Exhibit 4.2
THIS SECURITY IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF.
THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON
OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN
PART FOR NOTES IN DEFINITIVE FORM, 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 DEPOSITARY OR A NOMINEE OF SUCH
SUCCESSOR DEPOSITARY.
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY (AS
DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY SECURITY 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 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.
THIS SECURITY IS A BOOK-ENTRY SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE AND MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A
NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE
DEPOSITORY.
CUSIP NO.: 315405 AJ 9
FERRO CORPORATION
9 1/8% Senior Notes due 2009
No. 1 $200,000,000
Ferro Corporation, a corporation duly organized and existing under
the laws of Ohio (herein called the "Company", which term includes any successor
Person under the Indenture hereinafter referred to), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of Two
Hundred Million Dollars ($200,000,000) on January 1, 2009, and to pay interest
thereon from December 20, 2001 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, semi-annually on January 1
and July 1 in each year, commencing July 1, 2002, at the rate of 9 1/8% 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 will, as provided in such 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, which shall be
December 15 or June 15 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. 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 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 said Indenture.
Payment of the principal of (and premium, if any) and any such
interest on this Security will be made at the office or agency of the Trustee
maintained for that purpose in New York, New York or Cleveland, Ohio, 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 or by wire transfer or by transfer through the Automated
Clearing House mechanism to an account maintained by such Person with a bank in
the continental United States (so long as the Paying Agent has received proper
transfer instructions in writing at least five Business Days prior to the
Regular Record Date).
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: December 20, 2001
FERRO CORPORATION
By:
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Attest:
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Reverse of Security.
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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 March 25, 1998 (herein called the
"Indenture"), between the Company and X. X. Xxxxxx Trust Company, National
Association, the successor-in-interest to Chase Manhattan Trust Company,
National Association, as Trustee (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. The Company may,
without the consent of the Holders of Securities of this series, increase the
initial principal amount of the Securities in the future (by "reopening" the
series and issuing more Securities) on the same terms and conditions and with
the same CUSIP numbers as the Securities.
The Securities of this series are subject to redemption upon not
more than 60 or less than 30 days' notice by mail, at any time or from time to
time, in whole or in part, at the option of the Company on any date (a
"Redemption Date"), at a redemption price equal to the greater of (i) 100% of
the principal amount of the Securities to be redeemed, or (ii) as determined by
an Independent Investment Banker, the sum of the present values of the remaining
scheduled payments of principal and interest thereon (exclusive of interest
accrued to such Redemption Date) discounted to such Redemption Date on a
semiannual basis (assuming a 360-day year consisting of twelve 30-day months) at
the Treasury Rate plus 50 basis points, plus, in either case, accrued and unpaid
interest on the principal amount being redeemed to such Redemption Date;
provided that installments of interest on Securities which are due and payable
on an Interest Payment Date falling on or prior to the relevant Redemption Date
shall be payable to the holders of such Securities, registered as such at the
close of business on the relevant Regular Record Date, according to the terms
and the provisions of the Indenture.
"Treasury Rate" means, with respect to any Redemption Date for the
Securities, (i) the yield, under the heading which represents the average for
the immediately preceding week, appearing in the most recently published
statistical release designated "H.15 (519)" or any successor publication which
is published weekly by the Board of Governors of the Federal Reserve System and
which establishes yields on actively traded United States Treasury securities
adjusted to constant maturity under the caption "Treasury Constant Maturities,"
for the maturity corresponding to the Comparable Treasury Issue (if no maturity
is within three months before or after the Maturity Date, yields for the two
published maturities most closely corresponding to the Comparable Treasury Issue
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight line basis, rounding to the nearest month) or
(ii) if such release (or any successor release) is not published during the week
preceding the calculation date or does not contain such yields, the rate per
annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, calculated using a price for the Comparable Treasury Issue (as
expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such Redemption Date. The Treasury Rate shall be calculated
on the third Business Day preceding the Redemption Date.
"Comparable Treasury Issue" means the United States security
selected by an Independent Investment Banker as having a maturity comparable to
the remaining term of the Securities 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 Securities.
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"Comparable Treasury Price" means with respect to any Redemption
Date for the Securities (i) the average of five Reference Treasury Dealer
Quotations for such Redemption Date, after excluding the highest and lowest such
Reference Treasury Dealer Quotations, or (ii) if the Trustee is provided with
fewer than five such Reference Treasury Dealer Quotations, the average of all
such quotations.
