EXHIBIT 4.2
AVERY DENNISON CORPORATION
$250,000,000 4.875% Notes due 2013
$150,000,000 6.000% Notes due 2033
OFFICER'S CERTIFICATE
PURSUANT TO SECTION 301 OF THE INDENTURE
Pursuant to a Board Resolution of Avery Dennison Corporation,
a Delaware corporation (the "Corporation"), adopted as of January 14, 2003 (the
"Resolutions"), the undersigned, Daniel R. O'Bryant and Karyn E. Rodriguez,
certify that pursuant to the Resolutions and Section 301 of the Indenture, dated
as of July 3, 2001 (the "Indenture"), between the Corporation and J.P.Morgan
Trust Company, National Association (as successor by merger to Chase Manhattan
Bank and Trust Company, National Association), as Trustee (the "Trustee"), there
is hereby established two separate series of Securities (as that term is defined
in the Indenture), the terms and form of which shall be as follows (capitalized
terms not defined herein shall have the meanings assigned to them in the
Indenture):
Notes Due 2013:
(1) The title of the first series of the Securities is "4.875% Notes
due 2013" (the "Notes due 2013").
(2) The Notes due 2013 will be issued at an initial public offering
price of 99.485% of the principal amount thereof.
(3) The initial aggregate principal amount of the Notes due 2013 that
may be authenticated and delivered under the Indenture (except for Notes due
2013 authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes due 2013 pursuant to Sections 304, 305,
306, 906, or 1106 of the Indenture and except for any Notes due 2013 which,
pursuant to Section 303 of the Indenture, are deemed never to have been
authenticated and delivered) is $250,000,000. The Corporation may, from time to
time, without the consent of the holder of the Notes due 2013, issue additional
notes having the same ranking, interest rate, maturity and other terms as the
Notes due 2013.
(4) The principal amount of the Notes due 2013 shall be payable in full
on January 15, 2013 subject to and in accordance with the provisions of the
Indenture.
(5) The Notes due 2013 shall bear interest at the rate of 4.875% per
annum from January 17, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually on
January 15 and July 15 of each year (each an "Interest Payment Date"),
commencing July 15, 2003, until the principal amount of the Notes due 2013 has
been paid or duly provided for. January 1 and July 1 (whether or not a Business
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Day), as the case may be, next preceding an Interest Payment Date, shall be a
"Regular Record Date" for the interest payable on such Interest Payment Date.
Notes Due 2033:
(6) The title of the second series of the Securities is "6.000% Notes
due 2033" (the "Notes due 2033", and together with Notes due 2013, the "Notes").
(7) The Notes due 2033 will be issued at an initial public offering
price of 99.449% of the principal amount thereof.
(8) The initial aggregate principal amount of the Notes due 2033 that
may be authenticated and delivered under the Indenture (except for Notes due
2033 authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes due 2033 pursuant to Sections 304, 305,
306, 906, or 1106 of the Indenture and except for any Notes due 2033 which,
pursuant to Section 303 of the Indenture, are deemed never to have been
authenticated and delivered) is $150,000,000. The Corporation may, from time to
time, without the consent of the holders of the Notes due 2033, issue additional
notes having the same ranking, interest rate, maturity and other terms as the
Notes due 2033.
(9) The principal amount of the Notes due 2033 shall be payable in full
on January 15, 2033 subject to and in accordance with the provisions of the
Indenture.
(10) The Notes due 2033 shall bear interest at the rate of 6.000% per
annum from January 17, 2003 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, payable semi-annually on
January 15 and July 15 of each year (each an "Interest Payment Date"),
commencing July 15, 2003, until the principal amount of the Notes due 2033 has
been paid or duly provided for. January 1 and July 1 (whether or not a Business
Day), as the case may be, next preceding an Interest Payment Date, shall be a
"Regular Record Date" for the interest payable on such Interest Payment Date.
