X] Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934 (No Fee Required)
For the fiscal year ended May 31, 2003
OR
[ ] Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934 (No Fee Required)
For the transition period from __________ to ___________
Commission File No. 1-14187
RPM INTERNATIONAL INC.
(Exact Name of Registrant as Specified in its Charter)
Delaware 02-0642224
- ------------------------------- ----------------------------
(State or Other Jurisdiction of (IRS Employer Identification
Incorporation or Organization) No.)
P.O. Box 777, 2628 Pearl Road, Medina, Ohio 44258
- --------------------------------------------------------------------------------
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (330) 273-5090
Securities registered pursuant to Section 12(b) of the Act:
<TABLE>
<CAPTION>
Title of Each Class Name of Exchange on Which Registered
- ------------------- -------------------------------------
<S> <C>
Common Stock, par value $0.01 New York Stock Exchange
Rights to Purchase Shares of Common Stock New York Stock Exchange
</TABLE>
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark whether the registrant (1) has filed all
reports required to be filed by Section 13 or 15(d) of the Securities Exchange
Act of 1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports) and (2) has been subject to the
filing requirements for the past 90 days. Yes [X] No [ ]
<PAGE>
Indicate by check mark if disclosure of delinquent filers pursuant
to Item 405 Regulation S-K is not contained herein, and will not be contained,
to the best of registrant's knowledge, in definitive proxy or information
statements incorporated by reference in Part III of this Form 10-K or any
amendment to this Form 10-K. [ ]
Indicate by check mark whether the registrant is an accelerated
filer (as defined in Rule 12b-2 of the Act). Yes [X] No [ ]
As of August 15, 2003, 115,592,050 shares of Common Stock were
outstanding, and the aggregate market value of the Common Stock of the
Registrant held by non-affiliates (based upon the closing price of the Common
Shares as reported on the New York Stock Exchange on August 15, 2003) was
approximately $1,546,398,140. For purposes of this information, the 1,466,726
outstanding shares of Common Stock which were owned beneficially as of May 31,
2003 by executive officers and Directors of the Registrant were deemed to be the
shares of Common Stock held by affiliates.
Documents Incorporated by Reference
Portions of the following documents are incorporated by reference to
Parts II, III and IV of this Annual Report on Form 10-K: (i) definitive Proxy
Statement to be used in connection with the Registrant's Annual Meeting of
Stockholders to be held on October 10, 2003 (the "2003 Proxy Statement") and
(ii) the Registrant's 2003 Annual Report to Stockholders for the fiscal year
ended May 31, 2003 (the "2003 Annual Report to Stockholders").
Except as otherwise stated, the information contained in this Annual
Report on Form 10-K is as of May 31, 2003.
2
<PAGE>
PART I
ITEM 1. BUSINESS.
THE COMPANY
RPM International Inc. ("RPM" or the "Company") is the successor to
the reporting obligations of RPM, Inc., an Ohio corporation, following a
statutory merger effective as of 9:00 a.m. (Eastern Time), October 15, 2002, for
the purpose of changing RPM, Inc.'s state of incorporation to Delaware. RPM,
Inc. was organized in 1947 as an Ohio corporation under the name Republic
Powdered Metals, Inc., and, on November 9, 1971, its name was changed to RPM,
Inc. The October 2002 reincorporation occurred by merging RPM Merger Sub, a
newly formed Ohio corporation and wholly owned subsidiary of RPM International
Inc., a newly formed Delaware corporation, with and into RPM, Inc. Each
outstanding common share of RPM, Inc. was converted into the right to receive
one share of Common Stock of RPM International Inc., with the result that RPM,
Inc. became a wholly owned subsidiary of RPM International Inc.
In connection with the reincorporation, RPM International Inc.
realigned its various operating companies according to their product offerings,
served end markets, customer base and operating philosophy. Those operating
companies that tend to be entrepreneurial and serve niche markets continue to be
owned by RPM, Inc. Operating companies that primarily serve the consumer markets
were transferred to RPM Consumer Holding Company, which is wholly owned by RPM
International Inc. Ownership of operating companies that primarily serve the
industrial markets was transferred to another wholly owned subsidiary of RPM
International Inc., RPM Industrial Holding Company. As a result of the
reincorporation, RPM International Inc. became the successor issuer to RPM, Inc.
under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and
succeeded to RPM, Inc.'s reporting obligations thereunder.
As used herein, the terms "RPM" and the "Company" refer to RPM
International Inc. and its subsidiaries, unless the context indicates otherwise.
The Company has its principal executive offices at 2628 Pearl Road, P.O. Box
777, Medina, Ohio 44258, and its telephone number is (330) 273-5090.
RECENT DEVELOPMENTS
On May 13, 2003, the Company sold approximately $247.5 million in
aggregate principal amount at maturity of 2.75 percent senior convertible notes
due 2033 to qualified institutional buyers, resulting in approximately $122.5
million gross proceeds to RPM. On May 23, 2003, the Company sold an additional
approximately $49.5 million aggregate principal amount at maturity of the senior
convertible notes due 2033 (resulting in approximately $24.5 million additional
gross proceeds to RPM) to cover the over-allotment option granted by the Company
to the initial purchasers in the offering. The offering was made only to
qualified institutional buyers in accordance with Rule 144A under the Securities
Act of 1933, as amended. The Company used the entire net proceeds of the
offering to repay existing indebtedness under its $500 million revolving credit
facility.
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<PAGE>
Also in May 2003, the Company established a $200 million commercial
paper program, under which borrowings are unsecured for terms of 270 days or
less. This program currently allows for lower interest cost than that available
under the Company's $500 million revolving credit facility. As of May 31, 2003,
$51.7 million was outstanding under the commercial paper program, the proceeds
of which were used to reduce the outstanding balance of the Company's $500
million revolving credit facility.
As previously reported, the insurance available to the Company's
Bondex International, Inc. subsidiary for the payment of the indemnity and
defense costs associated with its asbestos litigation will be depleted early in
the fiscal year ending May 31, 2004. Bondex retained a consulting firm to
analyze Bondex's loss history data in order to (i) evaluate whether it would be
possible to estimate the cost of disposing of pending claims in light of both
past and recent loss history and (ii) assist in determining whether future
asbestos-related claims reasonably expected to be filed against Bondex were
measurable, given recent applicable changes in state law. In conjunction with
its outside consulting firm, the Company concluded that it was not possible to
currently estimate the full range of the cost of resolving future
asbestos-related claims against Bondex because of various uncertainties
associated with those potential future claims and, as a result, Bondex was not
able to estimate the liability that may result from all future claims.
Subsequently, Bondex increased its reserve to account for the estimated value of
its known asbestos claims, as well as to provide for foreseeable future claims
which can be reasonably estimated, and took a pre-tax charge of $140 million
($88 million on an after-tax basis) to establish such reserve.
BUSINESS
RPM manufactures and markets high quality specialty paints,
protective coatings and roofing systems, sealants and adhesives, focusing on the
maintenance and improvement needs of both the industrial and consumer markets.
The Company's family of products includes those marketed under brand names such
as CARBOLINE, DAP, DAY-GLO, FLECTO, RUST-OLEUM, STONHARD, TREMCO and ZINSSER. As
of May 31, 2003, RPM marketed its products in approximately 130 countries and
territories and operated manufacturing facilities in 67 locations in the United
States, Argentina, Belgium, Brazil, Canada, China, Colombia, Germany, Italy,
Mexico, New Zealand, The Netherlands, Poland, South Africa, the United Arab
Emirates and the United Kingdom. Approximately 23% of the Company's sales are
generated in international markets through a combination of exports and direct
sales by affiliates in foreign countries. For the fiscal year ended May 31,
2003, the Company recorded sales of $2.083 billion.
AVAILABLE INFORMATION
The Company's Internet website address is www.rpminc.com. The
Company makes available free of charge on or through its website its Annual
Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form
8-K, and amendments to these reports, as soon as reasonably practicable after
such reports are electronically filed with, or furnished to, the Securities and
Exchange Commission.
OPERATING SEGMENT INFORMATION
The Company has determined that it has two operating segments:
industrial and consumer, based on the nature of its business activities,
products and services, the structure of
4
<PAGE>
management and the structure of information as presented to the Board of
Directors. Within each segment, individual operating companies or groups of
companies generally address common markets, utilize similar technologies and are
able to share manufacturing or distribution capabilities. The industrial segment
constitutes approximately 54% of sales and includes maintenance and protection
products for roofing and waterproofing systems, flooring, corrosion control and
other specialty applications. The consumer segment constitutes approximately 46%
of sales and includes rust-preventative, special purpose and decorative paints,
caulks, sealants, primers and other branded consumer products. Reference is made
to "Segment and Geographic Area Information" on pages 16 and 17 of the Annual
Report to Stockholders, incorporated herein by reference, for financial
information relating to operating segments.
INDUSTRIAL SEGMENT
Industrial segment products are sold throughout North America and
account for most of the Company's sales in Europe, South America, Asia, South
Africa, Australia and the Middle East. The Company's industrial businesses,
which account for the vast majority of its international sales, sell directly to
distributors, contractors and end-users, such as industrial manufacturing
facilities, educational and governmental institutions and commercial
establishments. The industrial segment generated $1.118 billion in sales for the
fiscal year ended May 31, 2003 and is comprised of the following major product
lines:
- institutional roofing systems and sealants used in building
protection, maintenance and weatherproofing applications
marketed under the Company's TREMCO, REPUBLIC, VULKEM and
DYMERIC brand names. Recently introduced products include
sealants marketed under the DYMERIC 240FC and DYMONIC FC brand
names;
- high-performance polymer flooring systems for industrial,
institutional and commercial facility floor surfaces marketed
under the STONHARD brand name. Recently introduced products
include flooring systems marketed under the STONBLEND RTZ and
STONBLEND ETZ brand names. The Company also manufactures and
supplies molded and pultruded fiberglass reinforced plastic
gratings used for industrial platforms, staircases and
walkways marketed under the FIBERGRATE brand name;
- high-performance, heavy-duty corrosion control coatings and a
supplier of structural and fireproofing protection products
and secondary containment linings for a wide variety of
industrial infrastructure applications marketed under the
CARBOLINE, NULLIFIRE and PLASITE brand names;
- exterior insulating finishing systems, including textured
finish coats, sealers and variegated aggregate finishes
marketed under the DRYVIT brand name; and
- a variety of products for specialized applications, including
powder coatings for exterior and interior applications
marketed under the TCI brand name, fluorescent colorants and
pigments marketed under the DAY-GLO brand name, concrete and
masonry additives marketed under the
5
<PAGE>
EUCO brand name, commercial carpet and floor cleaning
solutions marketed under the CHEMSPEC brand name, specialty
processing chemicals for the carpet and textile industries
marked under the AMERICAN EMULSIONS brand name, wood and
lumber treatments marketed under the KOP-COAT brand name, and
pleasure marine coatings marketed under the PETTIT, WOOLSEY
and Z-SPAR brand names.
CONSUMER SEGMENT
The consumer segment manufactures professional use and
do-it-yourself ("DIY") products for home maintenance and improvement, automotive
and boat repair and maintenance, and hobby and leisure applications. The
consumer segment's major manufacturing and distribution operations are located
in North America. Consumer segment products are sold throughout north America to
mass merchandisers, home centers, hardware stores, paint stores, automotive
supply stores and craft shops. The consumer segment generated $0.966 billion in
sales in the fiscal year ended May 31, 2003 and is comprised of the following
major product lines:
- small project rust-preventative, decorative and assorted
specialty paints and coatings for the DIY and professional
markets through a wide assortment of RUST-OLEUM brand
products. In addition to the original line of
rust-preventative coatings sold under the STOPS RUST brand
name, leading brands within the RUST-OLEUM portfolio include
AMERICAN ACCENTS, PAINTER'S TOUCH, TREMCLAD, HARD HAT, FLECTO,
VARATHANE and WATCO. Recently introduced brands within the
RUST-OLEUM portfolio include SPECIALTY PLASTIC PRIMER, EPOXY
SHIELD, ROAD WARRIOR, INDUSTRIAL CHOICE MARKING AEROSOL and
AUTOMOTIVE STOPS RUST;
- a complete line of caulks and sealants, patch and repair
products and adhesives for the home improvement, repair and
construction markets through a wide assortment of DAP brand
products. Leading brands within the DAP portfolio include ALEX
PLUS, KWIK SEAL PLUS with MICROBAN, SIDE WINDER ADVANCED
SIDING and WINDOW SEALANT, WELDWOOD, `33' GLAZING and PLASTIC
WOOD. Recently introduced products include caulks and related
products marketed under the DRYDEX, EASY SOLUTIONS and
CRACKSHOT brand names;
- a broad line of specialty primers and sealers marketed under
the ZINSSER, B-I-N, BULLS EYE 1-2-3, COVER-STAIN and SEALCOAT
UNIVERSAL brand names, as well as wallcovering removal and
preparation coatings under the principal brands of DIF,
PAPERTIGER and SHIELDZ. Recently introduced products include
specialty primers marketed under the BULLS EYE WATERBASE and
BULLS EYE OIL BASE brand names and wallcovering preparation
products marketed under the ZINSSER PLUS MILDEWPROOF
COMMERCIAL WALLCOVERING SYSTEM and PREPZ brand names; and
6
<PAGE>
- an assortment of other products, including autobody paints and
repair products marketed under the BONDO brand name, hobby
paints and cements marketed under the TESTORS brand name, wood
furniture finishes and touch-up products marketed under the
CCI, MOHAWK, CHEMICAL COATINGS and WESTFIELD COATINGS brand
names, deck and fence restoration products marketed under the
WOLMAN brand name and shellac-based chemicals for industrial
uses, edible glazes and food coatings by MANTROSE-HAEUSER
under the NATURE SEAL brand name.
HISTORICAL RESTRUCTURING ACTIVITY
The Company actively pursues initiatives to enhance profitability by
lowering its operating costs through focused corporate leadership and broad
operating company support. In August 1999, the Company launched a comprehensive
restructuring program aimed at permanently reducing its fixed costs by more than
$23 million. The major features of the restructuring program included: (i) the
closure of 17 facilities to eliminate redundancies in manufacturing,
administration and distribution, (ii) a reduction of approximately 10% of the
Company's work force and (iii) the consolidation of certain consumer product
line distribution and warehousing activities to reduce costs and improve working
capital efficiencies. This restructuring program was completed by May 31, 2001,
and when combined with additional workforce reductions in response to slower
economic conditions during the 2002 fiscal year, is believed by the Company to
be generating savings in excess of management's initial objectives.
FOREIGN OPERATIONS
The Company's foreign manufacturing operations for the fiscal year
ended May 31, 2003 accounted for approximately 19% of its total sales (which
does not include exports directly from the United States), although it also
receives license fees and royalty income from numerous license agreements and
also has joint ventures accounted for under the equity method in various foreign
countries. The Company has manufacturing facilities in Argentina, Belgium,
Brazil, Canada, China, Colombia, Germany, Italy, Mexico, New Zealand, The
Netherlands, Poland, South Africa, the United Arab Emirates and the United
Kingdom, and sales offices or public warehouse facilities in Australia, Canada,
Finland, France, Germany, Hong Kong, Iberia, Mexico, the Philippines, Singapore,
Sweden, the United Kingdom and several other countries. Information concerning
the Company's foreign operations is set forth in Management's Discussion and
Analysis of Results of Operations and Financial Condition, which appears in the
Annual Report to Stockholders, incorporated herein by reference.
COMPETITION
The Company is engaged in highly competitive industries and, with
respect to all of its major products, faces competition from local, regional and
national firms. The industries are fragmented, and the Company does not face
competition from any one company in particular. However, several of the
Company's competitors have greater financial resources and sales organizations
than the Company. While third-party figures are not necessarily available with
respect to the size of the Company's position in the market for each of its
products, the Company believes that it is a major producer of roofing systems,
aluminum coatings, cement-based paints, hobby paints, pleasure marine coatings,
furniture finishing repair products, automotive repair products, industrial
corrosion control products, consumer rust-preventative coatings, polymer
7
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flooring, fluorescent coatings and pigments, exterior insulation finish systems,
molded and pultruded fiberglass reinforced plastic grating and shellac-based
coatings. However, the Company does not believe that it has a significant share
of the total protective coatings market. The following is a summary of the
competition faced by the Company in various markets.
Paints, Coatings, Adhesives and Sealants Industry
In the market for paints, coatings, adhesives and sealants, the top
ten producers account for approximately one-third of the global market. In
addition to the Company, leading suppliers tend to focus on coatings while other
companies focus on adhesives and sealants. This industry has experienced
significant consolidation over the past several decades, however, the market
remains fragmented, which creates further consolidation opportunities. Barriers
to market entry are relatively high due to the lengthy interval between product
development and market acceptance, the importance of brand identity, and the
difficulty in establishing a reputation as a reliable supplier in this sector.
Like the Company, most of the suppliers in this industry have a portfolio of
products that span across the various markets.
Consumer Home Improvement. Within the consumer segment, the Company
generally serves the home improvement market with products designed for niche
architectural, rust-preventative, decorative, special purpose, caulking and
sealing applications. Products sold by the Company in this market include, but
are not limited to, those sold under the RUST-OLEUM, DAP, ZINSSER and BONDO
brand names. Leading manufacturers of home improvement-related coatings,
adhesives and sealants market their products to DIY users, professional
contractors, industrial contractors, and industrial end-users through a wide
range of distribution channels including home improvement centers, mass
merchandisers, hardware stores, paint stores and industrial distributors.
Competitors in this market generally compete for market share by marketing and
building upon brand recognition, providing customer service and developing new
products based on customer needs.
Special Purpose-- Industrial Maintenance Protective Coatings.
Anti-corrosion protective coatings must withstand the destructive elements of
nature and other operating processes under harsh environments and conditions.
Some of the larger consumers of high-performance protective and corrosion
control coatings are the oil and gas, pulp and paper, petrochemical,
shipbuilding and public utility industries. In the public sector, corrosion
control coatings are used on structures such as bridges and in water and
wastewater treatment plants. These markets are highly fragmented. The Company
and its competitors gain market share in this industry by supplying a variety of
high quality products and offering customized solutions. The Company sells
products marketed primarily under the CARBOLINE, PLASITE, and TCI brand names to
this market.
Roofing Systems Industry
In the roofing industry, reroofing applications account for
three-quarters of U.S. demand, with the remaining quarter made up by the new
roofing segment. The largest manufacturers focus primarily on residential
roofing as well as single-ply systems for low-end commercial and institutional
applications, competing mainly on price and minimally on service. In contrast,
the Company competes primarily in the higher-end, multi-ply and modified bitumen
segments of the built-up and low-slope roofing industry. This niche within the
larger market tends to exhibit less commodity-market characteristics, with
customers valuing the greater protection and longer life provided by these
roofing systems, as well as ongoing maintenance, inspection and
8
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technical services. Typical customers demanding higher-performance roofing
systems include governmental facilities, universities, hospitals and certain
manufacturing facilities. The Company markets to this industry primarily under
its TREMCO line of products.
Construction Chemicals Industry
Flooring Systems. Polymer flooring systems are used in industrial,
commercial and, to a lesser extent, residential applications to provide a
smooth, seamless surface that is impervious to penetration by water and other
substances. Polymer flooring systems are based primarily on epoxy resins,
although urethane products have experienced significant growth in recent years.
Most flooring is applied during new construction, but there is also a
significant repair and renovation market. Key performance attributes in polymer
flooring systems that distinguish competitors include static control, chemical
resistance, contamination control, durability and aesthetics. The Company
primarily markets under the STONHARD and FIBERGRATE brand names in this
industry. This market is also fragmented.
Sealants, Concrete and Masonry Products. Sealants used in a variety
of construction applications include urethane and silicone-based products
designed for sealing windows and commercial buildings, waterproofing,
fireproofing and concrete sealing, among others. In the concrete and masonry
additives market, a variety of chemicals can be added to cement, concrete,
asphalt and other masonry to improve the processability, performance, or
appearance of these products. Chemical cement admixtures are typically grouped
according to functional characteristics, such as water-reducers, set
controllers, superplasticizers and air-entraining agents. Key attributes that
differentiate competitors in these markets include quality assurance, on-the-job
consultation and the provision of value-added engineered products. The Company
primarily offers products marketed under the EUCO, REPUBLIC, VULKEM, DYMERIC,
TUFF-N-DRI and WATCHDOG WATERPROOFING brand names in this industry.
INTELLECTUAL PROPERTY
The intellectual property portfolios of the subsidiaries of the
Company include numerous valuable patents, trade secrets and know-how, domain
names, trademarks and trade names. Significant research and technology
development continues to be conducted by the subsidiaries. However, no single
patent, trademark, name or license, or group of these rights, other than the
marks DAY-GLO(R), RUST-OLEUM(R), CARBOLINE(R), DAP(R) and TREMCO(R), are
material to the Company's business.
Day-Glo Color Corp., a subsidiary of the Company, is the owner of
more than 50 trademark registrations of the mark "DAY-GLO(R)" in numerous
countries and the United States for a variety of fluorescent products. There are
also many other foreign and domestic registrations for other trademarks of the
Day-Glo Color Corp., for a total of more than 100 registrations. These
registrations are valid for a variety of terms ranging from one year to 20
years, which terms are renewable as long as the marks continue to be used. These
registrations are maintained and renewed on a regular basis.
Rust-Oleum Brand Company, a subsidiary of the Company, is the owner
of more than 50 United States trademark registrations for the mark
"RUST-OLEUM(R)" and other trademarks covering a variety of rust-preventative
coatings sold by Rust-Oleum Corporation. There are also many foreign
registrations for "RUST-OLEUM(R)" and the other trademarks used on products sold
by Rust-Oleum Corporation, for a total of nearly 400 registrations. These
registrations are valid for
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a variety of terms ranging from one year to 20 years, which terms are renewable
for as long as the marks continue to be used. These registrations are maintained
and renewed on a regular basis.
Carboline Company, a subsidiary of the Company, is the owner of a
United States trademark registration for the mark "CARBOLINE(R)." Carboline
Company is also the owner of several other United States registrations for other
trademarks. These registrations are maintained and renewed on a regular basis.
DAP Brands Company, a subsidiary of the Company, is the owner of
more than 150 United States and foreign trademark applications and registrations
which include the mark "DAP(R)." DAP Products Inc. is also the owner of many
other United States and foreign registrations for other trademarks, including
"PUTTY KNIFE(R)." These registrations are maintained and renewed on a regular
basis.
Tremco Incorporated, a subsidiary of the Company, is the owner of
more than 100 registrations for the mark and name "TREMCO(R)" in numerous
countries and the United States for a variety of sealants and coating products.
There are also many other foreign and domestic registrations for other
trademarks of Tremco Incorporated, for a total of more than 800 registrations
and applications. The registrations are valid for a variety of terms ranging
from one year to 20 years, which terms are renewable as long as the marks
continue to be used. These registrations are maintained and renewed on a regular
basis.
The Company's other principal product trademarks include:
ALUMANATION(R), AVALON(R), B-I-N(R), BITUMASTIC(R), BONDO(R), BULLS EYE
1-2-3(R), DRYVIT(R), DYMERIC(R), DYNALITE(R), DYNATRON(R), EASY FINISH(R),
FLECTO(R), EPOXSTEEL(R), FIBERGRATE(R), FLOQUIL(R), GEOFLEX(R), MAR-HYDE(R),
MOHAWK and DESIGN(R), OUTSULATION(R), PARASEAL(R), PERMAROOF(R), PETTIT(TM),
PLASITE(R), SANITILE(R), STONCLAD(R), STONHARD(R), STONLUX(R), TCI(R),
TESTORS(R), ULTRALITE(TM), VARATHANE(R), VULKEM(R), WOOLSEY(R), ZINSSER(R) and
Z-SPAR(R); and, in Europe, NULLIFIRE(R), RADGLO(R) and MARTIN MATHYS(R).
RAW MATERIALS
The Company does not have any single source suppliers of raw
materials that are material to its business, and the Company believes that
alternate sources of supply of raw materials are available to the Company for
most of its raw materials. Where shortages of raw materials have occurred, the
Company has been able to reformulate products to use more readily available raw
materials. Although the Company has been able to reformulate products to use
more readily available raw materials in the past, the Company cannot guaranty
that it will have the ability to do so in the future.
SEASONAL FACTORS
The Company's business is dependent on external weather factors. The
Company historically experiences strong sales and net income in its first,
second and fourth fiscal quarters comprised of the three month periods ending
August 31, November 30 and May 31, respectively, with weaker performance in its
third fiscal quarter (December through February).
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CUSTOMERS
Eight large consumer segment accounts, such as DIY home centers,
represented approximately 23% of the Company's total sales for the fiscal year
ended May 31, 2003. Sales to The Home Depot represented 12% of the Company's
total sales for the last fiscal year. Except for sales to these customers, the
Company's business is not dependent upon any one customer or small group of
customers but is rather dispersed over a substantial number of customers.
BACKLOG
The Company historically has not had a significant backlog of orders, nor
was there a significant backlog during the last fiscal year.
RESEARCH
The Company's research and development work is performed in various
laboratory locations throughout the United States. During fiscal years 2003,
2002 and 2001, the Company invested approximately $23.8 million, $20.9 million
and $21.8 million, respectively, on research and development activities. In
addition to this laboratory work, the Company views its field technical service
as being integral to the success of its research activities. The research and
development activities and the field technical service costs are both included
as part of selling, general and administrative expenses.
ENVIRONMENTAL MATTERS
The Company is subject to numerous foreign, federal, state and local
environmental protection and health and safety laws and regulations governing,
among other things:
- the sale, export, generation, storage, handling, use and
transportation of hazardous materials;
- the emission and discharge of hazardous materials into the soil,
water and air; and
- the health and safety of the Company's employees.
The Company is also required to obtain permits from governmental
authorities for certain operations. The Company cannot guarantee that it has
been or will be at all times in complete compliance with such laws, regulations
and permits. If the Company violates or fails to comply with these laws,
regulations or permits, it could be fined or otherwise sanctioned by regulators.
Certain environmental laws assess liability on current or previous owners
or operators of real property for the cost of removal or remediation of
hazardous substances. Persons who arrange for the disposal or treatment of
hazardous substances also may be responsible for the cost of removal or
remediation of these substances, even if such persons never owned or operated
any disposal or treatment facility. Certain of the Company's subsidiaries are
involved in various environmental claims, proceedings and/or remedial activities
relating to facilities currently or previously owned, operated or used by these
subsidiaries, or their predecessors. In addition, the Company or its
subsidiaries, together with other parties, have been designated as
11
<PAGE>
potentially responsible parties, or PRPs, under federal and state environmental
laws for the remediation of hazardous waste at certain disposal sites. In
addition to clean-up actions brought by federal, state and local agencies,
plaintiffs could raise personal injury, natural resource damage or other private
claims due to the presence of hazardous substances on a property. Environmental
laws often impose liability even if the owner or operator did not know of, or
was not responsible for, the release of hazardous substances.
The Company has in the past, and will in the future, incur costs to comply
with environmental laws. Environmental laws and regulations are complex, change
frequently and have tended to become stringent over time. In addition, costs may
vary depending on the particular facts and development of new information. As a
result, the Company's operating expenses and continuing capital expenditures may
increase. More stringent standards may also limit its operating flexibility. In
addition, to the extent hazardous materials exist on or under real property, the
value and future use of that real property may be adversely affected. Because
the Company's competitors will have similar restrictions, the Company's
management believes that compliance with more stringent environmental laws and
regulations is not likely to affect the Company's competitive position. However,
a significant increase in these costs could adversely affect the Company's
business, results of operations, financial condition or cash flows. For
information regarding environmental accruals, see Note H (Contingencies and Loss
Reserves) of the Notes to Consolidated Financial Statements which appear in the
Annual Report to Stockholders, incorporated herein by reference.
EMPLOYEES
As of May 31, 2003, the Company employed 7,685 persons, of whom 627 were
represented by unions under contracts which expire at varying times in the
future. The Company believes that its relations with its employees are good.
ITEM 2. PROPERTIES.
The Company's corporate headquarters and a plant and offices for one
subsidiary are located on an 119-acre site in Medina, Ohio, which is owned by
the Company. As of May 31, 2003, the Company's operations occupied a total of
approximately 7.6 million square feet, with the majority, approximately 6.0
million square feet, devoted to manufacturing, assembly and storage. Of the
approximately 7.3 million square feet occupied, 5.2 million square feet are
owned and 2.1 million square feet are occupied under operating leases. In
addition, approximately 0.3 million owned square feet is associated with
property intended to be sold or sublet in conjunction with the Company's
restructuring program.
Set forth below is a description, as of May 31, 2003, of the Company's
principal manufacturing facilities which management believes are material to the
Company's operations:
12
<PAGE>
<TABLE>
<CAPTION>
APPROXIMATE
SQUARE FEET
BUSINESS/ OF
LOCATION SEGMENT FLOOR SPACE LEASED OR OWNED
-------- ------- ----------- ---------------
<S> <C> <C> <C>
Pleasant Rust-Oleum 303,200 Owned
Prairie, (Consumer)
Wisconsin
Toronto, Tremco 207,200 Owned
Ontario, (Industrial)
Canada
Cleveland, Ohio Euclid 173,000 Owned
Chemical
(Industrial)
Cleveland, Ohio Tremco 160,300 Owned
(Industrial)
Cleveland, Ohio Day-Glo 147,200 Owned
(Industrial)
Baltimore, DAP 144,200 Owned
Maryland (Consumer)
Tipp City, Ohio DAP 140,000 Owned
(Consumer)
Lake Charles, Carboline 114,300 Owned
Louisiana (Industrial)
LaSage, West Zinsser 112,000 Owned
Virginia (Consumer)
Somerset, New Zinsser 110,000 Owned
Jersey (Consumer)
Maple Shade, Stonhard 77,500 Owned
New Jersey (Industrial)
</TABLE>
The Company leases certain of its properties under long-term leases. Some
of the leases provide for increased rent based on an increase in the
cost-of-living index. For information concerning the Company's rental
obligations, see Note E (Leases) of Notes to Consolidated Financial Statements
which appear in the Annual Report to Stockholders, incorporated herein by
reference. Under all of its leases, the Company is obligated to pay certain
varying insurance costs, utilities, real property taxes and other costs and
expenses.
The Company believes that its manufacturing plants and office facilities
are well maintained and suitable for the operations of the Company.
13
<PAGE>
ITEM 3. LEGAL PROCEEDINGS.
EIFS LITIGATION
As previously reported, Dryvit is a defendant or co-defendant in numerous
exterior insulated finish systems ("EIFS") related lawsuits. As of May 31, 2003,
Dryvit was a defendant or co-defendant in approximately 500 single family
residential EIFS cases, the majority of which are pending in the Southeastern
region of the U.S. Dryvit is also defending EIFS lawsuits involving commercial
structures, townhouses and condominiums. The vast majority of Dryvit's EIFS
lawsuits seek monetary relief for water intrusion related property damages,
although some claims in certain lawsuits allege personal injuries from exposure
to mold.
As previously reported, Dryvit settled the North Carolina class action styled
Ruff, et al. v. Parex, Inc., et al. ("Ruff"). As of August 4, 2003, a cumulative
total of 726 claims had been submitted to the Ruff claims administrator for
verification and validation since the January 17, 2000 notice to the Ruff class.
Of these 726 claims, 154 claims were rejected and 363 claims were paid in the
aggregate amount of approximately $5.4 million pursuant to funding arrangements
with Dryvit's insurers. The claim period for filing claims in the Ruff class
action expired on January 17, 2003. The remaining submitted claims are at
various stages of investigation, review and validation by the Ruff claims
administrator. Based on the funding commitments in place to cover the Ruff
claims, Dryvit does not expect the costs of resolving the residual claims to be
material.
As previously reported, Dryvit is a defendant in an attempted state class
action filed on November 14, 2000 in Jefferson County, Tennessee styled Bobby
R. Posey, et al. v. Dryvit Systems, Inc. (formerly styled William J.
Humphrey, et al. v. Dryvit Systems, Inc.) (Case No. 17,715-IV) ("Posey"). As
previously reported, a preliminary approval order was entered on April 8,
2002 in the Posey case for a proposed nationwide class action settlement
covering, "All Persons who, as of June 5, 2002, in any State other than North
Carolina, in whole or in part, with Dryvit EIFS installed after January 1,
1989, except persons who (1) prior to June 5, 2002, have settled with Dryvit,
providing a release of claims relating to Dryvit EIFS; or (2) have not
obtained a judgment against Settling Defendant for a Dryvit EIFS claim, or
had a judgment entered against them on such a claim in Settling Defendants'
favor; and (3) any employees of Dryvit." Nationwide notice to all eligible
class members began on or about June 13, 2002. Any person who wished to be
excluded from the Posey settlement was provided an opportunity to
individually "opt out" and thus not be bound by the final Posey order.
A fairness hearing was held on October 1, 2002 (which continued on December 16,
2002), for the court to determine whether the proposed settlement is fair,
reasonable and adequate. An order and judgment granting final approval of the
settlement was entered on January 14, 2003. Subsequent to the Final Order, two
class members filed motions to amend or alter the Final Order. These motions
were denied by the Posey trial court on March 7, 2003. By virtue of the filing
of these motions, the time period for filing any notices of appeal was extended
until April 8, 2003. Several notices of appeal have been filed by class members
and/or persons seeking to intervene many of whom Dryvit believes have no
standing to complain about the settlement. Dryvit intends to vigorously
challenge any appeals and expects that the Final Order will be upheld.
14
<PAGE>
Dryvit's insurers have paid or are currently paying a portion of Dryvit's
defense costs in the class actions, and individual commercial and residential
EIFS lawsuits. Dryvit, the Company's wholly-owned captive insurer, First
Colonial Insurance Company, and certain of Dryvit's umbrella insurers have been
parties to cost-sharing agreements the terms of which are subject to periodic
renegotiation. Under the current cost-sharing agreements and funding obtained
from one of Dryvit's historical carriers, Dryvit's insurers have covered a
substantial portion of Dryvit's indemnity and defense costs and Dryvit expects
that its future EIFS litigation costs will continue to be substantially covered
by insurance; however, Dryvit will be assuming a greater share of the costs in
certain types of cases depending on the applicable date of construction. Dryvit
has secured sufficient funding commitments to cover a substantial portion of the
anticipated costs of the Posey settlement. Since Dryvit does not presently have
sufficient claims experience under the proposed Posey settlement, it is possible
that the rate of actual claims may, at some point in the future, exceed
management's current expectations. In addition, based on consultation with
counsel, management believes that to the extent some of the Posey settlement
costs are not covered by existing funding commitments, such amounts will not
have a material adverse effect on the Company's consolidated financial
condition, results of operations or cash flows.
ASBESTOS LITIGATION
As previously reported, certain of the Company's wholly-owned subsidiaries,
principally Bondex International, Inc. (collectively referred to as "the
Subsidiaries"), are defendants in various asbestos-related bodily injury
lawsuits filed in various state courts with the vast majority of current claims
pending in four states - Illinois, Ohio, Mississippi and Texas. These cases
generally seek unspecified damages for asbestos-related diseases based on
alleged exposures to asbestos-containing products previously manufactured by one
of the Company's Subsidiaries.
The Company's Subsidiaries vigorously defend these asbestos-related lawsuits and
in many cases, the plaintiffs are unable to demonstrate that any injuries they
have incurred, in fact, resulted from exposure to one of our Subsidiaries'
products. In such cases, the Subsidiary is generally dismissed without payment.
With respect to those cases where compensable disease, exposure and causation
are established with respect to one of our Subsidiaries' products, the
Subsidiary generally settles for amounts that reflect the confirmed disease, the
particular jurisdiction, applicable law, the number and solvency of other
parties in the case and various other factors which may influence the settlement
value each party assigns to a particular case at the time.
As of May 31, 2003, the Company had a total of 2,002 active asbestos cases
compared to a total of 1,784 cases as of May 31, 2002. For the fiscal year ended
May 31, 2003, the Company's dismissals and/or settlements covered 1,846 cases
for a total of $5.44 million, net of insurer payments and defense costs. For the
comparable period ended May 31, 2002, the Company's dismissals and/or
settlements covered 396 cases for a total of $2.49 million, net of insurer
payments and defense costs. For the fourth quarter ended May 31, 2003, the
Company secured dismissals and/or settlements of 503 cases, the total cost of
which collectively to the Company, net of insurer payments and defense costs,
amounted to $1.9 million. The Company secured dismissals and/or settlements for
236 cases for $1.36 million, net of insurer payments and defense costs, for the
prior year fourth quarter ended May 31, 2002. In some jurisdictions, the
dismissal or settlement of a case may involve more than one individual
plaintiff.
