Attached files
file | filename |
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8-K - FORM 8-K - RPM INTERNATIONAL INC/DE/ | l42793e8vk.htm |
EX-5.2 - EX-5.2 - RPM INTERNATIONAL INC/DE/ | l42793exv5w2.htm |
EX-1.1 - EX-1.1 - RPM INTERNATIONAL INC/DE/ | l42793exv1w1.htm |
EX-5.1 - EX-5.1 - RPM INTERNATIONAL INC/DE/ | l42793exv5w1.htm |
Exhibit 4.1
RPM INTERNATIONAL INC.
OFFICERS CERTIFICATE AND AUTHENTICATION ORDER
FOR 6.125% NOTES DUE 2019
FOR 6.125% NOTES DUE 2019
Pursuant to the Indenture dated as of February 14, 2008 (the Indenture) between RPM
International Inc. (the Company) and The Bank of New York Mellon Trust Company, N.A., as trustee
(the Trustee), and the resolutions adopted by the Board of Directors of the Company on April 18,
2011 (the April Board Resolutions), this Officers Certificate is being delivered to the Trustee
to request the authentication and delivery of an additional $150,000,000 in aggregate principal
amount of the Companys 6.125% Notes due 2019 pursuant to Section 2.04 of the Indenture, and to
comply with the provisions of Section 14.05 of the Indenture.
Capitalized terms used but not defined herein and defined in the Indenture shall have the
respective meanings ascribed to them in the Indenture.
(a) The Companys Officers Certificate and Authentication Order, dated October 9, 2009,
established pursuant to Section 2.02 of the Indenture a series of Securities which have the terms
set forth below and set forth in the form of note attached hereto as Annex A.
(1) The series of Securities previously authorized bears the title 6.125% Notes
due 2019 (referred to herein as the Notes).
(2) The additional aggregate principal amount of Notes which may be authenticated
and delivered under the Indenture pursuant hereto shall be limited to $150,000,000 (except
for Notes authenticated and delivered upon registration of transfer of, or in the exchange
for, or in lieu of, other Notes of the series pursuant to Section 2.05, 2.06, 2.07, 3.05, or
10.06 and except for any Notes which, pursuant to Section 2.04, are deemed never to have
been authenticated and delivered).
(3) The Notes shall be issuable in minimum denominations of $2,000 and in integral
multiples of $1,000 in excess thereof.
(4) The form of note attached hereto as Annex A sets forth certain of the terms of
the Notes required to be set forth or determined in the manner provided in this Officers
Certificate pursuant to Section 2.02 of the Indenture, and said terms are incorporated
herein by reference.
(b) It is hereby established pursuant to Section 2.02 of the Indenture that the Notes
shall be substantially in the form attached as Annex A hereto.
(c) It is hereby ordered pursuant to Section 2.04 of the Indenture that the Trustee
authenticate, in the manner provided by the Indenture, an additional single Note in the aggregate
principal amount of $150,000,000 registered in the name of Cede & Co., which Note will be duly
executed by the proper officers of the Company and delivered to the Trustee as provided in the
Indenture, and to deliver said authenticated Note to or upon the order of Wells Fargo Securities,
LLC on May 27, 2011.
(d) The undersigned have read the pertinent sections of the Indenture, including Sections
2.01, 2.02 and 2.04 thereof and the definitions in the Indenture relating thereto, and certain
other corporate documents and records. In the opinion of the undersigned, the undersigned have
made such examination or investigation as is necessary to enable the undersigned to express an
informed opinion as to whether or not the conditions precedent to the authentication and delivery
of an additional $150,000,000 in aggregate principal amount of the Companys 6.125% Notes due 2019
contained in the Indenture have been complied with. In the opinion of the undersigned, such
conditions have been complied with.
[signature page follows]
IN WITNESS WHEREOF, we have hereunto signed our names on behalf of the Company.
