EXHIBIT 4.3
OWENS-ILLINOIS, INC.
$300,000,000 8.10% Senior Notes due 2007
OFFICERS' CERTIFICATE PURSUANT TO SECTION 2.01 OF THE INDENTURE
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The undersigned officers of Owens-Illinois, Inc., a Delaware corporation
(the "Company"), pursuant to the authority granted such officers pursuant to
resolutions duly adopted by the Board of Directors of the Company on April 14,
1997 (the "Resolutions"), hereby establish a series of the Company's Securities
(as defined and provided for in the Indenture (the "Indenture") dated as of May
15, 1997 between the Company and The Bank of New York, as Trustee), designated
as the "8.10% Senior Notes due May 15, 2007," and hereby certify, pursuant to
Section 2.01 of the Indenture, as follows:
1. FORM OF NOTE. Attached hereto as Annex A is a true and correct
copy of a specimen Note (the "Form of Note") representing the Company's 8.10%
Senior Notes due May 15, 2007 (the "Notes").
2. TERMS OF THE NOTES. The terms of the Notes are as follows:
(a) The title of the Notes to be issued as a series of Securities (as
defined in the Indenture) under the Indenture shall be the "8.10%
Senior Notes due 2007";
(b) The aggregate principal amount of the Notes that may be
authenticated and delivered under the Indenture shall be limited
to $300,000,000 (except for Notes authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other Notes pursuant to Article 2 and Section 9.05 of the
Indenture);
(c) The Notes shall be issued at a price equal to 99.865% of the
aggregate principal amount thereof;
(d) The principal of the Notes shall be payable on May 15, 2007;
(e) The Notes shall bear interest at a rate equal to 8.10% per annum;
interest on the Notes shall
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accrue from May 15, 1997 or from the most recent interest payment
date to which interest has been paid or provided for, as the case
may be; interest on the Notes shall be payable semi-annually on
May 15 and November 15 of each year until maturity, commencing on
November 15, 1997; and interest on the Notes shall be payable to
holders of record on the May 1 or November 1 immediately
preceding the applicable interest payment date;
(f) The place or places where the principal of and any interest on
the Notes shall be payable shall be as set forth in the Notes,
the form of which is attached hereto as Annex A;
(g) The Notes shall not be subject to redemption at the option of the
Company prior to maturity;
(h) The Company shall not be obligated to redeem or purchase the
Notes pursuant to any sinking fund or at the option of any holder
thereof prior to maturity;
(i) The Notes shall be issued in denominations of $1,000 and any
integral multiple thereof;
(j) 100% of the principal amount thereof shall be payable upon
declaration of acceleration of the maturity thereof pursuant to
Section 6.02 of the Indenture;
(k) In addition to the covenants and provisions set forth in Article
4 and Article 5 of the Indenture, the Notes shall include the
additional covenants and provisions set forth in Section 3 of
this Officers' Certificate;
(l) In addition to the Events of Default set forth in Section 6.01 of
the Indenture, the Notes shall include the additional Event of
Default set forth in Section 4 of this Officers' Certificate;
(m) The Trustee for the Notes shall be The Bank of New York;
(n) The Notes shall be issued initially in the form of two Global
Notes ("Global Notes") in definitive, fully registered form
without interest coupons in substantially the form of Annex A,
which shall be deposited on behalf of the purchasers of the Notes
represented thereby with the Trustee, at its principal corporate
trust office in New York City, as custodian for the Depositary,
and registered in the name of the
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Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee where so provided. The
aggregate principal amount of the Global Notes may from time to
time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary or its nominee in accordance
with the Depositary's procedures and as provided in Section 2.13
of the Indenture. Except as provided in Section 2.13 of the
Indenture, owners of beneficial interests in Global Notes shall
not be entitled to receive physical delivery of certificated
Notes. The Depositary for such Global Notes shall be The
Depository Trust Company;
(o) The Notes shall not be secured by any collateral;
(p) The Notes shall not be guaranteed by any person;
(q) The Notes shall be senior unsecured obligations of the Company
and shall rank PARI PASSU in right of payment with all existing
and future senior unsecured indebtedness of the Company and
senior in right of payment to all subordinated indebtedness of
the Company;
(r) The provisions of Section 8.03 and 8.04 of the Indenture shall be
applicable to the Notes; and
(s) In addition to the definitions set forth in Article 1 of the
Indenture, the Notes shall include the definitions set forth in
Section 5 of this Officers' Certificate.
