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EXHIBIT 4.2
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (A) BY THE INITIAL INVESTOR (1) TO A PERSON WHO THE SELLER REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A
UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE SECURITIES ACT, (3) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND (B) BY SUBSEQUENT INVESTORS AS SET FORTH IN (A) ABOVE OR TO
AN INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, IN EACH CASE (A) AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS 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.
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8.80% Senior Note Due March 15, 2005
No. 1. $300,000,000
CUSIP NO. _______________
UST INC., a corporation duly organized and existing under the laws of
Delaware (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
$300,000,000 Dollars on March 15, 2005, and to pay interest thereon from March
6, 2000, or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, semi-annually on March 15 and September 15 in
each year, commencing September 15, 2000, at the rate of 8.80% per annum, until
the principal hereof is paid or made available for payment; provided, however,
that if (i) the Company has not filed a registration statement (the "Exchange
Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), registering a security substantially identical to this
Security (except that such Security will not contain terms with respect to the
Special Interest payments described below or transfer restrictions) pursuant to
an exchange offer (the "Exchange Offer") within 90 days after the securities are
initially issued (or, in lieu thereof if such obligation arises pursuant to the
Indenture, a registration statement registering this Security for resale (a
"Resale Registration Statement") within 30 days after the time such obligation
arises)), or (ii) the Exchange Registration Statement relating to the Exchange
Offer has not become or been declared effective within 180 days of filing (or,
if applicable, the Resale Registration Statement has not become or been declared
effective within 120 days after filing), or (iii) the Exchange Offer has not
been completed within 45 days after the date on which the Exchange Registration
Statement has become or been declared effective initially (if the Exchange Offer
is then required to be made pursuant to the Exchange and Registration Rights
Agreement (the "Exchange and Registration Rights Agreement"), dated as of March
6, 2000, by and between the Company, the Purchasers (as defined therein) and the
Holders from time to time of the Securities) or (iv) either the Exchange
Registration Statement or, if applicable, the Resale Registration Statement is
filed and declared effective (except as specifically permitted therein) but
shall thereafter cease to be effective without being succeeded promptly by an
additional registration statement filed and declared effective, in each case (i)
through (iv) upon the terms and conditions set forth in the Exchange and
Registration Rights Agreement (each such event referred to in clauses (i)
through (iv), a "Registration Default"), then special interest ("Special
Interest") will accrue (in addition to the stated interest on the Securities) at
a per annum rate of 0.25% for the first 90 days, determined daily, on the
principal amount of the Securities, from the period from the occurrence of the
Registration Default until such time as no Registration Default is in effect
and, provided, further, that if either the Exchange Offer has not been
consummated or, if applicable, the Resale Registration Statement has not become
or been declared effective, in each case within this first 90 days, then the per
annum rate of such Special Interest shall increase by an additional 0.25% per
annum for each subsequent 90-day period (provided that the rate of Special
Interest shall not
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exceed 1.0% per annum in the aggregate) and Special Interest will be payable at
such increased rate until such time as the Company consummates the Exchange
Offer or, if applicable, the Resale Registration Statement becomes or has been
declared effective (after which such interest rate will be restored to its
initial rate). Interest accruing as a result of Registration Default (which
shall be computed on the basis of a 365-day year) is referred to herein as
"Special Interest." Accrued Special Interest, if any, shall be paid
semi-annually on March 1 and September 1, in each year; and the amount of
accrued Special Interest shall be determined on the basis of the number of days
actually elapsed. Any accrued and unpaid interest (including Special Interest)
on this Security upon the issuance of an Exchange Security (as defined in the
Indenture) in exchange for this Security shall cease to be payable to the Holder
hereof but such accrued and unpaid interest (including Special Interest) shall
be payable on the next Interest Payment Date for such Exchange Security to the
Holder thereof on the related Regular Record Date.
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 the March 1 or September 1 (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 interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in Boston, Massachusetts, 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.
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.
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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:
UST Inc.