Dated: May 27, 2011
RPM INTERNATIONAL INC. |
||||
By: | /s/ Robert L. Matejka | |||
Name: | Robert L. Matejka | |||
Title: | Senior Vice President and Chief Financial Officer |
|||
By: | /s/ Edward W. Moore | |||
Name: | Edward W. Moore | |||
Title: | Vice President, General Counsel & Secretary |
[Face of Note]
Unless this certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation (DTC), to the Issuer or its agent for registration of transfer,
exchange or payment, and any certificate issued is registered in the name of Cede & Co. or in such
other name as requested by an authorized representative of DTC (and any payment is made to Cede &
Co. or such other entity as is requested by an authorized representative of DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the
registered owner hereof, Cede & Co., has an interest herein.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE
TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON
OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF, AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY AUTHENTICATED AND DELIVERED
UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF, THIS SECURITY WILL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
CUSIP NO. 749685AR4 | PRINCIPAL AMOUNT: $150,000,000 | |
ISIN US749685AR45 | ||
Common Code No. |
REGISTERED NO. 2
RPM INTERNATIONAL INC.
6.125% Notes due 2019
RPM INTERNATIONAL INC., a corporation duly organized and existing under the laws of the State
of Delaware (hereinafter called the Company, which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of One Hundred, Fifty Million Dollars
($150,000,000) on October 15, 2019 and to pay interest thereon from April 15, 2011 or from the
most recent Interest Payment Date to which interest has been paid or duly provided for
semi-annually on April 15 and October 15 of each year, commencing October 15, 2011, at the rate of
6.125% per annum, until the principal hereof is paid or made available for payment. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date shall, as provided
in the Indenture, be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date for such interest
next preceding such Interest Payment Date. The Regular Record Date for an Interest Payment Date
shall be the date 15 calendar days prior to that Interest Payment Date (whether or not a Business
Day). As used herein, Business Day has the meaning ascribed thereto in the Indenture.
Any interest not punctually paid or duly provided for shall forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10 days prior to such
Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided in the Indenture.
Payment of interest on this Security shall be made in immediately available funds at the
office or agency of the Company maintained for that purpose in New York, New York in such coin or
currency of the United States of America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that, at the option of the Company, payment of
interest may be paid by check mailed to the Person entitled thereto at such Persons last address
as it appears in the Security Register or by wire transfer to such account as may have been
designated by such Person. Payment of principal of and interest on this Security at Maturity shall
be made against presentation of this Security at the office or agency of the Company maintained for
that purpose in New York, New York.
Reference is hereby made to the further provisions of this Security set forth on the reverse
hereof, which further provisions shall for all purposes have the same effect as if set forth at
this place.
Unless the certificate of authentication hereon has been executed by the Trustee referred to
on the reverse hereof by manual signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its
corporate seal.
DATED: May 27, 2011
RPM INTERNATIONAL INC. |
||||
By: | ||||
Name: | Robert L. Matejka | |||
Title: | Senior Vice President and Chief Financial Officer |
|||
[SEAL]
Attest: | ||||
Name: | Edward W. Moore | |||
Title: | Vice President, General Counsel and Secretary |
|||
TRUSTEES CERTIFICATE OF AUTHENTICATION This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture. THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||||
By: | ||||
Authorized Signatory | ||||
[Reverse of Note]
RPM INTERNATIONAL INC.
6.125% Notes due 2019
This Security is one of a duly authorized issue of securities of the Company (herein called
the Securities), issued and to be issued in one or more series under an Indenture dated
as of February 14, 2008 between the Company and The Bank of New York Mellon Trust Company, N.A., as
trustee, as amended or supplemented from time to time (herein called the Indenture) (in
its capacity as trustee, The Bank of New York Mellon Trust Company, N.A., being herein called the
Trustee, which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities, and of the terms upon which the Securities are, and are
to be, authenticated and delivered. This Security is one of the series designated on the face
hereof, such series being limited in aggregate principal amount to $450,000,000; provided, however,
that the Company may, without the consent of the Holders of the Securities of this series, issue
additional Securities with the same terms as the Securities of this series, and such additional
Securities shall be considered part of the same series under the Indenture as the Securities of
this series.
The Securities of this series shall not be entitled to any sinking fund.
Optional Redemption
The Securities of this series are redeemable at the option of the Company at any time or from
time to time, either in whole or in part, at a Redemption Price equal to the greater of the
following amounts, plus, in each case, accrued and unpaid interest thereon to the Redemption Date:
(i) 100% of the principal amount of the Securities to be redeemed; and (ii) the sum of the present
values of the Remaining Scheduled Payments.
In determining the present values of the Remaining Scheduled Payments, such payments shall be
discounted to the Redemption Date on a semi-annual basis (assuming a 360-day year consisting of
twelve 30-day months) using a discount rate equal to the Treasury Rate plus 45 basis points.