3. ADDITIONAL COVENANTS AND PROVISIONS.
A. In addition to the covenants set forth in Article 4 of the
Indenture, the Notes shall include the following additional covenants:
"4.08. LIMITATION ON TRANSACTIONS WITH AFFILIATES
The Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make any loan, advance, guaranty or capital contribution
to, or for the benefit of, or sell, lease, transfer or otherwise dispose of any
of its properties or assets to, or for the benefit of, or purchase or lease any
property or assets from, or enter into or amend any contract, agreement, or
understanding with, or for the benefit of, any Affiliate of the Company (each,
an "Affiliate Transaction") involving aggregate consideration in excess of $5.0
million for any one transaction, except on terms that are no less favorable to
the Company or the relevant Subsidiary, as the case may be, than those that
could have been obtained in a comparable
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transaction on an arm's length basis from a person that is not such an
Affiliate.
The foregoing limitation does not limit, and shall not apply to, (i)
transactions (x) in respect of which the Company or such Subsidiary delivers to
the Trustee a written opinion of a nationally recognized investment banking,
accounting, appraisal or consulting firm stating that the transaction is fair to
the Company or such Subsidiary from a financial point of view or (y) approved by
a majority of the disinterested members of the Board of Directors of the Company
or, if there are no such directors, a majority of the directors of the Company,
(ii) the payment of reasonable and customary regular fees paid to, and indemnity
provided on behalf of, officers, directors, employees and consultants to the
Company or its Subsidiaries, (iii) payments or loans to officers, directors and
employees of the Company for business or personal purposes and other loans and
advances to such officers, directors and employees for travel, entertainment,
moving and other relocation expenses made in the ordinary course of business of
the Company and its Subsidiaries, (iv) the payment by the Company or any of its
Subsidiaries to KKR and its Affiliates of (1) fees for any financial, advisory,
financing, underwriting or placement services or in respect of other investment
banking activities, including without limitation, in connection with
acquisitions or divestitures, which payments are approved by a majority of the
Board of Directors of the Company, and (2) annual management, consulting and
advisory fees and related expenses, (v) any agreement in effect as of the
Closing Date or any amendment thereto (so long as such amendment is not
disadvantageous to the Holders in any material respect) or any transaction
contemplated thereby, (vi) transactions with customers, clients, suppliers or
purchasers or sellers of goods or services, in each case in the ordinary course
of business which are fair to the Company or its Subsidiaries, in the reasonable
determination of the Board of Directors of the Company or the senior management
thereof and (vii) transactions between or among any of the Company and its
Subsidiaries.
4.09. LIMITATION ON LIENS
The Company shall not, and shall not permit any Subsidiary to, create,
incur, assume or suffer to exist any Lien on any of its assets or properties of
any character, or any shares of Capital Stock or Indebtedness of any Subsidiary
held by the Company or any Subsidiary in order to secure any Indebtedness of the
Company, without making effective provision for all of the Notes and all other
amounts due under the Indenture relating to the Notes to be directly secured
equally and ratably with (or, if the Indebtedness to be secured by such Lien is
subordinated in right of payment to the Notes, prior to) the Indebtedness
secured by such Lien until such time as such Indebtedness is no longer secured
by any such Liens.