"Independent Investment Banker" means Credit Suisse First Boston
or, if such firm is unwilling or unable to select the Comparable Treasury Issue,
an independent investment banking institution of national standing appointed by
the Trustee after consultation with the Company.
"Reference Treasury Dealer" means: (i) Credit Suisse First Boston
and its successor; provided, however, that if the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), the Company will substitute therefore another Primary Treasury Dealer,
and (ii) any other Primary Treasury Dealer selected by the Independent
Investment Banker after consultation with the Company.
"Reference Treasury Dealer Quotations" 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.
In the event of any Change in Control Triggering Event occurring
on or prior to maturity, each Holder of Securities shall have the right, at the
Holder's option, subject to the terms and conditions of the Indenture, to
require the Company to purchase all or any part (provided that the principal
amount is $1,000 or an integral multiple thereof) of such Holder's Securities on
the date that is not less than 30 nor more than 60 Business Days after the
occurrence of such Change in Control Triggering Event (the "Change in Control
Purchase Date") at a cash price equal to 101% of the principal amount thereof
plus accrued interest to the Change in Control Purchase Date (the "Change in
Control Purchase Price").
Within 15 Business Days after the Change in Control Triggering
Event, the Company shall mail to the Trustee and to all Holders at their
addresses shown in the Securities Register (and to beneficial owners as required
by applicable law) a notice regarding the Change in Control Triggering Event,
which notice shall state, among other things: (i) the date by which the Change
in Control Purchase Notice (as defined below) must be given by such Holder, (ii)
the Change in Control Purchase Price, (iii) the Change in Control Purchase Date,
(iv) the name and address of the Trustee and of any other office or agency
maintained for the purpose of the surrender of Securities for purchase, (v) the
procedures for withdrawing a Change in Control Purchase Notice and (vi) the
procedures that Holders shall follow to exercise their right to require the
Company to repurchase all or any part of their Securities upon a Change in
Control Triggering Event. The Company shall cause a copy of such notice to be
published in a daily newspaper of national circulation.
The Holder shall deliver written notice (a "Change in Control
Purchase Notice"), to the Trustee or to any other office or agency maintained
for such purpose, of the exercise of such Holder's right to require the Company
to repurchase all or any part of such Holder's Securities prior to the close of
business on the Business Day immediately prior to the Change in Control Purchase
Date. The Change in Control Purchase Notice shall state (i) the CUSIP number and
the certificate number, if applicable, of the Securities to be delivered by the
Holder for purchase by the Company, (ii) the portion of the principal amount of
Securities to be purchased, which portion must be $1,000 or an integral multiple
thereof; and (iii) that such Securities shall be submitted for purchase by the
Company on the Change in Control Purchase Date pursuant to the applicable
provisions of this Security.
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Any Change in Control Purchase Notice shall be withdrawn by the
Holder by a written notice of withdrawal delivered to the Trustee or to any
other office or agency maintained for such purpose on the Business Day
immediately prior to the Change in Control Purchase Date. The notice of
withdrawal shall state the principal amount of the Securities as to which the
withdrawal notice relates and the principal amount, if any, which remains
subject to the original Change in Control Purchase Notice.
Payment of the Change in Control Purchase Price for a Security for
which a Change in Control Purchase Notice has been delivered and not withdrawn
is conditioned upon delivery of such Security (together with any endorsements)
to the Trustee or to any other office or agency maintained for such purpose, at
any time (whether prior to, on or after the Change in Control Purchase Date)
after delivery of such Change in Control Purchase Notice. Payment of the Change
in Control Purchase Price for such Security will be made promptly following the
later of the Change in Control Purchase Date or the time of delivery of such
Security. If the Company shall have deposited with the Trustee, in accordance
with the Indenture, money sufficient to pay the Change in Control Purchase Price
of such Security on the Change in Control Purchase Date, then on and after the
Change in Control Purchase Date, such Security shall cease to be outstanding and
interest on such Security will cease to accrue, whether or not such Security is
delivered to the Trustee or to any other office or agency maintained for such
purpose, and all other rights of the Holder shall terminate (other than the
right to receive the Change in Control Purchase Price upon delivery of the
Security). In accordance with the Indenture, no Security may be purchased
pursuant to a Change in Control Triggering Event if there has occurred and is
continuing an Event of Default (other than a default in the payment of the
Change in Control Purchase Price with respect to such Security).