Comparable Treasury Issue means the United States Treasury security selected by an
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Securities of this series to be redeemed that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such Securities.
Comparable Treasury Price means (A) the arithmetic average of the Reference Treasury
Dealer Quotations for such Redemption Date after excluding the highest and lowest Reference
Treasury Dealer Quotations, or (B) if the Quotation Agent obtains fewer than four Reference
Treasury Dealer Quotations, the arithmetic average of all Reference Treasury Dealer Quotations for
such Redemption Date.
Independent Investment Banker means a Reference Treasury Dealer or its respective
successors as may be appointed from time to time by the Quotation Agent after consultation with the
Company; provided, however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a primary treasury dealer), another
primary treasury dealer shall be substituted therefor by the Company.
Quotation Agent means, for purposes of determining the Redemption Price, such
primary treasury dealer as may be selected by the Company.
Reference Treasury Dealer means Merrill Lynch, Pierce, Fenner & Smith Incorporated, as successor in interest to Banc of America Securities LLC, and a primary treasury dealer selected by Wells Fargo
Securities, LLC or their respective successors and any other
primary treasury dealer selected by the Quotation Agent after consultation with the Company.
Reference Treasury Dealer Quotations means, with respect to each Reference Treasury
Dealer and any Redemption Date, the arithmetic average, as determined by the Quotation Agent, of
the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal amount) quoted in writing to the Quotation Agent by such Reference Treasury Dealer
by 3:30 p.m. on the third Business Day preceding such Redemption Date.
Remaining Scheduled Payments means, with respect to any Security of this series, the
remaining scheduled payments of the principal and interest thereon that would be due after the
related Redemption Date but for such redemption; provided, however, that, if such Redemption Date
is not an Interest Payment Date with respect to such Security, the amount of the next scheduled
interest payment thereon shall be reduced by the amount of interest accrued thereon to such
Redemption Date.
Treasury Rate means, with respect to any Redemption Date, the rate per annum equal
to the semi-annual equivalent yield to maturity or interpolated yield to maturity of the Comparable
Treasury Issue. In determining this rate, the price for the Comparable Treasury Issue (expressed as
a percentage of its principal amount) shall be assumed to be equal to the Comparable Treasury Price
for such Redemption Date.
A partial redemption of the Securities of this series may be affected by such method as the
Trustee shall deem appropriate and may provide for the selection for redemption of a portion of the
principal amount of the Securities of this series equal to an authorized denomination.
Notice of any redemption shall be mailed at least 30 days but not more than 60 days before the
Redemption Date to each Holder of the Securities of this series to be redeemed.
Unless the Company defaults in payment of the Redemption Price, on and after the Redemption
Date interest shall cease to accrue on the Securities of this series or portions thereof called for
redemption.
In the event of redemption of this Security in part only, a new Security or Securities of this
series and of like tenor for the unredeemed portion hereof will be issued in the name of the Holder
hereof upon the cancellation hereof.
Change of Control Offer
If a Change of Control Triggering Event occurs, unless the Company has exercised its option to
redeem the Securities of this series, the Company shall be required to make an offer (a Change
of Control Offer) to each Holder of the Securities of this series to repurchase all or any
part (equal to $2,000 and in integral multiples of $1,000 in excess thereof) of that Holders
Securities on the terms set forth herein. In a Change of Control Offer, the Company shall be
required to offer payment in cash equal to 101% of the aggregate principal amount of Securities of
this series repurchased, plus accrued and unpaid interest, if any, on the Securities of this series
repurchased to the date of repurchase (a Change of Control Payment). Within 30 days
following any Change of Control Triggering Event or, at the Companys option, prior to any Change
of Control, but after public announcement of the transaction that constitutes or may constitute the
Change of Control, a notice shall be mailed to Holders of the Securities of this series describing
the transaction that constitutes or may constitute the Change of Control Triggering Event and
offering to repurchase such Securities on the date specified in the notice, which date shall be no
earlier than 30 days and no later than 60 days from the date such notice is mailed (a Change
of Control Payment Date). The notice shall, if mailed prior to the date of consummation of the
Change of Control, state that the offer to purchase is conditioned on the Change of Control
Triggering Event occurring on or prior to the Change of Control Payment Date.