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The foregoing limitation does not apply to (i) Liens existing on the
Closing Date; (ii) Liens granted after the Closing Date on any assets or
properties of the Company or its Subsidiaries, or any shares of Capital Stock or
Indebtedness of any Subsidiary held by the Company or any Subsidiary, securing
Indebtedness of the Company created in favor of the Holders; (iii) Liens
securing Indebtedness that is incurred to refinance Indebtedness that is secured
by Liens permitted to be incurred under the Indenture; PROVIDED that such Liens
do not extend to or cover any property or assets of the Company or any
Subsidiary other than the property or assets securing the Indebtedness being
refinanced; or (iv) Permitted Liens.
4.10. INVESTMENTS IN UNRESTRICTED SUBSIDIARIES
The Company shall not make, and shall not permit any Subsidiary to make,
any Investments in Unrestricted Subsidiaries if, at the time thereof, the
aggregate amount of such Investments would exceed the sum of $150,000,000.
4.11. PAYMENTS FOR CONSENT
Neither the Company nor any Subsidiary of the Company shall, directly or
indirectly, pay or cause to be paid any consideration, whether by way of
interest, fee or otherwise, to any Holder of these Notes for or as an inducement
to any consent, waiver or amendment of any of the terms or provisions of the
Indenture or these Notes unless such consideration is offered to be paid or
agreed to be paid to all Holders of these Notes which so consent, waive or agree
to amend in the time frame set forth in solicitation documents relating to such
consent, waiver or agreement."
B. In addition to the provisions set forth in Section 5.01 of the
Indenture, the Notes shall include the following additional provision:
"Notwithstanding Section 5.01 of the Indenture, any Subsidiary of the
Company may consolidate with, merge into or transfer all or part of its
properties and assets to the Company."
4. ADDITIONAL EVENTS OF DEFAULT. In addition to the Events of Default
set forth in Section 6.01 of the Indenture, the Notes shall include the
following additional Event of Default:
"(6) except as a result of compliance with any court order to which the
Company is subject or any applicable law or any government decree, if an event
of default as defined in any mortgage, indenture or instrument, under which
there may be issued, or by which there may be secured or evidenced, any
Indebtedness of the Company (including a default under the Indenture with
respect to Securities of any series other than the Notes) whether such
Indebtedness now exists or shall hereafter be
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created, shall happen and shall result in such Indebtedness becoming or being
declared due and payable prior to the date on which it would otherwise become
due and payable, and such acceleration shall not be rescinded or annulled within
10 days after written notice to the Company from the Trustee or to the Company
and to the Trustee from the Holders of not less than a majority of the principal
amount of the Notes then outstanding under the Indenture; PROVIDED, HOWEVER,
that it shall not be a default hereunder if the principal amount of Indebtedness
the maturity of which is so accelerated is less than $125,000,000 individually
or in the aggregate; and PROVIDED, FURTHER, that if, prior to a declaration of
acceleration of the Maturity of such Notes then outstanding or the entry of
judgment in favor of the Trustee in a suit pursuant to Section 6.02 of the
Indenture, such default shall be remedied or cured by the Company or waived by
the holders of such Indebtedness, or such Indebtedness shall be discharged, then
the default hereunder by reason thereof shall be deemed likewise to have been
thereupon remedied, cured or waived without further action upon the part of
either the Trustee or any of the Holders of such Notes."
5. ADDITIONAL DEFINITIONS. In addition to the definitions set forth in
Article 1 of the Indenture, the Notes shall include the following additional
definitions, which, in the event of a conflict with the definition of terms in
the Indenture, shall control:
"Affiliate" means, as applied to any Person, any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling," "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities, by
contract or otherwise.
"Capitalized Lease Obligation" means, as applied to any Person, any lease
of any property (whether real, personal or mixed) by that Person as lessee that,
in conformity with GAAP, is required to be accounted for as a capital lease on
the balance sheet of that Person.
"Capital Stock" means any and all shares, interests, participations, rights
or other equivalents (however designated) of corporate stock.
"Closing Date" means the date on which the Notes are originally issued
under the Indenture.