The Company shall make all filings required under and comply with
all federal and state securities laws regulating the purchase of Securities at
the option of Holders upon a Change in Control Triggering Event, including, if
applicable, Section 14(e) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), and Rule 14e-1 promulgated thereunder and any other
applicable tender offer rules.
"Change in Control" means, with regard to the Company, the
occurrence of (i) any consolidation, share exchange or merger, other than, in
any case, a transaction in which the Holders of the Company's voting stock
immediately prior to the transaction have more than 50%, directly or indirectly,
of the voting stock of the surviving corporation immediately after the
transaction, (ii) any person, including affiliates of the Company (other than
the Company, its subsidiaries or the employee stock ownership plans or employee
benefit plans of the Company or any of its subsidiaries) filing a Schedule 13D
or 14D-1 (or any successor schedule, form or report under the Exchange Act)
disclosing that such person has become the beneficial owner of 50% or more of
the Company's voting stock, or (iii) the conveyance, transfer or lease of the
Company's properties and assets substantially as an entirety to any Person.
"Change in Control Triggering Event" means the occurrence of both
a Change in Control and a Rating Decline.
"Investment Grade" means a rating of BBB- or higher by S&P and
Baa3 or higher by Moody's or the equivalent of such ratings by S&P or Moody's.
"Moody's" means Xxxxx'x Investors Services, Inc. and its
successors.
"Rating Agency" means (i) S&P, (ii) Moody's, or (iii) if S&P or
Moody's or both shall not make a rating of the notes publicly available, a
nationally recognized securities rating agency or agencies, as the case may be,
selected by the Company, which shall be substituted for S&P or Moody's or both,
as the case may be.
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"Rating Category" means (i) with respect to S&P, any of the
following categories: BB, B, CCC, CC, C and D (or equivalent successor
categories), (ii) with respect to Moody's, any of the following categories: Ba,
B, Caa, Ca, C and D (or equivalent successor categories), and (iii) the
equivalent of any such category of S&P or Moody's used by another Rating Agency.
In determining whether the rating of the Securities has decreased by one or more
gradations, gradations within Rating Categories (+ and - for S&P; 1, 2 and 3 for
Moody's; or the equivalent gradations for another Rating Agency) shall be taken
into account (e.g., with respect to S&P, a decline in rating from BB+ to BB will
constitute a decrease of one gradation).
"Rating Date" means the date which is 30 days prior to the
earliest of (i) a Change in Control, (ii) public notice of the occurrence of a
Change in Control and (iii) public notice of the intention by the Company to
effect a Change in Control.
"Rating Decline" means the occurrence on or within 30 days after
the earlier of the date of public notice of the occurrence of a Xxxxx in Control
or the public announcement of the intention by the Company to effect a Change in
Control (which period shall be extended so long as the rating of the Securities
is under publicly announced consideration for possible downgrade by any of the
Rating Agencies) of: (a) in the event the Securities are rated by either Moody's
or S&P on the Rating Date as Investment Grade, the rating of the Securities by
both such Rating Agencies below Investment Grade, or (b) in the event the
Securities are rated below Investment Grade by both such Rating Agencies on the
Rating Date, the rating of the Securities by either Rating Agency is decreased
by one or more gradations (including gradations within Rating Categories as well
as between Rating Categories).
"S&P" means Standard & Poor's Ratings Services and its successors.
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.
If an Event of Default with respect to the Securities of this
series 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 contains provisions for defeasance at any time of
the entire indebtedness of this Security or certain restrictive covenants and
Events of Default with respect to this Security, in each case, upon compliance
with certain conditions set forth therein.
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 to be
effected 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 to be affected. The Indenture also contains provisions
permitting the Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all securities,
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 therefor
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Security.
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
Reverse-4
unconditional, to pay the principal of and any premium and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest on this security 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 Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series 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 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.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
Reverse-5
Trustee's Certificate of Authentication
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This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
X. X. XXXXXX TRUST COMPANY,
NATIONAL ASSOCIATION
By:
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Authorized Officer
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