15
<PAGE>
Beginning in the fourth quarter of fiscal 2002 continuing into fiscal 2003, the
Company's Subsidiaries (principally Bondex), incurred higher settlement and
defense costs resulting from higher settlement demands in certain jurisdictions
due primarily to the insolvency of other co-defendants in the asbestos
litigation which, in many cases, disproportionately increased our Subsidiaries'
share of the alleged liability. The Company expects that it will continue to
experience these higher settlement and defense costs during the current fiscal
year. The federal legislative initiative aimed at the establishment of a trust
fund coupled with recent state tort law changes could significantly alter future
settlement values and claim rates. Based on the significant increase in asbestos
claims and the inequitable impact of joint and several liability laws on Bondex,
as previously reported, our undisputed third-party insurance was depleted during
the first quarter of 2004. Prior to this sudden and precipitous increase in
claims and settlement values, the combination of reserves and available
insurance was expected to adequately cover our asbestos claims for the
foreseeable future.
As previously disclosed, during the fourth quarter of fiscal 2003, the Company
engaged an outside advisor to assist its Subsidiaries in evaluating their
asbestos-related liabilities. Estimating the future cost of these asbestos
related contingent liabilities is subject to many uncertainties, including (i)
the ultimate number of claims filed against the Subsidiaries, (ii) the cost of
resolving both current known and future unknown claims, (iii) the amount of
insurance available to cover such claims, (iv) future earnings and cash flow of
the Company's Subsidiaries, (v) the impact of bankruptcies of other companies
whose share of liability may be imposed on the Company's Subsidiaries under
certain state liability laws, (vi) the unpredictable aspects of the litigation
process including the scheduling of trial dates and the jurisdictions in which
trials are scheduled, (vii) the lack of specific information in many cases
concerning exposure to the Subsidiaries' products and the claimants' diseases,
and (viii) potential changes in applicable federal and/or state law. Recently
adopted state tort law changes have created significant uncertainty with respect
to future defense strategies, settlement values and, over time, are expected to
impact claim frequency and severity. The changes generally provide for liability
to be determined on a proportional cause basis. These state law changes are not
expected to have an impact on asbestos litigation until the latter part of
fiscal 2004. Therefore, at this time, the Company has concluded that the
potential liability that may result from all known and future unknown claims is
not presently estimable.
The Company has, however, established a reserve for those pending cases that
have progressed to a stage where the cost to dispose of these cases can
reasonably be estimated. For those claims for which the Company has been able to
develop estimates, it has done so in consultation with its outside advisor and
defense counsel taking into account both historical and current settlement
values. The reserve was established by taking an asbestos charge in fiscal 2003
of $140,000,000 for measurable known claims and a provision for those
foreseeable future claims that can presently be estimated. We believe this
asbestos reserve will be sufficient to cover our Subsidiaries' asbestos-related
cash flow requirements for approximately three years.
The Company recognizes that future facts, events and legislation (both state
and/or federal) may alter its estimates of both its pending and future claims.
The Company cannot estimate possible liabilities in excess of those accrued
because it cannot predict the number of additional claims that may be filed
against its Subsidiaries in the future, the grounds for such claims, the damages
that may be demanded in such claims or the probable outcome of such claims. The
Company, in conjunction with outside advisors, will continue to study its
Subsidiaries' asbestos-related exposures, and regularly evaluate the adequacy of
this reserve and the related cash flow
16
<PAGE>
implications in light of actual claims experience, the impact of state law
changes and the evolving nature of federal legislative efforts to address
asbestos litigation.
As previously disclosed, the Company's Subsidiaries' undisputed third party
insurance coverage was depleted during the first quarter of the 2004 fiscal
year. Since the third quarter of fiscal 2003, the Company's Subsidiaries have
been in the process of reviewing their known (and searching for any additional
unknown) insurance policies to determine whether or not other insurance limits
may be available to cover its asbestos liabilities. On July 3, 2003, certain of
the Company's Subsidiaries filed a complaint for declaratory judgment, breach of
contract and bad faith in the U.S. Federal District Court (Northern District of
Ohio, Eastern Division) against several of their third party insurers who had
issued liability insurance policies that provided various types of primary and
excess coverage during various policy periods between 1968 and 1984. Under the
liability insurance policies, these insurers had provided defense and/or
indemnity coverage to certain of the Company's Subsidiaries for asbestos bodily
injury claims. This coverage action was filed when these insurers ceased
providing defense and/or indemnity coverage to certain of the Company's
Subsidiaries and wrongfully claimed that aggregate limits of liability of their
respective insurance policies have been exhausted. The Company is unable at the
present time to predict the outcome of this recently filed action.
ENVIRONMENTAL PROCEEDINGS
As previously reported, several of the Company's Subsidiaries are, from
time to time, identified as a "potentially responsible party" under the
Comprehensive Environmental Response, Compensation and Liability Act and similar
state environmental statutes. In some cases, the Company's Subsidiaries are
participating in the cost of certain clean-up efforts or other remedial actions.
The Company's share of such costs, however, has not been material and management
believes that these environmental proceedings will not have a material adverse
effect on the Company's consolidated financial condition or results of
operations. See also "Item 1-Business-Environmental Matters" included in this
Annual Report on Form 10-K.
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS.
Not Applicable.
ITEM 4A. EXECUTIVE OFFICERS OF THE REGISTRANT*.
The name, age and positions of each executive officer of the Company as of
August 1, 2003 are as follows:
<TABLE>
<CAPTION>
Name Age Position and Offices with the Company
- ---- --- -------------------------------------
<S> <C> <C>
Frank C. Sullivan 42 President and Chief Executive Officer
Ronald A. Rice 40 Senior Vice President - Administration and
Assistant Secretary
P. Kelly Tompkins 46 Senior Vice President, General Counsel and
Secretary
Dennis F. Finn 50 Vice President - Environmental and
Regulatory Affairs
Glenn R. Hasman 49 Vice President - Finance and Communications
</TABLE>
17
<PAGE>
<TABLE>
<CAPTION>
Name Age Position and Offices with the Company
- ---- --- -------------------------------------
<S> <C> <C>
Paul G. P. Hoogenboom 43 Vice President - Operations and Chief
Information Officer
Stephen J. Knoop 38 Vice President - Corporate Development
Robert L. Matejka 60 Vice President, Chief Financial Officer
and Controller
Keith R. Smiley 41 Vice President, Treasurer and Assistant
Secretary
</TABLE>
- -----------------------
* Included pursuant to Instruction 3 to Item 401(b) of Regulation S-K.
Frank C. Sullivan was elected Chief Executive Officer on October 11, 2002
and President on August 5, 1999. From October 2001 to October 2002, Mr. Sullivan
served as the Company's Chief Operating Officer. From October 1995 to August
1999 he served as Executive Vice President, and was Chief Financial Officer from
October 1993 to August 1999. Mr. Sullivan served as a Vice President from
October 1991 to October 1995. Prior thereto, he served as Director of Corporate
Development of the Company from February 1989 to October 1991. Mr. Sullivan
served as Regional Sales Manager, from February 1988 to February 1989, and as a
Technical Service Representative, from February 1987 to February 1988, of AGR
Company, an Ohio General Partnership formerly owned by the Company. Prior
thereto, Mr. Sullivan was employed by First Union National Bank from 1985 to
1986 and Harris Bank from 1983 to 1985. Mr. Sullivan is employed as President
and Chief Executive Officer under an employment agreement that provides for
automatic annual renewal. Mr. Sullivan is the son of Thomas C. Sullivan,
Chairman of the Board of Directors of the Company.
Ronald A. Rice was elected Senior Vice President-Administration on October
11, 2002 and Assistant Secretary on August 5, 1999. From October 2001 to October
2002, he served as Vice President-Administration. From August 1999 to October
2001, Mr. Rice served as the Company's Vice President-Risk Management and
Benefits. From 1997 to August 1999, he served as Director of Risk Management and
Employee Benefits, and from 1995 to 1997 he served as Director of Benefits. From
1985 to 1995, Mr. Rice served in various capacities with the Wyatt Company, most
recently he served as Senior Account Manager from 1992 to 1995. Mr. Rice is
employed as Senior Vice President-Administration under an employment agreement
that provides for automatic annual renewal. Mr. Rice is also an Assistant
Secretary of the Company.
P. Kelly Tompkins was elected Senior Vice President of the Company on
October 11, 2002. He has served as General Counsel and Secretary since June
1998, and served as Vice President from June 1998 to October 2002. From June
1996 to June 1998, Mr. Tompkins served as Assistant General Counsel. From 1987
to 1995, Mr. Tompkins was employed by Reliance Electric Company in various
positions including Senior Corporate Counsel, Director of Corporate Development
and Director of Investor Relations. From 1985 to 1987, Mr. Tompkins was employed
as a litigation attorney by Exxon Corporation. Mr. Tompkins is employed as
Senior Vice President, General Counsel and Secretary under an employment
agreement that provides for automatic annual renewal.
Dennis F. Finn was elected Vice President-Environmental and Regulatory
Affairs on October 12, 2001. Prior to joining the Company in November 2000 as
director of environmental and regulatory affairs, Mr. Finn served for 10 years
as director of environmental health and safety at
18
<PAGE>
Day-Glo Color Corp., one of the Company's operating companies. He also held
various positions with Nalco Chemical Company and IIT Research Institute.
Glenn R. Hasman was elected Vice President-Finance and Communications on
August 1, 2000. Mr. Hasman served as Vice President-Controller from August 1999
to August 2000, as Vice President-Financial Operations from October 1997 to
August 1999, as Vice President-Administration from October 1993 to October 1997
and as Controller from July 1990 to October 1993. From September 1982 through
July 1990, Mr. Hasman served in a variety of management capacities, most
recently Vice President-Operations and Finance, Chief Financial Officer and
Treasurer, with a former wholly-owned subsidiary of the Company. From 1979 to
1982, Mr. Hasman served as RPM's Director of Internal Audit and from 1976 to
1979 he was associated with Ciulla, Smith & Dale, LLP, independent accountants.
Mr. Hasman is employed as Vice President-Finance and Communications under an
employment agreement that provides for automatic annual renewal.
Paul G. P. Hoogenboom was elected Vice President-Operations on August 1,
2000 and as Chief Information Officer on October 11, 2002. Mr. Hoogenboom served
as Vice President and General Manager of the Company's e-commerce subsidiary,
RPM-e/c, Inc., in 1999. From 1998 to 1999, Mr. Hoogenboom was a Director of Cap
Gemini, a computer systems and technology consulting firm. During 1997, Mr.
Hoogenboom was employed as a strategic marketing consultant for Xylan
Corporation, a network switch manufacturer. From 1994 to 1997, Mr. Hoogenboom
was Director of Corporate I.T. and Communications for A.W. Chesterton Company, a
manufacturer of fluid sealing systems. Mr. Hoogenboom is employed as Vice
President-Operations and Chief Information Officer under an employment agreement
that provides for automatic annual renewal.
Stephen J. Knoop was elected Vice President-Corporate Development on
August 5, 1999. From June 1996 to August 1999, Mr. Knoop served as Director of
Corporate Development of the Company. From 1990 to May 1996, Mr. Knoop was an
attorney at Calfee, Halter & Griswold LLP. Mr. Knoop is employed as Vice
President-Corporate Development under an employment agreement that provides for
automatic annual renewal.
Robert L. Matejka was elected Chief Financial Officer on October 12, 2001
and Vice President-Controller on August 1, 2000. From 1995 to 1999, he served as
Vice President-Finance of the motor and drive systems businesses of Rockwell
International Corporation. From 1973 to 1995, Mr. Matejka served in various
capacities with Reliance Electric Company, most recently as its Assistant
Controller. From 1965 to 1973, he was an Audit Supervisor with Ernst & Young.
Mr. Matejka is employed as Chief Financial Officer and Vice President-Controller
under an employment agreement that provides for automatic annual renewal.
Keith R. Smiley was elected Vice President and Assistant Secretary on
August 5, 1999, and has served as Treasurer of the Company since February 1997.
From October 1993 to February 1997, he served as Controller of the Company. From
January 1992 until February 1997, Mr. Smiley also served as the Company's
Internal Auditor. Prior thereto, he was associated with Ciulla, Smith & Dale,
LLP. Mr. Smiley is employed as Vice President, Treasurer and Assistant Secretary
under an employment agreement that provides for automatic annual renewal.
19
<PAGE>
PART II
ITEM 5. MARKET FOR REGISTRANTS' COMMON EQUITY AND RELATED STOCKHOLDER
MATTERS.
RPM shares of Common Stock are traded on the New York Stock Exchange
under the symbol RPM. The high and low sales prices for the shares of Common
Stock, and the cash dividends paid on the Common Stock, for each quarter of the
two most recent fiscal years is set forth in the table below.
RANGE OF SALES PRICES AND DIVIDENDS PAID
<TABLE>
<CAPTION>
Dividends
Paid
Per
Fiscal 2003 High Low Share
----------- ---- --- -----
<S> <C> <C> <C> <C>
1st Quarter $ 16.59 $ 11.58 $0.125
2nd Quarter 16.01 12.90 $0.130
3rd Quarter 15.90 9.29 $0.130
4th Quarter 12.50 9.10 $0.130
</TABLE>
<TABLE>
<CAPTION>
Dividends
Paid
Per
Fiscal 2002 High Low Share
----------- ---- --- -----
<S> <C> <C> <C> <C>
1st Quarter $ 11.15 $ 8.02 $0.125
2nd Quarter 15.05 7.91 $0.125
3rd Quarter 17.08 12.90 $0.125
4th Quarter 17.87 14.15 $0.125
</TABLE>
- --------------------
Source: The Wall Street Journal
Cash dividends are payable quarterly, upon authorization of the
Board of Directors. Regular payment dates are approximately the 30th day of
July, October, January and April. RPM maintains a Dividend Reinvestment Plan
whereby cash dividends, and a maximum of an additional $5,000 per month, may be
invested in RPM Common Stock purchased in the open market at no commission cost
to the participant.
The number of holders of record of RPM Common Stock as of August 15,
2003 was approximately 38,684.
RECENT SALES OF UNREGISTERED SECURITIES.
On May 13, 2003, the Company sold approximately $247.5 million in
aggregate principal amount at maturity of 2.75 percent senior convertible notes
due 2033 to qualified institutional buyers, resulting in approximately $122.5
million gross proceeds to RPM. On May 23, 2003, the Company sold an additional
approximately $49.5 million aggregate principal amount at maturity of the senior
convertible notes due 2033 (resulting in approximately $24.5 million additional
gross proceeds to RPM) to cover the over-allotment option granted by the Company
to the initial purchasers in the offering. Each note was issued at a price of
$505.19 and is convertible into the
20
<PAGE>
Company's Common Stock at a conversion ratio of 27.0517
shares per $1,000 principal amount at maturity of the notes, subject to certain
adjustments.
The offering was made only to qualified institutional buyers in
accordance with Rule 144A under the Securities Act of 1933, as amended. The
Company used the net proceeds of the offering to repay existing indebtedness
under its $500 million revolving credit facility. The securities have not been
registered under the Securities Act of 1933 or any state securities laws, and
unless so registered may not be offered or sold in the United States, except
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act of 1933 and applicable state
securities laws. Pursuant to a Registration Rights Agreement between the Company
and the initial purchasers, the Company is required to prepare and file a
registration statement to register the notes and underlying Common Stock under
the Securities Act of 1933.
ITEM 6. SELECTED FINANCIAL DATA.
The following table sets forth selected consolidated financial data
of the Company for each of the five years during the period ended May 31, 2003.
The data was derived from the annual Consolidated Financial Statements of the
Company which have been audited by Ciulla, Smith & Dale, LLP, independent
accountants.
<TABLE>
<CAPTION>
FISCAL YEARS ENDED MAY 31,
----------------------------------------------------------
2003 2002* 2001 2000 1999
---- ----- ---- ---- ----
(Amounts in thousands, except per share and percentage data)
<S> <C> <C> <C> <C> <C>
Net sales $2,083,489 $1,986,126 $2,007,762 $1,962,410 $1,720,628
Income before income taxes 47,853 154,124 101,487 71,761 159,597
Net income 35,327 101,554 62,961 40,992 94,546
Return on sales % 1.7% 5.1% 3.1% 2.1% 5.5%
Basic earnings per share 0.31 0.97 0.62 0.38 0.87
Diluted earnings per share 0.30 0.97 0.62 0.38 0.86
Stockholders' equity 877,008 858,106 639,710 645,724 742,876
Stockholders' equity per 7.61 8.22 6.26 6.02 6.83
share
Return on stockholders' 4.1% 13.6% 9.8% 5.9% 14.4%
equity %
Average shares outstanding 115,294 104,418 102,202 107,221 108,731
Cash dividends paid 59,139 52,409 50,605 51,901 50,446
Cash dividends per share 0.5150 0.5000 0.4975 0.4850 0.4645
Retained earnings 385,791 409,603 360,458 348,102 359,011
Working capital 500,444 479,041 443,652 408,890 402,870
Total assets 2,247,211 2,078,844 2,078,490 2,099,203 1,737,236
Long-term debt 724,846 707,921 955,399 959,330 582,109
Depreciation and amortization 58,674 56,859 81,494 79,150 62,135
</TABLE>
Note: Acquisitions made by the Company during the periods presented may impact
comparability from year to year. For information concerning acquisitions for
fiscal year 2003, see Note A of Notes to Consolidated Financial Statements,
which appear in the Annual Report to Stockholders, incorporated herein by
reference.
21
<PAGE>
*Reflects the adoption of SFAS No. 142 regarding "Goodwill and Other
Intangible Assets". See Note A to Notes to Consolidated Financial Statements,
which appear in the Annual Report to Stockholders, incorporated herein by
reference.
ITEM 7. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS.
The information required by this item is set forth at pages 16
through 25 of the 2003 Annual Report to Stockholders, incorporated herein by
reference.
ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK.
The Company is exposed to market risk from changes in interest rates
and foreign currency exchange rates since it funds its operations through
long-and short-term borrowings and denominates its business transactions in a
variety of foreign currencies. A summary of the Company's primary market risk
exposures is presented below.
Interest Rate Risk
The Company's primary interest rate risk exposure results from
floating rate debt including various revolving credit and other lines of credit.
At May 31, 2003, approximately 51% of the Company's total long-term debt
consisted of floating rate debt. If interest rates were to increase 100 basis
points (1%) from May 31, 2003 rates, and assuming no changes in long-term debt
from the May 31, 2003 levels, the additional annual expense would be
approximately $3.7 million on a pre-tax basis. The Company currently does not
hedge its exposure to this floating rate interest rate risk.
Foreign Currency Risk
The Company's foreign sales and results of operations are subject to
the impact of foreign currency fluctuations. As most of the Company's foreign
operations are in countries with fairly stable currencies, such as the United
Kingdom, Belgium and Canada, this effect has not been material. In addition,
foreign debt is denominated in the respective foreign currency, thereby
eliminating any related translation impact on earnings. If the U.S. dollar
continues to weaken, the Company's foreign results of operations would be
positively impacted, but the effect would not be expected to be material. A 10%
change in foreign currency exchange rates would not have resulted in a material
impact on the Company's net income for the fiscal year ended May 31, 2003. The
Company does not currently hedge against the risk of exchange rate fluctuations.
ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA.
The information required by this item is set forth at pages 26
through 45 of the 2003 Annual Report to Stockholders, which information is
incorporated herein by reference.
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING
AND FINANCIAL DISCLOSURE.
None.
22
<PAGE>
PART III
ITEM 10. DIRECTORS AND EXECUTIVE OFFICERS OF THE REGISTRANT.
Information required by this item as to the Directors of the Company
appearing under the caption "Proposal One - Election of Directors" in the
Company's 2003 Proxy Statement is incorporated herein by reference. Information
required by this item as to the Executive Officers of the Company is included as
Item 4A of Part I of this Annual Report on Form 10-K as permitted by Instruction
3 to Item 401(b) of Regulation S-K. Information required by Item 405 of
Regulation S-K is set forth in the 2003 Proxy Statement under the heading
"Proposal One - Section 16(a) Beneficial Ownership Reporting Compliance," which
information is incorporated herein by reference.
ITEM 11. EXECUTIVE COMPENSATION.
The information required by this item is set forth in the 2003 Proxy
Statement under the heading "Proposal One - Executive Compensation," which
information is incorporated herein by reference.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT
AND RELATED STOCKHOLDER MATTERS.
The information required by this item is set forth in the 2003 Proxy
Statement under the headings "Share Ownership of Principal Holders and
Management" and "Proposal One - Equity Compensation Plan Information," which
information is incorporated herein by reference.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS.
The information required by this item is set forth in the 2003 Proxy
Statement under the heading "Proposal One - Election of Directors," which
information is incorporated herein by reference.
ITEM 14. CONTROLS AND PROCEDURES
(a) EVALUATION OF DISCLOSURE CONTROLS AND PROCEDURES.
The Company's Chief Executive Officer and Chief Financial Officer, after
evaluating the effectiveness of the Company's disclosure controls and procedures
(as defined in Exchange Act Rule 13a-14) as of May 31, 2003 (the "Evaluation
Date"), have concluded that as of the Evaluation Date, the Company's disclosure
controls and procedures were effective in ensuring that information required to
be disclosed by the Company in the reports it files or submits under the
Exchange Act is recorded, processed, summarized and reported, within the time
periods specified in the Commission's rules and forms.
(b) CHANGES IN INTERNAL CONTROLS.
There were no changes in the Company's internal controls that occurred
during the fiscal quarter ended May 31, 2003 that have materially affected, or
are reasonably likely to materially affect, the Company's internal controls.
23
<PAGE>
PART IV
ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM
8-K.
(a) The following documents are filed as part of this 2003 Annual Report on
Form 10-K:
1. Financial Statements. The following consolidated financial
statements of the Company and its subsidiaries and the report of independent
auditors thereon, included in the 2003 Annual Report to Stockholders on pages 26
through 45, are incorporated by reference in Item 8:
Independent Auditors' Report
Consolidated Balance Sheets -
May 31, 2003 and 2002
Consolidated Statements of Income -
years ended May 31, 2003, 2002 and 2001
Consolidated Statements of Stockholders'
Equity - years ended May 31, 2003, 2002
and 2001
Consolidated Statements of Cash Flows -
years ended May 31, 2003, 2002 and
2001
Notes to Consolidated Financial
Statements (including Unaudited Quarterly
Financial Information)
2. Financial Statement Schedules. The following consolidated financial
statement schedule of the Company and its subsidiaries and the report of
independent auditors thereon are filed as part of this Annual Report on Form
10-K and should be read in conjunction with the consolidated financial
statements of the Company and its subsidiaries included in the 2003 Annual
Report to Stockholders:
<TABLE>
<CAPTION>
Schedule Page No.
-------- --------
<S> <C>
Independent Auditors' Report ...................... S-1
Schedule II - Valuation and Qualifying
Accounts and Reserves ............................. S-2
</TABLE>
All other schedules have been omitted because they are not applicable or
not required, or because the required information is included in the
consolidated financial statements or notes thereto.
24
<PAGE>
3. Exhibits.
See the Index to Exhibits at page E-1 of this Annual Report on Form
10-K.
(b) Reports on Form 8-K.
The Company filed a Current Report on Form 8-K on April 14, 2003 to
report that it had issued a press release dated the same date, announcing
the Company's third quarter earnings.
The Company filed a Current Report on Form 8-K on April 30, 2003 to
report the mailing of its Nine-Month Report to its Stockholders.
The Company filed a Current Report on Form 8-K on May 9, 2003
related to a press release disclosing information regarding the Company's
private offering of senior convertible notes.
25
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the Registrant has duly caused this report to
be signed on its behalf by the undersigned, thereunto duly authorized.
<TABLE>
<S> <C> <C>
RPM INTERNATIONAL INC.
Date: August 29, 2003 By: /s/ Frank C. Sullivan
------------------------------
Frank C. Sullivan
President and
Chief Executive Officer
</TABLE>
Pursuant to the requirements of the Securities Exchange Act of 1934,
this report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature and Title
<S> <C>
/s/ Frank C. Sullivan President and Chief Executive Officer
- ------------------------ and a Director
Frank C. Sullivan (Principal Executive Officer)
/s/ Robert L. Matejka Vice President, Chief Financial Officer
- ------------------------ and Controller
Robert L. Matejka (Principal Financial Officer)
/s/ Thomas C. Sullivan Chairman and a Director
- ------------------------
Thomas C. Sullivan
/s/ Dr. Max D. Amstutz Director
- ------------------------
Dr. Max D. Amstutz
/s/ Edward B. Brandon Director
- ------------------------
Edward B. Brandon
/s/ Bruce A. Carbonari Director
- ------------------------
Bruce A. Carbonari
/s/ E. Bradley Jones Director
- ------------------------
E. Bradley Jones
</TABLE>
26
<PAGE>
<TABLE>
<S> <C>
/s/ James A. Karman Director
- ------------------------
James A. Karman
/s/ Donald K. Miller Director
- ------------------------
Donald K. Miller
/s/ William A. Papenbrock Director
- -------------------------
William A. Papenbrock
/s/ Albert B. Ratner Director
- ------------------------
Albert B. Ratner
/s/ Jerry Sue Thornton Director
- ------------------------
Jerry Sue Thornton
/s/ Joseph P. Viviano Director
- ------------------------
Joseph P. Viviano
</TABLE>
Date: August 29, 2003
27
<PAGE>
RPM INTERNATIONAL INC.
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of August 29, 2002, by and
among, RPM, Inc., the Company and RPM Merger Company, which is
incorporated herein by reference to Exhibit 2.1 to the Company's
Current Report on Form 8-K, as filed with the Commission on
October 15, 2002.
3.1 Amended and Restated Certificate of Incorporation of the Company,
which is incorporated herein by reference to Exhibit 4.1 to the
Company's Registration Statement on Form S-8 (Registration No.
333-101501), as filed with the Commission on November 27, 2002.
3.2 Amended and Restated By-Laws of the Company, which is incorporated
herein by reference to Exhibit 4.2 to the Company's Registration
Statement on Form S-8 (Registration No. 333-101501), as filed with
the Commission on November 27, 2002.
4.1 Specimen Certificate of common stock, par value $0.01 per share,
of the Company, which is incorporated herein by reference to
Exhibit 4.3 to the Company's Registration Statement on Form S-8
(Registration No. 333-101501), as filed with the Commission on
November 27, 2002.
4.2 Specimen Note Certificate for 7.0% Senior Notes Due 2005, which is
incorporated herein by reference to Exhibit 4.3 to the Company's
Registration Statement on Form S-4 as filed with the Commission on
August 3, 1995.
4.3 Specimen Note Certificate of Liquid Asset Notes with Coupon
Exchange ("LANCEs(SM)") Due 2008, which is incorporated herein by
reference to Exhibit 4.3 to the Company's Annual Report on Form
10-K for the fiscal year ended May 31, 1998 (File No. 001-14187).
4.4 Specimen Note Certificate for Senior Convertible Notes Due 2033.
(x)
4.5 Rights Agreement by and between the Company (as successor to RPM,
Inc.) and Harris Trust and Savings Bank dated as of April 28,
1999, which is incorporated herein by reference to Exhibit 4.1 to
the Company's Registration Statement on Form 8-A as filed with the
Commission on May 11, 1999.
4.5.1 Amendment to Rights Agreement dated as of December 18, 2000 by and
among the Company (as successor to RPM, Inc.), Computershare
Investor Services (formerly Harris Trust and Savings Bank) and
National City Bank, which is incorporated herein by reference to
Exhibit 4.4.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended May 31, 2001.
</TABLE>
E-1
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
4.5.2 Second Amendment to Rights Agreement, dated as of October 15,
2002, among RPM, Inc., National City Bank (as successor rights
agent to Computershare Investor Services, formerly Harris Trust
and Savings Bank) and the Company, which is incorporated herein by
reference to Exhibit 4.4.2 to the Company's Registration Statement
on Form S-8 (Registration No. 333-101501), as filed with the
Commission on November 27, 2002.
4.6 Indenture, dated as of June 1, 1995, between RPM, Inc. and The
First National Bank of Chicago, as trustee, with respect to the
7.0% Senior Notes Due 2005, which is incorporated herein by
reference to Exhibit 4.5 to the Company's Registration Statement
on Form S-4 as filed with the Commission on August 3, 1995.
4.7 First Supplemental Indenture, dated as of March 5, 1998 to the
Indenture dated as of June 1, 1995, between RPM, Inc. and the
First National Bank of Chicago, as trustee, with respect to the
Liquid Asset Notes with Coupon Exchange ("LANCEs(SM)") due 2008,
which is incorporated herein by reference to Exhibit 4.6 to the
Company's Annual Report on Form 10-K for the fiscal year ended May
31, 1998 (File No. 001-14187).
4.8 Second Supplemental Indenture, dated as of August 26, 2002, by and
among the Company, RPM, Inc. and Bank One, N.A. (f/k/a The First
National Bank of Chicago) as Trustee, relating to the Indenture,
dated as of June 1, 1995, by and between the Company and the
Trustee, which is incorporated herein by reference to Exhibit 10.6
to the Company's Quarterly Report on Form 10-Q for the quarter
ended August 31, 2002.
4.9 Indenture, dated as of May 13, 2003 between the Company, as
issuer, and The Bank of New York, as trustee, with respect to the
Senior Convertible Notes due 2033. (x)
4.10 Registration Rights Agreement, dated as of May 13, 2003, among the
Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and each of the other Initial Purchasers named
in Schedule A to the Purchase Agreement, for whom Merrill Lynch is
acting as Representative, with respect to the Senior Convertible
Notes due 2033. (x)
*10.1 Succession and Post-Retirement Consulting Letter Agreement, dated
April 12, 2002, by and between RPM, Inc. and Thomas C. Sullivan,
which is incorporated herein by reference to Exhibit 10.1 to the
Company's Annual Report on Form 10-K for the year ended May 31,
2002.
*10.1.2 Letter of Amendment to Employment Agreement and Consulting Letter
Agreement, dated as of October 14, 2002, by and between RPM, Inc.,
the Company and Thomas C. Sullivan, which is incorporated herein
by reference to Exhibit 10.1 to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 2002.
*10.2 Succession and Post-Retirement Consulting Letter Agreement, dated
April 12, 2002, by and between RPM, Inc. and James A. Karman,
which is incorporated herein by reference to Exhibit 10.2 to the
Company's Annual Report on Form 10-K for the year ended May 31,
2002.
</TABLE>
E-2
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*10.2.1 Letter of Amendment to Employment Agreement and Consulting Letter
Agreement, dated as of October 14, 2002, by and between RPM, Inc.,
the Company and James A. Karman, which is incorporated herein by
reference to Exhibit 10.2 to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 2002.
*10.3 Form of Employment Agreement entered into by and between the
Company and each of P. Kelly Tompkins, Senior Vice President,
General Counsel and Secretary, Glenn R. Hasman, Vice President -
Finance and Communications, Stephen J. Knoop, Vice President -
Corporate Development, Robert L. Matejka, Chief Financial Officer
and Vice President - Controller, Ronald A. Rice, Senior Vice
President - Administration and Assistant Secretary, Keith R.
Smiley, Vice President, Treasurer and Assistant Secretary and Paul
G. Hoogenboom, Vice President-Operations and Chief Information
Officer, which is incorporated herein by reference to Exhibit 10.1
to the Company's Quarterly Report on Form 10-Q for the quarterly
period ended February 28, 2001.
*10.3.1 Form of Letter of Amendment to Employment Agreements entered into
by and between RPM, Inc., the Company and each of P. Kelly
Tompkins, Senior Vice President, General Counsel and Secretary,
Ronald A. Rice, Senior Vice President - Administration and
Assistant Secretary, Glenn R. Hasman, Vice President - Finance and
Communications, Stephen J. Knoop, Vice President - Corporate
Development, Robert L. Matejka, Chief Financial Officer and Vice
President - Controller, Keith R. Smiley, Vice President, Treasurer
and Assistant Secretary and Paul G. Hoogenboom, Vice
President-Operations and Chief Information Officer, which is
incorporated herein by reference to Exhibit 10.3 to the Company's
Quarterly Report on Form 10-Q for the quarter ended November 30,
2002.
*10.4 Amended and Restated Employment Agreement between the Company and
Frank C. Sullivan - Chief Executive Officer and President, which
is incorporated herein by reference to Exhibit 10.4 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 2002.
*10.4.1 Employment Agreement between the Company and Dennis F. Finn - Vice
President - Environmental & Regulatory Affairs, which is
incorporated herein by reference to Exhibit 10.1 to the Company's
Quarterly Report on Form 10-Q for the quarter ended February 28,
2003.
*10.5 RPM International Inc. 1989 Stock Option Plan, as amended, and
form of Stock Option Agreements to be used in connection
therewith, which is incorporated herein by reference to Exhibit
10.4 to the Company's Annual Report on Form 10-K for the fiscal
year ended May 31, 2001.
*10.5.1 Amendment No. 3 to RPM International Inc. 1989 Stock Option Plan,
as amended, which is incorporated herein by reference to Exhibit
4.5.1 to the Company's Registration Statement on Form S-8
(Registration No. 033-32794), as filed with the Commission on
November 27, 2002.
</TABLE>
E-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*10.6 RPM International Inc. 1996 Stock Option Plan, which is
incorporated herein by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-8 (Registration No. 333-60104),
as filed with the Commission on November 27, 2002.
*10.6.1 Amendment No. 1 to RPM International Inc. 1996 Stock Option Plan,
which is incorporated herein by reference to Exhibit 10.7.1 to the
Company's Annual Report on Form 10-K for the fiscal year ended May
31, 1998 (File No. 001-14187).
*10.6.2 Amendment to RPM International Inc. 1996 Stock Option Plan, which
is incorporated herein by reference to Exhibit 4.3.1 to the
Company's Registration Statement on Form S-8 as filed with the
Commission on May 3, 2001.
*10.6.3 Amendment No. 3 to RPM International Inc. 1996 Stock Option Plan,
which is incorporated herein by reference to Exhibit 4.5.3 to the
Company's Registration Statement on Form S-8 (Registration No.
333-60104), as filed with the Commission on November 27, 2002.
*10.6.4 Form of Stock Option Agreement to be used in connection with the
RPM International Inc. 1996 Stock Option Plan, as amended, which
is incorporated herein by reference to Exhibit 10.6.1 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 2002.
*10.7 RPM International Inc. 401(k) Trust and Plan, as amended, which is
incorporated herein by reference to Exhibit 4.5 to the Company's
Registration Statement on Form S-8 (Registration No. 333-101501),
as filed with the Commission on November 27, 2002.
*10.7.1 Amendment No. 1 to RPM International Inc. 401(k) Trust and Plan,
which is incorporated herein by reference to Exhibit 4.5.1 to the
Company's Registration Statement on Form S-8 (Registration No.
333-101501), as filed with the Commission on November 27, 2002.
*10.7.2 Amendment No. 2 to RPM International Inc. 401(k) Trust and Plan,
as amended, which is incorporated by reference to Exhibit 4.5.2 to
the Company's Registration Statement on Form S-8 (Registration No.
333-101501), as filed with the Commission on November 27, 2002.
*10.8 RPM International Inc. Union 401(k) Retirement Savings Trust and
Plan, dated as of August 27, 2002, which is incorporated herein by
reference to Exhibit 4.6. to the Company's Registration Statement
on Form S-8 (Registration No. 333-101501), as filed with the
Commission on November 27, 2002.
*10.8.1 Amendment No. 1 to RPM International Inc. Union 401(k) Retirement
Savings Trust and Plan, dated as of August 27, 2002, which is
incorporated herein by reference to Exhibit 4.6.1 to the Company's
Registration Statement on Form S-8 (Registration No. 333-101501),
as filed with the Commission on November 27, 2002.
