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Exhibit 4.3
RPM, INC.
LIQUID ASSET NOTES WITH COUPON
EXCHANGE ("LANCEsSM") DUE 2008
No. R-1 $100,000,000
CUSIP No. 749685AG8
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE TRUSTEE OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT AND ANY CERTIFICATE
ISSUED IN EXCHANGE FOR THIS CERTIFICATE OR ANY PORTION THEREOF 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 OTHER
THAN DTC OR A NOMINEE THEREOF IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERRED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUANCE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY), ONLY (A) TO THE COMPANY, (B) PURSUANT TO A REGISTRATION
STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES ACT, (C) FOR SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A PERSON
IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND
SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S
UNDER THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL,
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CERTIFICATION AND/OTHER INFORMATION SATISFACTORY TO THE TRUSTEE AND THE COMPANY,
OR (E) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT UPON THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO THE TRUSTEE AND THE
COMPANY, SUBJECT IN EACH OF THE FOREGOING CASES, TO A CERTIFICATE OF TRANSFER IN
THE FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY BEING COMPLETED AND
DELIVERED BY THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED UPON THE
REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Debentures"), issued and to be issued in a single
series under an Indenture, dated as of June 1, 1995 as supplemented by the First
Supplemental Indenture dated as of March 5, 1998 (herein called the "Indenture",
which term shall have the meaning assigned to it in such instrument), between
the Company and The First National Bank of Chicago, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
and reference is hereby made to the Indenture for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Debentures and of the terms upon which the
Debentures are, and are to be, authenticated and delivered. This Debenture is
one of the series designated on the face hereof, limited in aggregate principal
amount to $100,000,000.
RPM, INC., a corporation duly organized and existing under the laws of
the State of Ohio (herein called the "Company", which term includes any
successor Person under the Indenture hereafter referred to), for value received,
hereby promises to pay to CEDE & CO., or registered assigns, the principal sum
of One Hundred Million and No/100 Dollars ($100,000,000) on March 1, 2008, and
to pay interest thereon from the Original Issuance Date or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semi-annually in arrears on each March 1 and September 1 (each an "Interest
Payment Date"), determined as set forth herein, commencing September 1, 1998, at
the rate of interest determined as set forth herein, 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 will, as provided in the
Indenture, be paid to the Person in whose name this Debenture (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be one Business Day prior to the
relevant Interest Payment Date (except that if the Debentures are no longer
represented by a global Security as a result of the occurrence of an event
specified in Section 305(a) of the Indenture, the Regular Record Date for such
interest payment shall be the close of business on the fifteenth day (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date). In the event that any date on which interest is payable on the Debentures
is not a Business Day, then payment of the interest payable on such date will be
made on the next succeeding day which is a Business Day (without any interest or
other payment in respect of any such delay). Any such interest not so punctually
paid or duly provided for will 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
Debenture (or one or more
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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 Debentures 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 Debentures may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
Payment of the principal of (and premium, if any) and interest on this
Debenture will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, 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 made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Except as provided above with respect to the payment of interest, any
payment on this Debenture due on any day which is not a Business Day in the City
of New York need not be made on such day, but may be made on the next succeeding
Business Day with the same force and effect as if made on the due date and no
interest shall accrue for the period from and after such date.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to herein by manual signature, this Debenture shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
During any Floating Rate Period (as defined below), interest on this
Debenture shall be payable semi-annually in arrears on each Interest Payment
Date, commencing on September 1, 1998, at the applicable Floating Rate (as
defined below), determined and compounded on a quarterly basis or determined but
not compounded from time to time on a semiannual basis, as applicable. During
any Fixed Rate Period (as defined below), interest on this Debenture shall be
payable semi-annually in arrears on each Interest Payment Date at the Fixed Rate
(as defined below). Interest, whether accruing at a Floating Rate or the Fixed
Rate, will accrue from and including the Original Issuance Date or, if later,
from and including the most recent Interest Payment Date on which interest has
been paid or duly provided for. Interest on this Debenture calculated at a
Floating Rate for any period shall be computed on the basis of the actual number
of days elapsed in such period and a 360-day year. Interest on this Debenture
calculated at the Fixed Rate for any period shall be computed on the basis of a
360-day year of twelve 30-day months and, for any period shorter than a full
semi-annual Interest Accrual Period for which interest is computed, on the basis
of the actual number of days elapsed in such period.
As used herein:
"Business Day" means any day, other than a Saturday or Sunday, or a day on which
banking institutions in New York, New York are authorized or obligated by law or
executive order to be closed.
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"Calculation Agent" means the Swap Counterparty as calculation agent, and its
successors in such capacity under the Swap Agreement.
"Final Maturity Date" means March 1, 2008.
"Fixed Rate" means 6.50% per annum.
"Fixed Rate Period" exists at any time until the Final Maturity Date at which a
Floating Rate Period is not in effect.