"Currency Agreement" means any foreign contract, currency swap agreement or
other similar agreement or arrangement designed to protect the Company or any of
its Subsidiaries against fluctuations in currency values.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principals set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as approved by a significant segment of the accounting profession,
which are applicable to the circumstances as of the Closing Date.
"Indebtedness" of any Person means, without duplication, with respect to
such Person, any indebtedness, whether or not contingent, in respect of borrowed
money or evidenced by bonds, notes, debentures or similar instruments or letters
of credit (or reimbursement agreements with respect thereto) or representing the
balance deferred and unpaid of the purchase price of any property (including
pursuant to Capitalized Lease Obligations), except any such balance that
constitutes an accrued expense or trade payable, if and to the extent any of the
foregoing indebtedness would appear as a liability upon a balance sheet of such
Person prepared in accordance with GAAP (but does not include contingent
liabilities that appear only in a footnote to a balance sheet), and shall also
include, to the extent not otherwise included, the guaranty by such Person of
items that would be included within this definition, obligations in respect of
Currency Agreements and Interest Rate Agreements and the maximum fixed
repurchase price of any Redeemable Stock. For purposes of the preceding
sentence, the maximum fixed repurchase price of any Redeemable Stock that does
not have a fixed repurchase price shall be calculated in accordance with the
terms of such Redeemable Stock as if such Redeemable Stock were repurchased on
any date of determination, PROVIDED that if such Redeemable Stock is not then
permitted to be repurchased, the repurchase price shall be the book value of
such Redeemable Stock.
"Interest Rate Agreements" means the obligations of any Person pursuant to
any interest rate swap agreement, interest rate collar agreement or other
similar agreement or arrangement designed to protect such Person or any of its
Subsidiaries against fluctuations in interest rates.
"Investment" means any direct or indirect advance, loan (other than
advances to customers in the ordinary course of business, which are recorded as
accounts receivable on the balance sheet of any Person or its Subsidiaries) or
other extension of credit or capital contribution to (by means of any transfer
of cash or other property to others or any payment for property or services for
the account or use of others), or any purchase or acquisition of Capital Stock,
bonds, notes, debentures or other securities issued by any other Person. For
the purposes of the definition of "Unrestricted Subsidiary" and
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Section 4.10 set forth in Section 3 of this Officers' Certificate, (i) the
amount of any "Investment" shall be the fair market value of the net assets of
any Subsidiary at the time that such Subsidiary is designated an Unrestricted
Subsidiary and shall exclude the fair market value of the net assets of any
Unrestricted Subsidiary that is designated a Subsidiary and (ii) any property
transferred to or from an Unrestricted Subsidiary shall be valued at fair market
value at the time of such transfer, in each case as determined by the Board of
Directors of the Company in good faith.
"KKR" means Kohlberg Kravis Roberts & Co., L.P.
"Lien" means any mortgage, pledge, security interest, encumbrance, lien or
charge of any kind (including, without limitation, any conditional sale or other
title retention agreement or lease in the nature thereof or any agreement to
give any security interest).