</TABLE>
E-4
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*10.8.2 Amendment No. 2 to RPM International Inc. Union 401(k) Retirement
Savings Trust and Plan, as amended, which is incorporated herein
by reference to Exhibit 4.6.2 to the Company's Registration
Statement on Form S-8 (Registration No. 333-101501), as filed with
the Commission on November 27, 2002.
*10.9 RPM International Inc. Benefit Restoration Plan, which is
incorporated herein by reference to Exhibit 10.7 to the Company's
Annual Report on Form 10-K for the fiscal year ended May 31, 2001.
*10.9.1 Amendment No. 1 to the RPM International Inc. Benefit Restoration
Plan, which is incorporated herein by reference to Exhibit 10.4 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
February 28, 2003.
*10.9.2 Amendment No. 2 to RPM International Inc. Benefit Restoration
Plan, which is incorporated herein by reference to Exhibit 10.9 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
November 30, 2002.
*10.10 RPM International Inc. Deferred Compensation Plan, which is
incorporated herein by reference to Exhibit 10.8.1 to the
Company's Annual Report on Form 10-K for the year ended May 31,
2002.
*10.10.1 Master Trust Agreement for RPM International Inc. Deferred
Compensation Plan, which is incorporated herein by reference to
Exhibit 10.8.1 to the Company's Annual Report on Form 10-K for the
year ended May 31, 2002.
*10.10.2 Amendment No. 1 to RPM International Inc. Deferred Compensation
Plan, which is incorporated herein by reference to Exhibit 4.5.1
to the Company's Registration Statement on Form S-8 (Registration
No. 333-101512), as filed with the Commission on November 27,
2002.
*10.11 RPM International Inc. Incentive Compensation Plan, which is
incorporated herein by reference to Exhibit 10.10 to the Company's
Annual Report on Form 10-K for the fiscal year ended May 31, 2001.
*10.11.1 Amendment No. 1 to RPM International Inc. Incentive Compensation
Plan, which is incorporated herein by reference to Exhibit 10.11
to the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 2002.
*10.12 1997 RPM International Inc. Restricted Stock Plan, and Form of
Acceptance and Escrow Agreement to be used in connection
therewith, which is incorporated herein by reference to Exhibit
10.12 to the Company's Quarterly Report on Form 10-Q for the
quarter ended November 30, 2002.
*10.12.1 First Amendment to the RPM, Inc. 1997 Restricted Stock Plan,
effective as of October 1, 1998, which is incorporated herein by
reference to Exhibit 10.10.1 to the Company's Annual Report on
Form 10-K for the year ended May 31, 2002.
</TABLE>
E-5
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
*10.12.2 Second Amendment to the RPM International Inc. 1997 Restricted
Stock Plan, dated as of May 22, 2002, which is incorporated herein
by reference to Exhibit 10.10.2 to the Company's Annual Report on
Form 10-K for the year ended May 31, 2002.
*10.12.3 Third Amendment to 1997 RPM International Inc. Restricted Stock
Plan, which is incorporated herein by reference to Exhibit 10.12.1
to the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 2002.
*10.12.4 Fourth Amendment to the 1997 RPM International Inc. Restricted
Stock Plan, which is incorporated herein by reference to Exhibit
10.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 2003.
*10.13 2002 RPM International Inc. Performance Accelerated Restricted
Stock Plan, which is incorporated herein by reference to Exhibit
10.2 to the Company's Quarterly Report on Form 10-Q for the
quarter ended February 28, 2003.
*10.13.1 Amendment No. 1 to the RPM International Inc. Performance
Accelerated Restricted Stock Plan, which is incorporated herein by
reference to Exhibit 10.3 to the Company's Quarterly Report on
Form 10-Q for the quarter ended February 28, 2003.
*10.14 Form of Indemnification Agreement entered into by and between the
Company and each of its Directors and Executive Officers, which is
incorporated herein by reference to Exhibit 10.14 to the Company's
Quarterly Report on Form 10-Q for the quarter ended November 30,
2002.
10.15 Five-Year $500,000,000 Credit Agreement, dated as of July 14,
2000, among the Company, The Chase Manhattan Bank, as
Administrative Agent and Chase Securities Inc., which is
incorporated herein by reference to Exhibit 10.16 to the Company's
Annual Report on Form 10-K for the fiscal year ended May 31, 2000.
10.15.1 Amendment No. 1, dated July 31, 2001, to the 364-Day Credit
Agreement and the Five-Year Credit Agreement among the Company,
the Lenders party thereto and The Chase Manhattan Bank, as
Administrative Agent, which is incorporated by referred to Exhibit
10.1 to the Company's Quarterly Report on Form 10-Q for the
quarterly period ended August 31, 2001.
10.15.2 Amendment No. 2 to Five-Year Credit Agreement, dated as of July
12, 2002, by and among the Company, the Lender parties thereto and
JPMorgan Chase Bank (formerly The Chase Manhattan Bank), as
administrative agent, which is incorporated herein by reference to
Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q for
the quarter ended August 31, 2002.
</TABLE>
E-6
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.15.3 Assignment, Assumption and Release Agreement, related to the
Five-Year Credit Agreement, dated as of October 15, 2002, between
RPM, Inc. and the Company, which is incorporated herein by
reference to Exhibit 10.15 to the Company's Quarterly Report on
Form 10-Q for the quarter ended November 30, 2002.
10.16 Receivables Sale Agreement among certain subsidiaries of the
Company, the Company and RPM Funding Corporation, dated June 6,
2002, which is incorporated herein by reference to Exhibit 10.1 to
the Company's Quarterly Report on Form 10-Q for the quarter ended
August 31, 2002.
10.17 Receivables Purchase Agreement, among certain subsidiaries of the
Company, RPM Funding Corporation and Bank One and Wachovia Bank,
NA, as co-agents and administrative agents, dated June 6, 2002,
which is incorporated herein by reference to Exhibit 10.2 to the
Company's Quarterly Report on Form 10-Q for the quarter ended
August 31, 2002.
10.18 Omnibus Amendment No. 1 to the Receivables Sale Agreement and the
Receivables Purchase Agreement, by and among RPM, Inc., the
Company, certain subsidiaries of the Company, RPM Funding
Corporation and Bank One, dated as of October 15, 2002, which is
incorporated herein by reference to Exhibit 10.16 to the Company's
Quarterly Report on Form 10-Q for the quarter ended November 30,
2002.
10.19 Performance Undertaking related to the Bank One, NA Receivables
Sale Agreement and Receivables Purchase Agreement, dated June 6,
2002, which is incorporated herein by reference to Exhibit 10.16.1
to the Company's Quarterly Report on Form 10-Q for the quarter
ended November 30, 2002.
10.20 Note Purchase Agreement, dated as of November 15, 2001, between
the Company and the Purchasers thereto with respect to the sale of
$15 million principal amount of 6.12% Senior Notes, Series A, due
November 15, 2004, $10 million principal amount of 6.61% Senior
Notes, Series B, due November 15, 2006, and $30 million principal
amount of 7.3% Senior Notes, Series C, due November, 2003, which
is incorporated herein by reference to Exhibit 4.1 to the
Company's Quarterly Report on Form 10-Q for the quarterly period
ended November 30, 2001.
10.20.1 Assignment, Assumption and Amendment Agreement, dated as of August
23, 2002, between the Company, RPM International Inc. and the
holders of the Notes under the Private Placement Note Purchase
Agreement, dated as of November 15, 2001, as the same may be
amended or supplemented from time to time, between the Company and
certain institutional investors named therein, which is
incorporated herein by reference to Exhibit 10.4 to the Company's
Quarterly Report on Form 10-Q for the quarter ended August 31,
2002.
10.21 Commercial Paper Dealer Agreement between the Company, as Issuer,
and U.S. Bancorp Piper Jaffray Inc., as Dealer, dated as of April
21, 2003. (x)
</TABLE>
E-7
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.22 Issuing and Paying Agent Agreement between U.S. Bank Trust
National Association and the Company, dated as of April 21, 2003.
(x)
10.23 Note Purchase Agreement, dated as of May 8, 2003, among the
Company, Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated and each of the other Initial Purchasers named
in Schedule A to the Purchase Agreement, for whom Merrill Lynch is
acting as Representative. (x)
11.1 Computation of Net Income per share of Common Stock. (x)
13.1 Financial Information contained in 2003 Annual Report to
Stockholders. (x)
21.1 Subsidiaries of the Company. (x)
23.1 Consent of Independent Certified Public Accountants. (x)
31.1 Rule 13a-14(a) Certification of the Company's Chief Financial
Officer. (x)
31.2 Rule 13a-14(a) Certification of the Company's Chief Executive
Officer. (x)
32.1 Section 1350 Certification of the Company's Chief Financial
Officer. (x)
32.2 Section 1350 Certification of the Company's Chief Executive
Officer. (x)
</TABLE>
- -------------
(x) Filed herewith.
* Management contract or compensatory plan or arrangement identified
pursuant to Item 14(c) of this Form 10-K.
E-8
<PAGE>
REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS ON
FINANCIAL STATEMENT SCHEDULE
To The Board of Directors and
Shareholders
RPM International Inc. and Subsidiaries
Medina, Ohio
The audits referred to in our report to the Board of Directors and Shareholders
of RPM International Inc. and Subsidiaries dated July 7, 2003, relating to the
consolidated financial statements of RPM International Inc. and Subsidiaries
included the audit of the schedule listed under Item 14 of Form 10-K for each of
the three years in the period ended May 31, 2003. This financial statement
schedule is the responsibility of the Company's management. Our responsibility
is to express an opinion on this financial statement schedule based upon our
audits.
In our opinion such financial statement schedule presents fairly, in all
material respects, the information set forth therein.
/s/ Ciulla, Smith & Dale, LLP
Ciulla, Smith & Dale, LLP
S-1
<PAGE>
RPM INTERNATIONAL INC. AND SUBSIDIARIES
VALUATION AND QUALIFYING ACCOUNTS AND RESERVES
SCHEDULE II
(IN THOUSANDS)
<TABLE>
<CAPTION>
ADDITIONS
CHARGED TO
BALANCE AT ADDITIONS SELLING, ACQUISITIONS BALANCE
BEGINNING CHARGED TO GENERAL AND (DISPOSALS) AT END
OF PERIOD COST OF SALES ADMINISTRATIVE OF BUSINESSES DEDUCTIONS OF PERIOD
--------- ------------- -------------- ------------- ---------- ---------
<S> <C> <C> <C> <C> <C> <C>
YEAR ENDED MAY 31, 2003
ALLOWANCE FOR DOUBTFUL ACCOUNTS $ 15,844 $ -- $ 5,609 $ 212 $ 4,408(1) $ 17,297
============ ============ ============ ============ ============ ============
ACCRUED LOSS RESERVES - CURRENT $ 48,537 $ -- $ 15,271 $ 335 $ (87)(2) $ 64,230
============ ============ ============ ============ ============ ============
ASBESTOS-RELATED LIABILITIES-
CURRENT $ 3,377 $ -- $ 43,650 $ -- $ 5,444(2) $ 41,583
============ ============ ============ ============ ============ ============
ACCRUED WARRANTY RESERVES -
LONG-TERM $ 9,655 $ -- $ (609) $ 603 $ 1,868(2) $ 7,781
============ ============ ============ ============ ============ ============
ASBESTOS-RELATED LIABILITIES -
NONCURRENT $ -- $ -- $ 103,000 $ -- $ -- $ 103,000
============ ============ ============ ============ ============ ============
YEAR ENDED MAY 31, 2002
ALLOWANCE FOR DOUBTFUL ACCOUNTS $ 17,705 $ -- $ 7,156 $ -- $ 8,977(1) $ 15,884
============ ============ ============ ============ ============ ============
ACCRUED LOSS RESERVES - CURRENT $ 52,495 $ -- $ 21,144 $ (100) $ 25,002(2) $ 48,537
============ ============ ============ ============ ============ ============
ASBESTOS-RELATED LIABILITIES -
CURRENT $ 3,117 $ -- $ 2,754 $ -- $ 2,494(2) $ 3,377
============ ============ ============ ============ ============ ============
ACCRUED WARRANTY RESERVES -
LONG-TERM $ 11,959 $ -- $ (235) $ -- $ 2,069(2) $ 9,655
============ ============ ============ ============ ============ ============
YEAR ENDED MAY 31, 2001
ALLOWANCE FOR DOUBTFUL ACCOUNTS $ 16,248 $ -- $ 8,817 $ 10 $ 7,370(1) $ 17,705
============ ============ ============ ============ ============ ============
ACCRUED LOSS RESERVES - CURRENT $ 62,765 $ -- $ 12,991 $ -- $ 23,261(2) $ 52,495
============ ============ ============ ============ ============ ============
ASBESTOS-RELATED LIABILITIES -
CURRENT $ 1,630 $ -- $ 2,338 $ -- $ 851(2) $ 3,117
============ ============ ============ ============ ============ ============
ACCRUED WARRANTY RESERVES -
LONG-TERM $ 13,740 $ -- $ (209) $ -- $ 1,572(2) $ 11,959
============ ============ ============ ============ ============ ============
ACCRUED RESTRUCTURING RESERVES $ 13,540 $ -- $ -- $ -- $ 13,540(3) $ --
============ ============ ============ ============ ============ ============
</TABLE>
(1) UNCOLLECTIBLE ACCOUNTS WRITTEN OFF, NET OF RECOVERIES
(2) PRIMARILY CLAIMS PAID DURING THE YEAR, NET OF INSURANCE CONTRIBUTIONS
(3) RESTRUCTURING INITIATIVES COMPLETED DURING THE YEAR
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.4
<SEQUENCE>3
<FILENAME>l02719aexv4w4.txt
<DESCRIPTION>EX-4.4 SPECIMAN NOTE CERTIFICATE
<TEXT>
<PAGE>
EXHIBIT 4.4
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES
OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE ISSUE PRICE OF THIS SECURITY IS $505.19 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY; THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
INDETERMINABLE AS OF THE ISSUE DATE; THE ISSUE DATE OF THIS SECURITY IS MAY 13,
2003; AND THE YIELD TO MATURITY FOR THE PURPOSES OF ACCRUING ORIGINAL ISSUE
DISCOUNT IS 5.05% PER ANNUM, CALCULATED ON A SEMIANNUAL BOND EQUIVALENT BASIS.
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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER (X) THE LATER OF THE
LAST DAY SECURITIES OF THIS ISSUE WERE ISSUED AND (Y) THE LAST DATE ON WHICH RPM
INTERNATIONAL INC. (THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
<PAGE>
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY
DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E)
PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF
THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO
ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE
DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION
SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE
OF TRANSFER IN THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE
REMOVED UPON THE REQUEST OF ANY HOLDER THAT IS NOT AN AFFILIATE OF THE COMPANY
AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
<PAGE>
RPM INTERNATIONAL INC.
SENIOR CONVERTIBLE NOTE DUE 2033
No. A-1 CUSIP: 749 685 AJ 2
Issue Date: May 13, 2003
Issue Price: $505.19 Original Issue Discount: $494.81
(for each $1,000 Principal (for each $1,000 Principal
Amount at Maturity) Amount at Maturity)
RPM INTERNATIONAL INC., a Delaware corporation (herein called the
"Company"), promises to pay to Cede & Co. or registered assigns, the Principal
Amount at Maturity of TWO HUNDRED FORTY SEVEN MILLION FIVE HUNDRED AND FOURTEEN
THOUSAND DOLLARS ($247,514,000) on May 13, 2033.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
RPM INTERNATIONAL INC.
By:__________________________
Title:
By:__________________________
Title:
Dated: May , 2003
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By:___________________________________
Authorized Signatory
<PAGE>
[REVERSE SIDE OF SECURITY]
SENIOR CONVERTIBLE NOTES DUE 2033
1. Interest.
The Company promises to pay interest in cash on the Principal Amount at
Maturity of this Note at the rate per annum of 1.389% from the Issue Date, or
from the most recent date to which interest has been paid or provided for, until
May 13, 2008. During such period, the Company will pay cash interest
semiannually in arrears on May 13 and November 13 of each year (each an
"Interest Payment Date") to Holders of record at the close of business on each
April 28 and October 29 (whether or not a business day) (each a "Regular Record
Date") immediately preceding such Interest Payment Date. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or duly provided or, if no interest has been paid, from the Issue Date. Cash
interest will be computed on the basis of a 360-day year of twelve 30-day
months.
After May 13, 2008, this Security shall not bear interest, except as
specified in this paragraph or in paragraphs 5 and 11 hereof. If the Principal
Amount at Maturity hereof or any portion of such Principal Amount at Maturity is
not paid when due (whether upon acceleration pursuant to Section 6.02 of the
Indenture, upon the date set for payment of the Redemption Price pursuant to
paragraph 6 hereof, upon the date set for payment of the Purchase Price or
Change in Control Purchase Price pursuant to paragraph 7 hereof or upon the
Stated Maturity of this Security) or if cash interest (including semiannual or
Contingent Cash Interest, if any) due hereon or any portions of such cash
interest is not paid when due in accordance with paragraphs 5 or 11 hereof, then
in each such case the overdue amount shall, to the extent permitted by law, bear
interest at the rate of 2.75% per annum, compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand. The accrual of such
interest on overdue amounts shall be in lieu of, and not in addition to, the
continued accrual of Original Issue Discount or cash interest.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 2.75% per annum beginning on May
13, 2008, on a semiannual bond equivalent basis using a 360-day year composed of
twelve 30-day months.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Change in
Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. In addition, the Company will pay cash interest from the Issue Date
until May 13, 2008, as more fully described in paragraph 1 hereof. The Company
will pay any cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may make such cash payments by check payable in such money.
<PAGE>
3. Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent, Conversion Agent, Registrar and Bid
Solicitation Agent. The Company may appoint and change any Paying Agent,
Conversion Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee except that the Company will maintain
at least one Paying Agent in the State of New York, City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may act as Paying
Agent, Conversion Agent, Registrar or co-registrar. None of the Company, any of
its Subsidiaries or any of their Affiliates shall act as Bid Solicitation Agent.
4. Indenture.
The Company issued the Securities pursuant to an Indenture dated as of
May 13, 2003 (the "Indenture"), between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured and unsubordinated obligations, of
the Company, limited to $297,000,000 aggregate Principal Amount at Maturity
(subject to Section 2.07 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Contingent Cash Interest.
Subject to the conditions of the Indenture and the accrual and record
date provisions specified in this paragraph 5, the Company shall pay Contingent
Cash Interest to the Securityholders during any Semiannual Period, with the
initial six-month period commencing on May 14, 2008, if, but only if, the
Average Security Market Price for the five Trading Days ending on the third
Trading Day immediately preceding the first day of the applicable Semiannual
Period equals 120% or more of the Relevant Value of such Security.
Contingent Cash Interest, if any, will accrue and be payable to holders
of this Security as of the Contingent Cash Interest Record Date. Original Issue
Discount will continue to accrue at 2.75% whether or not Contingent Cash
Interest is paid.
The amount of Contingent Cash Interest payable per $1,000 Principal
Amount at Maturity hereof in respect of any quarterly period of the applicable
Contingent Cash Interest Period shall equal the annual rate of 1.0% of the
Average Security Market Price for the five Trading Day measuring period.
Upon determination that Securityholders will be entitled to receive
Contingent Cash Interest during a Semiannual Period, the Company shall issue a
press release and publish such information on its web site or through such other
public medium it may use at the time.
<PAGE>
6. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable for cash as a whole, or from time to time in part, at any time at the
option of the Company in accordance with the Indenture at the Redemption Prices
set forth below; provided, that the Securities are not redeemable prior to May
13, 2008.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect accrued Original Issue Discount calculated to each such
date. The Redemption Price of a Security redeemed between such dates shall
include an additional amount reflecting the additional Original Issue Discount
accrued since the immediately preceding date in the table to, but not including,
the Redemption Date.
[Remainder of page intentionally left blank]
<PAGE>
<TABLE>
<CAPTION>
(3)
(2) Redemption
(1) Accrued Original Price
Redemption Date Note Issue Price Issue Discount (1) + (2)
- --------------- ---------------- -------------- ---------
<S> <C> <C> <C>
May 13,
2008..................... $505.19 $ 0.00 $ 505.19
2009..................... 505.19 13.99 519.18
2010..................... 505.19 28.36 533.55
2011..................... 505.19 43.14 548.33
2012..................... 505.19 58.32 563.51
2013..................... 505.19 73.92 579.11
2014..................... 505.19 89.96 595.15
2015..................... 505.19 106.44 611.63
2016..................... 505.19 123.37 628.56
2017..................... 505.19 140.78 645.97
2018..................... 505.19 158.66 663.85
2019..................... 505.19 177.05 682.24
2020..................... 505.19 195.94 701.13
2021..................... 505.19 215.35 720.54
2022..................... 505.19 235.30 740.49
2023..................... 505.19 255.81 761.00
2024..................... 505.19 276.88 782.07
2025..................... 505.19 298.53 803.72
2026..................... 505.19 320.79 825.98
2027..................... 505.19 343.66 848.85
2028..................... 505.19 367.16 872.35
2029..................... 505.19 391.32 896.51
2030..................... 505.19 416.14 921.33
2031..................... 505.19 441.65 946.84
2032..................... 505.19 467.87 973.06
At stated maturity....... 505.19 494.81 1,000.00
</TABLE>
If this Security has been converted to a semiannual coupon note
following the occurrence of a Tax Event, the Redemption Price will be equal to
the Restated Principal Amount plus accrued and unpaid interest from the date of
such conversion to but not including the Redemption Date; but in no event will
this Security be redeemable before May 13, 2008.
7. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices, plus accrued and unpaid cash interest, if any, per $1,000 Principal
Amount at Maturity, upon delivery of a Purchase Notice containing the
information set forth in the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to such Purchase Date until the close
of business on the
<PAGE>
day immediately preceding such Purchase Date and upon delivery of the Securities
to the Paying Agent by the Holder as set forth in the Indenture.
Purchase Date Price Purchase
------------- --------------
May 13, 2008 $505.19
May 13, 2013 $579.11
May 13, 2018 $663.85
May 13, 2023 $761.00
May 13, 2028 $872.35
The Purchase Price (equal to the Issue Price plus accrued Original
Issue Discount to the Purchase Date) may be paid, at the option of the Company,
in cash or by the issuance and delivery of shares of Common Stock of the
Company, or in any combination thereof in accordance with the Indenture.
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
cash interest from the date of conversion to the Purchase Date as provided in
the Indenture.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder no later than 30 Business Days after the occurrence of a
Change in Control of the Company, but in no event prior to the date on which
such a Change in Control occurs, for a Change in Control Purchase Price equal to
the Issue Price plus accrued Original Issue Discount and accrued and unpaid cash
interest, including Contingent Cash Interest, if any, to but not including the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash. If prior to a Change in Control Purchase Date this Security has
been converted to a semiannual coupon note following the occurrence of a Tax
Event, the Change in Control Purchase Price shall be equal to the Restated
Principal Amount plus accrued cash interest from the date of conversion to the
Change in Control Purchase Date.
A third party may make the offer and purchase of the Securities in lieu
of the Company in accordance with the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Purchase Price or Change in Control Purchase Price, as the case may
be, of all Securities or portions thereof to be purchased as of the Purchase
Date or the Change in Control Purchase Date, as the case may be, is deposited
with the Paying Agent on the Business Day following the Purchase Date or the
Change in Control Purchase Date, as the case may be, Original Issue Discount or
<PAGE>
cash interest (including semiannual and Contingent Cash Interest), if any, shall
cease to accrue on such Securities (or portions thereof) on such Purchase Date
or Change in Control Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Change in Control Purchase Price, as the case may be, if any, upon
surrender of such Security).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of, and accrued and unpaid cash interest, if any, with respect to, all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, on such
Redemption Date, Original Issue Discount or cash interest (including semiannual
and Contingent Cash Interest), if any, shall cease to accrue on such Securities
or portions thereof. Securities in denominations larger than $1,000 of Principal
Amount at Maturity may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount at Maturity.
9. Conversion.
Conversion Based on Sale Price of Common Stock. Subject to the
provisions of this paragraph 9 and notwithstanding the fact that any other
condition to conversion described below has not been satisfied, Holders may
convert the Securities into Common Stock on a Conversion Date in any fiscal
quarter commencing after May 31, 2003, if, as of the last day of the preceding
fiscal quarter, the Sale Price of the Common Stock for at least 20 Trading Days
in a period of 30 consecutive Trading Days ending on the last Trading Day of the
most recently ended fiscal quarter, is greater than the conversion trigger price
per share. The "conversion trigger price" for any fiscal quarter shall be 120%
of the accreted conversion price per share (calculated without giving effect to
accrued cash interest, if any) of Common Stock on the last day of such fiscal
quarter. If the foregoing condition is satisfied, then the Securities will be
convertible at any time at the option of the Holder, through their maturity.
The "accreted conversion price per share" of Common Stock as of any day
equals the quotient of:
- the Issue Price and accrued Original Issue Discount, if any,
to that day, divided by
- the number of shares of Common Stock issuable upon conversion
of $1,000 Principal Amount at Maturity of Securities on that
day pursuant to this paragraph 9 and Article 11 of the
Indenture.
Conversion Based on Credit Ratings Downgrade. Subject to the provisions
of this paragraph 9 and the Indenture and notwithstanding the fact that any
other condition to conversion has not been satisfied, the Securities shall be
convertible into Common Stock at the election of a Holder on a Conversion Date
at any time that (a) the credit rating assigned to the Securities by Moody's
Investors Service Inc. and its successors ("Moody's") is Ba3 or lower or
<PAGE>
the credit rating assigned to the Securities by Standard & Poor's Credit Market
Services, a division of the McGraw-Hill Companies Inc. and its successors
("Standard & Poor's") is BB or lower, or (b) the Securities are no longer rated
by either or both of Moody's or Standard & Poor's, or (c) either or both of
Moody's or Standard & Poor's have suspended or withdrawn their ratings of the
Securities.
Conversion upon Redemption. Subject to the provisions of this paragraph
9 and notwithstanding the fact that any other condition described herein to
conversion has not been satisfied, a Holder may convert into Common Stock a
Security or portion of a Security which has been called for redemption pursuant
to paragraph 6 hereof, but such Securities may be surrendered for conversion
only until the close of business on the second Business Day immediately
preceding the Redemption Date.
Conversion Upon Certain Distributions. Subject to the provisions of
this paragraph 9 and notwithstanding the fact that any other condition to
conversion has not been satisfied, in the event that the Company declares a
dividend or distribution described in Section 11.07 of the Indenture, or a
dividend or a distribution described in Section 11.08 of the Indenture and, in
the case of a dividend or distribution described in Section 11.08 of the
Indenture, the sum of (a) the fair market value, per share, of such dividend or
distribution per share of Common Stock, and (b) the quotient of (1) the amount
of Contingent Cash Interest paid on the Securities during the Ex-Dividend
Measurement Period divided by (2) the number of shares of Common Stock issuable
upon conversion of Securities at the Conversion Rate in effect at the
Ex-Dividend Time, as determined in the Indenture, exceeds 15% of the Sale Price
of the Common Stock on the Business Day immediately preceding the date of
declaration for such dividend or distribution, the Securities may be surrendered
for conversion beginning on the date the Company gives notice to the Holders of
such right, which shall not be less than 20 days prior to the Ex-Dividend Time
for such dividend or distribution, and Securities may be surrendered for
conversion at any time thereafter until the close of business on the Business
Day prior to the Ex-Dividend Time or until the Company announces that such
dividend or distribution will not take place.
Conversion Upon Occurrence of Certain Corporate Transactions. Subject
to the provisions of this paragraph 9 and notwithstanding the fact that any
other condition described herein to conversion has not been satisfied, in the
event the Company is a party to a consolidation, merger or binding share
exchange pursuant to which the Common Stock would be converted into cash,
securities or other property as set forth in Section 11.14 of the Indenture, the
Securities may be surrendered for conversion at any time from and after the date
which is 15 days prior to the date announced by the Company as the anticipated
effective time until 15 days after the actual effective date of such
transaction, and at the effective time of such transaction the right to convert
a Security into Common Stock will be deemed to have changed into a right to
convert it into the kind and amount of cash, securities or other property which
the holder would have received if the holder had converted its Security
immediately prior to the transaction.
A Security in respect of which a Holder has delivered a Purchase Notice
or Change in Control Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
<PAGE>
The initial Conversion Rate is 27.0517 shares of Common Stock per
$1,000 Principal Amount at Maturity, subject to adjustment in the case of
certain events described in the Indenture. The Company will deliver cash or a
check in lieu of any fractional share of Common Stock. The ability to surrender
Securities for conversion will expire at the close of business on May 11, 2033.
In the event the Company exercises its option pursuant to Section 10.01
of the Indenture to have interest in lieu of Original Issue Discount or cash
interest accrue on the Security following a Tax Event, the Holder will be
entitled on conversion to receive the same number of shares of Common Stock such
Holder would have received if the Company had not exercised such option.
Accrued and unpaid interest in lieu of Original Issue Discount and cash
interest, including Contingent Cash Interest, if any, will not be paid on
Securities that are converted following a Tax Event; provided, however, that
Securities surrendered for conversion during the period, in the case of interest
in lieu of Original Issue Discount, from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date, shall be entitled to receive such interest, in
lieu of Original Issue Discount, payable on such Securities on the corresponding
Interest Payment Date and (except Securities with respect to which the Company
has mailed a notice of redemption) Securities surrendered for conversion during
such periods must be accompanied by payment of an amount equal to the interest
in lieu of Original Issue Discount with respect thereto that the registered
Holder is to receive.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by the Conversion Agent, the Company or the Trustee and (d) pay any
transfer or similar taxes, if required.
A Holder may convert a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Security, accrued Original Issue Discount
and any accrued and unpaid cash interest (or interest if the Company has
exercised its option provided for in paragraph 11 hereof), including Contingent
Cash Interest, attributable to the period from the Issue Date (or, if the
Company has exercised the option referred to in paragraph 11 hereof, the later
of (x) the date of such exercise and (y) the date on which interest was last
paid) through the Conversion Date shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through the delivery of the Common Stock (together with the cash payment, if
any, in lieu of fractional shares) in exchange for the Security being converted
pursuant to the terms hereof; and the fair market value of such shares of Common
Stock (together with any such cash payment in lieu of fractional shares) shall
be treated as issued, to the extent thereof, first in exchange for Original
Issue Discount and any accrued and unpaid cash interest (or interest, if the
Company has exercised its option provided for in paragraph 11 hereof), including
Contingent Cash Interest, accrued through the Conversion Date, and the balance,
if any, of such fair market value of such
<PAGE>
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the provisions
hereof.
The Conversion Rate will be adjusted in accordance with Article 11 of
the Indenture for dividends or distributions on Common Stock payable in Common
Stock or other Capital Stock; subdivisions, combinations or certain
reclassifications of Common Stock; distributions to all holders of Common Stock
of certain rights to purchase Common Stock for a period expiring within 60 days
of the Issue Date at less than the Sale Price of the Common Stock at the Time of
Determination; and distributions to such holders of assets or debt securities of
the Company or certain rights to purchase securities of the Company (excluding
certain cash dividends or distributions) and certain rights pursuant to
shareholder rights plans. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
10. [INTENTIONALLY OMITTED.]
11. Tax Event.
(a) From and after (i) the date (the "Tax Event Date") of the occurrence of
a Tax Event and (ii) the date the Company exercises the option provided for in
this paragraph 11, whichever is later (the "Option Exercise Date"), at the
option of the Company, interest in lieu of future Original Issue Discount shall
accrue at the rate of 2.75% per annum on a principal amount per Note (the
"Restated Principal Amount") equal to the Issue Price plus Original Issue
Discount accrued through the Option Exercise Date and shall be payable
semiannually on May 13 and November 13 of each year (each an "Interest Payment
Date") to Holders of record at the close of business on each April 28 and
October 29, respectively, (each a "Regular Record Date") immediately preceding
such Interest Payment Date. Interest will be computed on a semiannual bond
equivalent basis using a 360-day year comprised of twelve 30-day months and will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the Option Exercise Date.
(b) Interest on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the person in
whose name that Security is registered at the close of business on the Regular
Record Date for such interest at the office or agency of the Company maintained
for such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States.
12. Defaulted Interest.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date or accrual date,
as the case may be, and such Defaulted Interest shall be paid by the Company as
provided for in Section 12.02 of the Indenture.
<PAGE>
13. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Change in Control
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
14. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
15. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property laws. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person.
16. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding and (b) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate Principal Amount
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the Company's
obligations under this Security or to add to the Company's covenants for the
benefit of the Securityholders or to surrender any right or power conferred, to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA, or as necessary in connection with the registration
of the Securities under the Securities Act or to make any change that does not
adversely affect the rights of any Holders.
17. Defaults and Remedies.
Under the Indenture, Events of Default include (a) default in payment
of any cash interest (including any interest which becomes payable after the
Securities have been converted to notes
<PAGE>
paying semiannual interest following the occurrence of a Tax Event) or any
Contingent Cash Interest and such default continues for 30 days; (b) default in
payment of the Principal Amount at Maturity (or, if the Securities have been
converted to semiannual coupon notes following a Tax Event, the Restated
Principal Amount), Issue Price plus accrued Original Issue Discount or cash
interest, Redemption Price, Purchase Price or Change in Control Purchase Price,
as the case may be, in respect of the Securities when the same becomes due and
payable; (c) failure by the Company to comply with other agreements in the
Indenture or the Securities, subject to notice and lapse of time; (d) default in
the payment of any principal when due or resulting in acceleration of other
indebtedness of the Company or any Subsidiary for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has
occurred exceeds $50,000,000, and such acceleration has not been rescinded or
annulled within a period of 10 days after receipt by the Company of a Notice of
Default, subject to notice and lapse of time; provided, however, that if any
such default shall be cured, waived, rescinded or annulled, then the Event of
Default by reason thereof shall be deemed not to have occurred; (e) certain
events of bankruptcy or insolvency; and (f) final unsatisfied judgments not
covered by insurance aggregating in excess of $100,000,000 rendered against the
Company or any Subsidiary and not stayed, bonded or discharged within 60 days.
If an Event of Default occurs and is continuing, the Trustee, or the Holders of
at least 25% in aggregate Principal Amount at Maturity of the Securities at the
time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Issue Price plus Original Issue Discount and any
accrued and unpaid cash interest or any Contingent Cash Interest (or, if the
Securities have been converted to semiannual coupon notes following a Tax Event,
the Restated Principal Amount, plus accrued interest) on the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (a) or (b) above) if it determines
that withholding notice is in their interests.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
19. No Recourse Against Others.
A director, officer, employee, agent, representative, stockholder or
equity holder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases
<PAGE>
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. GOVERNING LAW.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
----------------------
<PAGE>
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
RPM International Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44528
Attention: General Counsel
<TABLE>
<CAPTION>
ASSIGNMENT FORM CONVERSION NOTICE
<S> <C>
To assign this Security, fill in the form To convert this Security into Common Stock
below: of the Company, check the box: [ ]
I or we assign and transfer this Security to To convert only part of this Security, state
the Principal Amount at Maturity to be
____________________________________________ converted (which must be $1,000 or an
integral multiple of $1,000):
____________________________________________
$___________________________________________
(Insert assignee's soc. sec. or tax ID no.)
If you want the stock certificate made out in
____________________________________________ another person's name, fill in the form
below:
____________________________________________
____________________________________________
____________________________________________
(Print or type assignee's name, address and ____________________________________________
zip code) (Insert other person's soc. sec. or tax ID no.)
and irrevocably appoint ____________________________________________
_____________________ agent to transfer ____________________________________________
this Security on the books of the Company.
The agent may substitute another to act for ____________________________________________
him.
____________________________________________
(Print or type other person's name, address
and zip code)
</TABLE>
________________________________________________________________________________
Date: _____________________ Your Signature:_____________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.9
<SEQUENCE>4
<FILENAME>l02719aexv4w9.txt
<DESCRIPTION>EX-4.9 INDENTURE
<TEXT>
<PAGE>
EXHIBIT 4.9
EXECUTION COPY
----------------------------------------------------------
RPM INTERNATIONAL INC.,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
Senior Convertible Notes due 2033
----------------------------------------------------------
INDENTURE
Dated as of May 13, 2003
----------------------------------------------------------
<PAGE>
CROSS REFERENCE TABLE*
<TABLE>
<S> <C>
TIA Section................................................... Indenture Section
310(a)(1)..................................................... 7.10
(a)(2)..................................................... 7.10
(a)(3)..................................................... N.A.