In order to accept the Change of Control Offer, the Holder must deliver to the Paying Agent,
at least five Business Days prior to the Change of Control Payment Date, this Security together
with the form entitled Election
Form (which form is annexed hereto) duly completed, or a
telegram, telex, facsimile transmission or a letter from a member of a national securities
exchange, or the National Association of Securities Dealers, Inc. or a commercial bank or trust
company in the United States setting forth:
(i) | the name of the Holder of this Security; |
(ii) | the principal amount of this Security; |
(iii) | the principal amount of this Security to be repurchased; |
(iv) | the certificate number or a description of the tenor and terms of this Security; |
(v) | a statement that the Holder is accepting the Change of Control Offer; and |
(vi) | a guarantee that this Security, together with the form entitled Election Form duly completed, will be received by the Paying Agent at least five Business Days prior to the Change of Control Payment Date. |
Any exercise by a Holder of its election to accept the Change of Control Offer shall be
irrevocable. The Change of Control Offer may be accepted for less than the entire principal amount
of this Security, but in that event the principal amount of this Security remaining outstanding
after repurchase must be equal to $2,000 and in integral multiples of $1,000 in excess thereof.
On the Change of Control Payment Date, the Company shall, to the extent lawful:
(i) | accept for payment all Securities of this series or portions of such Securities properly tendered pursuant to the Change of Control Offer; |
(ii) | deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Securities of this series or portions of such Securities properly tendered; and |
(iii) | deliver or cause to be delivered to the Trustee the Securities of this series properly accepted together with an Officers Certificate stating the aggregate principal amount of Securities of this series or portions of such Securities being repurchased. |
The Company shall not be required to make a Change of Control Offer upon the occurrence of a
Change of Control Triggering Event if a third party makes such an offer in the manner, at the times
and otherwise in compliance with the requirements for an offer made by the Company and the third
party purchases all Securities of this series properly tendered and not withdrawn under its offer.
In addition, the Company shall not repurchase any Securities of this series if there has occurred
and is continuing on the Change of Control Payment Date an Event of Default under the Indenture,
other than a default in the payment of the Change of Control Payment upon a Change of Control
Triggering Event.
The Company shall comply with the requirements of Rule 14e-1 under the Securities Exchange Act
of 1934, as amended (the Exchange Act), and any other securities laws and regulations thereunder
to the extent those laws and regulations are applicable in connection with the repurchase of the
Securities of this series as a result of a Change of Control Triggering Event. To the extent that
the provisions of any such securities laws or regulations conflict with the Change of Control Offer
provisions of the Securities of this series, the Company shall comply with those securities laws
and regulations and shall not be deemed to have breached its obligations under the Change of
Control Offer provisions of the Securities of this series by virtue of any such conflict.
For purposes of the Change of Control Offer provisions of the Securities of this series, the
following terms are applicable:
Change of Control means the occurrence of any of the following: (1) the direct or
indirect sale, lease, transfer, conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of
related transactions, of all or substantially all of the
assets of the Company and its Subsidiaries, taken as a whole, to any person, other than the Company
or a Subsidiary; (2) the consummation of any transaction (including, without limitation, any merger
or consolidation) the result of which is that any person becomes the beneficial owner (as defined
in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the
Companys outstanding Voting Stock or other Voting Stock into which the Companys Voting Stock is
reclassified, consolidated, exchanged or changed, measured by voting power rather than number of
shares; (3) the Company consolidates with, or merges with or into, any person, or any person
consolidates with, or merges with or into, the Company, in any such event pursuant to a transaction
in which any of the Companys outstanding Voting Stock or the Voting Stock of such other person is
converted into or exchanged for cash, securities or other property, other than any such transaction
where the shares of the Companys Voting Stock outstanding immediately prior to such transaction
constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving
person or any direct or indirect parent company of the surviving person immediately after giving
effect to such transaction; (4) the first day on which a majority of the members of the Companys
Board of Directors are not Continuing Directors; or (5) the adoption of a plan relating to the
Companys liquidation or dissolution. The term person, as used in this definition, has the
meaning given thereto in Section 13(d)(3) of the Exchange Act.
Change of Control Triggering Event means the occurrence of both a Change of Control
and a Rating Event.
Continuing Directors means, as of any date of determination, any member of the
Companys Board of Directors who (1) was a member of such Board of Directors on the date the
Securities of this series were issued or (2) was nominated for election, elected or appointed to
such Board of Directors with the approval of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination, election or appointment (either
by a specific vote or by approval of the Companys proxy statement in which such member was named
as a nominee for election as a director, without objection to such nomination).