Certain Common Terms of the Notes:
(11) The principal of (and premium, if any) and interest on the Notes
shall be payable at the Corporate Trust Office, which as of this date is 560
Mission Street, 13th Floor, San Francisco, California, 94105.
(12) The Notes shall be redeemable, in whole or in part, at the option
of the Corporation at any time at a redemption price equal to the greater of (i)
100% of the principal amount of such Notes being redeemed on the Redemption
Date, or (ii) as determined by the Quotation Agent (as defined below), the sum
of the present values of the remaining scheduled payments of principal and
interest on the Notes being redeemed on that Redemption Date (not including any
portion of any interest payments accrued to the Redemption Date) discounted to
the Redemption Date on a semi-annual basis at the Treasury Rate (as defined
below), plus 12.5 basis points in the case of the Notes due 2013 and 15.0 basis
points in the case of the Notes due 2033, plus, in each case, accrued and unpaid
interest on the Notes to the Redemption Date.
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Notwithstanding the foregoing, installments of interest on Notes that
are due and payable on Interest Payment Dates falling on or prior to a
Redemption Date will be payable on the Interest Payment Date to the registered
holders as of the close of business on the relevant Regular Record Date
according to the Notes and the Indenture. The Redemption Price will be
calculated on the basis of a 360-day year consisting of twelve 30-day months.
The Corporation shall mail a notice of redemption at least 30 days but
not more than 60 days before the Redemption Date to each holder of the Notes to
be redeemed. Once notice of redemption is mailed, the Notes called for
redemption shall become due and payable on the Redemption Date and at the
applicable Redemption Price, plus accrued and unpaid interest to the Redemption
Date.
Unless the Corporation defaults in payment of the Redemption Price, on
and after the Redemption Date, interest shall cease to accrue on the Notes or
portions thereof called for redemption.
"Comparable Treasury Issue" means the United States Treasury
security selected by the Quotation Agent as having a maturity
comparable to the remaining term of the Notes to be redeemed that would
be utilized, at the time of selection and in accordance with customary
financial practice, in pricing new issues of corporate debt securities
of comparable maturity to the remaining term of the Notes.
"Comparable Treasury Price" means, with respect to any
redemption date, (A) the average of the Reference Treasury Dealer
Quotations (as defined below) for such redemption date, after excluding
the highest and lowest such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than three such Reference Treasury
Dealer Quotations, the average of all such Quotations, or (C) if only
one Reference Treasury Dealer Quotation is received, such Quotation.
"Quotation Agent" means the Reference Treasury Dealer (as
defined below) appointed by the Corporation.
"Reference Treasury Dealer" means (A) each of Goldman, Sachs &
Co., Salomon Smith Barney Inc., Banc of America Securities LLC,
J.P.Morgan Securities Inc. and Wachovia Securities, Inc. (or their
respective affiliates which are Primary Treasury Dealers), and their
respective successors; 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"), the Corporation shall
substitute another Primary Treasury Dealer; and (B) any other Primary
Treasury Dealer(s) selected by the Trustee after consultation with the
Corporation.
"Reference Treasury Dealer Quotation" means, with respect to
each Reference Treasury Dealer and any redemption date, the average, as
determined by the Trustee, 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 Trustee by such
Reference Treasury Dealer at 5:00 p.m. (New York City time) on the
third Business Day preceding such redemption date.
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"Treasury Rate" means, with respect to any redemption date,
the rate per year equal to the semi-annual equivalent yield to maturity
of the Comparable Treasury Issue, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount)
equal to the Comparable Treasury Price for such redemption date.
(13) The Notes shall be issuable in whole or in part in the form of one
or more Global Securities. Such Global Securities may be exchanged in whole or
in part for individual Securities only on the terms and conditions set forth in
the Indenture. The initial Depositary for such Global Securities shall be The
Depository Trust Company.
(14) The Notes shall be defeasible as provided in Article Thirteen of
the Indenture.
(15) The Notes shall not be subject to any mandatory sinking fund.
