UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) June 2, 2017
THE VALSPAR CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
| 1-3011 | 36-2443580 | |
| (Commission File Number) |
(IRS Employer Identification No.) | |
| 1101 South 3rd Street, Minneapolis, Minnesota | 55415 | |
| (Address of principal executive offices) | (Zip Code) | |
Registrant’s telephone number, including area code (612) 851-7000
Not Applicable
(Former name or former address, if changed since last report.)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| ☐ | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ☐ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ☐ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ☐ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter) (the “Exchange Act”).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
| Item 1.01 | Entry into a Material Definitive Agreement. |
On June 2, 2017, The Valspar Corporation (“Valspar”) entered into supplemental indentures to the indentures governing its 7.250% Notes due 2019 (the “2019 Notes”), 4.200% Notes due 2022 (the “2022 Notes”), 3.300% Notes due 2025 (the “2025 Notes”), 3.950% Notes due 2026 (the “2026 Notes”) and 4.400% Notes due 2045 (the “2045 Notes” and, collectively with the 2019 Notes, the 2022 Notes, the 2025 Notes and the 2026 Notes, the “Existing Notes”) following, as applicable, the receipt of consents from the requisite holders of each series of Existing Notes by The Sherwin-Williams Company, on behalf of Valspar. The supplemental indentures to the indentures governing the Existing Notes eliminated certain of the covenants, restrictive provisions and events of default relating to the Existing Notes.
The foregoing summary description of the supplemental indentures does not purport to be complete and is qualified in its entirety by the complete text of the respective supplemental indentures which are attached to this Current Report on Form 8-K as Exhibits 4.1, 4.2, 4.3 and 4.4, and are incorporated herein by reference as though fully set forth herein.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Number | Exhibit | |
| 4.1 | Seventh Supplemental Indenture, dated as of June 2, 2017, among Valspar and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.), as original trustee, and U.S. Bank National Association, as series trustee (collectively, the “Trustees”) (related to the indentures governing the 2019 Notes) | |
| 4.2 | Eighth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2022 Notes) | |
| 4.3 | Ninth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2025 Notes and the 2045 Notes) | |
| 4.4 | Tenth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2026 Notes) | |
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: June 5, 2017
| THE VALSPAR CORPORATION | ||
| By: | /s/ Catherine M. Kilbane | |
| Name: |
Catherine M. Kilbane | |
| Title: |
Vice President and Secretary | |
Exhibit Index
| Number | Exhibit | |
| 4.1 | Seventh Supplemental Indenture, dated as of June 2, 2017, among Valspar and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.), as original trustee, and U.S. Bank National Association, as series trustee (collectively, the “Trustees”) (related to the indentures governing the 2019 Notes) | |
| 4.2 | Eighth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2022 Notes) | |
| 4.3 | Ninth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2025 Notes and the 2045 Notes) | |
| 4.4 | Tenth Supplemental Indenture, dated as of June 2, 2017, among Valspar and the Trustees (related to the indentures governing the 2026 Notes) | |
Exhibit 4.1
THE VALSPAR CORPORATION
SEVENTH SUPPLEMENTAL INDENTURE
Dated as of June 2, 2017
to
Indenture Dated as of April 24, 2002
U.S. BANK NATIONAL ASSOCIATION
Series Trustee
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(as successor to Bank One Trust Company, N.A.)
Original Trustee
SEVENTH SUPPLEMENTAL INDENTURE (this “Seventh Supplemental Indenture”), dated as of June 2, 2017, among THE VALSPAR CORPORATION, a Delaware corporation (the “Company”), U.S. Bank National Association, (the “Series Trustee”), and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.) (the “Original Trustee” and, together with the Series Trustee, the “Trustee”).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Original Trustee an Indenture dated as of April 24, 2002 (the “Existing Indenture”), as supplemented by the Third Supplemental Indenture dated as of June 19, 2009 (the “Supplemental Indenture” and, collectively with the Existing Indenture and this Seventh Supplemental Indenture, the “Indenture”), providing for the issuance by the Company of its 7.25% Notes due 2019 (the “Notes”);
WHEREAS, $300,000,000 aggregate principal amount of the Notes is currently outstanding;
WHEREAS, on March 19, 2016, the Company entered into a merger agreement (as amended or supplemented from time to time, the “Merger Agreement”), by and among The Sherwin-Williams Company (“Sherwin-Williams”), Viking Merger Sub, Inc., a wholly owned subsidiary of Sherwin-Williams, and the Company, pursuant to which Sherwin-Williams has acquired the Company (the “Acquisition”);
WHEREAS, pursuant to the terms of the Merger Agreement, the Company has agreed to use its reasonable best efforts to provide all reasonable cooperation reasonably requested by Sherwin-Williams in connection with any offers to purchase or exchange and consent solicitations with respect to any or all of the outstanding series of senior notes of the Company, on such terms and conditions, including amendments to the terms and provisions of the applicable indentures, that are specified from time to time, by Sherwin-Williams and which are permitted by the terms of such series of senior notes, the applicable indentures and applicable law;
