Exhibit 4.1
CABOT CORPORATION
First Supplemental
Indenture
Dated as of September 24,
2009
5.00% Notes due
2016
(First Supplemental to the
Indenture Dated as of September 21, 2009)
U.S. BANK NATIONAL
ASSOCIATION,
as Trustee
FIRST SUPPLEMENTAL INDENTURE, dated
as of September 24, 2009, between Cabot Corporation, a
corporation duly organized and existing under the laws of the State
of Delaware (herein called the “ Company ”), and
U.S. Bank National Association, as Trustee (herein called the
“ Trustee ”);
RECITALS:
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an Indenture, dated as of
September 21, 2009 (the “ Base Indenture
”), providing for the issuance from time to time of the
Company’s unsecured notes or other evidences of indebtedness
(herein and therein called the “ Securities ”),
to be issued in one or more series as provided in the Base
Indenture;
WHEREAS, Section 9.01(7) of the
Base Indenture permits the Company and the Trustee to enter into an
indenture supplemental to the Base Indenture to establish the form
and terms of any series of Securities without notice to or consent
of any Securityholder;
WHEREAS, Section 2.01 of the
Base Indenture permits the form of Securities of any series to be
established in an indenture supplemental to the Base
Indenture;
WHEREAS, pursuant to Sections 2.01
and 2.03 of the Base Indenture, the Company desires to provide for
the establishment of a new series of Securities under the Base
Indenture, the form and substance of such Securities and the terms,
provisions and conditions thereof to be set forth as provided in
the Base Indenture and this First Supplemental
Indenture;
WHEREAS, all conditions and
requirements necessary to make this First Supplemental Indenture,
when executed and delivered, a valid agreement of the Company, in
accordance with its terms, have been performed and
filled;
NOW, THEREFORE, THIS FIRST
SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the
premises and the purchase of the Securities established by this
First Supplemental Indenture by the holders thereof (the “
Holders ”), it is mutually agreed, for the equal and
proportionate benefit of all such Holders, as follows:
ARTICLE 1
D EFINITIONS AND O THER P ROVISIONS OF G
ENERAL A PPLICATION
Section 1.01 . Relation to Base
Indenture. This First Supplemental Indenture constitutes a part
of the Base Indenture (the provisions of which, as modified by this
First Supplemental Indenture), shall apply to the series of
Securities established by this First Supplemental Indenture but
shall not modify, amend or otherwise affect the Base Indenture
insofar as it relates to any other series of Securities or modify,
amend or
otherwise affect in any manner the terms and
conditions of the Securities of any other series.
Section 1.02 . Definitions.
For all purposes of this First Supplemental Indenture, the
capitalized terms used herein (i) which are defined in this
Section 1.02 have the respective meanings assigned hereto in
this Section 1.02 and (ii) which are defined in the Base
Indenture (and which are not defined in this Section 1.02)
have the respective meanings assigned thereto in the Base
Indenture. For all purposes of this First Supplemental
Indenture:
(a) Unless the context otherwise
requires, any reference to an Article or Section refers to an
Article or Section, as the case may be, of this First Supplemental
Indenture;
(b) The words “herein,”
“hereof” and “hereunder” and words of
similar import refer to this First Supplemental Indenture as a
whole and not to any particular Article, Section or other
subdivision; and
(c) The terms defined in this
Section 1.02(c) have the meanings assigned to them in this
Section and include the plural as well as the singular.
“ Business Day ”
is any day, other than (i) a Saturday, Sunday or other day on
which banking institutions in The City of New York are authorized
or required by law or executive order to remain closed.