(a)(4)..................................................... N.A.
(b)........................................................ 7.08; 7.10
(c)........................................................ N.A.
311(a)........................................................ 7.11
(b)........................................................ 7.11
(c)........................................................ N.A.
312(a)........................................................ 2.05
(b)........................................................ 15.03
(c)........................................................ 15.03
313(a)........................................................ 7.06
(b)(1)..................................................... N.A.
(b)(2)..................................................... 7.06
(c)........................................................ 15.02
(d)........................................................ 7.06
314(a)........................................................ 4.02; 4.03; 15.02
(b)........................................................ N.A.
(c)(1)..................................................... 15.04
(c)(2)..................................................... 15.04
(c)(3)..................................................... N.A.
(d)........................................................ N.A.
(e)........................................................ 15.05
(f)........................................................ N.A.
315(a)........................................................ 7.01
(b)........................................................ 7.05; 15.02
(c)........................................................ 7.01
(d)........................................................ 7.01
(e)........................................................ 6.11
316(a) (last sentence)........................................ 2.08
(a)(1)(A).................................................. 6.05
(a)(1)(B).................................................. 6.04
(a)(2)..................................................... N.A.
(b)........................................................ 6.07
317(a)(1)..................................................... 6.08
(a)(2)..................................................... 6.09
(b)........................................................ 2.04
318(a)........................................................ 15.01
</TABLE>
N.A. means Not Applicable.
- ----------------------
* Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
<PAGE>
TABLE OF CONTENTS*
<TABLE>
<CAPTION>
Page
<S> <C>
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions................................................................. 5
SECTION 1.02 Other Definitions........................................................... 11
SECTION 1.03 Incorporation by Reference of the TIA....................................... 12
SECTION 1.04 Rules of Construction....................................................... 12
SECTION 1.05 Acts of Holders............................................................. 13
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating............................................................. 14
SECTION 2.02 Execution and Authentication................................................ 16
SECTION 2.03 Registrar, Paying Agent, Conversion Agent and Bid Solicitation Agent........ 16
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust.......................... 17
SECTION 2.05 Securityholder Lists........................................................ 17
SECTION 2.06 Transfer and Exchange....................................................... 17
SECTION 2.07 Replacement Securities...................................................... 19
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action................... 20
SECTION 2.09 Temporary Securities........................................................ 21
SECTION 2.10 Cancellation................................................................ 21
SECTION 2.11 Persons Deemed Owners....................................................... 21
SECTION 2.12 Global Securities........................................................... 21
SECTION 2.13 CUSIP Numbers............................................................... 26
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee......................................... 26
SECTION 3.02 Selection of Securities to Be Redeemed...................................... 27
SECTION 3.03 Notice of Redemption........................................................ 27
SECTION 3.04 Effect of Notice of Redemption.............................................. 28
SECTION 3.05 Deposit of Redemption Price................................................. 28
SECTION 3.06 Securities Redeemed in Part................................................. 29
SECTION 3.07 Conversion Arrangement on Call for Redemption............................... 29
SECTION 3.08 Purchase of Securities at Option of the Holder.............................. 29
SECTION 3.09 Purchase of Securities at Option of the Holder upon Change in Control....... 36
SECTION 3.10 Effect of Purchase Notice or Change in Control Purchase Notice.............. 39
SECTION 3.11 Deposit of Purchase Price or Change in Control Purchase Price............... 40
SECTION 3.12 Securities Purchased in Part................................................ 41
</TABLE>
- ----------------------
* Note: This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
i
<PAGE>
<TABLE>
<S> <C>
SECTION 3.13 Repayment to the Company.................................................... 41
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities....................................................... 41
SECTION 4.02 SEC and Other Reports....................................................... 42
SECTION 4.03 Compliance Certificate...................................................... 42
SECTION 4.04 Further Instruments and Acts................................................ 42
SECTION 4.05 Maintenance of Office or Agency............................................. 42
SECTION 4.06 Delivery of Certain Information............................................. 44
SECTION 4.07 Covenant to Comply With Securities Laws Upon Purchase of Securities......... 44
SECTION 4.08 Waiver of Compliance........................................................ 44
SECTION 4.09 Calculation of Original Issue Discount...................................... 44
SECTION 4.10 Liquidated Damages Notice................................................... 44
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets................................... 45
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default........................................................... 46
SECTION 6.02 Acceleration................................................................ 47
SECTION 6.03 Other Remedies.............................................................. 48
SECTION 6.04 Waiver of Past Defaults..................................................... 48
SECTION 6.05 Control by Majority......................................................... 49
SECTION 6.06 Limitation on Suits......................................................... 49
SECTION 6.07 Rights of Holders to Receive Payment........................................ 50
SECTION 6.08 Collection Suit by Trustee.................................................. 50
SECTION 6.09 Trustee May File Proofs of Claim............................................ 50
SECTION 6.10 Priorities.................................................................. 51
SECTION 6.11 Undertaking for Costs....................................................... 51
SECTION 6.12 Waiver of Stay, Extension or Usury Laws..................................... 51
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee........................................................... 52
SECTION 7.02 Rights of Trustee........................................................... 53
SECTION 7.03 Individual Rights of Trustee................................................ 54
SECTION 7.04 Trustee's Disclaimer........................................................ 54
SECTION 7.05 Notice of Defaults.......................................................... 55
SECTION 7.06 Reports by Trustee to Holders............................................... 55
SECTION 7.07 Compensation and Indemnity.................................................. 55
SECTION 7.08 Replacement of Trustee...................................................... 56
</TABLE>
ii
<PAGE>
<TABLE>
<S> <C>
SECTION 7.09 Successor Trustee by Merger................................................. 57
SECTION 7.10 Eligibility; Disqualification............................................... 57
SECTION 7.11 Preferential Collection of Claims Against Company........................... 57
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities........................................ 58
SECTION 8.02 Repayment to the Company.................................................... 58
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.................................................. 58
SECTION 9.02 With Consent of Holders..................................................... 59
SECTION 9.03 Compliance with TIA......................................................... 60
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions...................... 60
SECTION 9.05 Notation on or Exchange of Securities....................................... 60
SECTION 9.06 Trustee to Sign Supplemental Indentures..................................... 60
SECTION 9.07 Effect of Supplemental Indentures........................................... 60
ARTICLE 10
SPECIAL TAX EVENT CONVERSION
SECTION 10.01 Optional Conversion to Semiannual Coupon Note upon Tax Event................ 60
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege........................................................ 61
SECTION 11.02 Conversion Procedure........................................................ 63
SECTION 11.03 Fractional Shares........................................................... 64
SECTION 11.04 Taxes on Conversion......................................................... 64
SECTION 11.05 Company to Provide Stock.................................................... 65
SECTION 11.06 Adjustment for Change in Capital Stock...................................... 65
SECTION 11.07 Adjustment for Rights Issue................................................. 66
SECTION 11.08 Adjustment for Other Distributions.......................................... 67
SECTION 11.09 When Adjustment May Be Deferred............................................. 70
SECTION 11.10 When No Adjustment Required................................................. 70
SECTION 11.11 Notice of Adjustment........................................................ 71
SECTION 11.12 Voluntary Increase.......................................................... 71
SECTION 11.13 Notice of Certain Transactions.............................................. 71
SECTION 11.14 Reorganization of Company; Special Distributions............................ 71
SECTION 11.15 Company Determination Final................................................. 73
SECTION 11.16 Trustee's Adjustment Disclaimer............................................. 73
SECTION 11.17 Simultaneous Adjustments.................................................... 73
SECTION 11.18 Successive Adjustments...................................................... 73
SECTION 11.19 Rights Issued in Respect of Common Stock Issued Upon Conversion............. 73
</TABLE>
iii
<PAGE>
<TABLE>
<S> <C>
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments........................................................... 73
SECTION 12.02 Defaulted Interest.......................................................... 74
SECTION 12.03 Interest Rights Preserved................................................... 75
ARTICLE 13
CONTINGENT CASH INTEREST
SECTION 13.01 Contingent Cash Interest.................................................... 75
SECTION 13.02 Payment of Contingent Cash Interest; Contingent Cash Interest Rights
Preserved................................................................... 76
SECTION 13.03 Bid Solicitation Agent...................................................... 76
ARTICLE 14
TAX MATTERS
SECTION 14.01 Tax Treatment............................................................... 76
SECTION 14.02 Comparable Yield and Projected Payment Schedule............................. 77
ARTICLE 15
MISCELLANEOUS
SECTION 15.01 TIA Controls................................................................ 78
SECTION 15.02 Notices..................................................................... 78
SECTION 15.03 Communication by Holders with Other Holders................................. 79
SECTION 15.04 Certificate and Opinion as to Conditions Precedent.......................... 79
SECTION 15.05 Statements Required in Certificate or Opinion............................... 79
SECTION 15.06 Separability Clause......................................................... 80
SECTION 15.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar.............. 80
SECTION 15.08 Calculations................................................................ 80
SECTION 15.09 Legal Holidays.............................................................. 80
SECTION 15.10 GOVERNING LAW............................................................... 80
SECTION 15.11 No Recourse Against Others.................................................. 80
SECTION 15.12 Successors.................................................................. 80
SECTION 15.13 Multiple Originals.......................................................... 80
</TABLE>
Appendix 1 Projected Payment Schedule
Exhibit A-1 Form of Face of Global Security
Exhibit A-2 Form of Certificated Security
Exhibit B-1 Transfer Certificate
Exhibit B-2 Form of Letter to be Delivered by Accredited Investors
iv
<PAGE>
INDENTURE dated as of May 13, 2003 by and among RPM
INTERNATIONAL INC., a Delaware corporation (the "Company"), and The Bank of New
York, a New York banking corporation (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
Senior Convertible Notes due 2033 (collectively, the "Securities" and each,
individually, a "Security") having the terms, tenor, amount and other provisions
hereinafter set forth, and, to provide therefor, the Company has duly authorized
the execution and delivery of this Indenture.
All things necessary to make the Securities, when the
Securities are duly executed by the Company and authenticated and delivered
hereunder and duly issued by the Company, the valid obligations of the Company,
and to make this Indenture a valid and binding agreement of the Company, in
accordance with their and its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"144A Global Security" means a permanent Global Security in
the form of the Security attached hereto as Exhibit A-1, and that is deposited
with and registered in the name of the Depositary, representing Securities sold
in reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Average Sale Price" means the average of the Sale Prices of
the Common Stock for the shorter of:
5
<PAGE>
(a) 30 consecutive Trading Days ending on the last full
Trading Day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of
which the Average Sale Price is being calculated, or
(b) the period (x) commencing on the date next succeeding
the first public announcement of (i) the issuance of rights,
warrants or options or (ii) the distribution, in each case, in
respect of which the Average Sale Price is being calculated
and (y) proceeding through the last full Trading Day prior to
the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such
period, if any, which are not Trading Days), or
(c) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next
preceding (i) issuance of rights, warrants or options or (ii)
distribution, in each case, for which an adjustment is
required by the provisions of Section 11.06(c), 11.07 or 11.08
hereof and (y) proceeding through the last full Trading Day
prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the
Average Sale Price is being calculated (excluding days within
such period, if any, which are not Trading Days).
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.06(a), (b), (d) or (e) hereof applies
occurs during the period applicable for calculating "Average Sale Price"
pursuant to the definition in the preceding sentence, "Average Sale Price" shall
be calculated for such period in a manner determined by the Board of Directors
to reflect the impact of such dividend, subdivision, combination or
reclassification on the Sale Price of the Common Stock during such period.
"Bankruptcy Law" means title 11, United States Code, or any
similar Federal or state law for the relief of debtors.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of such board.
"Business Day" means each day of the year other than a
Saturday or a Sunday or other day on which banking institutions in The City of
New York are required or authorized to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock or other equity issued
by that corporation.
"Certificated Securities" means any of the Securities that are
in the form of the Securities attached hereto as Exhibit A-2.
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<PAGE>
"Common Stock" shall mean the shares of Common Stock, $.01 par
value per share, of the Company as it exists on the date of this Indenture or
any other shares of Capital Stock of the Company into which the Common Stock
shall be reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any two Officers.
"Contingent Cash Interest" shall mean such cash interest
payable, as described in Article 13 hereof.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 101 Barclay Street - 8W, New York,
NY 10286, Attention: Corporate Trust Administration or such other address as the
Trustee may designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the
Company).
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Debt" means with respect to any Person at any date, without
duplication, obligations (other than nonrecourse obligations) for borrowed money
or evidenced by bonds, debentures, notes or similar instruments.
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Ex-Dividend Time" means with respect to stockholders of the
Company entitled to receive rights, warrants or options or a distribution, the
time immediately prior to the commencement of "ex-dividend" trading for such
rights, warrants or options or distribution on Nasdaq or such other national or
regional exchange or market on which the Common Stock is then listed or quoted.
"Global Securities" means any of the Securities that are in
the form of the Securities attached hereto as Exhibit A-1, and to the extent
that such Securities are required to bear the Legend required by Section 2.06
hereof, such Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a
Security is registered on the Registrar's books.
7
<PAGE>
"Indenture" means this instrument, as amended or supplemented
from time to time in accordance with the terms hereof, including, if applicable,
the provisions of the TIA that are deemed to be a part hereof.
"Institutional Accredited Investor Security" means a Security
in the form of the Security attached hereto as Exhibit A-2, representing
Securities sold to Institutional Accredited Investors.
"Issue Date" of any Security means the date on which the
Security was originally issued or deemed issued as set forth on the face of the
Security.
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which the
Security is sold as set forth on the face of the Security.
"Nasdaq" means the Nasdaq Stock Market's National Market.
"NYSE" means the New York Stock Exchange.
"Officer" means the Chairman of the Board, the Vice Chairman,
the Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate signed in
the name of the Company by any two Officers, and delivered to the Trustee. An
Officers' Certificate given pursuant to Section 4.03 hereof shall be signed by
the principal executive, financial or accounting Officer of the Company.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company or the Trustee.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the Principal Amount at Maturity of the Security as
set forth on the face of the Security, which shall accrue as set forth in the
form of Security.
"person" or "Person" means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"Principal Amount at Maturity" of a Security means the
principal amount at maturity as set forth on the face of the Security.
"Record Date" means either a Regular Record Date or a
Contingent Cash Interest Record Date.
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<PAGE>
"Redemption Date" or "redemption date" means the date
specified for redemption of the Securities in accordance with the terms of the
Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in paragraph 6 of the Securities.
"Regular Cash Dividends" means quarterly or other periodic
cash dividends on the Common Stock as declared by the Board of Directors as part
of its cash dividend payment practices that are not designated by the Board of
Directors as extraordinary or special or other non-recurring dividends.
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1
and A-2 of this Indenture.
"Rule 144" means Rule 144 under the Securities Act (or any
successor rule having substantially similar provisions), as it may be amended
from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor rule having substantially similar provisions), as it may be amended
from time to time.
"Sale Price" of Capital Stock on any date means (a) the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average ask prices) on such date as reported
in the composite transactions for the principal United States securities
exchange on which the Capital Stock is traded or, if the Capital Stock is not
listed on a United States national or regional securities exchange, as reported
by the National Association of Securities Dealers Automated Quotation System or
by the National Quotation Bureau Incorporated or (b) in the absence of such
quotation, such price as the Company shall reasonably determine on the basis of
such quotations as most accurately reflecting the price that a fully-informed
buyer, acting on his own accord, would pay to a fully-informed seller, acting on
his own accord in an arms-length transaction, for a share of such Capital Stock.
"SEC" means the United States Securities and Exchange
Commission.
"Security" or "Securities" means any of the Company's Senior
Convertible Notes due 2033, as amended or supplemented from time to time, issued
under this Indenture.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
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<PAGE>
"Stated Maturity", when used with respect to any Security,
means the date specified in such Security as the fixed date on which an amount
equal to the Principal Amount at Maturity of such Security is due and payable.
"Subsidiary" means (a) a corporation, a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company and one or
more Subsidiaries of the Company, (b) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (c) any other person (other than a corporation
or a partnership) in which the Company, a Subsidiary of the Company or the
Company and one or more Subsidiaries of the Company, directly or indirectly, at
the date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
"Tax Event" means that the Company shall have received an
opinion from independent tax counsel experienced in such matters to the effect
that, as a result of (a) any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein or
(b) any amendment to, or change in, an interpretation or application (including
through litigation or a settlement involving the Company) of such laws or
regulations by any legislative body, court, governmental agency or regulatory
authority, in each case which amendment or change is enacted, promulgated,
issued or announced or which interpretation is issued or announced or which
action is taken, there is more than an insubstantial risk that accrued Original
Issue Discount payable on the Securities either (i) would not be deductible on a
current accrual basis or (ii) would not be deductible under any other method, in
either case in whole or in part, by the Company (by reason of deferral,
disallowance, or otherwise) for United States federal income tax purposes.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture; provided, however, that in the event the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"Time of Determination" means the time and date of the earlier
of (a) the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 11.07 or 11.08 hereof
applies and (b) the Ex-Dividend Time.
"Trading Day" means a day during which trading in securities
generally occurs on the NYSE or, if the Common Stock is not listed on the NYSE,
on the principal other national or regional securities exchange on which the
Common Stock is then listed or, if the Common Stock is not listed on a national
or regional securities exchange, on the National Association of Securities
Dealers Automated Quotation System or, if the Common Stock is not quoted on the
National Association of Securities Dealers Automated Quotation System, on the
principal other market on which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and,
10
<PAGE>
thereafter, shall mean such successor. The foregoing sentence shall likewise
apply to any subsequent such successor or successors.
SECTION 1.02 Other Definitions.
<TABLE>
<CAPTION>
Defined in
Term Section
- ---- -------
<S> <C>
"Act"................................................................................ 1.05(a)
"Agent Members"...................................................................... 2.12(e)
"Associate".......................................................................... 3.09(a)
"Average Security Market Price"...................................................... 13.01
"beneficial owner"................................................................... 3.09(a)
"Bid Solicitation Agent"............................................................. 2.03
"cash"............................................................................... 3.08(b)
"Change in Control".................................................................. 3.09(a)
"Change in Control Purchase Date".................................................... 3.09(a)
"Change in Control Purchase Notice".................................................. 3.09(c)
"Change in Control Purchase Price"................................................... 3.09(a)
"Common Stock Record Date"........................................................... 13.01
"Company Notice"..................................................................... 3.08(e)
"Company Notice Date"................................................................ 3.08(c)
"Contingent Cash Interest Payment Date".............................................. 13.02
"Contingent Cash Interest Record Date"............................................... 13.02
"Conversion Agent"................................................................... 2.03
"Conversion Date".................................................................... 11.02
"Conversion Rate".................................................................... 11.01
"Defaulted Interest"................................................................. 12.02
"Depositary"......................................................................... 2.01(a)
"DTC"................................................................................ 2.01(a)
"Event of Default"................................................................... 6.01
"Ex-Dividend Measurement Period"..................................................... 11.08
"Exchange Act"....................................................................... 3.08(d)
"Extraordinary Cash Dividend"........................................................ 11.08
"Five-Trading-Day Measurement Period"................................................ 13.01
"Institutional Accredited Investors"................................................. 2.01(b)
"Interest Payment Date".............................................................. 10.01
"Legal Holiday"...................................................................... 15.09
"Legend"............................................................................. 2.06(f)
"Liquidated Damages Notice".......................................................... 4.10
"Market Price"....................................................................... 3.08(d)
"Notice of Default".................................................................. 6.01
"Option Exercise Date"............................................................... 10.01
"Paying Agent"....................................................................... 2.03
"Protected Purchaser"................................................................ 2.07
"Purchase Date"...................................................................... 3.08(a)
"Purchase Notice".................................................................... 3.08(a)
</TABLE>
11
<PAGE>
<TABLE>
<S> <C>
"Purchase Price"..................................................................... 3.08(a)
"QIBs"............................................................................... 2.01(a)
"Registrar".......................................................................... 2.03
"Registration Rights Agreement"...................................................... 4.10
"Regular Record Date"................................................................ 10.01
"Relevant Cash Dividends"............................................................ 11.08
"Relevant Value"..................................................................... 13.01
"Restated Principal Amount".......................................................... 10.01
"Rights"............................................................................. 11.19
"Rights Agreement"................................................................... 11.19
"Rule 144A Information".............................................................. 4.06
"Securities Act"..................................................................... 3.08(d)
"Semiannual Period".................................................................. 13.01
"Special Record Date"................................................................ 12.02
"Tax Event Date"..................................................................... 10.01
"Tax Original Issue Discount"........................................................ 14.02
</TABLE>
SECTION 1.03 Incorporation by Reference of the TIA. Whenever
this Indenture refers to a provision of the TIA, such provision is incorporated
by reference in and made a part of this Indenture. The following TIA terms used
in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context
otherwise requires:
(a) a defined term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the
meaning assigned to it in accordance with United
States generally accepted accounting principles as in
effect from time to time;
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<PAGE>
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words
in the plural include the singular.
SECTION 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given
or taken by Holders may be embodied in and evidenced by one or more instruments
of substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, when it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent (either of which may be in electronic form)
shall be sufficient for any purpose of this Indenture and conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness of
such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing or delivering such instrument or writing acknowledged to such
officer the execution thereof. When such execution is by a signer acting in a
capacity other than such signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of such signer's authority. The
fact and date of the execution of any such instrument or writing, or the
authority of the Person executing the same, may also be proved in any other
manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
register maintained by the Registrar.
(d) Any request, demand, authorization, direction,
notice, consent, waiver or other Act of the Holder of any Security shall bind
every future Holder of the same Security and the holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of such
action is made upon such Security.
(e) If the Company shall solicit from the Holders any
request, demand, authorization, direction, notice, consent, waiver or other Act,
the Company may, at its option, by or pursuant to a resolution of the Board of
Directors, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
If such a record date is fixed, such request, demand, authorization, direction,
notice, consent, waiver or other Act may be given before or after such record
date, but only the Holders of record at the close of
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<PAGE>
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the outstanding Securities shall be computed as of such record date;
provided, that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture within six months after the record
date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-1
and A-2 attached hereto, which are a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage. The Company shall provide any such notations, legends or endorsements to
the Trustee in writing. Each Security shall be dated the date of its
authentication.
(a) 144A Global Securities. Securities offered and sold
within the United States to "qualified institutional buyers" as defined in Rule
144A ("QIBs") in reliance on Rule 144A shall be issued initially in the form of
a 144A Global Security, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary and registered in the
name of The Depository Trust Company ("DTC") or the nominee thereof (such
depositary, or any successor thereto, and any such nominee being hereinafter
referred to as the "Depositary") duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate Principal Amount at
Maturity of the 144A Global Securities may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
as hereinafter provided.
(b) Institutional Accredited Investor Securities. Except
as provided in Section 2.12(a)(i) and in this Section 2.01 or 2.06, owners of
beneficial interests in Global Securities will not be entitled to receive
physical delivery of Certificated Securities. Securities offered and sold within
the United States to institutional "accredited investors" as defined in Rule
501(a)(1), (2), (3) and (7) under the Securities Act ("Institutional Accredited
Investors") shall be issued, if in the form of Certificated Securities,
initially in the form of an Institutional Accredited Investor Security, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided.
(c) Global Securities in General. Each Global Security
shall represent such of the outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate Principal Amount at
Maturity of outstanding Securities from time to time endorsed thereon and that
the aggregate Principal Amount at Maturity of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate Principal Amount at Maturity
of a Global Security to reflect the amount of any increase or decrease in the
Principal Amount at Maturity of
14
<PAGE>
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.12 hereof and shall be made on the records of the Trustee and the Depositary.
(d) Book-Entry Provisions. This Section 2.01(d) shall
apply only to Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(d), authenticate and deliver initially one or more Global
Securities that (i) shall be registered in the name of the Depositary, (ii)
shall be delivered by the Trustee to the Depositary or pursuant to the
Depositary's instructions or held by the Trustee as custodian for such
Depositary and (iii) shall bear legends substantially to the following effect:
"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 IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(e) Certificated Securities. Securities not issued as
interests in the Global Securities will be issued in certificated form
substantially in the form of Exhibit A-2 attached hereto.
(f) U.S. Tax Legend. All Securities shall bear the
following legend:
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL
REVENUE CODE OF 1986, AS AMENDED. THE ISSUE PRICE OF THIS SECURITY IS
$505.19 PER $1,000 OF PRINCIPAL AMOUNT AT MATURITY; THE AMOUNT OF
ORIGINAL ISSUE DISCOUNT IS INDETERMINABLE AS OF THE ISSUE DATE; THE
ISSUE DATE OF THIS SECURITY IS MAY 13, 2003; AND THE YIELD TO MATURITY
FOR THE
15
<PAGE>
PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS 5.05% PER ANNUM,
CALCULATED ON A SEMIANNUAL BOND EQUIVALENT BASIS.
SECTION 2.02 Execution and Authentication. The Securities
shall be executed on behalf of the Company by any Officer. The signature of the
Officer on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of an
individual who was at the time of the execution of the Securities the proper
Officer of the Company shall bind the Company, notwithstanding that such
individual has ceased to hold such office prior to the authentication and
delivery of such Securities or did not hold such office at the date of such
Securities.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of an authorized
signatory of the Trustee and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount at Maturity of up to
$297,000,000 upon a Company Order without any further action by the Company. The
aggregate Principal Amount at Maturity of Securities outstanding at any time may
not exceed the amount set forth in the foregoing sentence, except as provided in
Section 2.07 hereof
The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 of Principal Amount at Maturity and
any integral multiple thereof.
The Trustee shall have the right to decline to authenticate
and deliver any Securities under this Section if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken or if the Trustee
in good faith shall determine that such action would expose the Trustee to
personal liability to existing Holders.
SECTION 2.03 Registrar, Paying Agent, Conversion Agent and Bid
Solicitation Agent. The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities may be presented for
purchase or payment ("Paying Agent") and an office or agency where Securities
may be presented for conversion ("Conversion Agent"). The Company shall also
appoint a bid solicitation agent (the "Bid Solicitation Agent") to act pursuant
to Article 13. The Registrar shall keep a register of the Securities and of
their transfer and exchange. The Company may have one or more co-registrars, one
or more additional paying agents and one or more additional conversion agents.
The term Paying Agent includes any additional paying agent, including any named
pursuant to Section 4.05 hereof. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.05
hereof.
The Company shall enter into an appropriate agency agreement
with any Registrar or co-registrar, Paying Agent, Conversion Agent or Bid
Solicitation Agent (other than
16
<PAGE>
the Trustee). The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent, Conversion Agent or Bid Solicitation Agent, the Trustee shall act as such
and shall be entitled to appropriate compensation therefor pursuant to Section
7.07 hereof. The Company or any Subsidiary or an Affiliate of either of them may
act as Paying Agent, Registrar, Conversion Agent or co-registrar. None of the
Company or any Subsidiary or any Affiliate of the Company or any Subsidiary may
act as Bid Solicitation Agent.
The Company initially appoints the Trustee as Registrar,
Conversion Agent, Paying Agent and Bid Solicitation Agent in connection with the
Securities.
SECTION 2.04 Paying Agent to Hold Money and Securities in
Trust. Except as otherwise provided herein, not later than 10:00 a.m., New York
City time, on each due date of payments in respect of any Security, the Company
shall deposit with the Paying Agent a sum of money (in immediately available
funds if deposited on the due date) or Common Stock sufficient to make such
payments when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money and Common
Stock held by the Paying Agent for the making of payments in respect of the
Securities and shall notify the Trustee of any default by the Company in making
any such payment. At any time during the continuance of any such default, the
Paying Agent shall, upon the written request of the Trustee, forthwith pay to
the Trustee all money and Common Stock so held in trust. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money and Common Stock held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money and Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money or Common Stock.
SECTION 2.05 Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on April 28 and October 29 a listing of Securityholders dated
within 15 days of the date on which the list is furnished and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06 Transfer and Exchange. Subject to Section 2.12
hereof,
(a) Upon surrender for registration of transfer of any
Security, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's attorney
duly authorized in writing, at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03 hereof, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of any
authorized denomination or denominations, of a like aggregate Principal Amount
at Maturity. The Company shall not charge a service charge for any registration
of transfer or exchange, but the Company or the Trustee may require
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payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the registration of transfer or
exchange of the Securities from the Securityholder requesting such registration
of transfer or exchange.
At the option of the Holder, Certificated Securities may be
exchanged for other Securities of any authorized denomination or denominations,
of a like aggregate Principal Amount at Maturity, upon surrender of the
Securities to be exchanged, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at such office or agency.
Whenever any Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or any Securities in respect of which a Purchase Notice or
Change in Control Purchase Notice has been given and not withdrawn by the Holder
thereof in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein,
so long as a Global Security remains outstanding and is held by or on behalf of
the Depositary, transfers of a Global Security, in whole or in part, shall be
made only in accordance with Section 2.12 hereof and this Section 2.06(b).
Transfers of a Global Security shall be limited to transfers of such Global
Security in whole, or in part, to nominees of the Depositary or to a successor
of the Depositary or such successor's nominee.
(c) Successive registrations and registrations of
transfers and exchanges as aforesaid may be made from time to time as desired,
and each such registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03
hereof shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Registrar of
Securities upon registration of transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations
of transfer or exchange of Securities during any periods designated in the text
of the Securities or in this Indenture as periods during which such registration
of transfers and exchanges need not be made.
(f) If Securities are issued upon the registration of
transfer, exchange or replacement of Securities subject to restrictions on
transfer and bearing the legends set forth on the form of Security attached
hereto as Exhibits A-1 and A-2 setting forth such restrictions (collectively,
the "Legend"), or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the Registrar
such satisfactory evidence, which shall include an Opinion of Counsel, as may be
reasonably required by the Company and the
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Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A or Rule 144 or that such Securities are not "restricted" within the
meaning of Rule 144. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of the sale of such
Security pursuant to a registration statement that is effective at the time of
such sale, the Trustee, upon receipt of a Company Order, shall authenticate and
deliver a Security that does not bear the Legend. If the Legend is removed from
the face of a Security and the Security is subsequently held by an Affiliate of
the Company, the Company shall use its best efforts to reinstate the Legend.
The Trustee and the Registrar shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
SECTION 2.07 Replacement Securities. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a protected purchaser within the meaning of Article 8 of the Uniform
Commercial Code (a "Protected Purchaser"), the Company shall execute and upon
receipt of a Company Order, the Trustee shall authenticate and deliver, in
exchange for any such mutilated Security or in lieu of any such destroyed, lost
or stolen Security, a new Security of like tenor and Principal Amount at
Maturity, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08 Outstanding Securities; Determinations of
Holders' Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee, except for those cancelled by it, those paid
pursuant to Section 2.07 or 2.10 hereof and delivered to it for cancellation and
those described in this Section 2.08 as not outstanding. A Security does not
cease to be outstanding because the Company or an Affiliate thereof holds the
Security; provided, however, that in determining whether the Holders of the
requisite Principal Amount at Maturity of Securities have given or concurred in
any request, demand, authorization, direction, notice, consent or waiver
hereunder, Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or such other obligor shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which a
Responsible Officer of the Trustee actually knows to be so owned shall be so
disregarded. Subject to the foregoing, only Securities outstanding at the time
of such determination shall be considered in any such determination (including,
without limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07 hereof, the
replaced Security ceases to be outstanding unless the Trustee and the Company
receive proof satisfactory to each of them that the replaced Security is held by
a Protected Purchaser unaware that such Security has been replaced, in which
case the replacement security shall be deemed not to be outstanding.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Purchase Date or a
Change in Control Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Change in Control
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and Original Issue Discount and interest (including
Contingent Cash Interest), if any, or cash interest on such Securities shall
cease to accrue; provided, that if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture.
If a Security is converted in accordance with Article 11, then
from and after the time of conversion on the Conversion Date, such Security
shall cease to be outstanding and Original Issue Discount and interest
(including Contingent Cash Interest), if any, or cash interest shall cease to
accrue on such Security.
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SECTION 2.09 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon a Company Order, the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the Officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount at Maturity of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.10 Cancellation. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3 hereof, conversion,
redemption or registration of transfer or exchange shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article 11
hereof. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with the Trustee's customary
procedures.
SECTION 2.11 Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of principal of the Security or the payment of any Redemption
Price, Purchase Price or Change in Control Purchase Price in respect thereof and
interest (including Contingent Cash Interest), if any, or cash interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.12 Global Securities. Notwithstanding any other
provisions of this Indenture or the Securities, (i) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Sections
2.06 and 2.12(a)(i) hereof, (ii) transfer of a beneficial interest in a Global
Security for a Certificated Security shall comply with Sections 2.06 and
2.12(a)(i) hereof, and (iii) transfers of a Certificated Security shall comply
with Sections 2.06
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and 2.12(a)(ii) hereof and transfer of a Certificated Security for a Beneficial
Interest in a Global Security shall comply with Sections 2.06 and 2.12(a)(iii)
hereof.
(a) Transfer of Global Security. A Global Security may
not be transferred, in whole or in part, to any Person other than the Depositary
or a nominee or any successor thereof, and no such transfer to any such other
Person may be registered; provided, that this Section 2.12(a) shall not prohibit
any transfer of a Security that is issued in exchange for a Global Security but
is not itself a Global Security. No transfer of a Security to any Person shall
be effective under this Indenture or the Securities unless and until such
Security has been registered in the name of such Person. Nothing in this Section
2.12(a) shall prohibit or render ineffective any transfer of a beneficial
interest in a Global Security effected in accordance with the other provisions
of this Section 2.12(a).
(i) Restrictions on Transfer of a Beneficial Interest in
a Global Security for a Certificated Security. A beneficial interest in
a Global Security may not be exchanged for a Certificated Security
except upon satisfaction of the requirements set forth below. Upon
receipt by the Trustee of a request for transfer of a beneficial
interest in a Global Security in accordance with Applicable Procedures
for a Certificated Security in the form satisfactory to the Trustee,
together with:
(A) so long as the Securities are Restricted
Securities, certification, in the form set forth in Exhibit
B-1 attached hereto, and, if requested by the Company or the
Registrar, certification in the form set forth in Exhibit B-2
attached hereto, that such beneficial interest in the Global
Security is being transferred to an Institutional Accredited
Investor that satisfies the definitions set forth in
subparagraphs (a)(1), (2), (3) or (7) of Rule 501 under the
Securities Act;
(B) written instructions to the Trustee to make,
or direct the Registrar to make, an adjustment on its books
and records with respect to such Global Security to reflect a
decrease in the aggregate Principal Amount at Maturity of the
Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such decrease; and
(C) if the Company or Registrar so requests, an
Opinion of Counsel or other evidence reasonably satisfactory
to them as to the compliance with the restrictions set forth
in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate Principal
Amount at Maturity of Securities represented by the Global Security to
be decreased by the aggregate Principal Amount at Maturity of the
Certificated Security to be issued, shall authenticate and deliver such
Certificated Security and shall debit or cause to be debited to the
account of the Person specified in such instructions a beneficial
interest in the Global Security equal to the Principal Amount at
Maturity of the Certificated Security so issued.
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(ii) Transfer and Exchange of Certificated Securities.
When Certificated Securities are presented to the Registrar with a
request:
(x) to register the transfer of such
Certificated Securities; or
(y) to exchange such Certificated Securities for
an equal Principal Amount at Maturity of
Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Securities surrendered for
registration of transfer or exchange:
(A) shall be duly endorsed or accompanied by a
written instrument of transfer in form reasonably satisfactory
to the Company and the Registrar, duly executed by the Holder
thereof or his attorney duly authorized in writing; and
(B) so long as such Securities are Restricted
Securities, such Securities are being transferred or exchanged
pursuant to an effective registration statement under the
Securities Act or, if being transferred pursuant to clause
(1), (2) or (3) of this Section 2.12(a)(ii)(B), are
accompanied by the additional information and documents
specified in each such clause, as applicable:
(1) if such Certificated Securities 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; or
(2) if such Certificated Securities are
being transferred to the Company, a
certification to that effect; or
(3) if such Certificated Securities are
being transferred pursuant to an
exemption from registration (1) a
certification to that effect (in
the form set forth in Exhibit B-1
and B-2 attached hereto, if
applicable) and (2) if the Company
or Registrar so requests, an
Opinion of Counsel or other
evidence reasonably satisfactory to
them as to the compliance with the
restrictions set forth in the
Legend.