Fitch means Fitch Inc., and its successors.
Investment Grade Rating means a rating equal to or higher than BBB- (or the
equivalent) by Fitch, Baa3 (or the equivalent) by Moodys and BBB- (or the equivalent) by S&P, and
the equivalent investment grade credit rating from any replacement rating agency or rating agencies
selected by the Company.
Moodys means Moodys Investors Service, Inc., and its successors.
Rating Agencies means (1) each of Fitch, Moodys and S&P; and (2) if any of Fitch,
Moodys or S&P ceases to rate the Securities of this series or fails to make a rating of such
Securities publicly available for reasons outside of the Companys control, a nationally
recognized statistical rating organization within the meaning of Rule 15c3-1(c)(2)(vi)(F) under
the Exchange Act selected by the Company (as certified by a resolution of the Companys Board of
Directors) to act as a replacement agency for Fitch, Moodys or S&P, or all of them, as the case
may be.
Rating Event means the rating on the Securities of this series is lowered by at
least two of the three Rating Agencies and the Securities of this series are rated below an
Investment Grade Rating by at least two of the three Rating Agencies on any day during the period
(which period shall be extended so long as the rating of the Securities of this series is under
publicly announced consideration for a possible downgrade by any of the Rating Agencies) commencing
60 days prior to the first public notice of the occurrence of a Change of Control or the Companys
intention to effect a Change of Control and ending 60 days following consummation of such Change of
Control.
S&P means Standard & Poors Rating Services, a division of The McGraw-Hill
Companies, Inc., and its successors.
Voting Stock means, with respect to any specified person (as that term is used in
Section 13(d)(3) of the Exchange Act) as of any date, the capital stock of such person that is at
the time entitled to vote generally in the election of the board of directors of such person.
Events of Default
In addition to the Events of Default set forth in the Indenture, the following shall be
considered Events of Default with respect to the Securities of this Series:
(a) any final judgment or order for the payment of money in excess of the greater of
$50,000,000 or 7% of Consolidated Stockholders Equity, either individually or in the aggregate
(net of any amounts to the extent that they are covered by insurance), shall have been rendered
against the Company or any of its Subsidiaries and which shall not have been paid or discharged,
and there shall be any period of 60 consecutive days following the entry of the final judgment or
order that causes the aggregate amount for all such final judgments or orders outstanding and not
paid or discharged against the Company or any of its Subsidiaries to exceed the greater of
$50,000,000 or 7% of Consolidated Stockholders Equity during which a stay of enforcement of such
final judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.
Limitation on Liens
The Company covenants and agrees for the benefit of the Holders that for so long as any
Securities of this series are outstanding, the Company will not, and will not permit any of its
Subsidiaries to, create, assume, incur or suffer to exist any Lien upon any Principal Property or
upon any shares of Capital Stock or Indebtedness of any Subsidiary owning or leasing any Principal
Property, whether owned or leased on the date of the Indenture or thereafter acquired, other than
Permitted Liens or as permitted under Exempted Liens and Sale-Leaseback Transactions below, to
secure any Indebtedness incurred or guaranteed by the Company or any Subsidiary, without in any
such case making effective provision whereby all of the Securities of this series then outstanding
(together with, if the Company so determines, any other Indebtedness or guarantee thereof by the
Company ranking equally with such Securities) shall be secured equally and ratably with, or prior
to, such Indebtedness so long as such Indebtedness shall be so secured.