WHEREAS, in connection with the Acquisition, Sherwin-Williams has made exchange offers (the “Exchange Offers”) to Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Sherwin Williams dated May 2, 2017) of the Notes and has been soliciting consents (the “Consent Solicitation”) to this Seventh Supplemental Indenture, on behalf of the Company, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement and the related Letter of Transmittal and Consent (which together, including any amendments, modifications or supplements thereto, govern the Consent Solicitation with respect to the Notes);
WHEREAS, Section 902 of the Existing Indenture provides, among other things, that the Company and the Trustee may, with the consent of the Holders of not less than a majority in principal amount of the outstanding Notes, enter into one or more indentures supplemental to the Existing Indenture for the purpose of changing in any manner or eliminating any of the
provisions of the Existing Indenture or of modifying in any manner the rights of the Holders of the Notes (subject to certain exceptions);
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Seventh Supplemental Indenture to the Existing Indenture in order to eliminate certain provisions of the Existing Indenture and the Supplemental Indenture, as permitted by Section 902 thereof;
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by a certificate of the information agent with respect to the Consent Solicitation, as the duly appointed proxy of such Holders, delivered to the Company and the Trustee, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Seventh Supplemental Indenture an Officers’ Certificate and an Opinion of Counsel relating to this Seventh Supplemental Indenture, as contemplated by Sections 102 and 903 of the Existing Indenture, and (3) the Company has satisfied all other conditions required under the Existing Indenture to enable the Company and the Trustee to enter into this Seventh Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee enter into this Seventh Supplemental Indenture; and
WHEREAS, all things necessary to make this Seventh Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01 Effect of this Seventh Supplemental Indenture.
With respect to the Notes only, the Existing Indenture and the Supplemental Indenture, as applicable, are hereby amended pursuant to Section 902 of the Existing Indenture by deleting the following Sections or clauses of the Existing Indenture or the Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety:
| (a) | Article IV (“Change of Control”) of the Supplemental Indenture; |
| (b) | Section 6.01 (“Limitation on Liens”) of the Supplemental Indenture; |
| (c) | Section 6.02 (“Limitation on Sale and Leaseback Transactions”) of the Supplemental Indenture; |
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| (d) | Clauses (3) (default under the Existing Indenture), (4) (default in the payment at stated maturity of certain other indebtedness of the Company), (5) (the occurrence of certain events of default under mortgages, indentures or instruments for borrowed money), (6) (commencement of involuntary bankruptcy case), (7) (commencement of voluntary bankruptcy case), (8) (default in the payment of a final judgment, decree or order) and (9) (other Events of Default with respect to the Notes) of Section 501 (“Events of Default”) of the Existing Indenture; |
| (e) | Clauses (c) (amending Clause (6) of Section 501 of the Existing Indenture) and (d) (amending Clause (7) of Section 501 of the Existing Indenture) of Section 5.01 (“Events of Default”) of the Supplemental Indenture; and |
| (f) | Section 704 (“Reports by Company”) of the Existing Indenture, except to the extent required by the Trust Indenture Act. |
Section 1.02 Amendments to Notes.
The Notes are hereby amended by deleting all provisions inconsistent with the amendments to the Existing Indenture and the Supplemental Indenture effected by this Seventh Supplemental Indenture.
ARTICLE II
WAIVERS
Section 2.01 Waiver of Defaults.
As permitted by Section 513 of the Existing Indenture, any and all defaults, Events of Default or other consequences thereof under the Existing Indenture (other than any default in the payment of the principal of or interest on any Note or in respect of a covenant or provision of the Existing Indenture which under Article Nine of the Existing Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Note) for failure to comply with the provisions identified in Section 1.01 above that may have resulted in connection with, or may result from and after the consummation of, the Acquisition or the Exchange Offers, are hereby irrevocably waived.
ARTICLE III
MISCELLANEOUS
Section 3.01 Continuing Effect of the Existing Indenture.
Except as expressly provided herein, all of the terms, provisions and conditions of the Existing Indenture, the Supplemental Indenture and the Notes outstanding thereunder shall remain in full force and effect. This Seventh Supplemental Indenture shall form a part of the Existing Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of the Existing Indenture, the Supplemental Indenture and this Seventh Supplemental
3
Indenture shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Seventh Supplemental Indenture shall control.
Section 3.02 Definitions.
All capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Existing Indenture or the Supplemental Indenture, as applicable.
Section 3.03 Trust Indenture Act Controls.
If any provision of this Seventh Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Seventh Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 3.04 Governing Law.
THIS SEVENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05 Successors.
All agreements of the Company in this Seventh Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Seventh Supplemental Indenture shall bind its successors.
Section 3.06 Multiple Originals.