"Maturity," when used with respect to any Note, means the date on which the
principal of such Note or an installment of principal becomes due and payable as
therein or herein provided, whether at Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Permitted Liens" means (i) Liens (including extensions and renewals
thereof) upon real or personal (whether tangible or intangible) property
acquired after the Closing Date; PROVIDED that (a) such Lien is created solely
for the purpose of securing Indebtedness incurred, (1) to finance the cost
(including the cost of improvement or construction) of the item of property or
assets subject thereto and such Lien is created prior to, at the time of or
within 12 months after the later of the acquisition, the completion of
construction or the commencement of full operation of such property or (2) to
refinance any Indebtedness previously so secured, (b) the principal amount of
the Indebtedness secured by such Lien does not exceed 100% of such cost and (c)
any such Lien shall not extend to or cover any property or assets other than
such item of property or assets and any improvements on such item; (ii) any
interest or title of a lessor in the property subject to any Capitalized Lease
Obligation or operating lease; (iii) Liens on property of, or on shares of
Capital Stock or Indebtedness of, any Person existing at the time such Person
becomes, or becomes a part of, the Company or any Subsidiary; PROVIDED that such
Liens do not extend to or cover any property or assets of the Company or any
Subsidiary other than the property or assets acquired; (iv) Liens in favor of
the Company or any Subsidiary; (v) Liens securing reimbursement obligations with
respect to letters of credit that encumber documents and other property relating
to such letters of credit and the products and proceeds thereof; (vi) Liens
encumbering customary initial deposits and margin deposits, and other Liens that
are either within the general parameters customary in the industry and incurred
in the ordinary course of
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business, in each case, securing Indebtedness under Interest Rate Agreements and
Currency Agreements and forward contracts, options, future contracts, futures
options or similar agreements or arrangements designed solely to protect the
Company or any of its Subsidiaries from fluctuations in interest rates,
currencies or the price of commodities; (vii) Liens arising out of conditional
sale, title retention, consignment or similar arrangements for the sale of goods
entered into by the Company or any of its Subsidiaries in the ordinary course of
business of the Company and its Subsidiaries; (viii) Liens on or sales of
receivables; (ix) Liens securing the Company's obligations in respect of
bankers' acceptances issued or created to facilitate the purchase, shipment or
storage of inventory or other goods; and (x) in addition to any other Liens
permitted to be incurred pursuant to the Indenture, Liens securing Indebtedness
in an amount not to exceed $500.0 million.
"Redeemable Stock" means any equity security that by its terms or otherwise
is required to be redeemed prior to the stated maturity of the applicable series
of Notes, or is redeemable at the option of the holder thereof at any time prior
to the stated maturity of such Notes.
"Stated Maturity," when used with respect to any Note or any installment of
interest thereon, means the date specified in such Note as the fixed date on
which the principal of such Note or such installment of interest is due and
payable.
"Subsidiary" means any corporation, association or other business entity of
which more than 50% of the total voting power of shares of Capital Stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by any Person or one or more of the other
Subsidiaries of that Person or a combination thereof, provided that an
Unrestricted Subsidiary shall not be deemed to be a Subsidiary of the Company
for purposes of the Indenture.
"Unrestricted Subsidiary" means (1) any Subsidiary of the Company that at
the time of determination shall be an Unrestricted Subsidiary (as designated by
the Board of Directors of the Company, as provided below) and (2) any Subsidiary
of an Unrestricted Subsidiary. The Board of Directors may designate any
Subsidiary of the Company (including any newly acquired or newly formed
Subsidiary) to be an Unrestricted Subsidiary unless such Subsidiary owns any
Capital Stock of, or owns, or holds any Lien on, any property of, the Company or
any other Subsidiary of the Company that is not a Subsidiary of the Subsidiary
to be so designated; PROVIDED that either (x) the fair market value of the net
assets of the Subsidiary to be so designated is $1,000 or less or (y) if the
fair market value of the net assets of such Subsidiary is greater than $1,000,
the amount of the Company's Investments in Unrestricted Subsidiaries at the time
of
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designation is less than $150,000,000. The Board of Directors may designate any
Unrestricted Subsidiary to be a Subsidiary. Any such designation by the Board
of Directors shall be evidenced to the Trustee by filing with the Trustee a
certified copy of the resolution of the Board of Directors giving effect to such
designation and an Officers' Certificate certifying that such designation
complied with the foregoing conditions."
6. BOARD RESOLUTIONS. Attached hereto as Annex B are true and correct
copies of the Resolutions; the Resolutions have not been amended, modified or
rescinded and remain in full force and effect; and the Resolutions are the only
resolutions adopted by the Company's Board of Directors or any committee thereof
relating to the Notes and the transactions related thereto.