Permitted Liens means:
(i) Liens existing on the date of the Indenture or the date the Securities of this series
are issued and securing Indebtedness in an aggregate principal amount not exceeding the
greater of $25.0 million or 5% of Consolidated Stockholders Equity of the Company; provided
that no increase in the amount secured thereby is permitted;
(ii) Liens on the property or assets of the Company or any other property or assets of the
Subsidiaries of the Company given to secure the payment of the purchase price incurred in
connection with the acquisition, lease (including any Capital Lease Obligation) or
construction of property (other than accounts receivable or inventory) intended to be used
in carrying on of the business of the Company or the businesses of the Subsidiaries of the
Company, including Liens existing on such property at the time of acquisition, lease or
construction thereof or improvements thereon, or Liens incurred within 180 days of such
acquisition or the completion of such construction; provided that (i) the Lien shall attach
solely to the property acquired, purchased, leased, constructed or improved, (ii) at the
time of acquisition or construction of such property, the aggregate amount remaining unpaid
on all Indebtedness secured by Liens on such property, whether or not assumed by the Company
or any Subsidiary of the Company, shall not exceed an amount equal to the lesser of the
total purchase price or Fair Market Value at the time of acquisition or construction of such
property, and (iii) the aggregate principal amount of all Indebtedness secured by such Liens
shall not exceed the lesser of (y) the cost of the acquisition, lease or construction, as
the case may be or (z) the Fair Market Value of such property;
(iii) Liens on property or assets of any Person existing at the time such Person becomes a
Subsidiary of the Company or is merged with or into or consolidated with the Company or any
Subsidiary of the Company or, at the time of a sale, lease or other disposition of the
properties of a Person as an entirety or substantially as an entirety to the Company or any
Subsidiary of the Company, or arising thereafter pursuant to contractual commitments entered
into prior to and not in contemplation of such Person becoming a subsidiary and not in
contemplation of any such merger or consolidation or any such sale, lease or other
disposition; provided that such Liens shall not extend to the property or assets of the
Company or any other property or assets of the Subsidiaries of the Company;
(iv) Any extension, renewal or replacement (or successive extensions, renewals or
replacements) in whole or in part of any Lien referred to in the foregoing clauses;
provided, however, that the principal amount of Indebtedness secured thereby shall not
exceed the principal amount of Indebtedness so secured prior to such extension, renewal or
replacement and that such extension, renewal or replacement Lien shall be limited to all or
a part of the assets that secured the Lien so extended, renewed or replaced (plus
improvements and construction on such real property);
(v) Other Liens arising in the ordinary conduct of the business of the Company or the
businesses of the Subsidiaries of the Company (including Liens to secure the performance by
the Company or the Subsidiaries of the Company of bids, tenders or trade contracts for sums
not yet due and payable) which are not incurred in connection with the borrowing of money or
the obtaining of advances or credit, or that is incidental to the ownership of properties
and assets by the Company or the Subsidiaries of the Company in the ordinary conduct of the
Companys business or the businesses of the Subsidiaries of the Company (including
landlords, carriers, warehousemens, mechanics, materialmens and other similar Liens for
sums not yet due and payable), or to secure the performance by the Company or the
Subsidiaries of the Company of its or their statutory obligations (including obligations
under workers compensation, unemployment insurance and other social security legislation),
surety or appeal bonds and other similar liens (including Liens of attorneys on client
files); provided in each case that such Liens do not, in the aggregate, materially detract
from the value of the property or assets of the Company or the property or assets of the
Subsidiaries of the Company or materially impair the use thereof in the operation of the
business of the Company or the businesses of the Subsidiaries of the Company;
(vi) Leases or subleases entered into by the Company or the Subsidiaries of the Company as
either lessors or sublessors, easements, rights-of-way, restrictions and other similar
charges or encumbrances (including zoning restrictions), in each case, that is incidental to
the ownership of property or assets or the ordinary conduct of the business of the Company
or the businesses of the Subsidiaries of the Company; provided that such Liens do not, in
the aggregate, materially detract from the value of such property;
(vii) Liens for taxes, assessments or other governmental charges which are not yet due and
payable as of the date of the Indenture or the date the Securities of this series are
issued; and
(viii) Liens on receivables, leases, other financial assets, and any assets related thereto,
incurred in connection with a Permitted Receivables Transaction.
Permitted Receivables Transaction means any transaction or series of transactions entered
into by the Company or any of its Subsidiaries in order to monetize or otherwise finance a pool
(which may be fixed or revolving) of receivables, leases or other financial assets (including,
without limitation, financing contracts) or other transactions evidenced by receivables purchase
agreements, including, without limitation, factoring agreements and other similar agreements
pursuant to which receivables, leases, other financial assets, and any assets related thereto, are
sold at a discount (in each case whether now existing or arising in the future), and which may
include a grant of a security interest in any such receivables, leases, other financial assets
(whether now existing or arising in the future) of the Company or any of its Subsidiaries, and any
assets related thereto, including all collateral securing such receivables, leases, or other
financial assets, all contracts and all guarantees or other obligations in respect thereof,
proceeds thereof and other assets that are customarily transferred, or in respect of which security
interests are customarily granted, in connection with asset securitization transactions involving
receivables, leases, or other financial assets or other transactions evidenced by receivables
purchase agreements, including, without limitation, factoring agreements and other similar
agreements pursuant to which receivables are sold at a discount.