“ Change of Control
” means the occurrence of any of the following after the date
of issuance of the Notes:
(1) the direct or indirect sale,
lease, transfer, conveyance or other disposition (other than by way
of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the assets of the
Company and its subsidiaries taken as a whole to any
“person” or “group” (as those terms are
used in Section 13(d)(3) of the Exchange Act) other than to
the Company or one of its subsidiaries;
(2) the consummation of any
transaction (including, without limitation, any merger or
consolidation) the result of which is that any “person”
or “group” (as those terms are used in
Section 13(d)(3) of the Exchange Act, it being agreed that an
employee of the Company or any of its subsidiaries for whom shares
are held under an employee stock ownership, employee retirement,
employee savings or similar plan and whose shares are voted in
accordance with the instructions of such employee shall not be a
member of a “group” (as that term is used in
Section 13(d)(3) of the Exchange Act) solely because such
employee’s shares are held by a trustee under said plan),
other than the Company or one of its subsidiaries, becomes the
“beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of our
Voting Stock representing more than 50% of the voting power of our
outstanding Voting Stock; provided that a merger shall not
constitute a “change of control” under this definition
if (i) the sole purpose of the merger is the reincorporation
of the Company in another state and (ii) the shareholders and
the number of shares of Voting Stock of the Company,
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measured by voting power and number of shares,
owned by each of them immediately before and immediately following
such merger are identical;
(3) the Company consolidates with,
or merges with or into, any Person, or any Person consolidates
with, or merges with or into, the Company, in any such event
pursuant to a transaction in which any of the Company’s
outstanding Voting Stock or Voting Stock of such other Person is
converted into or exchanged for cash, securities or other property,
other than any such transaction where the Company’s
outstanding Voting Stock immediately prior to such transaction
constitutes, or is converted into or exchanged for, Voting Stock
representing more than 50% of the voting power of the Voting Stock
of the surviving Person immediately after giving effect to such
transaction;
(4) during any period of 24
consecutive calendar months, the majority of the members of the
Board of Directors shall no longer be composed of individuals
(a) who were members of the Board of Directors on the first
day of such period or (b) whose nomination or election (either
by a specific vote or by approval of our proxy statement in which
such member was named as a nominee for election as a director) to
the Board of Directors was approved by (i) individuals
referred to in clause (a) above or (ii) other directors
described in this clause (b), in each case collectively
constituting, at the time of such nomination or election, at least
a majority of the Board of Directors or, if directors are nominated
by a committee of the Board of Directors, constituting at the time
of such nomination, at least a majority of such committee;
or
(5) the adoption of a plan relating
to the liquidation or dissolution of the Company.
“ Change of Control
Offer ” has the meaning set forth in
Section 3.01.
“ Change of Control
Payment ” has the meaning set forth in
Section 3.01.
“ Change of Control Payment
Date ” has the meaning set forth in
Section 3.01.
“ Change of Control
Triggering Event ” means, with respect to the Notes, the
Notes are rated below Investment Grade by both of the Rating
Agencies on any date during the period (the “ Trigger
Period ”) commencing on the first public announcement by
the Company of any Change of Control (or pending Change of Control)
and ending 60 days following consummation of such Change of Control
(which Trigger Period will be extended following consummation of a
Change of Control for so long as any of the Rating Agencies has
publicly announced that it is considering a possible ratings
downgrade); provided that a particular reduction in rating shall
not be deemed to have occurred in respect of a particular Change in
Control (and thus shall not result in a Change of Control
Triggering Event) if any of the Rating Agencies making the
reduction in rating to which this definition would otherwise apply
does not announce or publicly confirm or inform the trustee in
writing at its request that the reduction was the result, in whole
or in part, of any event or circumstance comprising of or arising
as a result of, or in respect of, the applicable Change of Control
(whether or not the applicable Change of Control shall have
occurred at the time of the Rating Event). If a Rating Agency is
not providing a rating for the Notes at the commencement of any
Trigger Period, the Notes will be deemed to have ceased to be
called Investment Grade by such Rating Agency
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during that Trigger Period. Notwithstanding the
foregoing, no Change of Control Triggering Event will be deemed to
have occurred in connection with any particular Change of Control
unless and until such Change of Control has actually been
consummated.
“ Interest Payment Date
” has the meaning set forth in
Section 2.01(d).
“ Interest Period
” has the meaning set forth in
Section 2.01(d).
“ Investment Grade
” means a rating of Baa3 or better by Moody’s (or its
equivalent under any successor rating category of Moody’s)
and a rating of BBB- or better by S&P (or its equivalent under
any successor rating category of S&P), and the equivalent
investment grade credit rating from any replacement Rating Agency
or Rating Agencies selected by the Company under the circumstances
permitting us to select a replacement agency and in the manner for
selecting a replacement agency, in each case as set forth in the
definition of “Rating Agency.”
“ Maturity Date ”
has the meaning set forth in 2.01(c).
“ Moody’s ”
means Moody’s Investors Service, Inc., a subsidiary of
Moody’s Corporation, and its successors.
“ Notes ” has the
meaning set forth in Section 2.01(a).
“ Rating Agency ”
means each of Moody’s and S&P; provided, that if any of
Moody’s or S&P ceases to rate the Notes or fails to make
a rating of the Notes publicly available for reasons outside of the
Company’s control, the Company may appoint another
“nationally recognized statistical rating organization”
within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange
Act as a replacement for Moody’s or S&P, or both of them,
as the case may be; provided that the Company shall give notice of
such appointment to the Trustee.
“ Redemption Date
”, when used with respect to any Note, means the date fixed
for such redemption by or pursuant to this First Supplemental
Indenture.