The parties may sign any number of copies of this Seventh Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Seventh Supplemental Indenture.
Section 3.07 Headings.
The headings of the Articles and Sections of this Seventh Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 3.08 Trustees Not Responsible for Recitals
The recitals contained herein shall be taken as statements of the Company, and the Original Trustee and the Series Trustee do not assume any responsibility for their correctness. The Original Trustee and the Series Trustee make no representations as to the validity or sufficiency of this Seventh Supplemental Indenture, except that the Original Trustee and the Series Trustee each represents that it is duly authorized to execute and deliver this Seventh Supplemental Indenture and with respect to the Series Trustee to perform its obligations hereunder.
4
Section 3.09 Adoption, Ratification and Confirmation.
The Existing Indenture and the Supplemental Indenture, as amended by this Seventh Supplemental Indenture, are in all respects hereby adopted, ratified and confirmed.
5
IN WITNESS WHEREOF, the parties have caused this Seventh Supplemental Indenture to be duly executed as of the date first written above.
| THE VALSPAR CORPORATION | ||||
| By:
|
/s/ Allen J. Mistysyn | |||
| Name: Allen J. Mistysyn | ||||
| Title: Vice President and Treasurer | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Series Trustee | ||||
| By:
|
/s/ Joshua A. Hahn | |||
| Name: Joshua A. Hahn | ||||
| Title: Vice President | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Original Trustee | ||||
| By:
|
/s/ Lawrence M. Kusch | |||
| Name: Lawrence M. Kusch | ||||
| Title: Vice President | ||||
This is a signature page to the Seventh Supplemental Indenture.
Exhibit 4.2
THE VALSPAR CORPORATION
EIGHTH SUPPLEMENTAL INDENTURE
Dated as of June 2, 2017
to
Indenture Dated as of April 24, 2002
U.S. BANK NATIONAL ASSOCIATION
Series Trustee
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(as successor to Bank One Trust Company, N.A.)
Original Trustee
EIGHTH SUPPLEMENTAL INDENTURE (this “Eighth Supplemental Indenture”), dated as of June 2, 2017, among THE VALSPAR CORPORATION, a Delaware corporation (the “Company”), U.S. Bank National Association, (the “Series Trustee”), and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.) (the “Original Trustee” and, together with the Series Trustee, the “Trustee”).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Original Trustee an Indenture dated as of April 24, 2002 (the “Existing Indenture”), as supplemented by the Fourth Supplemental Indenture dated as of January 13, 2012 (the “Supplemental Indenture” and, collectively with the Existing Indenture and this Eighth Supplemental Indenture, the “Indenture”), providing for the issuance by the Company of its 4.200% Notes due 2022 (the “Notes”);
WHEREAS, $400,000,000 aggregate principal amount of the Notes is currently outstanding;
WHEREAS, on March 19, 2016, the Company entered into a merger agreement (as amended or supplemented from time to time, the “Merger Agreement”), by and among The Sherwin-Williams Company (“Sherwin-Williams”), Viking Merger Sub, Inc., a wholly owned subsidiary of Sherwin-Williams, and the Company, pursuant to which Sherwin-Williams has acquired the Company (the “Acquisition”);
WHEREAS, pursuant to the terms of the Merger Agreement, the Company has agreed to use its reasonable best efforts to provide all reasonable cooperation reasonably requested by Sherwin-Williams in connection with any offers to purchase or exchange and consent solicitations with respect to any or all of the outstanding series of senior notes of the Company, on such terms and conditions, including amendments to the terms and provisions of the applicable indentures, that are specified from time to time, by Sherwin-Williams and which are permitted by the terms of such series of senior notes, the applicable indentures and applicable law;
WHEREAS, in connection with the Acquisition, Sherwin-Williams has made exchange offers (the “Exchange Offers”) to Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Sherwin Williams dated May 2, 2017) of the Notes and has been soliciting consents (the “Consent Solicitation”) to this Eighth Supplemental Indenture, on behalf of the Company, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement and the related Letter of Transmittal and Consent (which together, including any amendments, modifications or supplements thereto, govern the Consent Solicitation with respect to the Notes);
WHEREAS, Section 902 of the Existing Indenture provides, among other things, that the Company and the Trustee may, with the consent of the Holders of not less than a majority in principal amount of the outstanding Notes, enter into one or more indentures supplemental to the Existing Indenture for the purpose of changing in any manner or eliminating any of the
provisions of the Existing Indenture or of modifying in any manner the rights of the Holders of the Notes (subject to certain exceptions);
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Eighth Supplemental Indenture to the Existing Indenture in order to eliminate certain provisions of the Existing Indenture and the Supplemental Indenture, as permitted by Section 902 thereof;
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by a certificate of the information agent with respect to the Consent Solicitation, as the duly appointed proxy of such Holders, delivered to the Company and the Trustee, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Eighth Supplemental Indenture an Officers’ Certificate and an Opinion of Counsel relating to this Eighth Supplemental Indenture, as contemplated by Sections 102 and 903 of the Existing Indenture, and (3) the Company has satisfied all other conditions required under the Existing Indenture to enable the Company and the Trustee to enter into this Eighth Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee enter into this Eighth Supplemental Indenture; and
WHEREAS, all things necessary to make this Eighth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01 Effect of this Eighth Supplemental Indenture.