Principal Property means, whether owned or leased on the date of the Indenture or
acquired after the date thereof, each manufacturing or processing plant or facility and office
facilities of the Company or its Subsidiaries located in the United States.
Restrictions on Sale-Leaseback Transactions
Except as permitted under Exempted Liens and Sale-Leaseback Transactions below, the Company
will not, and it will not permit any of its Subsidiaries to, engage in the sale or transfer by the
Company or any of its Subsidiaries of any Principal Property to a person (other than a Subsidiary
of the Company or the Company) and the taking back by the Company or any of its Subsidiaries, as
the case may be, of a lease of such Principal Property, unless:
(i) such sale-leaseback transaction involves a lease for a period, including renewals, of not
more than three years; or
(ii) the Company or its Subsidiary, within a one-year period after such sale-leaseback
transaction, applies or causes to be applied an amount not less than the net proceeds from such
sale-leaseback transaction to the prepayment, repayment, redemption, reduction or retirement
(other than pursuant to any mandatory sinking fund, redemption or prepayment provision) of
Funded Indebtedness.
Funded Indebtedness means Indebtedness having a maturity of more than 12 months from the
date as of which the amount thereof is to be determined or having a maturity of less than 12 months
but by its terms being renewable or extendible beyond 12 months from such date at the option of the
obligor.
Exempted Liens and Sale-Leaseback Transactions
Notwithstanding the foregoing restrictions on Liens and sale-leaseback transactions, and in
addition to Permitted Liens otherwise permitted hereunder, the Company may, and may permit any
Subsidiary to, create, assume, incur, or suffer to exist any Lien upon any Principal Property, or
upon any shares of Capital Stock or Indebtedness of any of its Subsidiaries owning or leasing any
Principal Property, to secure Indebtedness incurred or guaranteed by the Company or any of its
Subsidiaries or effect any sale-leaseback transaction of a Principal Property that is not excepted
by Restrictions on Sale-Leaseback Transactions above without equally and ratably securing the
Securities; provided that, after giving effect thereto, the aggregate principal amount of
outstanding Indebtedness secured by Liens other than Permitted Liens upon Principal Property and/or
upon such shares of Capital Stock or Indebtedness of any Subsidiary owning or leasing any Principal
Property, plus the Attributable Indebtedness from sale-leaseback transactions of Principal Property
not so excepted, does not exceed 15% of the Consolidated Stockholders Equity as of the date of
determination.
Consolidated Stockholders Equity means, at any time, the consolidated stockholders
equity of the Company and its Subsidiaries calculated on a consolidated basis as of such time.
Other Provisions
If an Event of Default with respect to Securities of this series as set forth in the Indenture
shall occur and be continuing, the principal of the Securities of this series may be declared due
and payable in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and
the modification of the rights and obligations of the Company and the rights of the Holders of the
Securities of each series to be affected under the Indenture at any time by the Company and the
Trustee with the consent of the Holders of a majority in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains provisions permitting
the Holders of specified percentages in principal amount of the Securities of each series at the
time Outstanding, on behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain provisions of the Indenture and certain past defaults under the Indenture
and their consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this Security and of any
Security issued upon the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder of this Security
will not have the right to institute any proceeding with respect to the Indenture or for the
appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall
have previously given the Trustee written notice of a continuing Event of Default with respect to
the Securities of this series, the Holders of not less than 25% in principal amount of the
Securities of this series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered the Trustee
indemnity satisfactory to it, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time Outstanding a direction
inconsistent with such request and shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of indemnity. The foregoing will apply to any
suit instituted by the Holder of this Security for the enforcement of any payment of principal
hereof or any premium or interest hereon on or after the respective due dates expressed herein.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in New York, New York, a new Security or Securities of this series in authorized
denominations for an equal aggregate principal amount shall be issued to the transferee in exchange
herefor, as provided in the Indenture and subject to the limitations provided therein and to the
limitations described below, without charge except for any tax or other governmental charge imposed
in connection therewith.