(16) The following covenants shall apply to the Notes, in addition to
those set forth in the Indenture:
(a) Restrictions on Secured Debt. Neither the Corporation
nor any Subsidiary shall incur, issue, assume or
guarantee any Debt secured by a Lien on any Principal
Property of the Corporation or any Subsidiary or any
shares of capital stock of or Debt of any Subsidiary,
without effectively providing that the Notes shall be
secured equally and ratably with (or, at the option
of the Corporation, prior to) such secured Debt;
provided, however, that this limitation shall not
apply to:
(i) Any Liens existing on July 3, 2001;
(ii) Liens on property of, or on any shares of
capital stock of or Debt of, any Person
existing at the time such Person becomes a
Subsidiary;
(iii) Liens in the Corporation's favor or in favor
of any Subsidiary;
(iv) Liens in favor of governmental bodies to
secure progress, advance or other payments
pursuant to any contract or provision of any
statute;
(v) Liens on property, or on any shares of
capital stock or Debt of any Subsidiary
existing at the time of acquisition thereof
(including through merger or consolidation);
(vi) Any Lien securing indebtedness incurred to
finance the purchase price or cost of
construction of property (or additions,
substantial repairs, alterations or
substantial improvements thereto), provided
that such Lien and the indebtedness secured
thereby are incurred within twelve months of
the later of acquisition or completion of
construction (or addition, repair,
alteration or improvement) and full
operation thereof;
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(vii) Liens securing industrial revenue bonds,
pollution control bonds or similar types of
bonds;
(viii) Mechanics and similar Liens arising in the
ordinary course of business in respect of
obligations not due or being contested in
good faith;
(ix) Liens arising from deposits with, or the
giving of any form of security to, any
governmental agency required as a condition
to the transaction of business or exercise
of any privilege, franchise or license;
(x) Liens for taxes, assessments or governmental
charges or levies which are not then
delinquent or, if delinquent, are being
contested in good faith;
(xi) Liens put on any property in contemplation
of its disposition, provided the Corporation
has a binding agreement to sell at the time
the Lien is imposed and the Corporation
disposes of the property within one year
after the creation of the Liens and that any
indebtedness secured by the Liens is without
recourse to the Corporation or any
Subsidiary;
(xii) Liens (including judgment liens) arising
from legal proceedings being contested in
good faith (and, in the case of judgment
liens, execution thereof is stayed); and
(xiii) Any extension, renewal or replacement of any
Liens referred to in the foregoing clauses
(i) through (xii) inclusive or any Debt
secured thereby, provided that such
extension, renewal or replacement will be
limited to all or part of the same property,
shares of capital stock or Debt that secured
the Lien extended, renewed or replaced.
Notwithstanding the foregoing, the Corporation and any Subsidiary may
issue, assume or guarantee Debt secured by a Lien which would otherwise
be subject to the restrictions described above, provided that the
aggregate amount of all such secured Debt, together with all the
Corporation's and Subsidiaries' Attributable Debt with respect to sale
and leaseback transactions involving Principal Properties (with the
exception of such transactions which are excluded as described in
clauses (b)(i) - (vi) of "Restrictions on Sales and Leasebacks" below),
may not exceed 15% of Consolidated Net Tangible Assets.