With respect to the Notes only, the Existing Indenture and the Supplemental Indenture, as applicable, are hereby amended pursuant to Section 902 of the Existing Indenture by deleting the following Sections or clauses of the Existing Indenture or the Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety:
| (a) | Article IV (“Change of Control”) of the Supplemental Indenture; |
| (b) | Section 6.01 (“Limitation on Liens”) of the Supplemental Indenture; |
| (c) | Section 6.02 (“Limitation on Sale and Leaseback Transactions”) of the Supplemental Indenture; |
2
| (d) | Clauses (3) (default under the Existing Indenture), (4) (default in the payment at stated maturity of certain other indebtedness of the Company), (5) (the occurrence of certain events of default under mortgages, indentures or instruments for borrowed money), (6) (commencement of involuntary bankruptcy case), (7) (commencement of voluntary bankruptcy case), (8) (default in the payment of a final judgment, decree or order) and (9) (other Events of Default with respect to the Notes) of Section 501 (“Events of Default”) of the Existing Indenture; |
| (e) | Clauses (c) (amending Clause (6) of Section 501 of the Existing Indenture) and (d) (amending Clause (7) of Section 501 of the Existing Indenture) of Section 5.01 (“Events of Default”) of the Supplemental Indenture; and |
| (f) | Section 704 (“Reports by Company”) of the Existing Indenture, except to the extent required by the Trust Indenture Act. |
Section 1.02 Amendments to Notes.
The Notes are hereby amended by deleting all provisions inconsistent with the amendments to the Existing Indenture and the Supplemental Indenture effected by this Eighth Supplemental Indenture.
ARTICLE II
WAIVERS
Section 2.01 Waiver of Defaults.
As permitted by Section 513 of the Existing Indenture, any and all defaults, Events of Default or other consequences thereof under the Existing Indenture (other than any default in the payment of the principal of or interest on any Note or in respect of a covenant or provision of the Existing Indenture which under Article Nine of the Existing Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Note) for failure to comply with the provisions identified in Section 1.01 above that may have resulted in connection with, or may result from and after the consummation of, the Acquisition or the Exchange Offers, are hereby irrevocably waived.
ARTICLE III
MISCELLANEOUS
Section 3.01 Continuing Effect of the Existing Indenture.
Except as expressly provided herein, all of the terms, provisions and conditions of the Existing Indenture, the Supplemental Indenture and the Notes outstanding thereunder shall remain in full force and effect. This Eighth Supplemental Indenture shall form a part of the Existing Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of the Existing Indenture, the Supplemental Indenture and this Eighth Supplemental
3
Indenture shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Eighth Supplemental Indenture shall control.
Section 3.02 Definitions.
All capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Existing Indenture or the Supplemental Indenture, as applicable.
Section 3.03 Trust Indenture Act Controls.
If any provision of this Eighth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Eighth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 3.04 Governing Law.
THIS EIGHTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05 Successors.
All agreements of the Company in this Eighth Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Eighth Supplemental Indenture shall bind its successors.
Section 3.06 Multiple Originals.
The parties may sign any number of copies of this Eighth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Eighth Supplemental Indenture.
Section 3.07 Headings.
The headings of the Articles and Sections of this Eighth Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 3.08 Trustees Not Responsible for Recitals
The recitals contained herein shall be taken as statements of the Company, and the Original Trustee and the Series Trustee do not assume any responsibility for their correctness. The Original Trustee and the Series Trustee make no representations as to the validity or sufficiency of this Eighth Supplemental Indenture, except that the Original Trustee and the Series Trustee each represents that it is duly authorized to execute and deliver this Eighth Supplemental Indenture and with respect to the Series Trustee to perform its obligations hereunder.
Section 3.09 Adoption, Ratification and Confirmation.
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The Existing Indenture and the Supplemental Indenture, as amended by this Eighth Supplemental Indenture, are in all respects hereby adopted, ratified and confirmed.
5
IN WITNESS WHEREOF, the parties have caused this Eighth Supplemental Indenture to be duly executed as of the date first written above.
| THE VALSPAR CORPORATION | ||||
| By:
|
/s/ Allen J. Mistysyn | |||
| Name: Allen J. Mistysyn | ||||
| Title: Vice President and Treasurer | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Series Trustee | ||||
| By:
|
/s/ Joshua A. Hahn | |||
| Name: Joshua A. Hahn | ||||
| Title: Vice President | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Original Trustee | ||||
| By:
|
/s/ Lawrence M. Kusch | |||
| Name: Lawrence M. Kusch | ||||
| Title: Vice President | ||||
This is a signature page to the Eighth Supplemental Indenture.