Each of the undersigned officers further states that he has read the
provisions of such Indenture setting forth the conditions precedent to the
issuance, authentication and delivery of the Notes and the definitions relating
thereto, the Resolutions authorizing the issuance of the Notes and the Form of
Note; that the statements made in this Certificate are based upon the
examination of the provisions of such Indenture, the Resolutions and the Form of
Note; that he has, in his opinion, made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not the
conditions precedent for the issuance, authentication and delivery of the Notes
have been complied with; and that, in his opinion, such conditions have been
complied with.
[Signature page follows]
IN WITNESS WHEREOF, said officers have signed this certificate.
Dated: May 16, 1997
/S/ THOMAS L. YOUNG /S/ DAVID G. VAN HOOSER
- --------------------------- ----------------------------
By: Thomas L. Young By: David G. Van Hooser
Title: Executive Vice President Title: Senior Vice President
- Administration, General
Counsel and Secretary
Annex A
[FORM OF NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, 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 DTC (AND
ANY PAYMENT IS MADE TO CEDE & CO. OR TO 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.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN THE INDENTURE REFERRED TO HEREIN.
OWENS-ILLINOIS, INC.
8.10% SENIOR NOTES DUE 2007
Number: CUSIP No. 690768BB1 $
--------------
OWENS-ILLINOIS, INC., a Delaware corporation (the "Company"), for
value received, hereby promises to pay to Cede & Co., as nominee of The
Depository Trust Company, or registered assigns, the principal sum of
MILLION DOLLARS on May 15, 2007.
Interest Payment Dates: May 15 and November 15.
Record Dates: May 1 and November 1.
Additional provisions of this Security are set forth below following
the signatures of the authorized officers of the Company.
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
OWENS-ILLINOIS, INC.
By: /S/ LEE A. WESSELMANN
--------------------------------------
Name: Lee A. Wesselmann
Title: Senior Vice President and Chief
Financial Officer
By: /S/ DAVID G. VAN HOOSER
---------------------------------------
Name: David G. Van Hooser
Title: Senior Vice President
Dated: May 16, 1997
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By: /S/ LUCILLE FIRRINCIELI
-------------------------------------------
Authorized Signatory
OWENS-ILLINOIS, INC.
8.10% SENIOR NOTES DUE 2007
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
1. INTEREST
OWENS-ILLINOIS, INC., a Delaware corporation (such entity, and its
successors and assigns under the Indenture hereinafter referred to, being herein
called the "Company"), promises to pay interest on the principal amount of this
Security at the rate per annum shown above. Interest on the Securities shall
accrue from May 15, 1997 or from the most recent interest payment date to which
interest has been paid or provided for, as the case may be; interest on the
Securities shall be payable semi-annually on May 15 and November 15 of each year
until maturity, or, if such day is a Legal Holiday, on the next succeeding day
that is not a Legal Holiday (each, an "Interest Payment Date"), commencing on
November 15, 1997; and interest on the Securities shall be payable to holders of
record on the May 1 or November 1 immediately preceding the applicable Interest
Payment Date. Interest will be computed on the basis of a 360-day year of
twelve 30-day months. The Company shall pay defaulted interest on overdue
interest, plus (to the extent lawful) any interest payable on the defaulted
interest, as provided in Section 2.11 of the Indenture.
2. METHOD OF PAYMENT
The Company will pay interest on the Securities (except defaulted
interest) to the Persons who are holders ("Holders") of record in the security
register of the Company (the "Security Register") of Securities at the close of
business on May 1 or November 1 (each, a "Record Date") next preceding the
Interest Payment Date, in each case even if the Securities are cancelled solely
by virtue of registration of transfer or registration of exchange after such
Record Date. Holders must surrender Securities to a Paying Agent to collect
principal payments. The Company will pay principal and interest in money of the
United States that at the time of payment is legal tender for payment of public
and private debts. Principal of, premium, if any, and interest on the
Securities will be payable, and the Securities may be exchanged or transferred,
at the office or agency of the Company in the Borough of Manhattan, the City of
New York (which initially will be the Corporate Trust Office of the Trustee);
PROVIDED that, at the option of the Company, payment of interest may be made by
check mailed to the address of the Holders as such address appears in the
Security Register.