(iii) Restrictions on Transfer of a Certificated Security
for a Beneficial Interest in a Global Security. A Certificated Security
may not be exchanged for a beneficial interest in a Global Security
except upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of
transfer, in form satisfactory to the Trustee, together with:
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(A) so long as the Securities are Restricted
Securities, certification, in the form set forth in Exhibit
B-1 attached hereto, that such Certificated Security is being
transferred to a QIB in accordance with Rule 144A; and
(B) written instructions directing the Trustee
to make, or to direct the Registrar to make, an adjustment on
its books and records with respect to such Global Security to
reflect an increase in the aggregate Principal Amount at
Maturity of the Securities represented by the Global Security,
such instructions to contain information regarding the
Depositary account to be credited with such increase; and
then the Trustee shall cancel such Certificated Security and cause, or direct
the Registrar to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the aggregate
Principal Amount at Maturity of Securities represented by the Global Security to
be increased by the aggregate Principal Amount at Maturity of the Certificated
Security to be exchanged, and shall credit or cause to be credited to the
account of the Person specified in such instructions a beneficial interest in
the Global Security equal to the Principal Amount at Maturity of the
Certificated Security so cancelled. If no Global Securities are then
outstanding, the Company shall issue and the Trustee, upon receipt of a Company
Order, shall authenticate a new Global Security in the appropriate Principal
Amount at Maturity.
(b) Subject to the succeeding paragraph, every Security
shall be subject to the restrictions on transfer provided in the Legend
including the requirement of the delivery of an Opinion of Counsel, if so
provided. Whenever any Restricted Security is presented or surrendered for
registration of transfer or for exchange for a Security registered in a name
other than that of the Holder, such Security must be accompanied by a
certificate in substantially the form set forth in Exhibit B-1 attached hereto,
dated the date of such surrender and signed by the Holder of such Security, as
to compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Security
not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred in compliance with Rule 144 or, if earlier, upon the
expiration of the holding period applicable to sales thereof under paragraph (k)
of Rule 144. Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144, by an Opinion of Counsel having substantial experience in
practice under the Securities Act and otherwise reasonably acceptable to the
Company, addressed to the Company, the Trustee and the Registrar and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144), be exchanged for a new Security, of like
tenor and aggregate Principal Amount at Maturity, which shall not bear the
restrictive Legend. The Company shall inform the Trustee of the effective date
of any registration statement registering the Securities under the Securities
Act. The Trustee and the
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Registrar shall not be liable for any action taken or omitted to be taken by it
in good faith in accordance with the aforementioned Opinion of Counsel or
registration statement.
(d) As used in the preceding two paragraphs of this
Section 2.12, the term "transfer" encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.
(e) The provisions of clauses (i), (ii), (iii), (iv) and
(v) of this Section 2.12(e) shall apply only to Global Securities:
(i) Notwithstanding any other provisions of this
Indenture or the Securities, except as provided in Section 2.12(a)(i)
hereof, a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof; provided, that a Global
Security may be exchanged for Securities registered in the names of any
person designated by the Depositary in the event that (A) the
Depositary has notified the Company that it is unwilling or unable to
continue as Depositary for such Global Security or such Depositary has
ceased to be a "clearing agency" registered under the Exchange Act, and
a successor Depositary is not appointed by the Company within 90 days;
(B) the Company elects to discontinue use of the system of book-entry
transfer through DTC (or any successor depositary); or (C) an Event of
Default has occurred and is continuing with respect to the Securities.
Any Global Security exchanged pursuant to clause (A) of this
sub-section shall be so exchanged in whole and not in part, and any
Global Security exchanged pursuant to clause (B) of this sub-section
may be exchanged in whole or from time to time in part as directed by
the Depositary. Any Security issued in exchange for a Global Security
or any portion thereof shall be a Global Security; provided, that any
such Security so issued that is registered in the name of a person
other than the Depositary or a nominee thereof shall not be a Global
Security.
(ii) Securities issued in exchange for a Global Security
or any portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate Principal
Amount at Maturity equal to that of such Global Security or portion
thereof to be so exchanged, shall be registered in such names and be in
such authorized denominations as the Depositary shall designate and
shall bear the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Registrar. With regard to any Global Security to be
exchanged in part, to give effect to any conversion, redemption or
other disposition of such part or otherwise, either such Global
Security shall be so surrendered for exchange or, if the Trustee is
acting as custodian for the Depositary or its nominee with respect to
such Global Security, the Principal Amount at Maturity thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged,
by means of an appropriate adjustment made on the records of the
Trustee. Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such exchange to or
upon the order of the Depositary or an authorized representative
thereof.
(iii) Subject to the provisions of clause (v) of this
Section 2.12(e), the registered Holder may grant proxies and otherwise
authorize any Person, including Agent
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Members (as defined below) and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take
under this Indenture or the Securities.
(iv) In the event of the occurrence of any of the events
specified in clause (i) above, the Company will promptly make available
to the Trustee a reasonable supply of Certificated Securities in
definitive, fully registered form, without interest coupons.
(v) Neither any members of, or participants in, the
Depositary (collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Security registered in the name of
the Depositary or any nominee thereof, or under any such Global
Security, and the Depositary or such nominee, as the case may be, may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary, its
Agent Members and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons governing the
exercise of the rights of a holder of any Security.
SECTION 2.13 CUSIP Numbers. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee. The Company,
at its option, may redeem the Securities in accordance with the provisions of
paragraphs 6 and 8 of the Securities. Prior to May 13, 2008, the Company may not
redeem the Securities. Beginning on May 13, 2008, the Company may redeem the
Securities for cash in whole at any time, or in part from time to time. If the
Company elects to redeem Securities pursuant to paragraph 6 of the Securities,
it shall notify the Trustee in writing of the Redemption Date, the Principal
Amount at Maturity of Securities to be redeemed, the Redemption Price and the
amount of accrued and unpaid cash interest, if any, payable on the Redemption
Date.
The Company shall give the notice to the Trustee provided for
in this Section 3.01 by a Company Order, at least 45 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee). If fewer
than all the Securities are to be redeemed, the record date
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relating to such redemption shall be selected by the Company and given to the
Trustee, which record date shall not be less than ten days after the date of
notice to the Trustee.
SECTION 3.02 Selection of Securities to Be Redeemed. If less
than all the outstanding Securities are to be redeemed, the Trustee shall select
the Securities to be redeemed pro rata or by lot or by any other method the
Trustee considers fair and appropriate (so long as such method is not prohibited
by the rules of any stock exchange on which the Securities are then listed). The
Trustee shall make the selection at least 30 days but not more than 60 days
before the Redemption Date from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the Principal
Amount at Maturity of Securities that have denominations larger than $1,000.
Securities and portions of them the Trustee selects shall be
in Principal Amounts at Maturity of $1,000 or an integral multiple of $1,000.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities called for redemption. The Trustee shall
promptly notify the Company in writing of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
SECTION 3.03 Notice of Redemption. At least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed.
The notice shall identify the Securities to be redeemed and
shall state:
(a) the Redemption Date;
(b) the Redemption Price, or if then not ascertainable,
the manner of calculation thereof, and accrued and unpaid cash
interest, if any, or the amount of Contingent Cash Interest, if any,
payable on the Redemption Date;
(c) the Conversion Rate;
(d) the name and address of the Paying Agent and
Conversion Agent;
(e) that Securities called for redemption may be
converted at any time before the close of business on the second
Business Day immediately preceding the Redemption Date, even if not
otherwise convertible at such time;
(f) that Holders who want to convert Securities must
satisfy the requirements set forth in paragraph 9 of the Securities;
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(g) if applicable, the election of the Company (which,
subject to the provisions of Article 11 of the Indenture, shall be
irrevocable) to deliver shares of Common Stock or to pay cash in lieu
of delivery of such shares with respect to any Security that may be
converted after mailing of such notice prior to the Redemption Date;
(h) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price and
accrued and unpaid cash interest, if any, or the Redemption Price and
Contingent Cash Interest, if any;
(i) if fewer than all the outstanding Securities are to
be redeemed, the certificate number and Principal Amounts at Maturity
of the particular Securities to be redeemed;
(j) that, unless the Company defaults in making payment
of such Redemption Price and any cash interest which is due and
payable, Original Issue Discount or cash interest, including Contingent
Cash Interest and semiannual interest, will cease to accrue on and
after the Redemption Date;
(k) the CUSIP number of the Securities; and
(l) any other information the Company desires, in its own
discretion, to present.
At the Company's request, the Trustee shall give the notice of
redemption to Holders in the Company's name and at the Company's expense;
provided, that the Company makes such request at least seven Business Days
(unless a shorter period shall be satisfactory to the Trustee) prior to the date
such notice of redemption must be mailed.
SECTION 3.04 Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price (together with accrued and
unpaid cash interest, if any, or together with any Contingent Cash Interest, if
any, to but not including the Redemption Date) stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price (together with accrued and unpaid cash interest, if any, or
together with any Contingent Cash Interest, if any, to but not including the
Redemption Date) stated in the notice.
SECTION 3.05 Deposit of Redemption Price. Prior to 10:00 a.m.
New York City time, on any Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) money sufficient to
pay the Redemption Price of, and any accrued and unpaid interest (either cash
interest or Contingent Cash Interest, if any) to but not including the
Redemption Date with respect to, all Securities to be redeemed on that date
other than Securities or portions of Securities called for redemption which on
or prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall as promptly as
practicable return to the Company any money not required for that purpose
because of conversion of Securities pursuant to Article 11 hereof. If such money
is then
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held by the Company in trust and is not required for such purpose it shall be
discharged from such trust.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount at Maturity to the unredeemed portion of
the Security surrendered.
SECTION 3.07 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment banks or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of, and any
accrued and unpaid interest (either cash interest or Contingent Cash Interest)
with respect to, such Securities. Notwithstanding anything to the contrary
contained in this Article 3, the obligation of the Company to pay the Redemption
Prices of such Securities shall be deemed to be satisfied and discharged to the
extent such amount is so paid by such purchasers. If such an agreement is
entered into, any Securities not duly surrendered for conversion by the Holders
thereof may, at the option of the Company, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 11) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the second Business Day prior to the Redemption Date, subject to
payment of the above amount as aforesaid. The Trustee shall hold and pay to the
Holders whose Securities are selected for redemption any such amount paid to it
for purchase and conversion in the same manner as it would moneys deposited with
it by the Company for the redemption of Securities. Without the Trustee's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the Trustee as set
forth in this Indenture, and the Company agrees to indemnify the Trustee from,
and hold it harmless against, any loss, liability or expense arising out of or
in connection with any such arrangement for the purchase and conversion of any
Securities between the Company and such purchasers, including the costs and
expenses incurred by the Trustee in the defense of any claim or liability
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08 Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company
pursuant to paragraph 7 of the Securities as of May 13, 2008, 2013, 2018, 2023
and 2028 (each, a "Purchase Date"), at the purchase price of $505.19 per $1,000
of Principal Amount at Maturity as of May 13, 2008, of $579.11 per $1,000 of
Principal Amount at Maturity as of May 13, 2013, of $663.85 per $1,000 of
Principal Amount at Maturity as of May 13, 2018, of $761.00 per $1,000 Principal
Amount at Maturity as of May 13, 2023, and of $872.35 per $1,000 Principal
Amount at Maturity as of May 13, 2028, in each case plus accrued and unpaid cash
interest, if any, to the
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Purchase Date (each, a "Purchase Price", as applicable), at the option of the
Holder thereof, upon:
(i) delivery to the Paying Agent, by the Holder, of a
written notice of purchase (a "Purchase Notice") at any time from the
opening of business on the date that is 20 Business Days prior to a
Purchase Date until the close of business on such Purchase Date
stating:
(A) the certificate number of the Security which
the Holder will deliver to be purchased,
(B) the portion of the Principal Amount at
Maturity of the Security which the Holder will deliver to be
purchased, which portion must be a Principal Amount at
Maturity of $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of
the Purchase Date pursuant to the terms and conditions
specified in paragraph 7 of the Securities and in this
Indenture, and
(D) in the event the Company elects, pursuant to
Section 3.08(b) hereof, to pay the Purchase Price to be paid
as of such Purchase Date, in whole or in part, in shares of
Common Stock but such portion of the Purchase Price shall
ultimately be payable to such Holder entirely in cash because
any of the conditions to payment of the Purchase Price in
Common Stock is not satisfied prior to the close of business
on such Purchase Date, as set forth in Section 3.08(d) hereof,
whether such Holder elects (1) to withdraw such Purchase
Notice as to some or all of the Securities to which such
Purchase Notice relates (stating the Principal Amount at
Maturity and certificate numbers of the Securities as to which
such withdrawal shall relate), or (2) to receive cash in
respect of the entire Purchase Price for all Securities (or
portions thereof) to which such Purchase Notice relates; and
(ii) delivery of such Security to the Paying Agent prior
to, on or after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Purchase Price therefor;
provided, however, that such Purchase Price shall be so paid pursuant
to this Section 3.08 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof in the
related Purchase Notice, as determined by the Company.
If a Holder, in such Holder's Purchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 3.10 hereof, fails to indicate such Holder's choice with respect to the
election set forth in clause (D) of Section 3.08(a)(i) hereof, such Holder shall
be deemed to have elected to receive cash in respect of the Purchase Price for
all Securities subject to such Purchase Notice in the circumstances set forth in
such clause (D).
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The Company shall purchase from the Holder thereof, pursuant
to this Section 3.08, a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.08 shall be consummated by the delivery of the
consideration to be received by the Holder (together with accrued and unpaid
cash interest, if any, or together with any Contingent Cash Interest, if any,)
promptly following the later of the Purchase Date and the time of delivery of
the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this Section
3.08(a) shall have the right to withdraw such Purchase Notice at any time prior
to the close of business on the Business Day prior to the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.10 hereof.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of
Purchase Price. The Securities to be purchased pursuant to Section 3.08(a)
hereof may be paid for, at the election of the Company, in U.S. legal tender
("cash") or Common Stock, or in any combination of cash and Common Stock,
subject to the conditions set forth in Sections 3.08(c) and (d) hereof. The
Company shall designate, in the Company Notice delivered pursuant to Section
3.08(e) hereof, whether the Company will purchase the Securities for cash or
Common Stock, or, if a combination thereof, the percentages or amounts of the
Purchase Price of Securities in respect of which it will pay in cash or Common
Stock; provided, that the Company will pay cash for fractional interests in
Common Stock. For purposes of determining the existence of potential fractional
interests, all Securities subject to purchase by the Company held by a Holder
shall be considered together (no matter how many separate certificates are to be
presented). Each Holder whose Securities are purchased pursuant to this Section
3.08 shall receive the same percentage of cash or Common Stock in payment of the
Purchase Price for such Securities, except (i) as provided in Section 3.08(d)
hereof with regard to the payment of cash in lieu of fractional shares of Common
Stock and (ii) in the event that the Company is unable to purchase the
Securities of a Holder or Holders for Common Stock because any necessary
qualifications or registrations of the Common Stock under applicable state
securities laws cannot be obtained, the Company may purchase the Securities of
such Holder or Holders for cash. The Company may not change its election with
respect to the consideration (or components or percentages of components
thereof) to be paid once the Company has given its Company Notice to
Securityholders except pursuant to this Section 3.08(b) or pursuant to Section
3.08(d) hereof in the event of a failure to satisfy, prior to the close of
business on the Purchase Date, any condition to the payment of the Purchase
Price, in whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee specifying:
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(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e) hereof,
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Common Stock, that the conditions to
such manner of payment set forth in Section 3.08(d) hereof have been or
will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.08(e) hereof.
(c) Purchase with Cash. On each Purchase Date, at the
option of the Company, the Purchase Price of Securities in respect of which a
Purchase Notice pursuant to Section 3.08(a) hereof has been given, or a
specified percentage thereof, may be paid by the Company with cash equal to the
aggregate Purchase Price of such Securities. If the Company elects to purchase
Securities with cash, the Company Notice, as provided in Section 3.08(e) hereof,
shall be sent to the Trustee and the Holders (and to beneficial owners as
required by applicable law) not less than 20 Business Days prior to such
Purchase Date (the "Company Notice Date").
(d) Payment by Issuance of Common Stock. On each Purchase
Date, at the option of the Company, the Purchase Price of Securities in respect
of which a Purchase Notice pursuant to Section 3.08(a) hereof has been given, or
a specified percentage thereof, may be paid by the Company by the issuance of a
number of shares of Common Stock equal to the quotient obtained by dividing (i)
the amount of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may be, of
the Purchase Price of such Securities in cash by (ii) the Market Price of a
share of Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock
in payment of the Purchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Common Stock shall be based on the aggregate amount of Securities to
be purchased.
Upon a payment by Common Stock pursuant to the terms hereof,
that portion of accrued Original Issue Discount, cash interest or Contingent
Cash Interest, if any, attributable to the period from the Issue Date to the
Purchase Date with respect to the purchased Security shall not be cancelled,
extinguished or forfeited but rather shall be deemed paid in full to the Holder
through the delivery of the Common Stock in exchange for the Security being
purchased pursuant to the terms hereof, and the fair market value of such Common
Stock (together with any cash payments in lieu of fractional shares of Common
Stock) shall be treated as issued, to the extent thereof, first in exchange for
the accrued Original Issue Discount, cash interest or Contingent Cash Interest,
if any, through the Purchase Date, and the balance, if any, of the fair market
value of such shares of Common Stock shall be treated as issued in exchange for
the
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Issue Price of the Security being purchased pursuant to the provisions hereof.
If the Company elects to purchase the Securities by the issuance of shares of
Common Stock, the Company Notice, as provided in Section 3.08(e) hereof, shall
be sent to the Holders (and to beneficial owners as required by applicable law)
not later than the Company Notice Date.
The Company's right to exercise its election to purchase the
Securities pursuant to this Section 3.08 through the issuance of shares of
Common Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of
an election to pay entirely in cash and its giving of timely Company
Notice of election to purchase all or a specified percentage of the
Securities with Common Stock as provided herein;
(ii) the shares of Common Stock having been admitted for
listing or admitted for listing subject to notice of issuance on the
principal United States securities exchange on which the Common Stock
is then listed or, if the Common Stock is not then listed on a national
or regional securities exchange, as quoted on the National Association
of Securities Dealers Automated Quotation System;
(iii) the registration of the shares of Common Stock to be
issued in respect of the payment of the Purchase Price under the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in
each case, if required;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an exemption
from such qualification and registration; and
(v) the receipt by the Trustee of an Officers'
Certificate and an Opinion of Counsel each stating that (A) the terms
of the issuance of the Common Stock are in conformity with this
Indenture and (B) the shares of Common Stock to be issued by the
Company in payment of the Purchase Price in respect of Securities have
been duly authorized and, when issued and delivered pursuant to the
terms of this Indenture in payment of the Purchase Price in respect of
the Securities, will be validly issued, fully paid and non-assessable
and, to the best of such counsel's knowledge, free from preemptive
rights under law or material contracts, and, in the case of such
Officers' Certificate, stating that conditions (i), (ii), (iii) and
(iv) above and the condition set forth in the second succeeding
sentence have been satisfied and, in the case of such Opinion of
Counsel, stating that conditions (ii) and (iii) above have been
satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity
of Securities and the Sale Price of a share of Common Stock on each Trading Day
during the period for which the Market Price is calculated. The Company may pay
the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation. If the foregoing conditions are not satisfied
with respect to a Holder or Holders prior to the close of business on the
Purchase Date and the Company has elected to purchase the Securities pursuant to
this Section 3.08 through the issuance of shares of
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Common Stock, the Company shall pay the entire Purchase Price of the Securities
of such Holder or Holders in cash.
The "Market Price" of the Common Stock means the average of
the Sale Prices of the Common Stock for the five Trading Day period ending on
the third Business Day (if the third Business Day prior to the applicable
Purchase Date is a Trading Day or, if not, then on the last Trading Day prior to
such Business Day) prior to the applicable Purchase Date, appropriately adjusted
to take into account the occurrence, during the period commencing on the first
of such Trading Days during such five Trading Day period and ending on such
Purchase Date, of any event described in Section 11.06, 11.07 or 11.08 hereof;
subject, however, to the conditions set forth in Sections 11.09 and 11.10
hereof.
(e) Notice of Election. The Company's notice of election
to purchase with cash or Common Stock or any combination thereof shall be sent
to the Trustee and to the Holders (and to beneficial owners as required by
applicable law) in the manner provided in Section 15.02 hereof at the time
specified in Section 3.08(c) or (d) hereof, as applicable (the "Company
Notice"). Such Company Notice shall state the manner of payment elected and
shall contain the following information:
In the event the Company has elected to pay the Purchase Price
(or a specified percentage thereof) with Common Stock, the Company Notice shall:
(i) state that each Holder will receive Common Stock with
a Market Price determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any cash amount to be paid in
lieu of fractional shares);
(ii) set forth the method of calculating the Market Price
of the Common Stock; and
(iii) state that because the Market Price of Common Stock
will be determined prior to the Purchase Date, Holders will bear the
market risk with respect to the value of the Common Stock to be
received from the date such Market Price is determined to the Purchase
Date.
In any case, each Company Notice shall include a form of
Purchase Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price, the Conversion Rate and accrued
and unpaid cash interest, including Contingent Cash Interest, if any,
that will be accrued and payable with respect to the Securities as of
the Purchase Date;
(ii) whether the Company will pay the Purchase Price in
cash or in Common Stock or any combination thereof, specifying the
percentage of each;
(iii) the name and address of the Paying Agent and the
Conversion Agent;
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(iv) that Securities as to which a Purchase Notice has
been given may be converted pursuant to Article 11 hereof only if the
applicable Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(v) that Securities must be surrendered to the Paying
Agent to collect payment of the Purchase Price and accrued and unpaid
cash interest (or accrued and unpaid Contingent Cash Interest), if any;
(vi) that the Purchase Price for any Security as to which
a Purchase Notice has been given and not withdrawn, together with any
cash interest payable or any Contingent Cash Interest payable with
respect thereto, will be paid promptly following the later of the
Purchase Date and the time of surrender of such Security as described
in (v);
(vii) the procedures the Holder must follow to exercise
rights under this Section 3.08 and a brief description of those rights;
(viii) briefly, the conversion rights of the Securities and
that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
(ix) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal pursuant
to the terms of Section 3.08(a)(i)(D) or Section 3.10 hereof);
(x) that, unless the Company defaults in making payment
of such Purchase Price and cash interest, if any, Original Issue
Discount and cash interest, including Contingent Cash Interest, if any,
on Securities surrendered for purchase will cease to accrue on and
after the Purchase Date; and
(xi) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company
Notice in the Company's name and at the Company's expense; provided, however,
that, in all cases, the text of such Company Notice shall be prepared by the
Company.
Upon determination of the actual number of shares of Common
Stock to be issued for each $1,000 Principal Amount at Maturity of Securities,
the Company will issue a press release and publish such determination on the
Company's web site on the World Wide Web or through such other public medium as
the Company may use from time to time.
(f) Covenants of the Company. All shares of Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim created by the Company.
The Company shall use its reasonable efforts to list or cause
to have quoted any shares of Common Stock to be issued to purchase Securities on
the principal United States securities exchange or over-the-counter or other
domestic market on which any other shares of
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the Common Stock are then listed or quoted. The Company will promptly inform the
Trustee in writing of any such listing and of any delisting thereof.
(g) Procedure upon Purchase. The Company shall deposit
cash (in respect of a cash purchase under Section 3.08(c) hereof or for
fractional interests as applicable) or shares of Common Stock, or a combination
thereof, as applicable, at the time and in the manner as provided in Section
3.11 hereof, sufficient to pay the aggregate Purchase Price of, and any accrued
and unpaid interest or any Contingent Cash Interest, with respect to all
Securities to be purchased pursuant to this Section 3.08. As soon as practicable
after the Purchase Date, the Company shall deliver to each Holder entitled to
receive Common Stock through the Paying Agent, a certificate for the number of
full shares of Common Stock issuable in payment of the Purchase Price and cash
in lieu of any fractional interests. The person in whose name the certificate
for Common Stock is registered shall be treated as a holder of record of shares
of Common Stock on the Business Day following the Purchase Date. Subject to
Section 3.08(d) hereof, no payment or adjustment will be made for dividends on
the Common Stock the record date for which occurred on or prior to the Purchase
Date.
(h) Taxes. If a Holder of a Security is paid in Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of shares of Common Stock. However, the Holder shall pay
any such tax which is due because the Holder requests the shares of Common Stock
to be issued in a name other than the Holder's name. The Paying Agent may refuse
to deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum sufficient to
pay any tax which will be due because the shares of Common Stock are to be
issued in a name other than the Holder's name. Nothing herein shall preclude any
income tax withholding required by law or regulations.
SECTION 3.09 Purchase of Securities at Option of the Holder
upon Change in Control.
(a) If there shall have occurred a Change in Control,
Securities shall be purchased by the Company, at the option of the Holder
thereof, at a purchase price specified in paragraph 7 of the Securities (the
"Change in Control Purchase Price"), as of the date that is no later than 30
Business Days after the occurrence of the Change in Control but in no event
prior to the date on which such Change in Control occurs (the "Change in Control
Purchase Date"), subject to satisfaction by or on behalf of the Holder of the
requirements set forth in Section 3.09(c) hereof.
A "Change in Control" shall be deemed to have occurred at such
time as either of the following events shall occur:
(i) there is a report filed on Schedule 13D or Schedule
TO (or any successor schedule, form or report under the Exchange Act)
disclosing that any "person" including its Affiliates or Associates
(for the purposes of this Section 3.09 only, as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) has
become the beneficial owner (as the term "beneficial owner" is defined
under Rule 13d-3 or any successor rule or regulation promulgated under
the Exchange Act) of 50% or more
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of the voting power of the Common Stock or other Capital Stock into
which the Common Stock is reclassified or changed; provided, however,
that a person shall not be deemed beneficial owner of, or to own
beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such
person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange thereunder, or (B) any securities if
such beneficial ownership (1) arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation made
pursuant to the applicable rules and regulations under the Exchange
Act, and (2) is not also then reportable on Schedule 13D (or any
successor schedule) under the Exchange Act; or
(ii) there shall be consummated any share exchange,
consolidation or merger of the Company pursuant to which the Common
Stock would be converted into cash, securities or other property, in
each case other than a share exchange, consolidation or merger of the
Company in which the holders of the Common Stock immediately prior to
the share exchange, consolidation or merger have, directly or
indirectly, less than a majority of the total voting power in the
aggregate of all classes of Capital Stock of the continuing or
surviving corporation immediately after the share exchange,
consolidation or merger.
Notwithstanding the foregoing provisions of this Section 3.09,
a Change in Control shall not be deemed to have occurred by virtue of the
Company, any Subsidiary, any employee stock ownership plan or any other employee
benefit plan of the Company or any Subsidiary, or any person holding Common
Stock for or pursuant to the terms of any such employee benefit plan, filing or
becoming obligated to file a report under or in response to Schedule 13D or
Schedule TO (or any successor schedule, form or report under the Exchange Act)
disclosing beneficial ownership by it of shares of Common Stock, whether in
excess of 50% or otherwise.
"Associate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
(b) Within 15 days after the occurrence of a Change in
Control, the Company shall mail a written notice of Change in Control by
first-class mail to the Trustee and to each Holder (and to beneficial owners as
required by applicable law). The notice shall include a form of Change in
Control Purchase Notice to be completed by the Securityholder and shall state:
(i) briefly, the events causing a Change in Control and
the date of such Change in Control;
(ii) the date by which the Change in Control Purchase
Notice pursuant to this Section 3.09 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price and any accrued
and unpaid cash interest payable with respect to the Securities as of
the Change in Control Purchase Date;
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(v) the name and address of the Paying Agent and the
Conversion Agent;
(vi) the Conversion Rate and any adjustments thereto
resulting from the Change in Control;
(vii) that Securities as to which a Change in Control
Purchase Notice has been given may be converted pursuant to Article 11
hereof only if the Change in Control Purchase Notice has been withdrawn
in accordance with the terms of this Indenture;
(viii) that Securities must be surrendered to the Paying
Agent to collect payment of the Change in Control Purchase Price and
accrued and unpaid cash interest, if any;
(ix) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase Notice has been duly
given and not withdrawn, together with any accrued and unpaid cash
interest payable with respect thereto, will be paid promptly following
the later of the Change in Control Purchase Date and the time of
surrender of such Security as described in Section 3.09(b)(viii)
hereof;
(x) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.09;
(xi) briefly, the conversion rights of the Securities;
(xii) the procedures for withdrawing a Change in Control
Purchase Notice;
(xiii) that, unless the Company defaults in making payment
of such Change in Control Purchase Price and cash interest, if any on
Securities surrendered for purchase, Original Issue Discount and any
cash interest on Securities surrendered for purchase will cease to
accrue on and after the Change in Control Purchase Date; and
(xiv) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section
3.09(a) hereof upon delivery of a written notice of purchase (a "Change in
Control Purchase Notice") to the Paying Agent at any time prior to the close of
business on the Business Day prior to the Change in Control Purchase Date,
stating:
(i) the certificate number or numbers of the Security or
Securities which the Holder will deliver to be purchased;
(ii) the portion of the Principal Amount at Maturity of
the Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof; and
(iii) that such Security shall be purchased pursuant to the
terms and conditions specified in paragraph 7 of the Securities.
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The delivery of such Security to the Paying Agent at any time
after the delivery of the Change in Control Purchase Notice (together with all
necessary endorsements) at the offices of the Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.09 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.09, a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.09 shall be consummated by the delivery of the
consideration to be received by the Holder (together with accrued and unpaid
cash interest, if any) promptly following the later of the Change in Control
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.09(c) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to the close of business on
the Business Day prior to the Change in Control Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 3.10
hereof.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written withdrawal
thereof.
The Company shall not be required to comply with this Section
3.09 if a third party mails a written notice of Change in Control in the manner,
at the times and otherwise in compliance with this Section 3.09 and repurchases
all Securities for which a Change in Control Purchase Notice shall be delivered
and not withdrawn.
SECTION 3.10 Effect of Purchase Notice or Change in Control
Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or
Change in Control Purchase Notice specified in Section 3.08(a) or Section
3.09(c) hereof, as applicable, the Holder of the Security in respect of which
such Purchase Notice or Change in Control Purchase Notice, as the case may be,
was given shall (unless such Purchase Notice or Change in Control Purchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price or Change in Control Purchase
Price, as the case may be, and any accrued and unpaid cash interest, with
respect to such Security. Such Purchase Price or Change in Control Purchase
Price which price reflects the Issue Price plus accrued Original Issue Discount
and accrued and unpaid cash interest, including Contingent Cash Interest, if
any, shall be paid to such Holder, subject to receipt of funds and/or securities
by the Paying Agent, promptly following the later of (x) the Purchase Date or
the Change in Control Purchase Date, as the case may be, with respect to such
Security (provided that the conditions in Section 3.08(a) or Section 3.09(c)
hereof, as applicable, have been satisfied) and (y) the time of delivery of such
Security to the
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Paying Agent by the Holder thereof in the manner required by Section 3.08(a) or
Section 3.09(c) hereof, as applicable. Securities in respect of which a Purchase
Notice or Change in Control Purchase Notice, as the case may be, has been given
by the Holder thereof may not be converted pursuant to Article 11 hereof on or
after the date of the delivery of such Purchase Notice or Change in Control
Purchase Notice, as the case may be, unless such Purchase Notice or Change in
Control Purchase Notice, as the case may be, has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice or Change in Control Purchase Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Change in Control Purchase Notice, as the case may be, at any time
prior to the close of business on the Business Day prior to the Purchase Date or
the Change in Control Purchase Date, as the case may be, specifying:
(a) the certificate number or numbers of the Security or
Securities in respect of which such notice of withdrawal is being
submitted,
(b) the Principal Amount at Maturity of the Security or
Securities with respect to which such notice of withdrawal is being
submitted, and
(c) the Principal Amount at Maturity, if any, of such
Security which remains subject to the original Purchase Notice or
Change in Control Purchase Notice, as the case may be, and which has
been or will be delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in
the form set forth in the preceding paragraph or may be in the form of a
conditional withdrawal contained in a Purchase Notice pursuant to the terms of
Section 3.08(a)(i)(D) hereof.
There shall be no purchase of any Securities pursuant to
Section 3.08 hereof (other than through the issuance of Common Stock in payment
of the Purchase Price, including cash in lieu of fractional shares) or 3.09
hereof if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Securities, of the required Purchase Notice or
Change in Control Purchase Notice, as the case may be) and is continuing an
Event of Default (other than a default in the payment of the Purchase Price or
Change in Control Purchase Price, as the case may be, and any accrued and unpaid
cash interest or Contingent Cash Interest with respect to such Securities). The
Paying Agent will promptly return to the respective Holders thereof any
Securities (x) with respect to which a Purchase Notice or Change in Control
Purchase Notice, as the case may be, has been withdrawn in compliance with this
Indenture, or (y) held by it during the continuance of an Event of Default
(other than a default in the payment of the Purchase Price or Change in Control
Purchase Price, as the case may be, and any accrued and unpaid cash interest or
Contingent Cash Interest with respect to such Securities) in which case, upon
such return, the Purchase Notice or Change in Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
SECTION 3.11 Deposit of Purchase Price or Change in Control
Purchase Price. Prior to 10:00 a.m., New York City time, on the Business Day
following the Purchase Date or the Change in Control Purchase Date, as the case
may be, the Company shall deposit
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with the Trustee or with the Paying Agent (or, if the Company or a Subsidiary or
an Affiliate of either of them is acting as the Paying Agent, shall segregate
and hold in trust as provided in Section 2.04 hereof) an amount of money (in
immediately available funds if deposited on such Business Day) or Common Stock,
if permitted hereunder, sufficient to pay the aggregate Purchase Price or Change
in Control Purchase Price, as the case may be, of, and any accrued and unpaid
cash interest and Contingent Cash Interest, if any, with respect to all the
Securities or portions thereof which are to be purchased as of the Purchase Date
or Change in Control Purchase Date, as the case may be.
SECTION 3.12 Securities Purchased in Part. Any Security which
is to be purchased only in part shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate Principal Amount at Maturity equal to, and in exchange
for, the portion of the Principal Amount at Maturity of the Security so
surrendered which is not purchased.
SECTION 3.13 Repayment to the Company. The Trustee and the
Paying Agent shall promptly return to the Company any cash or shares of Common
Stock that remain unclaimed as provided in paragraph 15 of the Securities,
together with interest or dividends, if any, thereon (subject to the provisions
of Section 7.01(f) hereof), held by them for the payment of the Purchase Price
or Change in Control Purchase Price, as the case may be, or Contingent Cash
Interest, if any; provided, however, that to the extent that the aggregate
amount of cash or shares of Common Stock deposited by the Company pursuant to
Section 3.11 hereof exceeds the aggregate Purchase Price or Change in Control
Purchase Price, as the case may be, of, and the accrued and unpaid Contingent
Cash Interest with respect to, the Securities or portions thereof which the
Company is obligated to purchase as of the Purchase Date or Change in Control
Purchase Date, as the case may be, whether as a result of withdrawal or
otherwise, then promptly after the second Business Day following the Purchase
Date or Change in Control Purchase Date, as the case may be, the Trustee shall
return any such excess to the Company together with interest or dividends, if
any, thereon (subject to the provisions of Section 7.01(f) hereof).
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent, shall be deposited with the Trustee or
Paying Agent by 10:00 a.m., New York City time, by the Company. Principal Amount
at Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount, Redemption Price, Purchase Price, Change in Control Purchase Price,
cash interest and Contingent Cash Interest, if any, shall be considered paid on
the applicable date due if on such date (or, in the case of a Purchase Price or
Change in Control Purchase Price, on the Business Day following the applicable
Purchase Date or Change in Control Purchase Date, as
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the case may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, money or securities, if permitted hereunder, sufficient to pay all
such amounts then due.