Exhibit 4.3
THE VALSPAR CORPORATION
NINTH SUPPLEMENTAL INDENTURE
Dated as of June 2, 2017
to
Indenture Dated as of April 24, 2002
U.S. BANK NATIONAL ASSOCIATION
Series Trustee
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(as successor to Bank One Trust Company, N.A.)
Original Trustee
NINTH SUPPLEMENTAL INDENTURE (this “Ninth Supplemental Indenture”), dated as of June 2, 2017, among THE VALSPAR CORPORATION, a Delaware corporation (the “Company”), U.S. Bank National Association, (the “Series Trustee”), and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.) (the “Original Trustee” and, together with the Series Trustee, the “Trustee”).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Original Trustee an Indenture dated as of April 24, 2002 (the “Existing Indenture”), as supplemented by the Fifth Supplemental Indenture dated as of January 21, 2015 (the “Supplemental Indenture” and, collectively with the Existing Indenture and this Ninth Supplemental Indenture, the “Indenture”), providing for the issuance by the Company of its 3.300% Notes due 2025 (the “2025 Notes”) and its 4.400% Notes due 2045 ( the “2045 Notes” and, collectively with the 2025 Notes, the “Notes”);
WHEREAS, $250,000,000 aggregate principal amount of the 2025 Notes is currently outstanding and $250,000,000 aggregate principal amount of the 2045 Notes is currently outstanding;
WHEREAS, on March 19, 2016, the Company entered into a merger agreement (as amended or supplemented from time to time, the “Merger Agreement”), by and among The Sherwin-Williams Company (“Sherwin-Williams”), Viking Merger Sub, Inc., a wholly owned subsidiary of Sherwin-Williams, and the Company, pursuant to which Sherwin-Williams has acquired the Company (the “Acquisition”);
WHEREAS, pursuant to the terms of the Merger Agreement, the Company has agreed to use its reasonable best efforts to provide all reasonable cooperation reasonably requested by Sherwin-Williams in connection with any offers to purchase or exchange and consent solicitations with respect to any or all of the outstanding series of senior notes of the Company, on such terms and conditions, including amendments to the terms and provisions of the applicable indentures, that are specified from time to time, by Sherwin-Williams and which are permitted by the terms of such series of senior notes, the applicable indentures and applicable law;
WHEREAS, in connection with the Acquisition, Sherwin-Williams has made exchange offers (the “Exchange Offers”) to Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Sherwin Williams dated May 2, 2017) of the Notes and has been soliciting consents (the “Consent Solicitation”) to this Ninth Supplemental Indenture, on behalf of the Company, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement and the related Letter of Transmittal and Consent (which together, including any amendments, modifications or supplements thereto, govern the Consent Solicitation with respect to the Notes);
WHEREAS, Section 902 of the Existing Indenture provides, among other things, that the Company and the Trustee may, with the consent of the Holders of not less than a majority in principal amount of the outstanding Notes, enter into one or more indentures supplemental to the
Existing Indenture for the purpose of changing in any manner or eliminating any of the provisions of the Existing Indenture or of modifying in any manner the rights of the Holders of the Notes (subject to certain exceptions);
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Ninth Supplemental Indenture to the Existing Indenture in order to eliminate certain provisions of the Existing Indenture and the Supplemental Indenture, as permitted by Section 902 thereof;
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in principal amount of the outstanding 2025 Notes and 2045 Notes (excluding any 2025 Notes or 2045 Notes owned by the Company or any of its Affiliates), respectively, all as certified by a certificate of the information agent with respect to the Consent Solicitation, as the duly appointed proxy of such Holders, delivered to the Company and the Trustee, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Ninth Supplemental Indenture an Officers’ Certificate and an Opinion of Counsel relating to this Ninth Supplemental Indenture, as contemplated by Sections 102 and 903 of the Existing Indenture, and (3) the Company has satisfied all other conditions required under the Existing Indenture to enable the Company and the Trustee to enter into this Ninth Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee enter into this Ninth Supplemental Indenture; and
WHEREAS, all things necessary to make this Ninth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01 Effect of this Ninth Supplemental Indenture.
