Exhibit 4.3
HAWK CORPORATION
FORM OF 8 3/4% SENIOR NOTE DUE 2014
CUSIP No. [___________]
No. [___] $[_________]
Hawk Corporation, a Delaware corporation, for value received promises to
pay to [_________________] or registered assigns, the principal sum of
[____________________] DOLLARS [($_________)] on November 1, 2014.
Interest Rate: 8 3/4% per annum
Interest Payment Dates: January 1 and July 1, commencing January 1,
2005
Record Dates: December 15 and June 15
Reference is made to the further provisions of this Note contained on the
reverse side of this Note, which will for all purposes have the same effect as
if set forth at this place.
IN WITNESS WHEREOF, the Company has caused this 8 3/4% Senior Note due 2014
to be signed by its duly authorized officer.
HAWK CORPORATION
Dated: [_____________], 2004 By:
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Name:
Title:
TRUSTEE CERTIFICATE OF AUTHENTICATION
This is one of the 8 3/4% Senior Notes due 2014 referred to in the
within-mentioned Indenture.
HSBC BANK USA, NATIONAL ASSOCIATION,
as Trustee
Dated: [____________], 2004 By:
--------------------------------------
Authorized Officer
(REVERSE OF NOTE)
8 3/4% SENIOR NOTE DUE 2014
1. Interest.
Hawk Corporation (the "Company", which term includes any Surviving Entity)
promises to pay interest on the principal amount of this Note at the rate per
annum shown above. Interest on the Note will accrue from the most recent date on
which interest has been paid or, if no interest has been paid, from and
including the date of issuance. The Company will pay interest semi-annually in
arrears on each Interest Payment Date, commencing January 1, 2005. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months.
2. Method of Payment.
The Company shall pay interest on the Notes (except defaulted interest) to
the Persons who are the registered Holders at the close of business on the
Record Date immediately preceding the Interest Payment Date even if the Notes
are cancelled on registration of transfer or registration of exchange after such
Record Date, and on or before such Interest Payment Date. Holders must surrender
Notes to a Paying Agent to collect principal payments. The Company shall pay
principal and interest in money of the United States that at the time of payment
is legal tender for payment of public and private debts ("U.S. Legal Tender").
However, the Company may pay principal and interest by check payable in such
U.S. Legal Tender. The Company may deliver any such interest payment to the
Paying Agent or to a Holder at the Holder's registered address.
3. Paying Agent and Registrar.
Initially, HSBC Bank USA, National Association (the "Trustee") will act as
Paying Agent and Registrar. The Company may change any Paying Agent, Registrar
or co-Registrar without notice to the Holders. Neither the Company nor any
Affiliate of the Company shall act as Paying Agent or Registrar.
4. Indenture.
The Notes and the Guarantees were issued under an Indenture, dated as of
November 1, 2004 (the "Indenture"), among the Company, the Guarantors named
therein and the Trustee. The terms of the Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939 (15 U.S. Code ▇▇.▇▇. 77aaa-77bbbb) (the "TIA"), as in
effect on the date of the Indenture until such time as the Indenture is
qualified under the TIA, and thereafter as in effect on the date on which the
Indenture is qualified under the TIA. Notwithstanding anything to the contrary
herein, the Notes are subject to all such terms, and Holders of Notes are
referred to the Indenture and the TIA for a statement of such terms. The Notes
are senior obligations of the Company. Each Holder, by accepting a Note, agrees
to be bound by all of the terms and provisions of the Indenture, as the same may
be
amended from time to time. Capitalized terms herein are used as defined in
the Indenture unless otherwise defined herein.
5. Redemption.
(a) Optional Redemption on or after November 1, 2009. Except as described
in Section 5(b), the Notes are not redeemable before November 1, 2009.
Thereafter, the Company may on any one or more occasions redeem the Notes. The
Notes will be redeemed at their option, in whole or in part, upon not less than
30 nor more than 60 days' notice, at the following redemption prices (expressed
as percentages of the aggregate principal amount thereof) if redeemed during the
twelve-month period commencing on November 1 of the year set forth below:
Year Percentage
---- ----------
2009................................................................ 104.375%
2010................................................................ 103.281%
2011................................................................ 102.188%
2012................................................................ 101.094%
2013................................................................ 100.000%
In addition, the Company must pay accrued and unpaid interest and
Additional Interest, if any, on the aggregate principal amount of the Notes
redeemed to the Redemption Date.