(b) Restrictions on Sales and Leasebacks. Neither the
Corporation nor any Subsidiary shall enter into any arrangement with
any Person (other than the Corporation or a Subsidiary), or to which
any such Person is a party, providing for the leasing to the
Corporation or a Subsidiary of any Principal Property that has been or
is to be sold or transferred by the Corporation or such Subsidiary to
such Person or to any
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other Person (other than the Corporation or a Subsidiary), to which the
funds have been or are to be advanced by such Person on the security of
the leased property (a "sale and leaseback transaction"), provided,
however, this limitation shall not apply if:
(i) the lease is for a period, including renewal
rights, of not in excess of three years;
(ii) the sale or transfer of the Principal
Property is made at the time of, or within
120 days after the later of its acquisition
or completion of construction;
(iii) the lease secures or relates to industrial
revenue bonds, pollution control bonds or
other similar types of bonds;
(iv) the transaction is between the Corporation
and a Subsidiary or between Subsidiaries;
(v) the Corporation or a Subsidiary, within 120
days after the Corporation or a Subsidiary
makes a sale or transfer, applies an amount
equal to the greater of the net proceeds of
the sale of the Principal Property leased
pursuant to such arrangement or the fair
market value of the Principal Property so
leased at the time of entering into such
arrangement (as determined in any manner
approved by the Board of Directors) to:
(A) the retirement of the Notes or the
Corporation's other Funded Debt
ranking on a parity with or senior
to the Notes, or the retirement of
the securities or other Funded Debt
of a Subsidiary; provided, however,
that the amount to be applied to
the retirement of the Corporation's
Funded Debt or a Subsidiary's
Funded Debt shall be reduced by (x)
the principal amount of any Notes
(or other notes or debentures
constituting such Funded Debt)
delivered within such 120-day
period to the Trustee or other
applicable trustee for retirement
and cancellation and (y) the
principal amount of such Funded
Debt, other than items referred to
in the preceding clause (x),
voluntarily retired by the
Corporation or a Subsidiary within
120 days after such sale; and
provided further, that
notwithstanding the foregoing, no
retirement referred to in this
subclause (A) may be effected by
payment at maturity or pursuant to
any mandatory sinking fund payment
or any mandatory prepayment
provision, or
(B) the purchase of other property
which will constitute a Principal
Property having a fair market
value, in the opinion of the Board
of Directors, at least equal to the
fair
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market value of the Principal
Property leased in such sale and
leaseback transaction; or
(vi) after giving effect to the transaction, the
aggregate amount of all Attributable Debt
with respect to such transactions plus all
Debt secured by Liens on Principal
Properties, or on shares of capital stock or
Debt of Subsidiaries (with the exception of
secured Debt which is excluded as described
in clauses (a)(i) - (xiii) of "Restrictions
on Secured Debt" above), would not exceed
15% of Consolidated Net Tangible Assets.
(c) Restriction on the Payment of Dividends and Other
Payments. The Corporation shall not declare or pay any dividends or make any
distributions on capital stock (except in shares of, or warrants or rights to
subscribe for or purchase shares of, the Corporation's capital stock), nor may a
Subsidiary make any payment to retire or acquire shares of such stock, at a time
when a payment default described in clauses (1) or (2) of Section 501 of the
Indenture has occurred and is continuing.
(d) As used in subparagraphs (a) (b) and (c) above, the
following terms have the meanings set forth below:
"Attributable Debt" means, as to any particular lease
under which any Person is at the time liable and at any date as of
which the amount thereof is to be determined, the total net amount of
rent required to be paid by such Person under such lease during the
remaining primary term thereof, discounted from the respective due
dates to such date at the actual percentage rate inherent in such
arrangement as determined in good faith by the Board of Directors. The
net amount of rent required to be paid under any such lease for any
such period shall be the aggregate amount of the rent payable by the
lessee with respect to such period after excluding amounts required to
be paid on account of maintenance and repairs, insurance, taxes,
assessments, water rates and similar charges. In the case of any lease
which is terminable by the lessee upon the payment of a penalty, such
net amount shall also include the amount of such penalty, but no rent
shall be considered as required to be paid under such lease subsequent
to the first date upon which it may be so terminated.
"Consolidated Net Tangible Assets" means the
aggregate amount of assets (less applicable reserves and other properly
deductible items) less (i) all liabilities, other than deferred income
taxes and Funded Debt, and (ii) goodwill, trade names, trademarks,
patents, organizational expenses and other like intangibles all as set
forth on the most recent balance sheet of the Corporation and its
consolidated Subsidiaries and computed in accordance with generally
accepted accounting principles.