With respect to the Notes only, the Existing Indenture and the Supplemental Indenture, as applicable, are hereby amended pursuant to Section 902 of the Existing Indenture by deleting the following Sections or clauses of the Existing Indenture or the Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety:
| (a) | Article IV (“Change of Control”) of the Supplemental Indenture; |
| (b) | Section 6.01 (“Limitation on Liens”) of the Supplemental Indenture; |
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| (c) | Section 6.02 (“Limitation on Sale and Leaseback Transactions”) of the Supplemental Indenture; |
| (d) | Clauses (3) (default under the Existing Indenture), (4) (default in the payment at stated maturity of certain other indebtedness of the Company), (5) (the occurrence of certain events of default under mortgages, indentures or instruments for borrowed money), (6) (commencement of involuntary bankruptcy case), (7) (commencement of voluntary bankruptcy case), (8) (default in the payment of a final judgment, decree or order) and (9) (other Events of Default with respect to the Notes) of Section 501 (“Events of Default”) of the Existing Indenture; |
| (e) | Clauses (c) (amending Clause (6) of Section 501 of the Existing Indenture), (d) (amending Clause (7) of Section 501 of the Existing Indenture) and (e) (amending Clause (8) of Section 501 of the Existing Indenture) of Section 5.01 (“Events of Default”) of the Supplemental Indenture; and |
| (f) | Section 704 (“Reports by Company”) of the Existing Indenture, except to the extent required by the Trust Indenture Act. |
Section 1.02 Amendments to Notes.
The Notes are hereby amended by deleting all provisions inconsistent with the amendments to the Existing Indenture and the Supplemental Indenture effected by this Ninth Supplemental Indenture.
ARTICLE II
WAIVERS
Section 2.01 Waiver of Defaults.
As permitted by Section 513 of the Existing Indenture, any and all defaults, Events of Default or other consequences thereof under the Existing Indenture (other than any default in the payment of the principal of or interest on any Note or in respect of a covenant or provision of the Existing Indenture which under Article Nine of the Existing Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Note) for failure to comply with the provisions identified in Section 1.01 above that may have resulted in connection with, or may result from and after the consummation of, the Acquisition or the Exchange Offers, are hereby irrevocably waived.
ARTICLE III
MISCELLANEOUS
Section 3.01 Continuing Effect of the Existing Indenture.
Except as expressly provided herein, all of the terms, provisions and conditions of the Existing Indenture, the Supplemental Indenture and the Notes outstanding thereunder shall
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remain in full force and effect. This Ninth Supplemental Indenture shall form a part of the Existing Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of the Existing Indenture, the Supplemental Indenture and this Ninth Supplemental Indenture shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Ninth Supplemental Indenture shall control.
Section 3.02 Definitions.
All capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Existing Indenture or the Supplemental Indenture, as applicable.
Section 3.03 Trust Indenture Act Controls.
If any provision of this Ninth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Ninth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 3.04 Governing Law.
THIS NINTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05 Successors.
All agreements of the Company in this Ninth Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Ninth Supplemental Indenture shall bind its successors.
Section 3.06 Multiple Originals.
The parties may sign any number of copies of this Ninth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Ninth Supplemental Indenture.
Section 3.07 Headings.
The headings of the Articles and Sections of this Ninth Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 3.08 Trustees Not Responsible for Recitals
The recitals contained herein shall be taken as statements of the Company, and the Original Trustee and the Series Trustee do not assume any responsibility for their correctness. The Original Trustee and the Series Trustee make no representations as to the validity or sufficiency of this Ninth Supplemental Indenture, except that the Original Trustee and the Series
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Trustee each represents that it is duly authorized to execute and deliver this Ninth Supplemental Indenture and with respect to the Series Trustee to perform its obligations hereunder.
Section 3.09 Adoption, Ratification and Confirmation.
The Existing Indenture and the Supplemental Indenture, as amended by this Ninth Supplemental Indenture, are in all respects hereby adopted, ratified and confirmed.
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IN WITNESS WHEREOF, the parties have caused this Ninth Supplemental Indenture to be duly executed as of the date first written above.
| THE VALSPAR CORPORATION | ||||
| By:
|
/s/ Allen J. Mistysyn | |||
| Name: Allen J. Mistysyn | ||||
| Title: Vice President and Treasurer | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Series Trustee | ||||
| By:
|
/s/ Joshua A. Hahn | |||
| Name: Joshua A. Hahn | ||||
| Title: Vice President | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Original Trustee | ||||
| By:
|
/s/ Lawrence M. Kusch | |||
| Name: Lawrence M. Kusch | ||||
| Title: Vice President | ||||
This is a signature page to the Ninth Supplemental Indenture.
Exhibit 4.4
THE VALSPAR CORPORATION
TENTH SUPPLEMENTAL INDENTURE
Dated as of June 2, 2017
to
Indenture Dated as of April 24, 2002
U.S. BANK NATIONAL ASSOCIATION
Series Trustee
and
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
(as successor to Bank One Trust Company, N.A.)
Original Trustee
TENTH SUPPLEMENTAL INDENTURE (this “Tenth Supplemental Indenture”), dated as of June 2, 2017, among THE VALSPAR CORPORATION, a Delaware corporation (the “Company”), U.S. Bank National Association, (the “Series Trustee”), and The Bank of New York Mellon Trust Company, N.A. (as successor to Bank One Trust Company, N.A.) (the “Original Trustee” and, together with the Series Trustee, the “Trustee”).