The Company shall, to the extent permitted by law, pay cash
interest on overdue amounts at the rate per annum set forth in paragraph 1 of
the Securities, compounded semiannually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
SECTION 4.02 SEC and Other Reports. The Company shall deliver
to the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. The Company also shall comply with the
provisions of TIA Section 314(a). Delivery of such reports, information and
documents to the Trustee is for informational purposes only and the Trustee's
receipt of the same 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 hereunder (as to which the
Trustee is entitled to rely exclusively on Officers' Certificates).
SECTION 4.03 Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on May 31, 2003) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of the Trustee, located at 101
Barclay Street - 8W, New York, NY 10286 (Attention: Corporate Trust
Administration), shall initially be such office or agency for all of the
aforesaid purposes. The Company shall give prompt written notice to the Trustee
of the location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices
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and demands may be made or served at the address of the Trustee set forth in
Section 15.02 hereof.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes.
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SECTION 4.06 Delivery of Certain Information. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial holder of Securities or shares of Common
Stock which are restricted securities issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information (as
defined below) to such Holder or any beneficial holder of Securities or holder
of shares of Common Stock issued upon conversion of Securities, or to a
prospective purchaser of any such security designated by any such holder, as the
case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the resale of
any such security. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act.
SECTION 4.07 Covenant to Comply With Securities Laws Upon
Purchase of Securities. In connection with any offer to purchase or purchase of
Securities under Section 3.08 or 3.09 hereof (provided that such offer or
purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the Company shall to the
extent applicable (a) comply with Rule 13e-4 and Rule 14e-1 under the Exchange
Act, (b) file the related Schedule TO (or any successor schedule, form or
report) under the Exchange Act, and (c) otherwise comply with all Federal and
state securities laws so as to permit the rights and obligations under Sections
3.08 and 3.09 hereof to be exercised in the time and in the manner specified in
Sections 3.08 and 3.09 hereof.
SECTION 4.08 Waiver of Compliance. The Company may omit in any
particular instance to comply with any covenant or condition set forth in
Sections 4.02 to 4.07, inclusive, if before the time for such compliance the
Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding shall notify the Company that they elect to
either waive such compliance in such instance or generally waive compliance with
such covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 4.09 Calculation of Original Issue Discount. The
Company shall file with the Trustee promptly at the end of each calendar year
(i) a written notice specifying the amount of Original Issue Discount (including
daily rates and accrual periods) accrued on outstanding Securities as of the end
of such year and (ii) such other specific information relating to such Original
Issue Discount as may then be relevant under the United States Internal Revenue
Code of 1986, as amended from time to time.
SECTION 4.10 Liquidated Damages Notice. In the event that the
Company is required to pay any Liquidated Damages Amount (as such term is
defined in the Registration Rights Agreement, dated as of May 13, 2003 (the
"Registration Rights Agreement"), between the Company and the Initial Purchasers
named therein) to holders of Securities pursuant to the Registration Rights
Agreement, the Company will provide written notice ("Liquidated Damages Notice")
to the Trustee of its obligation to pay any Liquidated Damages Amount no later
than 15 days prior to the Damages Payment Date (as such term is defined in the
Registration Rights Agreement), and the Liquidated Damages Notice shall set
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forth the amount of any Liquidated Damages Amount to be paid by the Company on
such payment date.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into any other person or
convey, transfer or lease all or substantially all of its properties and assets
to any person, nor will the Company permit any Subsidiary to enter into any such
transaction or series of transactions if such transaction or series of
transactions, in the aggregate, would result in a sale, assignment, transfer,
lease or other disposition of all or substantially all of the properties and
assets of the Company and its Subsidiaries on a consolidated basis to any other
person or persons, unless:
(a) either (i) the Company or such Subsidiary shall be
the surviving corporation or (ii) the person (if other than the Company) formed
by such consolidation or into which the Company or such Subsidiary is merged or
the person which acquires by conveyance, transfer or lease the properties and
assets of the Company or such Subsidiary substantially as an entirety (A) shall
be organized and validly existing under the laws of the United States or any
state thereof or the District of Columbia and (B) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company or
such Subsidiary under the Securities and this Indenture;
(b) immediately after giving effect to such transaction,
no Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, comply with this Article 5 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into
which the Company or the applicable Subsidiary is merged or the successor person
to which such conveyance, transfer or lease is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company or the
applicable Subsidiary under this Indenture with the same effect as if such
successor had been named as the Company or the applicable Subsidiary herein; and
thereafter, except in the case of a lease and any obligations the Company or the
applicable Subsidiary may have under a supplemental indenture pursuant to
Section 11.14 hereof, the Company or the applicable Subsidiary shall be
discharged from all obligations and covenants under this Indenture
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and the Securities. Subject to Section 9.06 hereof, the Company, the applicable
Subsidiary, the Trustee and the successor person shall enter into a supplemental
indenture to evidence the succession and substitution of such successor person
and such discharge and release of the Company and the applicable Subsidiary.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" occurs
if:
(a) the Company defaults in payment of any cash interest
(including interest which becomes payable after the Securities have been
converted to semiannual coupon notes following the occurrence of a Tax Event) or
any Contingent Cash Interest and such default continues for 30 days;
(b) the Company defaults in the payment of the Principal
Amount at Maturity (or, if the Securities have been converted to semiannual
coupon notes following a Tax Event pursuant to Section 10.01 hereof, the
Restated Principal Amount), Issue Price plus accrued Original Issue Discount and
any cash interest, including any Contingent Cash Interest, Redemption Price,
Purchase Price or Change in Control Purchase Price on any Security when the same
becomes due and payable at its Stated Maturity, upon redemption, upon
declaration, when due for purchase by the Company or otherwise;
(c) the Company fails to comply with any of its
agreements in the Security or this Indenture (other than those referred to in
clauses (a) and (b) above) and such failure continues for 60 days after receipt
by the Company of a Notice of Default;
(d) (i) the Company or any Subsidiary defaults in the
scheduled payment of principal of any Debt (after giving effect to any
applicable grace period) and the aggregate principal amount of such payment
defaults at such time exceeds $50,000,000, or (ii) the Company or any Subsidiary
defaults under any Debt, whether such Debt now exists or is created later, which
default results in such Debt being accelerated or declared due and payable, and
the aggregate principal amount of all Debt so accelerated or so declared due and
payable, exceeds $50,000,000, and such acceleration or declaration has not been
rescinded or annulled within a period of 10 days after receipt by the Company of
a Notice of Default from the Trustee; provided, however, that if any such
default specified in (i) or (ii) shall be cured, waived, rescinded or annulled,
then the Event of Default by reason thereof shall be deemed not to have
occurred;
(e) the Company pursuant to or under or within the
meaning of any Bankruptcy Law:
(i) commences a voluntary case or proceeding;
(ii) consents to the entry of an order for relief against
it in an involuntary case or proceeding or the
commencement of any case against it;
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(iii) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(iv) makes a general assignment for the benefit of its
creditors;
(v) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
(vi) consents to the filing of such petition or the
appointment of or taking possession by a Custodian;
(f) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary
case or proceeding, or adjudicates the Company
insolvent or bankrupt;
(ii) appoints a Custodian of the Company or for any
substantial part of its property; or
(iii) orders the winding up or liquidation of the Company;
and such order or decree remains unstayed and in effect for 60
days; or
(g) the entry of one or more judgments, orders or decrees
for the payment of money in excess of $100,000,000, either individually
or in the aggregate (net of amounts covered by insurance, bond, surety
or similar instrument), against the Company or any Subsidiary, or any
of their respective properties, which judgment, order or decree shall
not be discharged and either (i) any creditor shall have commenced an
enforcement proceeding upon such judgment, order or decree or (ii) such
judgment, order or decree shall remain unstayed and in effect for a
period of 60 consecutive days.
A Default under clause (c) or (d)(ii) above is not an Event of
Default until the Trustee notifies the Company, or the Holders of at least 25%
in aggregate Principal Amount at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (c) or (d)(ii) above after actual receipt of such notice.
Any such notice must specify the Default, demand that it be remedied and state
that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 20 Business
Days after it becomes aware of the occurrence of any event which with the giving
of notice or the lapse of time, or both, would become an Event of Default under
clause (c), (d) or (g) above, an Officers' Certificate setting forth the details
of such occurrence, its status and what action the Company is taking or proposes
to take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than
an Event of Default specified in Section 6.01(e) or (f) in respect of the
Company) occurs and is
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continuing, the Trustee by written Notice to the Company, or the Holders of at
least 25% in aggregate Principal Amount at Maturity of the Securities at the
time outstanding by notice to the Company and the Trustee, may declare the Issue
Price plus accrued Original Issue Discount and any accrued and unpaid cash
interest or any Contingent Cash Interest (or if the Securities have been
converted to semiannual coupon notes following a Tax Event, the Restated
Principal Amount, plus accrued interest), through the date of declaration on all
the Securities to be immediately due and payable. Upon such a declaration, such
Issue Price plus accrued Original Issue Discount, and such accrued and unpaid
cash interest, if any, or any Contingent Cash Interest shall be due and payable
immediately. If an Event of Default specified in Section 6.01(e) or (f) occurs
in respect of the Company and is continuing, the Issue Price plus accrued
Original Issue Discount and any accrued and unpaid cash interest or any
Contingent Cash Interest (or, if the Securities have been converted to
semiannual coupon notes following a Tax Event, the Restated Principal Amount,
plus accrued interest), on all the Securities shall become and be immediately
due and payable without any declaration or other act on the part of the Trustee
or any Securityholders. The Holders of a majority in aggregate Principal Amount
at Maturity of the Securities at the time outstanding, by notice to the Trustee
(and without notice to any other Securityholder) may rescind an acceleration and
its consequences if the rescission would not conflict with any judgment or
decree and if all existing Events of Default have been cured or waived except
nonpayment of the Issue Price plus accrued Original Issue Discount and any
accrued and unpaid cash interest or any Contingent Cash Interest (or, if the
Securities have been converted to semiannual coupon notes following a Tax Event,
the Restated Principal Amount, plus accrued interest), that have become due
solely as a result of acceleration and if all amounts due to the Trustee under
Section 7.07 hereof have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Issue Price plus accrued Original Issue Discount and any accrued
and unpaid cash interest or any Contingent Cash Interest, (or, if the Securities
have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount, plus accrued interest), on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. Except as set forth in Section 2.07 hereof, no remedy is
exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. Subject to Section 6.02,
the Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Securityholder), may waive an existing Default and its consequences
except (a) an Event of Default described in Section 6.01(a) or (b), (b) a
Default in respect of a provision that under Section 9.02 cannot be amended
without the consent of each Securityholder affected or (c) a Default which
constitutes a failure to convert any Security in accordance with the terms of
Article 11. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any
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consequent right. This Section 6.04 shall be in lieu of Section 316(a)1(B) of
the TIA and such Section 316(a)1(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.05 Control by Majority. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.06 Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice
stating that an Event of Default is continuing;
(b) the Holders of at least 25% in aggregate Principal
Amount at Maturity of the Securities at the time
outstanding make a written request to the Trustee to
pursue the remedy;
(c) such Holder or Holders offer to the Trustee security
or indemnity satisfactory to the Trustee against any
loss, costs, liability or expense;
(d) the Trustee does not comply with the request within
60 days after receipt of such notice, request and
offer of security or indemnity; and
(e) the Holders of a majority in aggregate Principal
Amount at Maturity of the Securities at the time
outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day
period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
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SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount at Maturity (or if the Securities
have been converted to semiannual coupon notes following a Tax Event pursuant to
Article 10 hereof, the Restated Principal Amount, plus accrued and unpaid cash
interest), Issue Price plus accrued Original Issue Discount, Redemption Price,
Purchase Price, Change in Control Purchase Price, or cash interest, including
Contingent Cash Interest, if any, in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities or any
Redemption Date, and to convert the Securities in accordance with Article 11
hereof, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of
Default described in Section 6.01(a) or (b) hereof occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.07 hereof.
SECTION 6.09 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount at Maturity, Restated
Principal Amount, Issue Price plus accrued Original Issue Discount, cash
interest, including Contingent Cash Interest, Redemption Price, Purchase Price,
Change in Control Purchase Price shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of the
Principal Amount at Maturity, Restated Principal Amount, Issue Price plus
accrued Original Issue Discount, cash interest, including Contingent Cash
Interest, if any, Redemption Price, Purchase Price or Change in Control Purchase
Price (or, if the Securities have been converted to semiannual coupon notes
following a Tax Event, the Restated Principal Amount, plus accrued interest), as
the case may be, and to file such other papers or documents as may be necessary
or advisable in order to have the claims of the Trustee (including any claim for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel or any other amounts due the Trustee under
Section 7.07 hereof) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07 hereof.
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Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07
hereof;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount at Maturity, Restated
Principal Amount, Issue Price plus accrued Original Issue
Discount, cash interest, including Contingent Cash Interest,
if any, Redemption Price, Purchase Price or Change in Control
Purchase Price (or, if the Securities have been converted to
semiannual coupon notes following a Tax Event, the Restated
Principal Amount, plus accrued and unpaid cash interest), as
the case may be, ratably, without preference or priority of
any kind, according to such amounts due and payable on the
Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each Securityholder and the
Company a notice that states the record date, the payment date and the amount to
be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
Principal Amount at Maturity of the Securities at the time outstanding. This
Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that it will not at
any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount at
Maturity, Restated Principal Amount, Issue Price plus accrued Original Issue
Discount, cash interest, including Contingent Cash Interest, if any, Redemption
Price, Purchase Price or Change in Control Purchase Price (or, if the Securities
have been converted to semiannual coupon notes following a Tax Event, the
Restated Principal Amount, plus accrued
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and unpaid interest), as contemplated herein, or which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
(c) The Trustee may not be relieved from liability for
its own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
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Subparagraphs (c)(i), (ii) and (iii) of this Section 7.01 shall be in lieu of
Sections 315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections
315(d)(1), 315(d)(2) and 315(d)(3) are hereby expressly excluded from this
Indenture, as permitted by the TIA.
(d) Every provision of this Indenture that in any way
relates to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this
Section 7.01.
(e) No provision of the Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
(f) Money held by the Trustee in trust hereunder need not
be segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
SECTION 7.02 Rights of Trustee. Subject to its duties and
responsibilities under the provisions of Section 7.01 hereof, and, except as
expressly excluded from this Indenture pursuant to said Section 7.01 hereof,
subject also to its duties and responsibilities under the TIA:
(a) the Trustee may conclusively rely and shall be
protected in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented by
the proper party or parties;
(b) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it
and any advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by it
hereunder in good faith and in accordance with such advice or Opinion of
Counsel;
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(f) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Indenture at the request, order
or direction of any of the Holders, pursuant to the provisions of this
Indenture, unless such Holders shall have offered to the Trustee security or
indemnity satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby;
(g) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or Company Order and
any resolution of the Board of Directors may be sufficiently evidenced by a
resolution of the Board of Directors;
(h) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company, personally
or by agent or attorney at the sole cost of the Company and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by a Responsible Officer of the Trustee at the
Corporate Trust Office of the Trustee, and such notice references the Securities
and this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder;
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign an Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded; and
(l) the permissive rights of the Trustee to do things
enumerated in this Indenture shall not be construed as duties.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11 hereof.
SECTION 7.04 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for
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the Company's use or application of the proceeds from the Securities, it shall
not be responsible for any statement in the registration statement for the
Securities under the Securities Act or in the Indenture or the Securities (other
than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults. If a Default occurs and if it
is known to a Responsible Officer of the Trustee, the Trustee shall give to each
Securityholder notice of the Default within 90 days after such Responsible
Officer obtains knowledge of such Default unless such Default shall have been
cured or waived before the giving of such notice. Except in the case of a
Default described in Section 6.01(a) or (b) hereof, the Trustee may withhold the
notice if and so long as a Responsible Officer in good faith determines that
withholding the notice is in the interests of Securityholders. The second
sentence of this Section 7.05 shall be in lieu of the proviso to Section 315(b)
of the TIA and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA. The Trustee shall not be deemed to have knowledge of a
Default unless a Responsible Officer of the Trustee has received written notice
of such Default.
SECTION 7.06 Reports by Trustee to Holders. Within 60 days
after each April 15 beginning with the April 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such April 15 that complies with TIA Section 313(a), if required by such
Section 313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and with each securities exchange,
if any, on which the Securities are listed. The Company agrees to promptly
notify the Trustee whenever the Securities become listed on any securities
exchange and of any delisting thereof.
SECTION 7.07 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited (to the extent permitted by law) by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and its agents for, and to
hold them harmless against, any loss, liability or expense (including reasonable
attorney's fees and expenses and taxes (other than taxes based upon, measured by
or determined by the income of the Trustee)) incurred without negligence or bad
faith on their part, arising out of or in connection with the acceptance or
administration of this trust, including the reasonable costs and expenses of
defending itself against any claim (whether asserted by the Company or any
Holder or any other
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Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
To secure the Company's payment obligations in this Section
7.07, the Holders shall have been deemed to have granted to the Trustee a lien
prior to the Securities on all money or property held or collected by the
Trustee, except that held in trust to pay the Principal Amount at Maturity,
Issue Price plus accrued Original Issue Discount, Redemption Price, Purchase
Price, Change in Control Purchase Price, cash interest or Contingent Cash
Interest, if any, as the case may be, on particular Securities.
The Company's payment obligations pursuant to this Section
7.07 shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(e) or (f) hereof, the expenses including the
reasonable charges and expenses of its counsel, are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign by
so notifying the Company; provided, however, that no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding may remove the Trustee by so
notifying the Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the
Trustee or its property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.07 hereof.
If a successor Trustee does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate Principal Amount at Maturity
of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
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If the Trustee fails to comply with Section 7.10 hereof, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
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ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities. When (a)
the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07 hereof) for cancellation or (b) all
outstanding Securities have become due and payable and the Company irrevocably
deposits with the Trustee, the Paying Agent (if the Paying Agent is not the
Company or any of its Affiliates) or the Conversion Agent cash or, if expressly
permitted by the terms of the Securities or the Indenture, Common Stock
sufficient to pay all amounts due and owing on all outstanding Securities (other
than Securities replaced pursuant to Section 2.07 hereof), and if in either case
the Company pays all other sums payable hereunder by the Company, then this
Indenture shall, upon a Company Order, subject to Section 7.07 hereof, cease to
be of further effect. The Trustee shall join in the execution of a document
prepared by the Company acknowledging satisfaction and discharge of this
Indenture on demand of the Company accompanied by an Officers' Certificate and
Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for two years, subject to applicable unclaimed
property law. After return to the Company, Holders entitled to the money or
securities must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and the Trustee and
the Paying Agent shall have no further liability to the Securityholders with
respect to such money or securities for that period commencing after the return
thereof.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
(a) to cure any ambiguity, omission, defect or
inconsistency;
(b) to comply with Article 5 or Section 11.14 hereof;
(c) to secure the Company's obligations under the
Securities and this Indenture;
(d) to add to the Company's covenants for the benefit of
the Securityholders or to surrender any right or power conferred upon
the Company;
(e) to make any change to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA, or as
necessary in connection with the registration of the Securities under
the Securities Act; or
(f) to make any change that does not adversely affect the
rights of any Holders (it being understood that any amendment described
in clause (a) of this Section 9.01 made solely to conform this
Indenture to the final offering memorandum provided to
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investors in connection with the initial offering of the Securities
will be deemed not to adversely affect the rights or interests of
Holders).
SECTION 9.02 With Consent of Holders. With the written consent
of the Holders of at least a majority in aggregate Principal Amount at Maturity
of the Securities at the time outstanding, the Company and the Trustee may amend
this Indenture or the Securities. However, without the consent of each
Securityholder affected, an amendment to this Indenture or the Securities may
not:
(a) reduce the percentage in Principal Amount at Maturity
of Securities whose Holders must consent to an amendment;
(b) make any change in the manner or rate of accrual of
Original Issue Discount or cash interest, including Contingent Cash
Interest, reduce the rate of cash interest, including Contingent Cash
Interest, referred to in paragraph 1 of the Securities, reduce the rate
of interest referred to in Section 10.01 hereof upon the occurrence of
a Tax Event or extend the time for payment of Original Issue Discount
or cash interest, including Contingent Cash Interest, if any, on any
Security;
(c) reduce the Principal Amount at Maturity, Restated
Principal Amount, Issue Price, accrued Original Issue Discount or cash
interest, with respect to any Security, or extend the Stated Maturity
of any Security;
(d) reduce the Redemption Price, Purchase Price or Change
in Control Purchase Price of any Security;
(e) make any Security payable in money or securities
other than that stated in the Security;
(f) make any change in Article 10 hereof, or this Section
9.02, except to increase any percentage set forth therein;
(g) make any change that adversely affects the right to
convert any Security;
(h) make any change that adversely affects the right to
require the Company to purchase the Securities in accordance with the
terms thereof and this Indenture;
(i) change the provisions of this Indenture that relate
to modifying or annexing this Indenture; or
(j) impair the right to institute suit for the
enforcement of any payment with respect to, or conversion of, the
Securities.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
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After an amendment under this Section 9.02 becomes effective,
the Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 Compliance with TIA. Every supplemental indenture
executed pursuant to this Article 9 shall comply with the TIA.
SECTION 9.04 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, consent, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the amendment, consent, waiver or other action is
not made on the Security. However, any such Holder or subsequent Holder may
revoke the consent as to such Holder's Security or portion of the Security if
the Trustee receives the notice of revocation before the date as of which the
amendment, consent, waiver or action is made effective. After an amendment,
consent, waiver or action becomes effective, it shall bind every Securityholder.
SECTION 9.05 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06 Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 7.01 hereof) shall be fully protected in relying upon, in addition to
the documents required by Section 15.04 hereof, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
SECTION 9.07 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE 10
SPECIAL TAX EVENT CONVERSION
SECTION 10.01 Optional Conversion to Semiannual Coupon Note
upon Tax Event. From and after (a) the date of the occurrence of a Tax Event
(the "Tax Event Date") and (b) the date the Company exercises the option
provided for in this Section 10.01, whichever is later (the "Option Exercise
Date"), at the option of the Company, interest in lieu of future
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Original Issue Discount or cash interest shall accrue at the rate of 2.75% per
annum, calculated on a semiannual bond equivalent basis, on a Restated Principal
Amount, per $1,000 original Principal Amount at Maturity (the "Restated
Principal Amount") equal to the Issue Price plus Original Issue Discount accrued
through the Option Exercise Date and shall be payable semiannually on May 13 and
November 13 of each year (each an "Interest Payment Date") to Holders of record
at the close of business on each April 28 and October 29, respectively, (each a
"Regular Record Date") immediately preceding such Interest Payment Date.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months and will accrue from the most recent date to which interest has
been paid or, if no interest has been paid, from the Option Exercise Date.
Within 15 days of the occurrence of a Tax Event, the Company shall deliver a
written notice of such Tax Event by facsimile and first-class mail to the
Trustee and within 15 days of its exercise of such option the Company shall
deliver a written notice of the Option Exercise Date by facsimile and
first-class mail to the Trustee and by first class mail to the Holders of the
Securities. From and after the Option Exercise Date, (a) the Company shall be
obligated to pay at Stated Maturity, in lieu of the Principal Amount at Maturity
of a Security, the Restated Principal Amount thereof plus accrued and unpaid
interest on such Security, (b) "Issue Price and accrued Original Issue
Discount," "Issue Price plus Original Issue Discount" or similar words, as used
herein, shall mean Restated Principal Amount plus accrued and unpaid interest
with respect to any Security and (c) Contingent Cash Interest will cease to
accrue on the Securities. Securities authenticated and delivered after the
Option Exercise Date may, and shall if required by the Trustee, bear a notation
in a form approved by the Trustee as to the conversion of the Securities to
semiannual coupon notes. No other changes to this Indenture shall result as a
result of the events described in this Section 10.01.
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege. A Holder of a Security may
convert such Security into shares of Common Stock at any time prior to the close
of business on May 13, 2033, subject to the provisions of this Article 11 and
paragraph 9 of the Securities. Upon determination that Holders are or will be
entitled to convert their Securities into Common Stock in accordance with
paragraph 9 of the Securities, the Company will issue a press release and
publish such determination on the Company's website or through such other public
medium as the Company may use at that time. The number of shares of Common Stock
issuable upon conversion of a Security per $1,000 of Principal Amount at
Maturity thereof (the "Conversion Rate") shall be determined in accordance with
the provisions of paragraph 9 of the Securities.
A Holder may convert a portion of the Principal Amount at
Maturity of a Security if the portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
The Holders' rights to convert Securities into shares of
Common Stock is subject to the Company's right to elect instead to pay each such
Holder the amount of cash set forth in the next succeeding sentence, in lieu of
delivering such shares of Common Stock, subject to the last sentence of this
paragraph. The amount of cash to be paid pursuant to Section 11.02 hereof for
each $1,000 Principal Amount at Maturity of a Security upon conversion shall be
equal to the Average Sale Price of the Common Stock for the five consecutive
Trading Days immediately
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following (i) the date of the Company's notice of its election to deliver cash
upon conversion, if the Company shall not have given a notice of redemption
pursuant to Section 3.03 hereof, or (ii) the Conversion Date, in the case of a
conversion following such a notice of redemption specifying an intent to deliver
cash upon conversion, in either case multiplied by the Conversion Rate in effect
on such Conversion Date. The Company shall not pay cash in lieu of delivering
shares of Common Stock upon the conversion of any Security pursuant to the terms
of this Article 11 (other than cash in lieu of fractional shares pursuant to
Section 11.03 hereof) if there has occurred (prior to, on or after, as the case
may be, the Conversion Date or the date on which the Company delivers its notice
of whether such Security shall be converted into Common Stock or cash pursuant
to Section 3.02 hereof) and is continuing an Event of Default (other than a
default in a cash payment upon conversion of such Security).
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SECTION 11.02 Conversion Procedure. To convert a Security, a
Holder must satisfy the requirements in paragraph 9 in the Securities. The date
on which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). The Conversion Agent shall notify the Company of the
Conversion Date within one Business Day following the Conversion Date. Within
two Business Days following the Conversion Date, the Company shall deliver to
the Holder, through the Trustee, written notice of whether such Security shall
be converted into shares of Common Stock or paid in cash, unless the Company
shall have previously delivered a notice of redemption pursuant to Section 3.03
hereof. If the Company shall have notified the Holder that all of such Security
shall be converted into shares of Common Stock, the Company shall deliver to the
Holder through the Conversion Agent, as promptly as practicable but in any event
no later than the fifth Business Day following the Conversion Date a certificate
for the number of full shares of Common Stock deliverable upon the conversion
and cash in lieu of any fractional share determined pursuant to Section 11.03
hereof. Except as provided in the last sentence in the third paragraph of
Section 11.01 hereof, if the Company shall have notified the Holder that all or
a portion of such Security shall be paid in cash, the Company shall deliver to
the Holder surrendering such Security the amount of cash payable with respect to
such Security no later than the tenth Business Day following such Conversion
Date, together with a certificate for the number of full shares of Common Stock
deliverable upon the conversion and cash in lieu of any fractional share
determined pursuant to Section 11.03 hereof. Except as provided in the last
sentence in the third paragraph of Section 11.01 hereof, the Company may not
change its election with respect to the consideration to be delivered upon
conversion of a Security once the Company has notified the Holder in accordance
with this paragraph. If shares of Common Stock are delivered as consideration,
then the person in whose name the certificate representing such shares is
registered shall be treated as a stockholder of record on and after the
Conversion Date; provided, however, that no surrender of a Security on any date
when the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the shares of Common
Stock upon such conversion as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute
the person or persons entitled to receive such shares of Common Stock as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; such
conversion shall be at the Conversion Rate in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed. Upon conversion of a Security, such
person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on, or
other distributions with respect to, any Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Original Issue
Discount and cash interest, including Contingent Cash Interest, if any,
attributable to the period from the Issue Date of the Security through but not
including the Conversion Date, with respect to the converted Security shall not
be cancelled, extinguished or forfeited, but rather shall be deemed to be paid
in full to the Holder thereof through delivery of the Common Stock (together
with the cash payment, if any, in lieu of fractional shares) in exchange for the
Security being converted pursuant to the provisions hereof (except to the extent
that semiannual and Contingent Cash Interest are paid in cash as provided in
paragraph 9 of the Securities); and such cash, if any, and/or the fair market
value of such shares of Common Stock (together with any such cash payment in
lieu of fractional shares) shall be treated as delivered, to the extent thereof,
first in exchange for accrued Original Issue Discount
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and cash interest, including Contingent Cash Interest, if any, accrued through
the Conversion Date, and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment in lieu of fractional shares) shall be
treated as issued in exchange for the Issue Price of the Security being
converted pursuant to the provisions hereof. Notwithstanding the foregoing,
accrued cash interest will be payable upon conversion of Securities made
concurrently with or after acceleration of Securities following an Event of
Default.
If the Holder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon the conversion shall be
based on the total Principal Amount at Maturity of the Securities converted.
If the last day on which a Security may be converted is a
Legal Holiday, the Security may be surrendered on the next succeeding day that
is not a Legal Holiday.
A Security surrendered for conversion based on (a) the Common
Stock price may be surrendered for conversion at any time during the applicable
fiscal quarter, (b) the Security being called for redemption may be surrendered
for conversion at any time prior to the close of business on the second Business
Day immediately preceding the Redemption Date, even if it is not otherwise
convertible at such time, (c) a credit downgrade may be surrendered for
conversion until the close of business on any Business Day during the period of
the continuance of the credit downgrade as more fully described in paragraph 9
of the Security, and (d) upon the occurrence of certain corporate transactions
more fully described in paragraph 9 of the Security may be surrendered for
conversion at any time from and after the date which is 15 days prior to the
anticipated effective date of such transaction until 15 days after the actual
date of such transaction, and if such day is not a Business Day, the next
occurring Business Day following such day; but in each of (a), (b), (c) and (d)
above, in no event later than the close of business on May 11, 2033.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security in an authorized denomination equal in Principal Amount
at Maturity to the unconverted portion of the Security surrendered.
SECTION 11.03 Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined, to the
nearest 1/1,000th of a share, by multiplying the per share Sale Price of the
Common Stock, on the last Trading Day prior to the Conversion Date, by the
fractional amount and rounding the product to the nearest whole cent.
SECTION 11.04 Taxes on Conversion. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder's name and any
income tax which is imposed on the Holder as a result of the conversion. The
Conversion Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder's name until the Conversion
Agent receives a sum
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sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude the
Company from any tax withholding or directing the withholding of any tax
required by law or regulations.
SECTION 11.05 Company to Provide Stock. The Company shall,
prior to issuance of any Securities under this Article 11, and from time to time
as may be necessary, reserve out of its authorized but unissued Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities.
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim created by the Company.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national securities exchange or in
the over-the-counter market or such other market on which the Common Stock is
then listed or quoted.
SECTION 11.06 Adjustment for Change in Capital Stock. Except
as set forth in Section 11.14 hereof, if, after the Issue Date of the
Securities, the Company:
(a) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock or other Capital Stock;
(b) subdivides its outstanding shares of Common Stock
into a greater number of shares;
(c) combines its outstanding shares of Common Stock into
a smaller number of shares; or
(d) issues by reclassification of its Common Stock any
shares of its Capital Stock (other than rights, warrants or options for its
Capital Stock);
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares or other units of Capital
Stock of the Company which such Holder would have owned immediately following
such action if such Holder had converted the Security immediately prior to such
action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion
of such Security may receive shares of two or more classes of Capital Stock of
the Company, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to
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any such class of Capital Stock as is contemplated by this Article 11 with
respect to the Common Stock, on terms comparable to those applicable to Common
Stock in this Article 11.
SECTION 11.07 Adjustment for Rights Issue. Except as set forth
in Sections 11.14 and 11.19 hereof, if after the Issue Date, the Company
distributes any rights, warrants or options to all holders of its Common Stock
entitling them, for a period expiring within 60 days of the issue date for each
distribution to purchase shares of Common Stock at a price per share less than
the Sale Price of the Common Stock as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R (O + N)
-----------------
(O + [(N x P)/M])
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the record date
for the distribution to which this Section 11.07 is being applied.
N = the number of additional shares of Common Stock offered pursuant to
the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the event that there occurs (i) a
distribution to which Section 11.06(d) applies or (ii) a distribution to which
Section 11.08 applies, for which, in each case, (x) the record date shall occur
on or before the record date for the distribution to which this Section 11.07
applies and (y) the Ex-Dividend Time shall occur on or after the date of the
Time of Determination for the distribution to which this Section 11.07 applies,
the fair market value (on the record date for the distribution to which this
Section 11.07 applies) of the
(1) Capital Stock of the Company distributed in respect
of each share of Common Stock in such Section
11.06(d) distribution or
(2) assets of the Company or debt securities or any
rights, warrants or options to purchase securities of
the Company distributed in respect of each share of
Common Stock in such Section 11.08 distribution,
as the case may be.
The Board of Directors shall determine fair market values for
the purposes of this Section 11.07.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
rights, warrants or options to which this
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Section 11.07 applies. If all of the shares of Common Stock subject to such
rights, warrants or options have not been issued when such rights, warrants or
options expire, then the Conversion Rate shall promptly be readjusted to the
Conversion Rate which would then be in effect had the adjustment upon the
issuance of such rights, warrants or options been made on the basis of the
actual number of shares of Common Stock issued upon the exercise of such rights,
warrants or options.
No adjustment shall be made under this Section 11.07 if the
application of the formula stated above in this Section 11.07 would result in a
value of R' that is equal to or less than the value of R.
SECTION 11.08 Adjustment for Other Distributions. (a) If,
after the Issue Date of the Securities, the Company distributes to all holders
of its Common Stock any of its assets, excluding distributions of Capital Stock
or equity interests referred to in Section 11.08(b), or debt securities or any
rights, warrants or options to purchase securities of the Company (including
securities or cash, but excluding (x) distributions of Capital Stock referred to
in Section 11.06 and distributions of rights, warrants or options referred to in
Section 11.07 and (y) cash dividends or other cash distributions that are paid
out of consolidated current net earnings or earnings retained in the business as
shown on the books of the Company unless such cash dividends or other cash
distributions are Extraordinary Cash Dividends) the Conversion Rate shall be
adjusted, subject to the provisions of Section 11.08(c), in accordance with the
formula:
R' = R x M
-----
M - F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the event that there
occurs a distribution to which Section 11.06(d) applies, for which (i) the
record date shall occur on or before the record date for the distribution to
which this Section 11.08(a) applies and (ii) the Ex-Dividend Time shall occur on
or after the date of the Time of Determination for the distribution to which
this Section 11.08(a) applies, the fair market value (on the record date for the
distribution to which this Section 11.08(a) applies) of any Capital Stock of the
Company distributed in respect of each share of Common Stock in such Section
11.06(d) distribution.
F = the fair market value (on the record date for the
distribution to which this Section 11.08(a) applies) of the assets, securities,
rights, warrants or options to be distributed in respect of each share of Common
Stock in the distribution to which this Section 11.08(a) is being applied
(including, in the case of cash dividends or other cash distributions giving
rise to an adjustment, all such cash distributed concurrently).
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The Board of Directors shall determine fair market values for
the purposes of this Section 11.08(a).
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
distribution to which this Section 11.08(a) applies.
For purposes of this Section 11.08, the term "Extraordinary
Cash Dividend" shall mean any cash dividend or distribution with respect to the
Common Stock the amount of which, together with the aggregate amount of cash
dividends on the Common Stock to be aggregated with such cash dividend in
accordance with the provisions of this paragraph, equals or exceeds the
threshold percentage set forth in item (i) below. For purposes of item (i)
below, the "Measurement Period" with respect to a cash dividend on the Common
Stock shall mean the 365 consecutive day period ending on the date prior to the
Ex-Dividend Time with respect to such cash dividend, and the "Relevant Cash
Dividends" with respect to a cash dividend on the Common Stock shall mean the
cash dividends on the Common Stock with Ex-Dividend Times occurring in the
Measurement Period.