"Floating Rate" means, (i) for any Interest Accrual Period during the Initial
Floating Rate Period, a rate per annum equal to the London interbank offered
rate for United States dollar deposits ("LIBOR") for a period of six months
minus .05% (the "Initial Floating Rate") and (ii) for any Interest Accrual
Period during the Subsequent Floating Rate Period, a rate per annum equal to
LIBOR for a period of three months (the "Subsequent Floating Rate"). Each such
Floating Rate shall be determined from time to time on the Interest
Determination Date during such Interest Accrual Period by the Calculation Agent
in accordance with the following provisions (in each case, with all percentages
resulting from any calculation rounded to the nearest one hundred-thousandth of
a percent, with five one-millionths of a percent rounded upward; and all dollar
amounts used in or resulting from any such calculation will be rounded to the
nearest cent, with one-half cent rounded upward):
(i) For each applicable semiannual or quarterly period, LIBOR
will be determined on the basis of the offered rates for deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, commencing on
the first day of such period immediately following the related Interest
Determination Date, which appear on Telerate Page 3750 on the Dow Jones Telerate
Service (or such other page as may replace that page on that service for the
purpose of displaying London interbank offered rates of major banks) as of 11:00
a.m. (London time) on that Interest Determination Date. If such rate does not so
appear on Telerate Page 3750, LIBOR in respect of such Interest Determination
Date will be determined as described in (ii) below.
(ii) If on any applicable Interest Determination Date the rate
for deposits of U.S. dollars having a six-month or three-month maturity, as
applicable, does not appear on Telerate Page 3750 as specified in (i) above,
LIBOR will be determined on the basis of the rates at which deposits in U.S.
dollars having a six-month or three-month maturity, as applicable, are offered
by major banks selected by the Calculation Agent in the London interbank market
at approximately 11:00 a.m. (London time) on the related Interest Determination
Date to prime banks in the London interbank market for a period commencing on
the first day of such period immediately following that Interest Determination
Date and in a principal amount of not less than $1 million that in the
Calculation Agent's judgment is representative for a single transaction in such
market at such time. The Calculation Agent will request the principal London
office of each such bank to provide a quotation of its rate. If at least two
such quotations are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that Interest
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Determination Date will be the arithmetic mean of the rates quoted by major
banks in New York City selected by the Calculation Agent at approximately 11:00
a.m. (New York City time) on that Interest Determination Date for loans in U.S.
dollars to leading European banks, having a six-month or three-month maturity,
as applicable, commencing on the first day of such Interest Accrual Period
immediately following that Interest Determination Date and in a principal amount
of not less than $1 million that, in the Calculation Agent's judgment, is
representative for a single transaction in such market at such time.
The Calculation Agent's determination of any interest rate will be
final and binding in the absence of manifest error.
"Floating Rate Period" means (i) the period from the Original Issuance
Date until the Interest Rate Reset Date (the "Initial Floating Rate Period") and
(ii) after the Initial Floating Rate Period, the period from the Interest Rate
Conversion Date until the Final Maturity Date (the "Subsequent Floating Rate
Period"). Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date (if any) and the election by Holders of not less than 66(% in
aggregate principal amount of the Debentures, (A) any Floating Rate Period then
in effect shall automatically terminate and a Fixed Rate Period shall
automatically be in effect, (B) a Fixed Rate Period shall automatically be in
effect and be deemed to have been in effect at all times from the then most
recent Interest Payment Date on which interest has been paid or duly provided
for (or, if no such interest has been paid or duly provided for on any Interest
Payment Date from the Original Issuance Date) and (C) no Floating Rate Period
shall thereafter be in effect at any time.
"Interest Accrual Period" means, for each Interest Payment Date, the
period from and including the prior Interest Payment Date (or, in the case of
the first Interest Accrual Period, from and including the Original Issuance
Date) to but excluding such Interest Payment Date.
"Interest Determination Date" means (i) in the case of each Interest
Accrual Period occurring during the Initial Floating Rate Period, two Market
Days prior to the first or last day of such Interest Accrual Period (whichever
results in the higher rate) and (ii) in the case of each Interest Accrual Period
thereafter during a Floating Rate Period, the second Market Day next preceding
each LIBOR Reset Date within such Interest Accrual Period.
"Interest Rate Reset Date" means March 1, 2000.
"LIBOR Reset Date" means each March 1, June 1, September 1 and December
1.
"Market Day" means any day on which dealings in deposits in U.S.
dollars are transacted in the London interbank market.
"Original Issuance Date" means March 5, 1998.
"Swap Agreement" means the ISDA Master Agreement, the Schedule thereto
and the Confirmation thereto, each dated as of March 2, 1998 between RPM, Inc.
TIERSSM Certificates Trust RPM 1998-1 and the Swap Counterparty.
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"Swap Counterparty" means Salomon Swapco(R) Inc.
"Swap Rate" for any Reference Date means the bid side of the observable
rates published on Telerate page 19901 two Market Days prior to such Reference
Date, calculated on a semi-annual 30/360 basis, provided that, in the event such
rate is not available on such page, the Swap Rate shall be based on the bid side
of the observable rates published on Reuters page
"TETC"/Telerate page 2103/4 on such date, provided further that, in the
event such rate is not available on such page, the Swap Rate for such Reference
Date shall be calculated by the Calculation Agent based on the linear
interpolation of the Swap Rate for which a bid is observable for the Remaining
Maturity next longer and the Remaining Maturity next shorter than such Remaining
Maturity.