RECITALS
WHEREAS, the Company has heretofore executed and delivered to the Original Trustee an Indenture dated as of April 24, 2002 (the “Existing Indenture”), as supplemented by the Sixth Supplemental Indenture dated as of July 27, 2015 (the “Supplemental Indenture” and, collectively with the Existing Indenture and this Tenth Supplemental Indenture, the “Indenture”), providing for the issuance by the Company of its 3.950% Notes due 2026 (the “Notes”);
WHEREAS, $350,000,000 aggregate principal amount of the Notes is currently outstanding;
WHEREAS, on March 19, 2016, the Company entered into a merger agreement (as amended or supplemented from time to time, the “Merger Agreement”), by and among The Sherwin-Williams Company (“Sherwin-Williams”), Viking Merger Sub, Inc., a wholly owned subsidiary of Sherwin-Williams, and the Company, pursuant to which Sherwin-Williams has acquired the Company (the “Acquisition”);
WHEREAS, pursuant to the terms of the Merger Agreement, the Company has agreed to use its reasonable best efforts to provide all reasonable cooperation reasonably requested by Sherwin-Williams in connection with any offers to purchase or exchange and consent solicitations with respect to any or all of the outstanding series of senior notes of the Company, on such terms and conditions, including amendments to the terms and provisions of the applicable indentures, that are specified from time to time, by Sherwin-Williams and which are permitted by the terms of such series of senior notes, the applicable indentures and applicable law;
WHEREAS, in connection with the Acquisition, Sherwin-Williams has made exchange offers (the “Exchange Offers”) to Eligible Holders (as defined in the Offering Memorandum and Consent Solicitation Statement (herein so called) of Sherwin Williams dated May 2, 2017) of the Notes and has been soliciting consents (the “Consent Solicitation”) to this Tenth Supplemental Indenture, on behalf of the Company, upon the terms and subject to the conditions set forth in the Offering Memorandum and Consent Solicitation Statement and the related Letter of Transmittal and Consent (which together, including any amendments, modifications or supplements thereto, govern the Consent Solicitation with respect to the Notes);
WHEREAS, Section 902 of the Existing Indenture provides, among other things, that the Company and the Trustee may, with the consent of the Holders of not less than a majority in principal amount of the outstanding Notes, enter into one or more indentures supplemental to the Existing Indenture for the purpose of changing in any manner or eliminating any of the provisions of the Existing Indenture or of modifying in any manner the rights of the Holders of the Notes (subject to certain exceptions);
WHEREAS, the Company, in the exercise of the power and authority conferred upon and reserved to it under the provisions of the Existing Indenture and pursuant to appropriate resolutions of the Board of Directors, has duly determined to make, execute and deliver to the Trustee this Tenth Supplemental Indenture to the Existing Indenture in order to eliminate certain provisions of the Existing Indenture and the Supplemental Indenture, as permitted by Section 902 thereof;
WHEREAS, (1) the Company has received the consent of the Holders of at least a majority in principal amount of the outstanding Notes (excluding any Notes owned by the Company or any of its Affiliates), all as certified by a certificate of the information agent with respect to the Consent Solicitation, as the duly appointed proxy of such Holders, delivered to the Company and the Trustee, (2) the Company has delivered to the Trustee simultaneously with the execution and delivery of this Tenth Supplemental Indenture an Officers’ Certificate and an Opinion of Counsel relating to this Tenth Supplemental Indenture, as contemplated by Sections 102 and 903 of the Existing Indenture, and (3) the Company has satisfied all other conditions required under the Existing Indenture to enable the Company and the Trustee to enter into this Tenth Supplemental Indenture;
WHEREAS, the Company has requested that the Trustee enter into this Tenth Supplemental Indenture; and
WHEREAS, all things necessary to make this Tenth Supplemental Indenture a valid, binding and legal agreement of the Company, have been done.
NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the sufficiency and adequacy of which are hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
APPLICATION OF SUPPLEMENTAL INDENTURE
Section 1.01 Effect of this Tenth Supplemental Indenture.
With respect to the Notes only, the Existing Indenture and the Supplemental Indenture, as applicable, are hereby amended pursuant to Section 902 of the Existing Indenture by deleting the following Sections or clauses of the Existing Indenture or the Supplemental Indenture, as applicable, and all references and definitions related thereto in their entirety:
| (a) | Article IV (“Change of Control”) of the Supplemental Indenture; |
| (b) | Section 6.01 (“Limitation on Liens”) of the Supplemental Indenture; |
| (c) | Section 6.02 (“Limitation on Sale and Leaseback Transactions”) of the Supplemental Indenture; |
| (d) | Clauses (3) (default under the Existing Indenture), (4) (default in the payment at stated maturity of certain other indebtedness of the Company), (5) (the occurrence |
2
| of certain events of default under mortgages, indentures or instruments for borrowed money), (6) (commencement of involuntary bankruptcy case), (7) (commencement of voluntary bankruptcy case), (8) (default in the payment of a final judgment, decree or order) and (9) (other Events of Default with respect to the Notes) of Section 501 (“Events of Default”) of the Existing Indenture; |
| (e) | Clauses (c) (amending Clause (6) of Section 501 of the Existing Indenture), (d) (amending Clause (7) of Section 501 of the Existing Indenture) and (e) (amending Clause (8) of Section 501 of the Existing Indenture) of Section 5.01 (“Events of Default”) of the Supplemental Indenture; and |
| (f) | Section 704 (“Reports by Company”) of the Existing Indenture, except to the extent required by the Trust Indenture Act. |
Section 1.02 Amendments to Notes.