"Debt" means debt issued, assumed or guaranteed by
the Corporation or any Subsidiary for money borrowed.
"Funded Debt" means (i) all indebtedness for money
borrowed having a maturity of more than 12 months from the date as of
which the determination is made or having a maturity of 12 months or
less but by its terms being renewable or extendible beyond 12 months
from such date at the option of the borrower and (ii) rental
obligations
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payable more than 12 months from such date under leases which are
capitalized in accordance with generally accepted accounting principles
(such rental obligations to be included as Funded Debt at the amount so
capitalized and to be included for the purposes of the definition of
Consolidated Net Tangible Assets both as an asset and as Funded Debt at
the amount so capitalized).
"Lien" means any lien, mortgage or pledge.
"Person" means any individual, corporation,
partnership, limited liability company, joint venture, association,
joint-stock company, trust, unincorporated organization or government
or any agency or political subdivision thereof.
"Principal Property" means any real property the
Corporation or any Subsidiaries own or hereafter acquire (including
related land and improvements thereon and all machinery and equipment
included therein without deduction of any depreciation reserves) the
gross book value of which on the date as of which the determination is
being made exceeds 2% of Consolidated Net Tangible Assets other than
(i) any property which in the opinion of the Board of Directors is not
of material importance to the total business conducted by the
Corporation and any Subsidiary as an entirety or (ii) any portion of a
particular property which is similarly found not to be of material
importance to the use or operation of such property.
"Subsidiary" means a Person more than 50% of the
outstanding voting stock of which, or similar ownership interest in
which, the Corporation or one or more other Subsidiaries own, directly
or indirectly.
(17) In addition to the Events of Default provided in Sections 501(1),
(2), (4), (5), (6) and (7) of the Indenture, an Event of Default occurs with
respect to each of the series of Notes upon a default under any mortgage,
indenture (including the Indenture) or instrument under which there is issued,
or which secures or evidences, any indebtedness for borrowed money of the
Corporation or any Subsidiary now existing or hereafter created (other than
indebtedness or other obligations secured by a Lien on property to the extent
that the liability for such indebtedness or other obligations is limited to the
security of the property without liability on the part of the Corporation or any
Subsidiary for any deficiency), which default shall constitute a failure to pay
principal of such indebtedness in an amount exceeding $25,000,000 when due and
payable (other than as a result of acceleration), after expiration of any
applicable grace period with respect thereto, or shall have resulted in an
aggregate principal amount of such indebtedness exceeding $25,000,000 becoming
or being declared due and payable prior to the date on which it would otherwise
become due and payable, without such indebtedness having been discharged or such
acceleration having been rescinded or annulled within a period of 30 days after
there has been given to the Corporation by the Trustee or to the Corporation and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series of the Notes, a written notice specifying
such default with respect to the other indebtedness and requiring the
Corporation to cause such indebtedness to be discharged or cause such
acceleration to be rescinded or annulled and stating that such notice is a
"Notice of Default" under the Indenture.
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(18) The Notes due 2013 shall be substantially in the form of Annex 1
attached hereto, with such modifications thereto as may be approved by the
authorized officer executing the same.
(19) The Notes due 2033 shall be substantially in the form of Annex 2
attached hereto, with such modifications thereto as may be approved by the
authorized officer executing the same.
This Officer's Certificate may be executed in one or more
counterparts, each of which so executed shall be deemed to be an original, and
shall together constitute one and the same Officer's Certificate.
[Signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this
Officer's Certificate as of the 14th day of January, 2003.
/s/ Daniel R. O'Bryant
-------------------------------------------
Name: Daniel R. O'Bryant
Title: Chief Financial Officer and
Senior Vice President, Finance
/s/ Karyn E. Rodriquez
-------------------------------------------
Name: Karyn E. Rodriguez
Title: Vice President and Treasurer
S-1
ANNEX 1
[Form of Notes due 2013]
Annex 1
ANNEX 2
[Form of Notes due 2033]
Annex 2