"Swap Termination Date" means the Early Termination Date as defined in
the Swap Agreement.
Effective on the Interest Rate Reset Date or on any anniversary thereof
to and including March 1, 2007 or if such date is not a Business Day, then on
the following Business Day (each, a "Reference Date"), if a Swap Termination
Date shall not have occurred by such date and the Swap Rate for an interest rate
swap with a remaining maturity (as set forth below, the "Remaining Maturity")
corresponding to the applicable Reference Date is greater than or equal to the
applicable reference rate (as set forth below, the "Reference Rate"), then the
interest rate on all, but not less than all, of the Debentures shall be
converted from the Fixed Rate to the Subsequent Floating Rate for each
subsequent Interest Accrual Period (in accordance with the definition of
Floating Rate Period) (the "Interest Rate Conversion"). From and after the date
of the Interest Rate Conversion (the "Interest Rate Conversion Date") and for
each Interest Accrual Period ending prior to the end of the Floating Rate Period
which begins on such Interest Rate Conversion Date, interest on all of the
Debentures shall accrue at the Subsequent Floating Rate. The Trustee shall send
notice in writing of such Interest Rate Conversion to the Company one Business
Day following the notification of the Trustee by the trustee of the RPM, Inc.
TiersSM Certificates Trust RPM 1998-1 of such Interest Rate Conversion.
Reference Date Remaining Maturity Reference Rate*
March 1, 2000 8 years 7.285 percent
March 1, 2001 7 years 7.023 percent
March 1, 2002 6 years 7.011 percent
March 1, 2003 5 years 6.852 percent
March 1, 2004 4 years 6.859 percent
March 1, 2005 3 years 6.809 percent
March 1, 2006 2 years 6.694 percent
March 1, 2007 1 year 6.500 percent
* Represents semi-annual 30/360 rates.
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Notwithstanding the foregoing, upon the occurrence of a Swap
Termination Date, if the Debentures shall then bear interest at a Floating Rate,
the Holders of not less than 66-2/3% in aggregate principal amount of the
Debentures will have the right to elect to convert the interest rate on all, but
not less than all, of the Debentures from such Floating Rate to the Fixed Rate
by delivering to the Company and the Trustee irrevocable written notice of such
Holders' election to so convert the interest rate. Such notice to the Company
and the Trustee shall set forth the name of the Holders exercising such right
and a statement that a Swap Termination Date has occurred and that the Holders
wish to exercise their right to convert the interest rate to the Fixed Rate
pursuant to this Section. Any exercise of such conversion right shall be
irrevocable. Upon receipt of such notice by the Company, (i) any Floating Rate
Period then in effect shall terminate, (ii) a Fixed Rate Period will then be in
effect and be deemed to have been in effect at all times from the then most
recent Interest Payment Date on which interest has been paid or duly provided
for (or, if no interest has been paid or duly provided for on any Interest
Payment Date, the Original Issuance Date) and (iii) no Floating Rate Period
shall thereafter be in effect at any time.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Debenture or certain restrictive covenants and
Events of Default with respect to this Debenture upon compliance with certain
conditions set forth in the Indenture.
The Debentures are not subject to redemption at the option of the
Company or any Holder prior to maturity and will not be subject to any sinking
fund.
If an Event of Default with respect to the Debentures shall occur and
be continuing, the principal of the Debentures 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 Debentures 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 Debentures at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in the principal amount of the
Debentures of each series at the time Outstanding, on behalf of the Holders of
all the Debentures 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 Debenture shall be conclusive and binding upon such Holder and upon all
future Holders of this Debenture and of any Debenture 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 Debenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Debenture shall 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
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respect to the Debentures, the Holders of not less than 25% in principal amount
of the Debentures 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 reasonably satisfactory indemnity, and the Trustee shall
not have received from the Holders of a majority in principal amount of the
Debentures at the time Outstanding a direction inconsistent with such request,
and shall have failed to institute any such proceeding, for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Debenture for the enforcement
of any payment of principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Debenture at the times, place and rate, and in the coin and
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Security
Register, upon surrender of this Debenture for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Debenture are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Debentures
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Debentures are issuable only in registered form without coupons in
denominations of $100,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Debentures
are exchangeable for a like aggregate principal amount of Debentures and of like
tenor of a different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Debenture 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 Debenture is registered as the owner
hereof for all purposes, whether or not this Debenture be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
All terms used in this Debenture which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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In Witness Whereof, the Company has caused this instrument to be duly executed.
RPM, INC.
/s/ Frank C. Sullivan
By:
Authorized Signature
Attest: /s/ Paul Granzier
[Assistant] Secretary
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Debentures of the series designated therein referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO, as Trustee
By: /s/ Francis Ballentine
Authorized Signature