(i) If, upon the date prior to the Ex-Dividend Time with
respect to a cash dividend on the Common Stock, the aggregate amount of
such cash dividend together with the amounts of all Relevant Cash
Dividends equals or exceeds on a per share basis the sum of (a) 5% of
the Sale Price of the Common Stock on the last Trading Day preceding
the date of declaration by the Board of Directors of the cash dividend
or distribution with respect to which this provision is being applied,
and (b) the quotient of the amount of any Contingent Cash Interest paid
on a Security during the Ex-Dividend Measurement Period and divided by
the number of shares of Common Stock issuable upon conversion of a
Security pursuant to Article 11 at the Conversion Rate in effect on the
payment date or such relevant Contingent Cash Interest Payment Date,
then such cash dividend together with all Relevant Cash Dividends shall
be deemed to be an Extraordinary Cash Dividend, and for purposes of
applying the formula set forth in this Section 11.08(a), the value of
"F" shall be equal to (y) the aggregate of the amount of such cash
dividend together with the amount of all Relevant Cash Dividends, minus
(z) the aggregate amount of all Relevant Cash Dividends for which a
prior adjustment in the Conversion Rate was previously made under this
Section 11.08.
(ii) In making the determination required by item (i)
above, the amount of cash dividends paid on a per share basis and the
amount of any Relevant Cash Dividends specified in item (i) above,
shall be appropriately adjusted to reflect the occurrence during such
period of any event described in Section 11.06 hereof.
(b) If, after the Issue Date of the Securities, the
Company pays a dividend or makes a distribution to all holders of its Common
Stock consisting of Capital Stock of any class or series, or similar equity
interests, of or relating to a Subsidiary or other business unit of the Company,
the Conversion Rate shall be adjusted in accordance with the formula:
R' = Rx (1 + F/M)
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where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the average of the Post-Distribution Prices of the Common
Stock for the 10 Trading Days commencing on and including the fifth Trading Day
after the date on which "ex-dividend trading" commences for such dividend or
distribution on the principal United States exchange or market which such
securities are then listed or quoted (the "Ex-Dividend Date").
F = the fair market value of the securities distributed in
respect of each share of Common Stock in the distribution to which this Section
11.08(b) applies, which shall be determined by multiplying the number of
securities distributed in respect of each share of Common Stock in the
distribution by the average of the Post-Distribution Prices of those securities
for the 10 Trading Days commencing on and including the fifth Trading Day after
the Ex-Dividend Date.
"Post-Distribution Price" of Capital Stock or any similar
equity interest on any date means the closing per unit sale price (or, if no
closing sale price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and the average ask
prices) on such date for trading of such units on a "when issued" basis without
due bills (or similar concept) as reported in the composite transactions for the
principal United States securities exchange on which such Capital Stock or
equity interest is traded or, if the Capital Stock or equity interest, as the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau Incorporated;
provided that if on any date such units have not traded on a "when issued"
basis, the Post-Distribution Price shall be the closing per unit sale price (or,
if no closing sale price is reported, the average of the bid and ask prices or,
if more than one in either case, the average of the average bid and the average
ask prices) on such date for trading of such units on a "regular way" basis
without due bills (or similar concept) as reported in the composite transactions
for the principal United States securities exchange on which such Capital Stock
or equity interest is traded or, if the Capital Stock or equity interest, as the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau Incorporated. In
the absence of such quotation, the Company shall be entitled to determine the
Post-Distribution Price on the basis of such quotations which reflect the
post-distribution value of the Capital Stock or equity interests as it considers
appropriate.
(c) In the event that, with respect to any distribution
to which Section 11.08 would otherwise apply, the difference "M-F" as defined in
the formula set forth in Section 11.08 is less than $1.00 or "F" is equal to or
greater than "M", then the adjustment provided by Section 11.08 shall not be
made and in lieu thereof the provisions of Section 11.14 shall apply to such
distribution.
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SECTION 11.09 When Adjustment May Be Deferred. No adjustment
in the Conversion Rate need be made unless the adjustment would require an
increase or decrease of at least 1% in the Conversion Rate. Any adjustments that
are not made shall be carried forward and taken into account in any subsequent
adjustment and all adjustments that are made and carried forward shall be taken
in the aggregate in order to determine if the 1% threshold is met.
All calculations under this Article 11 shall be made to the
nearest cent or to the nearest 1/1,000th of a share, as the case may be.
SECTION 11.10 When No Adjustment Required. No adjustment need
be made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14
hereof if Securityholders may participate in the transaction. Such participation
by Securityholders may include participation without conversion or upon
conversion; provided, that if such participation is upon conversion, an
adjustment shall be made at such time as the Securityholders are no longer
entitled to participate.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
Unless otherwise required by a provision of this Article 11,
no adjustment need be made for a change in the par value or no par value of the
Common Stock.
To the extent the Securities become convertible pursuant to
this Article 11 into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
No adjustment will be made pursuant to this Article 11 that
would result, through the application of two or more provisions hereof, in the
duplication of any adjustment.
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SECTION 11.11 Notice of Adjustment. Whenever the Conversion
Rate is adjusted, the Company shall promptly mail to Securityholders a notice of
the adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. Upon receipt by it of such notice, and at the written request of the
Company, the Conversion Agent will promptly mail such notice to Securityholders
at the Company's expense. The certificate shall be conclusive evidence that the
adjustment is correct. Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such certificate except to
exhibit the same to any Holder desiring inspection thereof.
SECTION 11.12 Voluntary Increase. The Company from time to
time may increase the Conversion Rate by any amount for any period of time.
Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice of
the increase. The Company shall mail the notice at least 15 days before the date
the increased Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
A voluntary increase of the Conversion Rate does not change or
adjust the Conversion Rate otherwise in effect for purposes of Section 11.06,
11.07 or 11.08 or 11.14 hereof.
SECTION 11.13 Notice of Certain Transactions. If:
(a) the Company takes any action that would require an
adjustment in the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08
hereof (unless no adjustment is to occur pursuant to Section 11.10 hereof); or
(b) the Company takes any action that would require a
supplemental indenture pursuant to Section 11.14; or
(c) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 11.14 Reorganization of Company; Special
Distributions. If the Company is a party to a transaction subject to Article 5
hereof (other than a sale of all or substantially all of the assets of the
Company in a transaction in which the holders of Common Stock immediately prior
to such transaction do not receive securities, cash, property or other assets of
the Company or any other Person) or a merger or binding share exchange which
reclassifies or changes its outstanding Common Stock, the Person obligated to
deliver securities, cash or other assets upon conversion of Securities shall, no
later than the closing date of such transaction, enter into a supplemental
indenture. If the issuer of securities deliverable upon
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conversion of Securities is an Affiliate of the successor Company, that issuer
shall, no later than the closing date of such transaction, join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Security may convert it into the kind and amount of securities, cash or other
assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder had
converted the Security immediately before the effective date of the transaction,
assuming (to the extent applicable) that such Holder was not a constituent
Person or an Affiliate of a constituent Person to such transaction. The
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Article
11. The successor Company shall mail to Securityholders a notice briefly
describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07
hereof applies.
If the Company makes a distribution to all holders of its
Common Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that would otherwise result in an
adjustment in the Conversion Rate pursuant to the provisions of Section 11.08
hereof, then, from and after the record date for determining the holders of
Common Stock entitled to receive the distribution, a Holder of a Security that
converts such Security in accordance with the provisions of this Indenture shall
upon such conversion be entitled to receive, in addition to the shares of Common
Stock into which the Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of Common Stock entitled to receive the
distribution.
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SECTION 11.15 Company Determination Final. Any determination
that the Company or the Board of Directors must make pursuant to Section 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 hereof is conclusive.
SECTION 11.16 Trustee's Adjustment Disclaimer. The Trustee has
no duty to determine when an adjustment under this Article 11 should be made,
how it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 hereof need be entered into
or whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent (other than the Company or an Affiliate of the
Company) shall have the same protection under this Section 11.16 as the Trustee.
SECTION 11.17 Simultaneous Adjustments. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06, 11.07 or 11.08 hereof, and the record dates for the
distributions giving rise to such adjustments shall occur on the same date, then
such adjustments shall be made by applying, first, the provisions of Section
11.06 hereof, second, the provisions of Section 11.08 hereof and, third, the
provisions of Section 11.07 hereof.
SECTION 11.18 Successive Adjustments. After an adjustment to
the Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19 Rights Issued in Respect of Common Stock Issued
Upon Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of common stock or preferred stock purchase rights, as the case may be (the
"Rights"), if any, that all shares of Common Stock are entitled to receive and
the certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a "Rights Agreement"). If such Rights Agreement
requires that each share of Common Stock issued upon conversion of Securities at
any time prior to the distribution of separate certificates representing the
Rights be entitled to receive such Rights, then, notwithstanding anything else
to the contrary in the foregoing sections of this Article 11, there shall not be
any adjustment to the conversion privilege or Conversion Rate or any other term
or provision of the Securities as a result of the issuance of Rights, the
distribution of separate certificates representing the Rights, the exercise or
redemption of such Rights in accordance with any such Rights Agreement, or the
termination or invalidation of such Rights.
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments. Semiannual, cash or
Contingent Cash Interest on any Security that is payable in cash, and is
punctually paid or duly provided for, on any applicable payment date shall be
paid to the person in whose name that Security is registered
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at the close of business on the Record Date or accrual date, as the case may be,
for such interest at the office or agency of the Company maintained for such
purpose. Each installment of semiannual or cash interest or Contingent Cash
Interest on any Security shall be paid in same-day funds by transfer to an
account maintained by the payee located inside the United States, if the Trustee
shall have received proper wire transfer instructions from such payee not later
than the related Record Date or accrual date, as the case may be, or, if no such
instructions have been received, by check mailed to the payee at its address set
forth on the Registrar's books. In the case of a permanent Global Security,
semiannual or cash interest or Contingent Cash Interest payable on any
applicable payment date will be paid to the Depositary, with respect to that
portion of such permanent Global Security held for its account by Cede & Co. for
the purpose of permitting such party to credit the interest received by it in
respect of such permanent Global Security to the accounts of the beneficial
owners thereof.
SECTION 12.02 Defaulted Interest. Except as otherwise
specified with respect to the Securities, any semiannual or cash interest or
Contingent Cash Interest on any Security that is payable, but is not punctually
paid or duly provided for, within 30 days following any applicable payment date
(herein called "Defaulted Interest", which term shall include any accrued and
unpaid interest that has accrued on such defaulted amount in accordance with
paragraph 1 of the Securities), shall be paid by the Company, at its election in
each case (x) to the Holder as of Special Record Date, as determined in
accordance with clause (a) below, or (y) in the manner set forth in clause (b)
below:
(a) The Company may elect to make payment of any
Defaulted Interest to the persons in whose names the Securities are
registered at the close of business on a special record date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security
and the date of the proposed payment (which shall not be less than 20
days after such notice is received by the Trustee), and at the same
time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit
of the persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a special record date (the
"Special Record Date") for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the
date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Securities at his address as it appears on the list of
Securityholders maintained pursuant to Section 2.05 hereof not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid
to the persons in whose names the Securities are registered at the
close of business on such Special Record Date and shall no longer be
payable pursuant to the following clause (b) of this Section 12.02.
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<PAGE>
(b) The Company may make payment of any Defaulted
Interest on the Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of
the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
SECTION 12.03 Interest Rights Preserved. Subject to the
foregoing provisions of this Article 12 and Section 2.06 hereof, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to semiannual or
cash and Contingent Cash Interest accrued and unpaid, and to accrue, which were
carried by such other Security.
ARTICLE 13
CONTINGENT CASH INTEREST
SECTION 13.01 Contingent Cash Interest. The Company shall make
Contingent Cash Interest payments to the Holders of Securities, as set forth in
Section 13.02 below, during any six month period from May 14 and November 13 and
from November 14 to May 13, beginning with the six-month period commencing on
May 14, 2008 (each, a "Semiannual Period") if, but only if, the Average Security
Market Price for the five Trading Days ending on the third Trading Day
immediately preceding the first day of the applicable Semiannual Period equals
120% or more of the Relevant Value of such Security. During any Semiannual
Period when Contingent Cash Interest is payable pursuant to this section, each
Contingent Cash Interest payment due and payable on each $1,000 Principal Amount
at Maturity shall be calculated for the applicable Semiannual Period, and in
each instance shall equal the annual rate of 1.0% of the Average Security Market
Price for the five Trading Day measuring period. Contingent Cash Interest shall
be calculated on the basis of a 360-day year of twelve 30-day months.
As used in this Article 13, "Relevant Value" means the sum of
the Issue Price, the accrued Original Issue Discount and accrued cash interest,
if any, on such Security to the day immediately preceding the first day of the
applicable Semiannual Period. "Average Security Market Price" means, as of any
date of determination, the average of the secondary market bid quotations per
$1,000 Principal Amount at Maturity of Securities obtained by the Bid
Solicitation Agent for $5,000,000 Principal Amount at Maturity of Securities at
approximately 4:00 p.m., New York City time, on such determination date from
three independent nationally recognized securities dealers (none of which shall
be an Affiliate of the Company) selected by the Company; provided, however, that
if (a) at least three such bids are not obtained by the Bid Solicitation Agent
or (b) in the Company's reasonable judgment, the bid quotations are not
indicative of the secondary market value of the Securities as of such
determination date, then the Average Security Market Price for such
determination date shall equal the product of (i) the Conversion Rate in effect
as of such determination date multiplied by (ii) the Average Sale Price of the
Common Stock for the five Trading Days ending on such determination date,
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such Trading Days during such five Trading Day period
and ending on such
75
<PAGE>
determination date, of any event described in Section 11.06, 11.07 or 11.08
hereof (subject to the conditions set forth in Sections 11.08 and 11.10 hereof).
The Original Issue Discount of the Securities will continue to
accrue whether or not Contingent Cash Interest payments are made.
SECTION 13.02 Payment of Contingent Cash Interest; Contingent
Cash Interest Rights Preserved. If payable, Contingent Cash Interest on a
Security shall be paid to the Person who is the Holder of that Security on the
15th day preceding the last day of such Semiannual Period (the "Contingent Cash
Interest Record Date"). Such payments shall be paid on the last day of the
Semiannual Period (in each case, a "Contingent Cash Interest Payment Date").
Each payment of Contingent Cash Interest on any Security shall be paid (A) if
such Security is held in the form of a Global Note, in the same-day funds by
transfer to an account maintained by the payee located inside the United States,
or (B) if such Security is held in the form of a Certificated Note, by check,
mailed to the address of such Holder as set forth in the Security Register. In
the case of a Global Note, interest payable on any Contingent Cash Interest
Payment Date will be paid to the Depositary for the purpose of permitting DTC to
credit the interest received by it in respect of such Global Note to the
accounts of the beneficial owners thereof.
Upon determination that Holders of Securities will be entitled
to receive Contingent Cash Interest during a Semiannual Period, prior to the
start of such Semiannual Period, the Company will issue a press release and
publish such information on its website or through such other public medium as
the Company may use at the time.
The Company may unilaterally increase the amount of Contingent
Cash Interest it is required to pay or pay interest or other amounts it is not
obligated to pay but will have no obligation to do so.
SECTION 13.03 Bid Solicitation Agent. The Bid Solicitation
Agent shall solicit bids from securities dealers which the Company indicates
that it believes are willing to bid for the Securities. The Company initially
appoints the Trustee to act as the Bid Solicitation Agent. The Company may
change the Bid Solicitation Agent at its discretion; provided, however, that the
Bid Solicitation Agent may not be an Affiliate of the Company.
ARTICLE 14
TAX MATTERS
SECTION 14.01 Tax Treatment. The parties hereto hereby agree,
and each Holder and any beneficial holder of a Security by its purchase of a
Security hereby agrees (in the absence of administrative pronouncement or
judicial ruling to the contrary):
(a) to treat the Securities as indebtedness of the
Company for all United States federal income tax purposes;
(b) to treat the Securities as debt instruments that are
subject to U.S. Treasury Regulation section 1.1275-4(b); and
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<PAGE>
(c) to treat any payment to and receipt by a Holder of
Common Stock upon conversion of a Security, or upon a purchase by the
Company at the option of the Holder of a Security where the Company
elects to pay in Common Stock, as a contingent payment under U.S.
Treasury Regulation section 1.1275-4(b).
Notwithstanding any other provision of this Indenture, from
the commencement of discussions with respect to the transactions contemplated
hereby, each party (and each employee, representative or other agent of such
party) may disclose to any and all persons, without limitation of any kind, the
tax treatment and tax structure (as such terms are used in Sections 6011, 6111
and 6112 of the United States Internal Revenue Code of 1986, as amended, and the
Treasury Regulations promulgated thereunder) of the transactions contemplated by
this Indenture and all materials of any kind (including opinions or other tax
analyses) that are provided relating to such tax treatment and tax structure,
other than any information for which nondisclosure is reasonably necessary in
order to comply with applicable securities laws, and the ability of the Company,
its subsidiaries and their respective representatives, affiliates, employees,
officers, directors or other agents to consult any tax advisor, including an
independent tax advisor, regarding the tax treatment or tax structure of the
transactions hereunder (and any transactions related thereto) shall not be
restricted or limited in any manner.
SECTION 14.02 Comparable Yield and Projected Payment Schedule.
Solely for purposes of applying U.S. Treasury Regulation section 1.1275-4 to the
Notes:
(a) for United States Federal income tax purposes, the
Company shall accrue interest with respect to outstanding Securities as
tax original issue discount ("Tax Original Issue Discount") according
to the "noncontingent bond method," as set forth in U.S. Treasury
Regulation section 1.1275-4(b) using a comparable yield of 5.05%,
compounded semiannually, and the projected payment schedule attached as
Annex 1 to this Indenture;
(b) the Company shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the
amount of Tax Original Issue Discount for United States federal income
tax purposes (including daily rates and accrual periods) accrued on
outstanding Securities as of the end of such year and (ii) such other
specific information relating to such Tax Original Issue Discount that
the Company determines to be relevant under the Internal Revenue Code
of 1986, as amended from time to time, including the amount of any
adjustment made under the noncontingent bond method to account for the
amount of any difference between the amount of an actual payment and
the amount of a projected payment; and
(c) the Company acknowledges and agrees, and each Holder
and any beneficial holder of a Security, by its purchase of a Security
shall be deemed to acknowledge and agree, that (i) the comparable yield
means the annual yield the Company would pay, as of the Issue Date, on
a fixed rate, nonconvertible debt security with no contingent payments,
but with terms and conditions otherwise comparable to those of the
Securities, (ii) the projected payment schedule is determined on the
basis of an assumption of linear growth of stock price and a constant
growth in dividend yield, (iii) the comparable yield and the projected
payment schedule are not determined for any
77
<PAGE>
purpose other than for the purpose of applying U.S. Treasury Regulation
section 1.1275-4(b)(4) to the Security and (iv) the comparable yield
and the projected payment schedule do not constitute a projection or
representation regarding the actual amounts payable on the Securities.
ARTICLE 15
MISCELLANEOUS
SECTION 15.01 TIA Controls. If any provision of this Indenture
limits, qualifies, or conflicts with another provision which is required to be
included in this Indenture by the TIA, the required provision shall control.
SECTION 15.02 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or delivery by courier guaranteeing overnight delivery or mailed by
first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
RPM International Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44528
Attention: General Counsel
Telephone: (330) 273-8883
Facsimile: (330) 225-6574
with a copy of any notice given pursuant to Article 6 hereof to:
Calfee, Halter & Griswold LLP
1400 McDonald Investment Center
800 Superior Avenue
Attention: Edward W. Moore
Telephone: (216) 622-8217
Facsimile: (216) 241-0816
if to the Trustee:
The Bank of New York
101 Barclay Street - 8W
New York, New York 10286
Attention: Corporate Trust Administration
Telephone: (212) 815-2498
Facsimile: (212) 815-5707
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
78
<PAGE>
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent, Conversion Agent or co-registrar.
SECTION 15.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 15.04 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion
of the signers, all conditions precedent as set forth in Section 15.05,
if any, provided for in this Indenture relating to the proposed action
have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of
such counsel, such actions are authorized or permitted by this
Indenture and that all such conditions precedent have been complied
with.
SECTION 15.05 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include to the
extent required by the Trustee:
(a) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(c) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(d) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
79
<PAGE>
SECTION 15.06 Separability Clause. In case any provision in
this Indenture or in the Securities shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining provisions shall not
in any way be affected or impaired thereby.
SECTION 15.07 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar. The Trustee may make reasonable rules for action by or a meeting
of Securityholders. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 15.08 Calculations. The calculation of the Purchase
Price, Change in Control Purchase Price, Liquidated Damages Amount, Conversion
Rate, Market Price, Sale Price of the Common Stock and each other calculation to
be made hereunder shall be the obligation of the Company. All calculations made
by the Company as contemplated pursuant to this Section 15.08 shall be final and
binding on the Company and the Holders absent manifest error. The Trustee,
Paying Agent and Conversion Agent shall not be obligated to recalculate,
recompute or confirm any such calculations.
SECTION 15.09 Legal Holidays. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is a
payment in respect of the Securities, no Original Issue Discount or interest, if
any, shall accrue for the intervening period.
SECTION 15.10 GOVERNING LAW. THIS INDENTURE SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 15.11 No Recourse Against Others. A director, officer,
employee, agent, representative, stockholder or equity holder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder shall waive and release all such liability. The waiver and
release shall be part of the consideration for the issue of the Securities.
SECTION 15.12 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successor. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 15.13 Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
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<PAGE>
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
RPM INTERNATIONAL INC.
By: /s/ P. KELLY TOMPKINS
---------------------------------------
Name: P. KELLY TOMPKINS
Title: Senior Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK, as Trustee
By: /s/ Joseph A. Lloret
---------------------------------------
Name: JOSEPH A. LLORET
Title: Assistant Treasurer
<PAGE>
ANNEX 1
PROJECTED PAYMENT SCHEDULE*
<TABLE>
<CAPTION>
Projected Interest Payment per
$1,000 Principal Amount at Maturity of
Period Ending Notes*
<S> <C>
November 13, 2003 6.95
May 13, 2004 6.95
November 13, 2004 6.95
May 13, 2005 6.95
November 13, 2005 6.95
May 13, 2006 6.95
November 13, 2006 6.95
May 13, 2007 6.95
November 13, 2007 6.95
May 13, 2008 6.95
November 13, 2008 0.00
May 13, 2009 0.00
November 13, 2009 0.00
May 13, 2010 0.00
November 13, 2010 0.00
May 13, 2011 0.00
November 13, 2011 0.00
May 13, 2012 0.00
November 13, 2012 0.00
May 13, 2013 0.00
November 13, 2013 0.00
May 13, 2014 0.00
November 13, 2014 0.00
May 13, 2015 0.00
November 13, 2015 0.00
May 13, 2016 0.00
November 13, 2016 0.00
May 13, 2017 0.00
November 13, 2017 0.00
May 13, 2018 0.00
November 13, 2018 0.00
May 13, 2019 0.00
November 13, 2019 0.00
May 13, 2020 4.19
November 13, 2020 4.30
May 13, 2021 4.42
November 13, 2021 4.55
May 13, 2022 4.67
November 13, 2022 4.80
May 13, 2023 4.94
</TABLE>
Annex 1-1
<PAGE>
<TABLE>
<CAPTION>
Projected Interest Payment per
$1,000 Principal Amount at Maturity of
Period Ending Notes*
<S> <C>
November 13, 2023 5.08
May 13, 2024 5.22
November 13, 2024 5.37
May 13, 2025 5.52
November 13, 2025 5.67
May 13, 2026 5.83
November 13, 2026 5.99
May 13, 2027 6.16
November 13, 2027 6.33
May 13, 2028 6.51
November 13, 2028 6.69
May 13, 2029 6.88
November 13, 2029 7.07
May 13, 2030 7.27
November 13, 2030 7.47
May 13, 2031 7.68
November 13, 2031 7.89
May 13, 2032 8.12
November 13, 2032 8.34
Terminal Value at Maturity 1,771.63
</TABLE>
* The comparable yield and the schedule of projected payments are
determined on the basis of an assumption of linear growth of the stock price and
a constant growth in dividend yield and are not determined for any purpose other
than for the determination of interest accruals and adjustments thereof in
respect of the Securities for United States federal income tax purposes. The
comparable yield and the schedule of projected payments do not constitute a
projection or representation regarding the amounts payable on Securities.
Annex 1-2
<PAGE>
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES
OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE ISSUE PRICE OF THIS SECURITY IS $505.19 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY; THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
INDETERMINABLE AS OF THE ISSUE DATE; THE ISSUE DATE OF THIS SECURITY IS MAY 13,
2003; AND THE YIELD TO MATURITY FOR THE PURPOSES OF ACCRUING ORIGINAL ISSUE
DISCOUNT IS 5.05% PER ANNUM, CALCULATED ON A SEMIANNUAL BOND EQUIVALENT BASIS.
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 IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER (X) THE LATER OF THE
LAST DAY SECURITIES OF THIS ISSUE WERE ISSUED AND (Y) THE LAST DATE ON WHICH RPM
INTERNATIONAL INC. (THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS
A-1-1
<PAGE>
SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY), ONLY (A) TO THE COMPANY OR ANY
SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING OF
SUBPARAGRAPH (A)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT
IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN
INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A VIEW
TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF
THE SECURITIES ACT, (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH
OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE
OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF ANY HOLDER THAT IS NOT
AN AFFILIATE OF THE COMPANY AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-1-2
<PAGE>
RPM INTERNATIONAL INC.
SENIOR CONVERTIBLE NOTE DUE 2033
No. A-1 CUSIP: 749 685 AJ 2
Issue Date: May 13, 2003
Issue Price: $505.19 Original Issue Discount: $494.81
(for each $1,000 Principal (for each $1,000 Principal
Amount at Maturity) Amount at Maturity)
RPM INTERNATIONAL INC., a Delaware corporation (herein called the
"Company"), promises to pay to Cede & Co. or registered assigns, the Principal
Amount at Maturity of TWO HUNDRED FORTY SEVEN MILLION FIVE HUNDRED AND FOURTEEN
THOUSAND DOLLARS ($247,514,000) on May 13, 2033.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
RPM INTERNATIONAL INC.
By: _________________________________
Title:
By: _________________________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By: ________________________
Authorized Signatory
A-1-3
<PAGE>
[FORM OF REVERSE SIDE OF ALL SECURITIES]
SENIOR CONVERTIBLE NOTES DUE 2033
1. Interest.
The Company promises to pay interest in cash on the Principal Amount at
Maturity of this Note at the rate per annum of 1.389% from the Issue Date, or
from the most recent date to which interest has been paid or provided for, until
May 13, 2008. During such period, the Company will pay cash interest
semiannually in arrears on May 13 and November 13 of each year (each an
"Interest Payment Date") to Holders of record at the close of business on each
April 28 and October 29 (whether or not a business day) (each a "Regular Record
Date") immediately preceding such Interest Payment Date. Cash interest on the
Securities will accrue from the most recent date to which interest has been paid
or duly provided or, if no interest has been paid, from the Issue Date. Cash
interest will be computed on the basis of a 360-day year of twelve 30-day
months.
After May 13, 2008, this Security shall not bear interest, except as
specified in this paragraph or in paragraphs 5 and 11 hereof. If the Principal
Amount at Maturity hereof or any portion of such Principal Amount at Maturity is
not paid when due (whether upon acceleration pursuant to Section 6.02 of the
Indenture, upon the date set for payment of the Redemption Price pursuant to
paragraph 6 hereof, upon the date set for payment of the Purchase Price or
Change in Control Purchase Price pursuant to paragraph 7 hereof or upon the
Stated Maturity of this Security) or if cash interest (including semiannual or
Contingent Cash Interest, if any) due hereon or any portions of such cash
interest is not paid when due in accordance with paragraphs 5 or 11 hereof, then
in each such case the overdue amount shall, to the extent permitted by law, bear
interest at the rate of 2.75% per annum, compounded semiannually, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand. The accrual of such
interest on overdue amounts shall be in lieu of, and not in addition to, the
continued accrual of Original Issue Discount or cash interest.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount at Maturity of the Security), in the period during which a
Security remains outstanding, shall accrue at 2.75% per annum beginning on May
13, 2008, on a semiannual bond equivalent basis using a 360-day year composed of
twelve 30-day months.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Change in
Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to a Paying Agent to collect such payments in respect of the
Securities. In addition, the Company will pay cash interest from the Issue Date
until May 13, 2008, as more fully described in paragraph 1 hereof. The Company
will pay any cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However, the
Company may make such cash payments by check payable in such money.
A-1-4
<PAGE>
3. Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent, Conversion Agent, Registrar and Bid
Solicitation Agent. The Company may appoint and change any Paying Agent,
Conversion Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee except that the Company will maintain
at least one Paying Agent in the State of New York, City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of their Affiliates may act as Paying
Agent, Conversion Agent, Registrar or co-registrar. None of the Company, any of
its Subsidiaries or any of their Affiliates shall act as Bid Solicitation Agent.
4. Indenture.
The Company issued the Securities pursuant to an Indenture dated as of
May 13, 2003 (the "Indenture"), between the Company and the Trustee. The terms
of the Securities include those stated in the Indenture and those made part of
the Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms.
The Securities are general unsecured and unsubordinated obligations, of
the Company, limited to $297,000,000 aggregate Principal Amount at Maturity
(subject to Section 2.07 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Contingent Cash Interest.
Subject to the conditions of the Indenture and the accrual and record
date provisions specified in this paragraph 5, the Company shall pay Contingent
Cash Interest to the Securityholders during any Semiannual Period, with the
initial six-month period commencing on May 14, 2008, if, but only if, the
Average Security Market Price for the five Trading Days ending on the third
Trading Day immediately preceding the first day of the applicable Semiannual
Period equals 120% or more of the Relevant Value of such Security.
Contingent Cash Interest, if any, will accrue and be payable to holders
of this Security as of the Contingent Cash Interest Record Date. Original Issue
Discount will continue to accrue at 2.75% whether or not Contingent Cash
Interest is paid.
The amount of Contingent Cash Interest payable per $1,000 Principal
Amount at Maturity hereof in respect of any quarterly period of the applicable
Contingent Cash Interest Period shall equal the annual rate of 1.0% of the
Average Security Market Price for the five Trading Day measuring period.
Upon determination that Securityholders will be entitled to receive
Contingent Cash Interest during a Semiannual Period, the Company shall issue a
press release and publish such information on its web site or through such other
public medium it may use at the time.
A-1-5
<PAGE>
6. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable for cash as a whole, or from time to time in part, at any time at the
option of the Company in accordance with the Indenture at the Redemption Prices
set forth below; provided, that the Securities are not redeemable prior to May
13, 2008.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect accrued Original Issue Discount calculated to each such
date. The Redemption Price of a Security redeemed between such dates shall
include an additional amount reflecting the additional Original Issue Discount
accrued since the immediately preceding date in the table to, but not including,
the Redemption Date.
[Remainder of page intentionally left blank]
A-1-6
<PAGE>
<TABLE>
<CAPTION>
(3)
(2) Redemption
(1) Accrued Original Price
Redemption Date Note Issue Price Issue Discount (1) + (2)
- --------------- ---------------- -------------- ---------
<S> <C> <C> <C>
May 13,
2008..................... $ 505.19 $ 0.00 $ 505.19
2009..................... 505.19 13.99 519.18
2010..................... 505.19 28.36 533.55
2011..................... 505.19 43.14 548.33
2012..................... 505.19 58.32 563.51
2013..................... 505.19 73.92 579.11
2014..................... 505.19 89.96 595.15
2015..................... 505.19 106.44 611.63
2016..................... 505.19 123.37 628.56
2017..................... 505.19 140.78 645.97
2018..................... 505.19 158.66 663.85
2019..................... 505.19 177.05 682.24
2020..................... 505.19 195.94 701.13
2021..................... 505.19 215.35 720.54
2022..................... 505.19 235.30 740.49
2023..................... 505.19 255.81 761.00
2024..................... 505.19 276.88 782.07
2025..................... 505.19 298.53 803.72
2026..................... 505.19 320.79 825.98
2027..................... 505.19 343.66 848.85
2028..................... 505.19 367.16 872.35
2029..................... 505.19 391.32 896.51
2030..................... 505.19 416.14 921.33
2031..................... 505.19 441.65 946.84
2032..................... 505.19 467.87 973.06
At stated maturity....... 505.19 494.81 1,000.00
</TABLE>
If this Security has been converted to a semiannual coupon note
following the occurrence of a Tax Event, the Redemption Price will be equal to
the Restated Principal Amount plus accrued and unpaid interest from the date of
such conversion to but not including the Redemption Date; but in no event will
this Security be redeemable before May 13, 2008.
7. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices, plus accrued and unpaid cash interest, if any, per $1,000 Principal
Amount at Maturity, upon delivery of a Purchase Notice containing the
information set forth in the Indenture, at any time from the opening of business
on the date that is 20 Business Days prior to such Purchase Date until the close
of business on the
A-1-7
<PAGE>
day immediately preceding such Purchase Date and upon delivery of the Securities
to the Paying Agent by the Holder as set forth in the Indenture.
<TABLE>
<CAPTION>
Purchase Date Price Purchase
- ------------- --------------
<S> <C>
May 13, 2008 $ 505.19
May 13, 2013 $ 579.11
May 13, 2018 $ 663.85
May 13, 2023 $ 761.00
May 13, 2028 $ 872.35
</TABLE>
The Purchase Price (equal to the Issue Price plus accrued Original
Issue Discount to the Purchase Date) may be paid, at the option of the Company,
in cash or by the issuance and delivery of shares of Common Stock of the
Company, or in any combination thereof in accordance with the Indenture.
If prior to a Purchase Date this Security has been converted to a
semiannual coupon note following the occurrence of a Tax Event, the Purchase
Price will be equal to the Restated Principal Amount plus accrued and unpaid
cash interest from the date of conversion to the Purchase Date as provided in
the Indenture.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase the Securities
held by such Holder no later than 30 Business Days after the occurrence of a
Change in Control of the Company, but in no event prior to the date on which
such a Change in Control occurs, for a Change in Control Purchase Price equal to
the Issue Price plus accrued Original Issue Discount and accrued and unpaid cash
interest, including Contingent Cash Interest, if any, to but not including the
Change in Control Purchase Date, which Change in Control Purchase Price shall be
paid in cash. If prior to a Change in Control Purchase Date this Security has
been converted to a semiannual coupon note following the occurrence of a Tax
Event, the Change in Control Purchase Price shall be equal to the Restated
Principal Amount plus accrued cash interest from the date of conversion to the
Change in Control Purchase Date.
A third party may make the offer and purchase of the Securities in lieu
of the Company in accordance with the Indenture.
Holders have the right to withdraw any Purchase Notice or Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Purchase Price or Change in Control Purchase Price, as the case may
be, of all Securities or portions thereof to be purchased as of the Purchase
Date or the Change in Control Purchase Date, as the case may be, is deposited
with the Paying Agent on the Business Day following the Purchase Date or the
Change in Control Purchase Date, as the case may be, Original Issue Discount or
A-1-8
<PAGE>
cash interest (including semiannual and Contingent Cash Interest), if any, shall
cease to accrue on such Securities (or portions thereof) on such Purchase Date
or Change in Control Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Change in Control Purchase Price, as the case may be, if any, upon
surrender of such Security).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of, and accrued and unpaid cash interest, if any, with respect to, all
Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, on such
Redemption Date, Original Issue Discount or cash interest (including semiannual
and Contingent Cash Interest), if any, shall cease to accrue on such Securities
or portions thereof. Securities in denominations larger than $1,000 of Principal
Amount at Maturity may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount at Maturity.
9. Conversion.
Conversion Based on Sale Price of Common Stock. Subject to the
provisions of this paragraph 9 and notwithstanding the fact that any other
condition to conversion described below has not been satisfied, Holders may
convert the Securities into Common Stock on a Conversion Date in any fiscal
quarter commencing after May 31, 2003, if, as of the last day of the preceding
fiscal quarter, the Sale Price of the Common Stock for at least 20 Trading Days
in a period of 30 consecutive Trading Days ending on the last Trading Day of the
most recently ended fiscal quarter, is greater than the conversion trigger price
per share. The "conversion trigger price" for any fiscal quarter shall be 120%
of the accreted conversion price per share (calculated without giving effect to
accrued cash interest, if any) of Common Stock on the last day of such fiscal
quarter. If the foregoing condition is satisfied, then the Securities will be
convertible at any time at the option of the Holder, through their maturity.