By: /s/ Xxxxxxx X. Xxxxxx
-----------------------
Treasurer
Attest:
/s/ Xxxxx X. Xxxxx
----------------------
Senior Vice President
and Secretary
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
State Street Bank and Trust Company
By:
----------------------------------
Authorized Signature
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[Reverse of Security]
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 May 27, 1999 (herein called the
"Indenture", which term shall have the meaning assigned to it in such
instrument), between the Company and State Street Bank and Trust Company, 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 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,
limited in aggregate principal amount to $300,000,000.
Within 30 days of the occurrence of a Change of Control Triggering Event,
the Company will be required to make an Offer to Purchase all Outstanding
Securities at a purchase price equal to 101% of their principal amount plus
accrued interest to the date of purchase. A "Change of Control Triggering Event"
will be deemed to have occurred if both a Change of Control and a Rating Decline
occur. A "Change of Control" will be deemed to have occurred at such time as
either (a) any Person or any Persons acting together that would constitute a
"group" (a "Group") for purposes of Section 13(d) of the Securities Exchange Act
of 1934 (the "Exchange Act"), or any successor provision thereto, together with
any Affiliate or Related Persons thereof, shall beneficially own (within the
meaning of Rule 13d-3 under the Exchange Act, or any successor provision
thereto) more than 50% of the aggregate voting power of all Voting Stock of the
Company; or (b) any Person or Group, together with any Affiliates or Related
Persons thereof, shall succeed in having a sufficient number of its nominees
elected to the Board of Directors of the Company such that such nominees, when
added to any existing director remaining on the Board of Directors of the
Company after such election, who was a nominee of or is an Affiliate or Related
Person of such Person or Group, will constitute a majority of the Board of
Directors of the Company. A "Rating Decline" will be deemed to have occurred if
at any time within 90 days (which period shall be extended so long as the rating
of the Securities is under publicly announced consideration for a possible
downgrade by any Rating Agency) after the date of public notice of a Change of
Control, or the intention of the Company or any Person to effect a Change of
Control, the rating of the Securities, the Company's 7.25% Senior Notes due June
1, 2009 or the Company's Floating Rate Senior Notes due June 1, 2009, is
decreased by any Rating Agency by three or more Gradations. In the event that
none of the Securities, the Company's 7.25% Senior Notes due June 1, 2009 or the
Company's Floating Rate Senior Notes due June 1, 2009 are rated by any of the
Rating Agencies, and a Change of Control shall have occurred, the Company shall
obtain from one of the Rating Agencies pro forma ratings on the Securities both
prior to and within 90 days after the date of public notice of the Change of
Control, or the intention of the Company or any Person to effect a Change of
Control. A Rating Decline will be deemed to have occurred in such circumstances
if such latter pro forma rating reflects a decrease from such former pro forma
rating by such Rating Agency of three or more Gradations.
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In the event that the Company makes an Offer to Purchase the Securities,
the Company intends to comply with any applicable securities laws and
regulations, including any applicable requirements of Section 14(e) of, and Rule
14e-1 under, the Exchange Act.
"Capital Stock" of any Person means any and all shares, interests,
participations or other equivalents (however designated) of corporate stock of
such Person.
"Gradation" means a gradation within a Rating Category or a change to
another Rating Category, which shall include (i) "+" and "- ", in the case of
Standard & Poor's Corporation ("S&P") current Rating Categories (e.g., a decline
from BB+ to BB would constitute a decrease of one gradation); (ii) "1", "2" and
"3", in the case of Xxxxx'x Investors Service, Inc. ("Xxxxx") current Rating
Categories (e.g., a decline of B1 to B2 would constitute a decrease of one
gradation); or (iii) the equivalent in respect of successor Rating Categories of
S&P and Moody's.
"Offer to Purchase" means a written offer (the "Offer") sent by the
Company by first class mail, postage prepaid, to each Holder at his address
appearing in the Security Register on the date of the Offer offering to purchase
such Holder's Securities at the purchase price specified in such Offer. Unless
otherwise required by applicable law, the Offer shall specify an expiration date
(the "Expiration Date") of the Offer to Purchase which shall be, subject to any
contrary requirements of applicable law, not less than 30 days nor more than 60
days after the date of such Offer and a settlement date (the "Purchase Date")
for purchase of Securities within five Business Days after the Expiration Date.