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3. PAYING AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent and Registrar. The Company may appoint and
change any Paying Agent, Registrar or co-Registrar without notice to any Holder.
The Company or any of its Affiliates may act as Paying Agent, Registrar or
co-Registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of May
15, 1997 by and between the Company and the Trustee, the terms of which have
been established in an Officers' Certificate, dated May 16, 1997, pursuant to
Section 2.01 of the Indenture (collectively, the "Indenture"). The Securities
are a series designated as the "8.10% Senior Notes due 2007" of the Company,
limited in aggregate principal amount to $300,000,000. 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 (15 U.S.C. Sections
77aaa-77bbbb) as in effect on May 15, 1997 (the "TIA"). The Securities are
subject to all such terms, and Securityholders are referred to the Indenture and
the TIA for a statement of those terms. Any conflict between the terms of this
Security and the Indenture will be governed by the Indenture.
The Securities are senior unsecured obligations of the Company and
rank PARI PASSU in right of payment with all existing and future senior
unsecured indebtedness of the Company, and senior in right of payment to all
subordinated indebtedness of the Company.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to enter transactions with Affiliates, to create or incur
certain Liens on any of its assets or properties or any shares of Capital Stock
or Indebtedness of any Subsidiary, to make Investments in Unrestricted
Subsidiaries, to consolidate or merge, or transfer all or substantially all of
its property or assets, and to pay any fees to Holders for or as an inducement
to any consent, waiver or amendment of the Indenture.
5. OPTIONAL REDEMPTION
The Securities may not be redeemed at the option of the Company prior
to maturity.
6. SINKING FUND
The Securities will not be subject to the operation of any sinking
fund.
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7. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form, without coupons, in
denominations of $1,000 of principal amount and any integral multiple thereof.
A Holder may transfer or exchange Securities in accordance with the Indenture.
No service charge will be made for any registration of transfer or exchange of
Securities, but the Company may require the payment of a sum sufficient to cover
any transfer tax or other similar governmental charge payable in connection
therewith, subject to and as permitted by the Indenture.
8. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the owner of
it for all purposes.
9. REPAYMENT TO COMPANY
The Trustee and the Paying Agent shall pay to the Company upon the
Company's request any money held by them for the payment of principal or
interest that remains unclaimed for two years after the date upon which such
payment shall have become due. After payment to the Company, Securityholders
entitled to the money must look to the Company for payment as general creditors
unless an applicable abandoned property law designates another Person.
10. DISCHARGE AND DEFEASANCE
Subject to certain conditions, the Company at any time may terminate
some or all of its obligations under the Securities and the Indenture if the
Company deposits with the Trustee money and/or U.S. Government Obligations for
the payment of principal and interest on the Securities to maturity.
11. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (a) failure to pay the
principal of, or premium, if any, on such Securities when due and payable; (b)
failure to pay any interest on such Securities when due, continued for 30 days;
(c) failure to perform or observe any other agreements of the Company in such
Indenture, including failure to comply with the provisions of the Indenture
applicable to consolidation, merger and sale of assets of the Company, continued
for 60 days after written notice; (d) acceleration of $125,000,000 or more,
individually or in the aggregate, in principal amount of Indebtedness of the
Company under the terms of the instrument under which such Indebtedness is
issued or secured, except as a result of compliance with applicable laws, orders
or decrees, if such Indebtedness shall
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not have been discharged or such acceleration is not annulled within ten days
after written notice; and (e) certain events of bankruptcy, insolvency or
reorganization.