Prior to due presentment of this Security for registration of transfer, the Company, the
Trustee and any agent of the Company or the Trustee may treat the Person in whose name this
Security is registered as the owner hereof for all purposes, whether or not this Security be
overdue, and neither the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security is exchangeable for definitive Securities in registered form only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as Depositary for this
Security and a successor depositary is not appointed by the Company within 90 days after receiving
such notice, or if at any time the Depositary ceases to be a clearing agency registered under the
Exchange Act and a successor depositary is not appointed by the Company within 90 days after the
Company becoming aware that the Depositary has ceased to be registered as a clearing agency, (ii)
the Company, in its sole discretion, determines that this Security shall be exchangeable for
definitive Securities in registered form and notifies the Trustee thereof or (iii) an Event of
Default with respect to the Securities represented hereby has occurred and is continuing. If this
Security is exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Securities in registered form, bearing interest at the same rate, having the same date
of issuance, redemption provisions, Stated Maturity and other terms and of authorized denominations
aggregating a like amount.
This Security may not be transferred except as a whole by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor of the Depositary or a nominee of such
successor. Except as provided above, owners of beneficial interests in this global Security shall
not be entitled to receive physical delivery of Securities in definitive form and shall not be
considered the Holders hereof for any purpose under the Indenture.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal and interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
No recourse shall be had for the payment of the principal of or the interest on this Security,
or for any claim based hereon, or otherwise in respect hereof, or based on or in respect of the
Indenture or any indenture supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issuance hereof, expressly waived and released.
All terms used in this Security which are defined in the Indenture shall have the meanings
assigned to them in the Indenture unless otherwise defined in this Security.
This Security shall be governed by, and construed in accordance with, the laws of the State of
New York, without regard to conflicts of laws principles thereof.
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of this instrument,
shall be construed as though they were written out in full according to applicable laws or
regulations:
TEN COM
|
| as tenants in common | ||
TEN ENT
|
| as tenants by the entireties | ||
JT TEN
|
| as joint tenants with right | ||
of survivorship and not | ||||
as tenants in common |
UNIF GIFT MIN ACT
|
Custodian | |||||
(Cust) | (Minor) |
Under Uniform Gifts to Minors Act
(State) |
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
Other Identifying Number of Assignee
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE)
the within Security of RPM INTERNATIONAL INC. and does hereby irrevocably constitute and appoint
__________________ attorney to transfer the said Security on the books of the Company, with full
power of substitution in the premises.
Dated:
NOTICE: The signature to this assignment must correspond with the name as written upon the face of
the within instrument in every particular, without alteration or enlargement or any change
whatever.
ELECTION FORM
TO BE COMPLETED ONLY IF THE HOLDER
ELECTS TO ACCEPT THE CHANGE OF CONTROL OFFER
ELECTS TO ACCEPT THE CHANGE OF CONTROL OFFER
The undersigned hereby irrevocably requests and instructs the Company to repurchase the within
Security (or the portion thereof specified below), pursuant to its terms, on the Change of Control
Payment Date specified in the Change of Control Offer, for the Change of Control Payment specified
in the within Security, to the undersigned,
,at
(please print or typewrite name and address of the undersigned).
For this election to accept the Change of Control Offer to be effective, the Company must
receive, at the address of the Paying Agent set forth below or at such other place or places of
which the Company shall from time to time notify the Holder of the within Security, either (i) this
Security with this Election Form form duly completed, or (ii) a telegram, telex, facsimile
transmission or a letter from a member of a national securities exchange or the National
Association of Securities Dealers, Inc. or a commercial bank or a trust company in the United
States setting forth (a) the name of the Holder of the Security, (b) the principal amount of the
Security, (c) the principal amount of the Security to be repurchased, (d) the certificate number or
description of the tenor and terms of the Security, (e) a statement that the option to elect
repurchase is being exercised, and (f) a guarantee stating that the Security to be repurchased,
together with this Election Form duly completed will be received by the Paying Agent five
Business Days prior to the Change of Control Payment Date. The address of the Paying Agent is The
Bank of New York Trust Company, N.A., c/o The Bank of New York, 101 Barclay Street, New York, New
York 10286.
If less than the entire principal amount of the within Security is to be repurchased, specify
the portion thereof (which principal amount must be $2,000 and in integral multiples of $1,000 in
excess thereof) which the Holder elects to have repurchased: $_________.