The Notes are hereby amended by deleting all provisions inconsistent with the amendments to the Existing Indenture and the Supplemental Indenture effected by this Tenth Supplemental Indenture.
ARTICLE II
WAIVERS
Section 2.01 Waiver of Defaults.
As permitted by Section 513 of the Existing Indenture, any and all defaults, Events of Default or other consequences thereof under the Existing Indenture (other than any default in the payment of the principal of or interest on any Note or in respect of a covenant or provision of the Existing Indenture which under Article Nine of the Existing Indenture cannot be modified or amended without the consent of the Holder of each Outstanding Note) for failure to comply with the provisions identified in Section 1.01 above that may have resulted in connection with, or may result from and after the consummation of, the Acquisition or the Exchange Offers, are hereby irrevocably waived.
ARTICLE III
MISCELLANEOUS
Section 3.01 Continuing Effect of the Existing Indenture.
Except as expressly provided herein, all of the terms, provisions and conditions of the Existing Indenture, the Supplemental Indenture and the Notes outstanding thereunder shall remain in full force and effect. This Tenth Supplemental Indenture shall form a part of the Existing Indenture for all purposes, and every Holder of the Notes heretofore or hereafter authenticated and delivered under the Indenture shall be bound hereby and all terms and conditions of the Existing Indenture, the Supplemental Indenture and this Tenth Supplemental
3
Indenture shall be read together as though they constitute a single instrument, except that in the case of conflict the provisions of this Tenth Supplemental Indenture shall control.
Section 3.02 Definitions.
All capitalized terms used herein and not otherwise defined shall have the meanings ascribed thereto in the Existing Indenture or the Supplemental Indenture, as applicable.
Section 3.03 Trust Indenture Act Controls.
If any provision of this Tenth Supplemental Indenture limits, qualifies or conflicts with another provision that is required or deemed to be included in this Tenth Supplemental Indenture by the Trust Indenture Act, the required or deemed provision shall control.
Section 3.04 Governing Law.
THIS TENTH SUPPLEMENTAL INDENTURE AND THE NOTES SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 3.05 Successors.
All agreements of the Company in this Tenth Supplemental Indenture and the Notes shall bind its successors. All agreements of the Trustee in this Tenth Supplemental Indenture shall bind its successors.
Section 3.06 Multiple Originals.
The parties may sign any number of copies of this Tenth Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. One signed copy is enough to prove this Tenth Supplemental Indenture.
Section 3.07 Headings.
The headings of the Articles and Sections of this Tenth Supplemental Indenture have been inserted for convenience of reference only, are not intended to be considered a part hereof and shall not modify or restrict any of the terms or provisions hereof.
Section 3.08 Trustees Not Responsible for Recitals
The recitals contained herein shall be taken as statements of the Company, and the Original Trustee and the Series Trustee do not assume any responsibility for their correctness. The Original Trustee and the Series Trustee make no representations as to the validity or sufficiency of this Tenth Supplemental Indenture, except that the Original Trustee and the Series Trustee each represents that it is duly authorized to execute and deliver this Tenth Supplemental Indenture and with respect to the Series Trustee to perform its obligations hereunder.
Section 3.09 Adoption, Ratification and Confirmation.
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The Existing Indenture and the Supplemental Indenture, as amended by this Tenth Supplemental Indenture, are in all respects hereby adopted, ratified and confirmed.
5
IN WITNESS WHEREOF, the parties have caused this Tenth Supplemental Indenture to be duly executed as of the date first written above.
| THE VALSPAR CORPORATION | ||||
| By:
|
/s/ Allen J. Mistysyn | |||
| Name: Allen J. Mistysyn | ||||
| Title: Vice President and Treasurer | ||||
| U.S. BANK NATIONAL ASSOCIATION, as Series Trustee | ||||
| By:
|
/s/ Joshua A. Hahn | |||
| Name: Joshua A. Hahn | ||||
| Title: Vice President | ||||
| THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Original Trustee | ||||
| By:
|
/s/ Lawrence M. Kusch | |||
| Name: Lawrence M. Kusch | ||||
| Title: Vice President | ||||
This is a signature page to the Tenth Supplemental Indenture.