“ Redemption Price
”, when used with respect to any Note to be redeemed, means
the price at which it is to be redeemed pursuant to this First
Supplemental Indenture.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of
McGraw-Hill Companies, Inc., and its successors.
“ Voting Stock ”
of any specified Person as of any date means the capital stock of
such Person that is at the time entitled to vote generally in the
election of the board of directors of such Person.
“ Person ” means
any individual, corporation, partnership, limited liability
company, business trust, association, joint-stock company, joint
venture, trust,
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incorporated or unincorporated organization or
government or any agency or political subdivision
thereof.
ARTICLE 2
G ENERAL T ERMS AND C ONDITIONS OF THE N OTES
Section 2.01 . Terms of
Notes. Pursuant to Sections 2.01 and 2.03 of the Base
Indenture, there is hereby established a series of Securities, the
terms of which shall be as follows:
(a) Designation . The
Securities of this series shall be known and designated as the
“5.00% Notes due 2016” (the “ Notes
”) of the Company. The CUSIP number of the Notes is
127055AG6.
(b) Form and Denominations .
The Notes will be issued only in fully registered form, and the
authorized denominations of the Notes shall be $2,000 principal
amount and any integral multiple of $1,000 above that amount. The
Notes will initially be issued in the form of one or more Global
Securities substantially in the form of Annex A attached hereto,
with such modifications thereto as may be approved by the
authorized officer executing the same. The Notes will be
denominated in U.S. Dollars and payments of principal and interest
will be made in U.S. Dollars.
(c) Maturity Date . The
principal amount of, and all accrued and unpaid interest on, the
Notes shall be payable in full on October 1, 2016, or if such
day is not a Business Day, the following Business Day (each, the
“ Maturity Date ”).
(d) Interest . Interest
payable on any Interest Payment Date (as defined below), the
Maturity Date, or if applicable, the Redemption Date shall be the
amount accrued from, and including, the immediately preceding
Interest Payment Date in respect of which interest has been paid or
duly provided for (or from and including the original issue date of
September 24, 2009, if no interest has been paid or duly
provided for with respect to the Notes) but excluding such Interest
Payment Date, Maturity Date or, if applicable, Redemption Date, as
the case may be (each, an “ Interest Period ”).
The Notes will bear interest at the rate of 5.00% per year
from the original issue date thereof to the Maturity Date. Interest
on the Notes shall be payable semi-annually in arrears on
April 1 and October 1 of each year, beginning on
April 1, 2010 (each such date, an “ Interest Payment
Date ”). The amount of interest payable for any
semi-annual Interest Period will be computed on the basis of a
360-day year consisting of twelve 30-day months. The amount of
interest payable for any period shorter than a full semi-annual
Interest Period for which interest is computed will be computed on
the basis of the actual number of days elapsed per 30-day month. In
the event any Interest Payment Date on or before the Maturity Date
falls on a day that is not a Business Day, the interest payment due
on that date will be postponed to the next day that is a Business
Day and no interest shall accrue as a result of such
postponement.
In the event the Maturity Date or a
Redemption Date for any Note falls on a day that is not a Business
Day, then the related payments of principal, premium, if any,
and
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interest may be made on the next succeeding date
that is a Business Day (and no additional interest will accumulate
on the amount payable for the period from and after the Maturity
Date or a Redemption Date for such Note). Interest due on the
Maturity Date or such Redemption Date (in each case, whether or not
an Interest Payment Date) will be paid to the Person to whom
principal of such Notes is payable.
(e) To Whom Interest is
Payable . Interest shall be payable to the Person in whose name
the Notes are registered at the close of business on the regular
record date for such interest, which shall be the March 15 or
September 15 (whether or not either is a Business Day), as the
case may be, next preceding the Interest Payment Date, or in the
event the Notes cease to be held in the form of one or more Global
Securities, at the close of business on the date 15 days prior to
that Interest Payment Date, whether or not a Business
Day.
(f) Sinking Fund; Holder
Repurchase Right . The Notes shall not be subject to any
sinking fund or analogous provision or be redeemable at the option
of the Holders.
(g) Forms . The Notes shall
be substantially in the form of Annex A attached hereto, with such
modifications thereto as may be approved by the authorized officer
executing the same.
(h) Registrar, Paying Agent and
Place of Payment . The Company hereby appoints U.S. Bank
National Association as Registrar and Paying Agent with respect to
the Notes. The Notes may be surrendered for registration of
transfer and for exchange at 100 Wall Street, Suite 1600, New York,
New York 10005 or at any other office or ag