The "accreted conversion price per share" of Common Stock as of any day
equals the quotient of:
- the Issue Price and accrued Original Issue Discount,
if any, to that day, divided by
- the number of shares of Common Stock issuable upon
conversion of $1,000 Principal Amount at Maturity of
Securities on that day pursuant to this paragraph 9
and Article 11 of the Indenture.
Conversion Based on Credit Ratings Downgrade. Subject to the provisions
of this paragraph 9 and the Indenture and notwithstanding the fact that any
other condition to conversion has not been satisfied, the Securities shall be
convertible into Common Stock at the election of a Holder on a Conversion Date
at any time that (a) the credit rating assigned to the Securities by Moody's
Investors Service Inc. and its successors ("Moody's") is Ba3 or lower or
A-1-9
<PAGE>
the credit rating assigned to the Securities by Standard & Poor's Credit Market
Services, a division of the McGraw-Hill Companies Inc. and its successors
("Standard & Poor's") is BB or lower, or (b) the Securities are no longer rated
by either or both of Moody's or Standard & Poor's, or (c) either or both of
Moody's or Standard & Poor's have suspended or withdrawn their ratings of the
Securities.
Conversion upon Redemption. Subject to the provisions of this paragraph
9 and notwithstanding the fact that any other condition described herein to
conversion has not been satisfied, a Holder may convert into Common Stock a
Security or portion of a Security which has been called for redemption pursuant
to paragraph 6 hereof, but such Securities may be surrendered for conversion
only until the close of business on the second Business Day immediately
preceding the Redemption Date.
Conversion Upon Certain Distributions. Subject to the provisions of
this paragraph 9 and notwithstanding the fact that any other condition to
conversion has not been satisfied, in the event that the Company declares a
dividend or distribution described in Section 11.07 of the Indenture, or a
dividend or a distribution described in Section 11.08 of the Indenture and, in
the case of a dividend or distribution described in Section 11.08 of the
Indenture, the sum of (a) the fair market value, per share, of such dividend or
distribution per share of Common Stock, and (b) the quotient of (1) the amount
of Contingent Cash Interest paid on the Securities during the Ex-Dividend
Measurement Period divided by (2) the number of shares of Common Stock issuable
upon conversion of Securities at the Conversion Rate in effect at the
Ex-Dividend Time, as determined in the Indenture, exceeds 15% of the Sale Price
of the Common Stock on the Business Day immediately preceding the date of
declaration for such dividend or distribution, the Securities may be surrendered
for conversion beginning on the date the Company gives notice to the Holders of
such right, which shall not be less than 20 days prior to the Ex-Dividend Time
for such dividend or distribution, and Securities may be surrendered for
conversion at any time thereafter until the close of business on the Business
Day prior to the Ex-Dividend Time or until the Company announces that such
dividend or distribution will not take place.
Conversion Upon Occurrence of Certain Corporate Transactions. Subject
to the provisions of this paragraph 9 and notwithstanding the fact that any
other condition described herein to conversion has not been satisfied, in the
event the Company is a party to a consolidation, merger or binding share
exchange pursuant to which the Common Stock would be converted into cash,
securities or other property as set forth in Section 11.14 of the Indenture, the
Securities may be surrendered for conversion at any time from and after the date
which is 15 days prior to the date announced by the Company as the anticipated
effective time until 15 days after the actual effective date of such
transaction, and at the effective time of such transaction the right to convert
a Security into Common Stock will be deemed to have changed into a right to
convert it into the kind and amount of cash, securities or other property which
the holder would have received if the holder had converted its Security
immediately prior to the transaction.
A Security in respect of which a Holder has delivered a Purchase Notice
or Change in Control Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
A-1-10
<PAGE>
The initial Conversion Rate is 27.0517 shares of Common Stock per
$1,000 Principal Amount at Maturity, subject to adjustment in the case of
certain events described in the Indenture. The Company will deliver cash or a
check in lieu of any fractional share of Common Stock. The ability to surrender
Securities for conversion will expire at the close of business on May 11, 2033.
In the event the Company exercises its option pursuant to Section 10.01
of the Indenture to have interest in lieu of Original Issue Discount or cash
interest accrue on the Security following a Tax Event, the Holder will be
entitled on conversion to receive the same number of shares of Common Stock such
Holder would have received if the Company had not exercised such option.
Accrued and unpaid interest in lieu of Original Issue Discount and cash
interest, including Contingent Cash Interest, if any, will not be paid on
Securities that are converted following a Tax Event; provided, however, that
Securities surrendered for conversion during the period, in the case of interest
in lieu of Original Issue Discount, from the close of business on any Regular
Record Date next preceding any Interest Payment Date to the opening of business
on such Interest Payment Date, shall be entitled to receive such interest, in
lieu of Original Issue Discount, payable on such Securities on the corresponding
Interest Payment Date and (except Securities with respect to which the Company
has mailed a notice of redemption) Securities surrendered for conversion during
such periods must be accompanied by payment of an amount equal to the interest
in lieu of Original Issue Discount with respect thereto that the registered
Holder is to receive.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) furnish appropriate endorsements and transfer documents if
required by the Conversion Agent, the Company or the Trustee and (d) pay any
transfer or similar taxes, if required.
A Holder may convert a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Security, accrued Original Issue Discount
and any accrued and unpaid cash interest (or interest if the Company has
exercised its option provided for in paragraph 11 hereof), including Contingent
Cash Interest, attributable to the period from the Issue Date (or, if the
Company has exercised the option referred to in paragraph 11 hereof, the later
of (x) the date of such exercise and (y) the date on which interest was last
paid) through the Conversion Date shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through the delivery of the Common Stock (together with the cash payment, if
any, in lieu of fractional shares) in exchange for the Security being converted
pursuant to the terms hereof; and the fair market value of such shares of Common
Stock (together with any such cash payment in lieu of fractional shares) shall
be treated as issued, to the extent thereof, first in exchange for Original
Issue Discount and any accrued and unpaid cash interest (or interest, if the
Company has exercised its option provided for in paragraph 11 hereof), including
Contingent Cash Interest, accrued through the Conversion Date, and the balance,
if any, of such fair market value of such
A-1-11
<PAGE>
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the provisions
hereof.
The Conversion Rate will be adjusted in accordance with Article 11 of
the Indenture for dividends or distributions on Common Stock payable in Common
Stock or other Capital Stock; subdivisions, combinations or certain
reclassifications of Common Stock; distributions to all holders of Common Stock
of certain rights to purchase Common Stock for a period expiring within 60 days
of the Issue Date at less than the Sale Price of the Common Stock at the Time of
Determination; and distributions to such holders of assets or debt securities of
the Company or certain rights to purchase securities of the Company (excluding
certain cash dividends or distributions) and certain rights pursuant to
shareholder rights plans. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
10. [INTENTIONALLY OMITTED.]
11. Tax Event.
(a) From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event and (ii) the date the Company exercises the option
provided for in this paragraph 11, whichever is later (the "Option Exercise
Date"), at the option of the Company, interest in lieu of future Original Issue
Discount shall accrue at the rate of 2.75% per annum on a principal amount per
Note (the "Restated Principal Amount") equal to the Issue Price plus Original
Issue Discount accrued through the Option Exercise Date and shall be payable
semiannually on May 13 and November 13 of each year (each an "Interest Payment
Date") to Holders of record at the close of business on each April 28 and
October 29, respectively, (each a "Regular Record Date") immediately preceding
such Interest Payment Date. Interest will be computed on a semiannual bond
equivalent basis using a 360-day year comprised of twelve 30-day months and will
accrue from the most recent date to which interest has been paid or, if no
interest has been paid, from the Option Exercise Date.
(b) Interest on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
person in whose name that Security is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose. Each installment of interest on any Security shall
be paid in same-day funds by transfer to an account maintained by the payee
located inside the United States.
12. Defaulted Interest.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date or accrual date,
as the case may be, and such Defaulted Interest shall be paid by the Company as
provided for in Section 12.02 of the Indenture.
A-1-12
<PAGE>
13. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Change in Control
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
14. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
15. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property laws. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person.
16. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (a) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding and (b) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate Principal Amount
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the Company's
obligations under this Security or to add to the Company's covenants for the
benefit of the Securityholders or to surrender any right or power conferred, to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA, or as necessary in connection with the registration
of the Securities under the Securities Act or to make any change that does not
adversely affect the rights of any Holders.
17. Defaults and Remedies.
Under the Indenture, Events of Default include (a) default in payment
of any cash interest (including any interest which becomes payable after the
Securities have been converted to notes
A-1-13
<PAGE>
paying semiannual interest following the occurrence of a Tax Event) or any
Contingent Cash Interest and such default continues for 30 days; (b) default in
payment of the Principal Amount at Maturity (or, if the Securities have been
converted to semiannual coupon notes following a Tax Event, the Restated
Principal Amount), Issue Price plus accrued Original Issue Discount or cash
interest, Redemption Price, Purchase Price or Change in Control Purchase Price,
as the case may be, in respect of the Securities when the same becomes due and
payable; (c) failure by the Company to comply with other agreements in the
Indenture or the Securities, subject to notice and lapse of time; (d) default in
the payment of any principal when due or resulting in acceleration of other
indebtedness of the Company or any Subsidiary for borrowed money where the
aggregate principal amount with respect to which the default or acceleration has
occurred exceeds $50,000,000, and such acceleration has not been rescinded or
annulled within a period of 10 days after receipt by the Company of a Notice of
Default, subject to notice and lapse of time; provided, however, that if any
such default shall be cured, waived, rescinded or annulled, then the Event of
Default by reason thereof shall be deemed not to have occurred; (e) certain
events of bankruptcy or insolvency; and (f) final unsatisfied judgments not
covered by insurance aggregating in excess of $100,000,000 rendered against the
Company or any Subsidiary and not stayed, bonded or discharged within 60 days.
If an Event of Default occurs and is continuing, the Trustee, or the Holders of
at least 25% in aggregate Principal Amount at Maturity of the Securities at the
time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Issue Price plus Original Issue Discount and any
accrued and unpaid cash interest or any Contingent Cash Interest (or, if the
Securities have been converted to semiannual coupon notes following a Tax Event,
the Restated Principal Amount, plus accrued interest) on the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (a) or (b) above) if it determines
that withholding notice is in their interests.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
19. No Recourse Against Others.
A director, officer, employee, agent, representative, stockholder or
equity holder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder waives and releases
A-1-14
<PAGE>
all such liability. The waiver and release are part of the consideration for the
issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. GOVERNING LAW.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
----------------------
A-1-15
<PAGE>
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to:
RPM International Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44528
Attention: General Counsel
A-1-16
<PAGE>
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
_____________________________________________
_____________________________________________
(Insert assignee's soc. sec. or tax ID no.)
_____________________________________________
_____________________________________________
_____________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint
_____________________ agent to transfer this Security on the books of the
Company. The agent may substitute another to act for him.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box: [ ]
To convert only part of this Security, state the Principal Amount at Maturity to
be converted (which must be $1,000 or an integral multiple of $1,000):
$____________________________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
_______________________________________________
_______________________________________________
(Insert other person's soc. sec. or tax ID no.)
_______________________________________________
_______________________________________________
_______________________________________________
_______________________________________________
(Print or type other person's name, address and zip code)
A-1-17
<PAGE>
________________________________________________________________________________
Date: _____________________ Your Signature: ____________________________________
________________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
A-1-18
<PAGE>
EXHIBIT A-2
[FORM OF FACE OF CERTIFICATED SECURITY]
THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR PURPOSES
OF SECTIONS 1272, 1273 AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF
1986, AS AMENDED. THE ISSUE PRICE OF THIS SECURITY IS $505.19 PER $1,000 OF
PRINCIPAL AMOUNT AT MATURITY; THE AMOUNT OF ORIGINAL ISSUE DISCOUNT IS
INDETERMINABLE AS OF THE ISSUE DATE; THE ISSUE DATE OF THIS SECURITY IS MAY 13,
2003; AND THE YIELD TO MATURITY FOR THE PURPOSES OF ACCRUING ORIGINAL ISSUE
DISCOUNT IS 5.05% PER ANNUM, CALCULATED ON A SEMIANNUAL BOND EQUIVALENT BASIS.
[INCLUDE IF SECURITY IS A CERTIFICATED SECURITY TO BE HELD BY AN
INSTITUTIONAL ACCREDITED INVESTOR--IN CONNECTION WITH ANY TRANSFER, THE HOLDER
WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER
INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE
TRANSFER COMPLIES WITH THE FOLLOWING RESTRICTIONS.]
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE"), WHICH IS TWO YEARS AFTER THE LATER OF (X) THE
LAST DAY SECURITIES OF THIS ISSUE WERE ISSUED AND (Y) AND THE LAST DATE ON WHICH
RPM INTERNATIONAL INC. (THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY),
ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE
SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT
OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (C) TO AN INSTITUTIONAL "ACCREDITED
INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (A)(1), (2),(3) OR (7) OF RULE 501
UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR
FOR THE ACCOUNT OF SUCH AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT
PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN
A-2-1
<PAGE>
CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (D)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY'S AND
THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE
(C) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM, AND IN EACH OF THE
FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THE OTHER
SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE
TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE REQUEST OF ANY HOLDER THAT IS NOT
AN AFFILIATE OF THE COMPANY AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-2-2
<PAGE>
RPM INTERNATIONAL INC.
SENIOR CONVERTIBLE NOTE DUE 2033
No. A-1 CUSIP: 749 685 AJ 2
Issue Date: May 13, 2003
Issue Price: $505.19 Original Issue Discount: $494.81
(for each $1,000 Principal (for each $1,000 Principal
Amount at Maturity) Amount at Maturity)
RPM INTERNATIONAL INC., a Delaware corporation (herein called the
"Company"), promises to pay to Cede & Co. or registered assigns, the Principal
Amount at Maturity of TWO HUNDRED FORTY SEVEN MILLION FIVE HUNDRED AND FOURTEEN
THOUSAND DOLLARS ($247,514,000) on May 13, 2033.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
RPM INTERNATIONAL INC.
By: _______________________________
Title:
By: _______________________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By: ________________________
Authorized Signatory
A-2-3
<PAGE>
[FORM OF REVERSE SIDE OF CERTIFICATED SECURITY IS THE SAME
THE FORM OF REVERSE SIDE OF GLOBAL SECURITY]
A-2-4
<PAGE>
EXHIBIT B-1
TRANSFER CERTIFICATE
In connection with any transfer of any of the Securities within the
period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) (or any successor provision) under the Securities Act
of 1933, as amended (the "Securities Act"), the undersigned registered owner of
this Security hereby certifies with respect to $__________ Principal Amount at
Maturity of the above-captioned securities presented or surrendered on the date
hereof (the "Surrendered Securities") for registration of transfer, or for
exchange or conversion where the securities issuable upon such exchange or
conversion are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a "transfer"), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
[ ] The transfer of the Surrendered Securities is made to the
Company or any subsidiaries; or
[ ] The transfer of the Surrendered Securities complies with Rule
144A under the Securities Act; or
[ ] The transfer of the Surrendered Securities is to an
institutional accredited investor, as described in Rule
501(a)(1), (2), (3) or (7) under the Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to an
offshore transaction in accordance with Rule 904 under the
Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to
another available exemption from the registration requirement of
the Securities Act.
and unless the box below is checked, the undersigned confirms that, to
the undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[ ] The transferee is an Affiliate of the Company.
DATE: _____________________ ________________________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of
such registered owner must be stated.)
B-1-1
<PAGE>
EXHIBIT B-2
FORM OF LETTER TO BE DELIVERED BY ACCREDITED INVESTORS
RPM International Inc.
P.O. Box 777
2628 Pearl Road
Medina, Ohio 44258
Attention: Chief Financial Officer
The Bank of New York
101 Barclay Street - 8W
New York, New York 10286
Attention: Corporate Trust Administration
Dear Sirs:
We are delivering this letter in connection with the proposed transfer
of $_________ Principal Amount at Maturity of the Senior Convertible Notes due
2033 (the "Securities") issued by RPM International Inc. (the "Company"), which
are convertible into shares of the Company's Common Stock, $.01 par value per
share (the "Common Stock").
We hereby confirm that:
(i) we are an "accredited investor" within the meaning of
Rule 501(a)(1), (2) or (3) under the Securities Act of 1933, as amended
(the "Securities Act"), or an entity in which all of the equity owners
are accredited investors within the meaning of Rule 501(a)(1), (2) or
(3) under the Securities Act (an "Institutional Accredited Investor");
(ii) the purchase of Securities by us is for our own
account or for the account of one or more other Institutional
Accredited Investors or as fiduciary for the account of one or more
trusts, each of which is an "accredited investor" within the meaning of
Rule 501(a)(7) under the Securities Act and for each of which we
exercise sole investment discretion or (B) we are a "bank," within the
meaning of Section 3(a)(2) of the Securities Act, or a "savings and
loan association" or other institution described in Section 3(a)(5)(A)
of the Securities Act that is acquiring Securities as fiduciary for the
account of one or more institutions for which we exercise sole
investment discretion;
(iii) we will acquire Securities having a minimum principal
amount at maturity of not less than $[ ] for our own account or
for any separate account for which we are acting;
(iv) we have such knowledge and experience in financial
and business matters that we are capable of evaluating the merits and
risks of purchasing Securities; and
(v) we are not acquiring Securities with a view to
distribution thereof or with any present intention of offering or
selling Securities or the Common Stock issuable upon conversion
thereof, except as permitted below; provided, that the disposition of
our
B-2-1
<PAGE>
property and property of any accounts for which we are acting as
fiduciary shall remain at all times within our control.
We understand that the Securities were originally offered and sold in a
transaction not involving any public offering within the United States within
the meaning of the Securities Act and that the Securities and the Common Stock
issuable upon conversion thereof (the Securities and such Common Stock
hereinafter referred to as the "Securities") have not been registered under the
Securities Act, and we agree, on our own behalf and on behalf of each account
for which we acquire any Securities, that if in the future we decide to resell
or otherwise transfer such Securities prior to the date (the "Resale Restriction
Termination Date") which is two years after the later of the last day the
Securities of this issue were issued and the last date on which the Company or
an affiliate of the Company was the owner of the Security, such Securities may
be resold or otherwise transferred only (i) to RPM International Inc. or any
subsidiary thereof, or (ii) for as long as the Securities are eligible for
resale pursuant to Rule 144A, to a person it reasonably believes is a "qualified
institutional buyer" (as defined in Rule 144A under the Securities Act) that
purchases for its own account or for the account of a qualified institutional
buyer to which notice is given that the transfer is being made in reliance on
Rule 144A, or (iii) to an Institutional Accredited Investor that is acquiring
the Security for its own account, or for the account of such Institutional
Accredited Investor for investment purposes and not with a view to, or for offer
or sale in connection with, any distribution in violation of the Securities Act,
or (iv) pursuant to another available exemption from registration under the
Securities Act (if applicable), or (v) pursuant to a registration statement
which has been declared effective under the Securities Act and, in each case, in
accordance with any applicable securities laws of any state of the United States
or any other applicable jurisdiction and in accordance with the legends set
forth on the Securities. We further agree to provide any person purchasing any
of the Securities from us other than pursuant to clause (v) above a notice
advising such purchaser that resales of such securities are restricted as stated
herein. We understand that the trustee or the transfer agent, as the case may
be, for the Securities will not be required to accept for registration of
transfer any Securities pursuant to (iii) or (iv) above except upon presentation
of evidence satisfactory to the Company that the foregoing restrictions on
transfer have been complied with. We further understand that any Securities will
be in the form of definitive physical certificates and that such certificates
will bear a legend reflecting the substance of this paragraph other than
certificates representing Securities transferred pursuant to clause (v) above.
We acknowledge that the Company, others and you will rely upon our
confirmations, acknowledgments and agreements set forth herein, and we agree to
notify you promptly in writing if any of our representations or warranties
herein ceases to be accurate and complete.
B-2-2
<PAGE>
THIS LETTER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
_______________________________________
(Name of Purchaser)
By: ___________________________________
Name:
Title:
Address:
</TEXT>
</DOCUMENT>
<DOCUMENT>
<TYPE>EX-4.10
<SEQUENCE>5
<FILENAME>l02719aexv4w10.txt
<DESCRIPTION>EX-4.10 REGISTRATION RIGHTS AGREEMENT
<TEXT>
<PAGE>
EXHIBIT 4.10
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made
and entered into as of May 13, 2003 by and among RPM International Inc., a
Delaware corporation ("the Company"), and Merrill Lynch & Co., Merrill Lynch,
Pierce, Fenner & Smith Incorporated ("Merrill Lynch") and each of the other
Initial Purchasers named in Schedule A to the Purchase Agreement (as defined
below) (collectively, the "Initial Purchasers"), for whom Merrill Lynch is
acting as representative (in such capacity, the "Representative") pursuant to
the Purchase Agreement, dated May 8, 2003 (the "Purchase Agreement"), among the
Company and the Initial Purchasers. In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company has agreed to provide the
registration rights set forth in the Agreement. The execution of this Agreement
is a condition to the closing under the Purchase Agreement.
The Company agrees with the Initial Purchasers, (i) for their
benefit as Initial Purchasers and (ii) for the benefit of the beneficial owners
(including the Initial Purchasers) from time to time of the Notes (as defined
herein), and the beneficial owners from time to time of the Underlying Common
Stock (as defined herein) issued upon conversion of Notes (each of the foregoing
a "Holder" and together the "Holders"), as follows:
SECTION 1. Definitions. Capitalized terms used herein without
definition shall have their respective meanings set forth in the Purchase
Agreement. In addition to the terms that are defined elsewhere in this
Agreement, the following terms shall have the following meanings:
"Affiliate" with respect to any specified person, has the
meaning specified in Rule 144.
"Applicable Conversion Price" means, as of any date of
determination, the Applicable Principal Amount per $1,000 principal amount at
maturity of Notes as of such date of determination divided by the Conversion
Rate in effect as of such date of determination or, if no Notes are then
outstanding, the Conversion Rate that would be in effect were Notes then
outstanding.
"Applicable Principal Amount" means, as of any date of
determination, (1) with respect to each $1,000 principal amount at maturity of
Notes means the sum of the initial issue price of such Notes ($505.19) plus
accrued original issue discount and any accrued cash interest with respect to
such Notes through such date of determination, (2) if the Notes have been
converted to Semi-Annual Coupon Notes upon a Tax Event, the Restated Principal
Amount with respect to the Notes, or (3) if no Notes are then outstanding, such
sum calculated in accordance with clause (1) hereof as if such Notes were then
outstanding.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close.
<PAGE>
"Common Stock" means any shares of the common stock, $0.01 par
value, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, including the Underlying Common
Stock.
"Conversion Rate" has the meaning assigned to such term in the
Indenture.
"Damages Accrual Period" has the meaning specified in Section
2(e) hereof.
"Damages Payment Date" means each May 13 and November 13.
"Deferral Notice" has the meaning specified in Section 3(i)
hereof.
"Deferral Period" has the meaning specified in Section 3(i)
hereof.
"Effectiveness Deadline Date" has the meaning specified in
Section 2(a) hereof.
"Effectiveness Period" means the period of two years from the
Issue Date or such shorter period ending on the date that all Registrable
Securities have ceased to be Registrable Securities.
"Event" has the meaning specified in Section 2(e) hereof.
"Event Termination Date" has the meaning specified in Section
2(e) hereof.
"Event Date" has the meaning specified in Section 2(e) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Filing Deadline Date" has the meaning specified in Section
2(a) hereof.
"Holder" has the meaning specified in the second paragraph of
this Agreement.
"Indenture" means the Indenture dated as of the date hereof
between the Company and the Trustee, as trustee, pursuant to which the Notes are
being issued.
"Initial Purchasers" shall have the meaning set forth in the
preamble to this Agreement.
"Initial Shelf Registration Statement" has the meaning
specified in Section 2(a) hereof.
"Issue Date" means May 13, 2003.
"Liquidated Damages Amount" has the meaning specified in
Section 2(e) hereof.
"Losses" has the meaning specified in Section 6 hereof.
"Material Event" has the meaning specified in Section 3(i)
hereof.
2
<PAGE>
"Notes" means the Senior Convertible Notes due 2033 of the
Company to be purchased pursuant to the Purchase Agreement.
"Notice and Questionnaire" means a written notice delivered to
the Company containing substantially the information called for by the Selling
Security Holder Notice and Questionnaire attached as Annex A to the Offering
Memorandum of the Company dated May 8, 2003 relating to the Notes.
"Notice Holder" means on any date, any Holder that has
delivered a Notice and Questionnaire to the Company on or prior to such date.
"Prospectus" means the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 415 promulgated under the
Securities Act), as amended or supplemented by any amendment or prospectus
supplement, including post-effective amendments, and all materials incorporated
by reference or explicitly deemed to be incorporated by reference in such
Prospectus.
"Purchase Agreement" has the meaning specified in the first
paragraph of this Agreement.
"Record Holder" means with respect to any Damages Payment Date
relating to any Note or shares of Underlying Common Stock as to which any
Liquidated Damages Amount has accrued, the registered holder of such Note or
such shares of Underlying Common Stock, as the case may be, on the 15th day
immediately prior to the next succeeding Damages Payment Date.
"Registrable Securities" means the Notes and the Underlying
Common Stock until such securities have been converted or exchanged and, at all
times subsequent to any such conversion or exchange, any securities into or for
which such securities have been converted or exchanged, and any security issued
with respect thereto upon any stock dividend, split, merger or similar event
until, in the case of any such security, the earliest of (i) its effective
registration under the Securities Act and resale in accordance with the
Registration Statement covering it, (ii) expiration of the holding period that
would be applicable thereto under Rule 144(k) were it not held by an Affiliate
of the Company, or (iii) its sale to the public pursuant to Rule 144.
"Registration Expenses" has the meaning specified in Section 5
hereof.
"Registration Statement" means any registration statement of
the Company that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including the Prospectus, amendments and
supplements to such registration statement, including post-effective amendments,
all exhibits, and all materials incorporated by reference or explicitly deemed
to be incorporated by reference in such registration statement.
"Restated Principal Amount" has the meaning assigned to such
term in the Indenture.
"Restricted Securities" has the meaning assigned to such term
in Rule 144.
3
<PAGE>
"Rule 144" means Rule 144 under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"Rule 144A" means Rule 144A under the Securities Act, as such
Rule may be amended from time to time, or any similar or successor rule or
regulation hereafter adopted by the SEC having substantially the same effect as
such Rule.
"SEC" means the United States Securities and Exchange
Commission.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated by the SEC thereunder.
"Semi-Annual Coupon Notes" has the meaning assigned to such
term in the Indenture.
"Shelf Registration Statement" has the meaning specified in
Section 2(a) hereof.
"Subsequent Shelf Registration Statement" has the meaning
specified in Section 2(b) hereof.
"Tax Event" has the meaning assigned to such term in the
Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended.
"Trustee" means the Bank of New York (or any successor
entity), the Trustee under the Indenture.
"Underlying Common Stock" means the Common Stock into which
the Notes are convertible or issued upon any such conversion.
SECTION 2. Shelf Registration.
(a) The Company shall prepare and file or cause to be
prepared and filed with the SEC no later than a date which is one-hundred and
twenty (120) days after the Issue Date (the "Filing Deadline Date") a
Registration Statement for an offering to be made on a delayed or continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration
Statement") registering the resale from time to time by Holders of all of the
Registrable Securities (the "Initial Shelf Registration Statement"). The Initial
Shelf Registration Statement shall be on Form S-3 or another appropriate form
permitting registration of such Registrable Securities for resale by such
Holders in accordance with the methods of distribution reasonably elected by the
Holders and set forth in the Initial Shelf Registration Statement; provided that
in no event will such method(s) of distribution take the form of an underwritten
offering of the Registrable Securities without the prior agreement of the
Company. The Company shall use reasonable best efforts to cause the Initial
Shelf Registration Statement to be declared effective under the Securities Act
no later than the date (the "Effectiveness Deadline Date") that is one-hundred
and eighty (180) days after the Issue Date, and to keep the Initial Shelf
Registration Statement (or any Subsequent Shelf Registration Statement)
continuously effective under the
4
<PAGE>
Securities Act until the expiration of the Effectiveness Period. Each Holder
that became a Notice Holder on or prior to the date ten (10) Business Days prior
to the time that the Initial Shelf Registration Statement became effective shall
be named as a selling security holder in the Initial Shelf Registration
Statement and the related Prospectus in such a manner as to permit such Holder
to deliver such Prospectus to purchasers of Registrable Securities in accordance
with the Securities Act and applicable state securities laws generally
applicable to all such Holders. Notwithstanding the foregoing, no Holder shall
be entitled to have the Registrable Securities held by it covered by such Shelf
Registration Statement unless such Holder has provided a Notice and
Questionnaire in accordance with Section 2(d) and is in compliance with Section
4. The Company shall not permit any of its security holders (other than the
Holders of Registrable Securities) to include any of the Company's securities in
the Shelf Registration Statement.
(b) If the Initial Shelf Registration Statement or any
Subsequent Shelf Registration Statement ceases to be effective for any reason at
any time during the Effectiveness Period, the Company shall use reasonable
efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within thirty (30) days of such
cessation of effectiveness amend the Shelf Registration Statement in a manner
reasonably expected by the Company to obtain the withdrawal of the order
suspending the effectiveness thereof, or file an additional Shelf Registration
Statement covering all of the securities that as of the date of such filing are
Registrable Securities (a "Subsequent Shelf Registration Statement"). If a
Subsequent Shelf Registration Statement is filed, the Company shall use
reasonable efforts to cause the Subsequent Shelf Registration Statement to
become effective as promptly as is reasonably practicable after such filing or,
if filed during a Deferral Period, after the expiration of such Deferral Period,
and to keep such Registration Statement (or subsequent Shelf Registration
Statement) continuously effective until the end of the Effectiveness Period.
(c) The Company shall supplement and amend the Shelf
Registration Statement if required by the rules, regulations or instructions
applicable to the registration form used by the Company for such Shelf
Registration Statement, if required by the Securities Act or, to the extent to
which the Company does not reasonably object, as reasonably requested by the
Initial Purchasers or by the Trustee on behalf of the registered Holders.
(d) Each Holder of Registrable Securities agrees that if
such Holder wishes to sell Registrable Securities pursuant to a Shelf
Registration Statement and related Prospectus, it will do so only in accordance
with this Section 2(d) and Section 3(i) and Section 4. Each Holder of
Registrable Securities wishing to sell Registrable Securities pursuant to a
Shelf Registration Statement and related Prospectus agrees to deliver a Notice
and Questionnaire to the Company at least five (5) Business Days prior to any
intended distribution of Registrable Securities under the Shelf Registration
Statement. From and after the date the Initial Shelf Registration Statement is
declared effective, the Company shall, as promptly as is reasonably practicable
after the date a Notice and Questionnaire is delivered, (i) if required by
applicable law, file with the SEC a post-effective amendment to the Shelf
Registration Statement or prepare and, if required by applicable law, file a
supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other document required
by the SEC so that the Holder delivering such Notice and Questionnaire is
5
<PAGE>
named as a selling security holder in the Shelf Registration Statement and the
related Prospectus in such a manner as to permit such Holder to deliver such
Prospectus to purchasers of the Registrable Securities in accordance with the
Securities Act and applicable state securities laws and, if the Company shall
file a post-effective amendment to the Shelf Registration Statement, use
reasonable efforts to cause such post-effective amendment to be declared
effective under the Securities Act as promptly as is reasonably practicable;
(ii) provide such Holder copies of any documents filed pursuant to Section
2(d)(i); and (iii) notify such Holder as promptly as is reasonably practicable
after the effectiveness under the Securities Act of any post-effective amendment
filed pursuant to Section 2(d)(i); provided that if such Notice and
Questionnaire is delivered during a Deferral Period, the Company shall so inform
the Holder delivering such Notice and Questionnaire and shall take the actions
set forth in clauses (i), (ii) and (iii) above upon expiration of the Deferral
Period in accordance with Section 3(i), provided further, that if under
applicable law the Company has more than one option as to the type or manner of
making any such filing, it will make the required filing or filings in the
manner or of a type that is reasonably expected to result in the earliest
availability of the Prospectus for effecting resales of Registrable Securities.
Notwithstanding anything contained herein to the contrary, the Company shall be
under no obligation to name any Holder that is not a Notice Holder as a selling
security holder in any Registration Statement or related Prospectus; provided,
however, that any Holder that becomes a Notice Holder pursuant to the provisions
of Section 2(d) of this Agreement (whether or not such Holder was a Notice
Holder at the time the Registration Statement was initially declared effective)
shall be named as a selling security holder in the Registration Statement or
related Prospectus subject to and in accordance with the requirements of this
Section 2(d).
(e) The parties hereto agree that the Holders of
Registrable Securities will suffer damages, and that it would not be feasible to
ascertain the extent of such damages with precision, if (i) the Initial Shelf
Registration Statement has not been filed on or prior to the Filing Deadline
Date, (ii) the Initial Shelf Registration Statement has not been declared
effective under the Securities Act on or prior to the Effectiveness Deadline
Date, or (iii) the aggregate duration of Deferral Periods in any period exceeds
the number of days permitted in respect of such period pursuant to Section 3(i)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iii) are individually referred to herein as an "Event," and the
Filing Deadline Date in the case of clause (i), the Effectiveness Deadline Date
in the case of clause (ii), and the date on which the aggregate duration of
Deferral Periods in any period exceeds the number of days permitted by Section
3(i) hereof in the case of clause (iii), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the "Event Termination Date,"
which shall be the following dates with respect to the respective types of
Events: the date the Initial Shelf Registration Statement is filed in the case
of an Event of the type described in clause (i), the date the Initial Shelf
Registration Statement is declared effective under the Securities Act in the
case of an Event of the type described in clause (ii), termination of the
Deferral Period that caused the limit on the aggregate duration of Deferral
Periods in a period set forth in Section 3(i) to be exceeded in the case of the
commencement of an Event of the type described in clause (iii).
Accordingly, commencing on (and including) any Event Date and
ending on (but excluding) the next date after an Event Termination Date (a
"Damages Accrual Period"), the Company agrees to pay, as liquidated damages and
not as a penalty, an amount (the "Liquidated
6
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Damages Amount"), payable on the Damages Payment Dates to Record Holders of then
outstanding Notes that are Registrable Securities or of then outstanding shares
of Underlying Common Stock issued upon conversion of Notes that are Registrable
Securities, as the case may be, accruing, for each portion of such Damages
Accrual Period beginning on and including a Damages Payment Date (or, in respect
of the first time that the Liquidation Damages Amount is to be paid to Holders
on a Damages Payment Date as a result of the occurrence of any particular Event,
from the Event Date) and ending on but excluding the first to occur of (A) the
date of the end of the Damages Accrual Period or (B) the next Damages Payment
Date, at a rate per annum equal to one-quarter of one percent (0.25%) for the
first 90-day period from the Event Date, and thereafter at a rate per annum
equal to one-half of one percent (0.5%) of the aggregate Applicable Principal
Amount of such Notes, the aggregate Applicable Conversion Price of the shares of
Underlying Common Stock and the Restated Principal Amount of the Semi-Annual
Coupon Notes, as the case may be, in each case determined as of the Business Day
immediately preceding the next Damages Payment Date; provided that any
Liquidated Damages Amount accrued with respect to any Note or portion thereof
called for redemption on a redemption date or converted into Underlying Common
Stock on a conversion date or to Semi-Annual Coupon Notes prior to the Damages
Payment Date, shall, in any such event, be paid instead to the Holder who
submitted such Note or portion thereof for redemption or conversion on the
applicable redemption date or conversion date, as the case may be, on such date
(or promptly following the conversion date, in the case of conversion).
Notwithstanding the foregoing, no Liquidated Damages Amounts shall accrue as to
any Registrable Security from and after the earlier of (x) the date such
security is no longer a Registrable Security and (y) expiration of the
Effectiveness Period. The rate of accrual of the Liquidated Damages Amount with
respect to any period shall not exceed the rate provided for in this paragraph
notwithstanding the occurrence of multiple concurrent Events. Following the cure
of all Events requiring the payment by the Company of Liquidated Damages Amounts
to the Holders of Registrable Securities pursuant to this Section, the accrual
of Liquidated Damages Amounts wi