The Company shall notify the Trustee, at least 15 Business Days (or such shorter
period as is acceptable to the Trustee) prior to the mailing of the Offer of the
Company's obligation to make an Offer to Purchase, and the Offer shall be mailed
by the Company or, at the Company's request, by the Trustee, in the name and at
the expense of the Company. The Offer shall contain information concerning the
business of the Company and its Restricted Subsidiaries which the Company in
good faith believes will enable such Holders to make an informed decision with
respect to the Offer to Purchase. The Offer shall contain all instructions and
materials necessary to enable such Holders to tender Securities pursuant to the
Offer to Purchase. The Offer shall also state:
(1) the Expiration Date and the Purchase Date;
(2) the aggregate principal amount of the Outstanding Securities
offered;
(3) the purchase price to be paid by the Company for each
US$1,000 aggregate principal amount of Securities accepted
for payment (the "Purchase Price");
(4) that the Holder may tender all or any portion of the
Securities registered in the name of such Holder and that any
portion of a Security tendered must be tendered in an
integral multiple of US$1,000 principal amount;
(5) the place or places where Securities are to be surrendered
for tender pursuant to the Offer to Purchase;
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(6) that interest on any Security not tendered pursuant to the
Offer to Purchase will continue to accrue;
(7) that on the Purchase Date the Purchase Price will become due
and payable upon each Security being accepted for payment
pursuant to the Offer to Purchase and that interest thereon
shall cease to accrue on and after the Purchase Date;
(8) that each Holder electing to tender a Security pursuant to
the Offer to Purchase will be required to surrender such
Security at the place or places specified in the Offer prior
to the close of business on the Expiration Date (such
Security being, if the Company or the Trustee so require,
duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Trustee,
duly executed by the Holder thereof or his attorney duly
authorized in writing); and
(9) that Holders will be entitled to withdraw all or any portion
of Securities tendered if the Company (or their Paying Agent)
receives, not later than the close of business on the
Expiration Date, a telegram, telex, facsimile transmission or
letter setting forth the name of the Holder, the principal
amount of the Security the Holder tendered, the certificate
number of the Security the Holder tendered and a statement
that such Holder is withdrawing all or a portion of his
tender.
Any Offer to Purchase shall be governed by and effected in accordance
with the Offer for such Offer to Purchase.
"Rating Agencies" means (i) S&P or Moody's, or (ii) if S&P and Moody's,
are not making ratings of the Securities publicly available, a nationally
recognized U.S. rating agency or agencies, as the case may be, selected by the
Company, which will be substituted for S&P or Moody's or both, as the case may
be.
"Rating Categories" means (i) with respect to S&P, any of the following
categories (any of which may include a "+" or "--"): AAA, AA, A, BBB, BB, B,
CCC, C and D (or equivalent successor categories); (ii) with respect to Moody's,
any of the following categories (any of which may include a "1," "2" or "3"):
Aaa, Aa, A, Baa, Ba, B, Caa, Ca, C and D (or equivalent successor categories);
and (v) the equivalent of any such categories of S&P or Moody's used by another
Rating Agency, if applicable.
"Related Person" of any Person means, without limitation, any other
Person owning (a) 5% or more of the outstanding Capital Stock of such Person or
(b) 5% or more of the Voting Stock of such Person.
"Voting Stock" of any Person means Capital Stock of such Person which
ordinarily has voting power for the election of directors (or persons performing
similar functions) of such Person, whether at all times or only so long as no
senior class of securities has such voting power by reason of any contingency.
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The Securities do not have the benefit of any sinking fund obligations.
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 in the Indenture.
The failure of the Company to make the Offer to Purchase and the failure
of the Company to pay the purchase price and accrued interest described above on
the date specified therefor shall constitute an Event of Default.
If an Event of Default with respect to 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 permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of 66 2/3% in principal amount of the Securities at the
time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange herefor or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security 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 respect to the
Securities of this series, the Holders of not less than 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee
shall not have received from the Holders of a majority in principal amount of
Securities of this series at the time Outstanding a direction inconsistent with
such request, and shall have failed to institute 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 Security for the
enforcement of any payment of principal hereof or any premium or interest hereon
on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
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As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable 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 any
premium 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 to a Holder 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.