If an Event of Default (other than an Event or Default relating to
certain events of bankruptcy, insolvency or reorganization) shall occur and be
continuing, either the Trustee or the holders of at least 50% in principal
amount of the outstanding Securities by notice, as provided in the Indenture,
may declare the unpaid principal amount of, and any accrued and unpaid interest
on, the Securities to be due and payable immediately. However, at any time
after a declaration of acceleration with respect to the Securities has been
made, the holders of a majority in principal amount of the outstanding
Securities of such series may, under certain circumstances, rescind and annul
such acceleration if the rescission would not conflict with any judgment or
decree and if all existing Events of Default with respect to such Securities
have been cured or waived except nonpayment of principal (or such lesser amount)
or interest that has become due solely because of the acceleration.
Subject to the duty of the Trustee during an Event of Default to act
with the required standard of care, the Trustee is under no obligation to
exercise any of its rights or powers under the Indenture at the request or
direction of any of the holders, unless such holders shall have offered to the
Trustee reasonable security or indemnity. Subject to certain provisions,
including those requiring security or indemnification of the Trustee, the
holders of a majority in principal amount of the Securities have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities.
12. SUPPLEMENTS, AMENDMENTS AND WAIVERS
Subject to certain exceptions, the Company and the Trustee may amend
the Indenture or the Securities with the written consent of the holders of a
majority in principal amount of the then outstanding Securities. The holders of
a majority in principal amount of the then outstanding Securities may also waive
compliance in a particular instance by the Company with any provision of the
Indenture with respect to the Securities; PROVIDED, HOWEVER, that certain
amendments or waivers may not be made without the consent of each holder of
Securities affected as provided in the Indenture.
The Company and the Trustee may amend the Indenture or the Securities
without notice to or the consent of any holder of Securities in certain
circumstances described in the Indenture.
The holders of a majority in principal amount of the outstanding
Securities, by notice to the Trustee, may waive an existing Default or Event of
Default and its consequences except a Default or Event of Default in the payment
of the principal of, or any interest on, the Securities (PROVIDED, HOWEVER, that
the holders of a majority in principal amount of the outstanding Securities may
rescind an acceleration and its consequences, including any related payment
default that resulted from such acceleration).
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13. 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.
14. NO RECOURSE AGAINST OTHERS
A past, present or future director, officer, employee, stockholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. GOVERNING LAW
THE INTERNAL LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THE SECURITIES, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF.
16. SUCCESSORS AND ASSIGNS.
All covenants and agreements of the Company in the Indenture and the
Securities shall bind its successors and assigns. All agreements of the Trustee
in the Indenture shall bind its successor.
17. AUTHENTICATION
This Security shall not be valid until an authorized signatory of the
Trustee (or an authenticating agent) manually signs the certificate of
authentication hereon.
18. 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
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TEN (=joint tenants with rights of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act)
19. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to be
printed on the Securities, and the Trustee may use CUSIP numbers in notices as a
convenience to Securityholders. No representation is made as to the accuracy of
such numbers either as printed on the Securities or as contained in any notice
and reliance may be placed only on the other identification numbers placed
thereon.
The Company will furnish to any Securityholder upon written request
and without charge to the Securityholder a copy of the Indenture. Such requests
may be addressed to:
Owens-Illinois, Inc.
One SeaGate
Toledo, Ohio 43666
Attention: Corporate Secretary
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ASSIGNMENT FORM
TO ASSIGN THIS SECURITY, FILL IN THE FORM BELOW:
I or we assign and transfer this Security to:
[PRINT OR TYPE ASSIGNEE'S NAME, ADDRESS AND ZIP CODE]
[INSERT ASSIGNEE'S SOC. SEC. OR TAX I.D. NO.]
and irrevocably appoint [PRINT OR TYPE AGENT'S NAME] agent to transfer this
Security on the books of the Company. The agent may substitute another to act
for him.
- -------------------------------------------------------------------------------
Date: Your Signature:
------------------------- ------------------------------
Signature Guarantee:
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(SIGNATURE MUST BE GUARANTEED)
- -------------------------------------------------------------------------------
(SIGN EXACTLY AS YOUR NAME APPEARS ON THE FACE OF THIS SECURITY)