(b) Optional Redemption upon Equity Offerings. At any time, or from time to
time, on or prior to November 1, 2008, the Company may, at its option, use an
amount not to exceed the net cash proceeds of one or more Equity Offerings to
redeem up to 35% of the aggregate principal amount of the Notes ever issued
under this Indenture. The Notes will be redeemed at a redemption price of
108 3/4% of the aggregate principal amount thereof, plus accrued and unpaid
interest and Additional Interest, if any, to the Redemption Date, provided that:
(1) at least 65% of the original principal amount of Notes ever issued
under this Indenture remains outstanding immediately after any such
redemption; and
(2) the Company makes such redemption not more than 120 days after the
consummation of any such Equity Offering.
(c) Notice of Redemption. Notice of redemption will be mailed by
first-class mail at least 30 days but not more than 60 days before the
Redemption Date to each Holder of Notes to be redeemed at such Holder's
registered address. If fewer than all of the Notes are to be redeemed, at any
time, selection of Notes for redemption will be made by the Trustee in
compliance with the requirements of the principal national securities exchange,
if any, on which the Notes are listed, or, if the Notes are not so listed, on a
pro rata basis, by lot or by such method as the Trustee deems to be fair and
appropriate; provided that no partial redemption will reduce the principal
amount of a Note not redeemed to a denomination of less than $1,000; and
provided, further, that any such partial redemption made with the proceeds of an
Equity Offering
will be made only on a pro rata basis or on as nearly a pro rata basis as
practicable (subject to the procedures of the DTC or any other depository)
unless such method is otherwise prohibited. Notes in denominations of $1,000 or
more may be redeemed in part.
Except as set forth in the Indenture, if monies for the redemption of the
Notes called for redemption shall have been deposited with the Paying Agent for
redemption on such Redemption Date sufficient to pay such redemption price plus
accrued and unpaid interest and Additional Interest, if any, to the Redemption
Date, the Notes called for redemption will cease to bear interest from and after
such Redemption Date, and the only remaining right of the Holders of such Notes
will be to receive payment of the redemption price plus accrued and unpaid
interest and Additional Interest, if any, as of the Redemption Date upon
surrender to the Paying Agent of the Notes redeemed.
6. Offers to Purchase.
Sections 4.10 and 4.19 of the Indenture provide that after certain Asset
Sales, and upon the occurrence of a Change of Control and subject to further
limitations contained therein, the Company will make an offer to purchase
certain amounts of the Notes in accordance with the procedures set forth in the
Indenture.
7. Registration Rights.
Pursuant to the Registration Rights Agreement among the Company, the
Guarantors and the Initial Purchaser of the Initial Notes, the Company will be
obligated to consummate an exchange offer. Upon such exchange offering, the
Holders of the Initial Notes shall have the right, subject to compliance with
securities laws, to exchange such Initial Notes for 8 3/4% Senior Notes due
2014, which have been registered under the Securities Act, in like principal
amount and having terms identical in all material respects to the Initial Notes.
The Holders of the Initial Notes shall be entitled to receive certain additional
interest payments in the event such exchange offer is not consummated and upon
certain other conditions, all pursuant to and in accordance with the terms of
the Registration Rights Agreement.
8. Denominations; Transfer; Exchange.
The Notes are in registered form, without coupons, in denominations of
$1,000 and integral multiples thereof. A Holder shall register the transfer of
or exchange of Notes in accordance with the Indenture. The Registrar may require
a Holder, among other things, to furnish appropriate endorsements and transfer
documents and to pay any taxes, fees or similar governmental charges payable in
connection therewith as permitted by the Indenture. The Registrar need not
register the transfer of or exchange of any Notes or portions thereof selected
for redemption.
9. Persons Deemed Owners.
The registered Holder of a Note shall be treated as the owner of it and the
Notes of which it is composed for all purposes.
10. Unclaimed Money.
If money for the payment of principal or interest remains unclaimed for two
years, the Trustee and the Paying Agent may pay the money without interest
thereon back to the Company. After that, all liability of the Trustee and such
Paying Agent with respect to such money shall cease.
11. Discharge Prior to Redemption or Maturity.
If the Company at any time deposits with the Trustee U.S. Legal Tender or
U.S. Government Obligations sufficient to pay the principal of and interest on
the Notes to redemption or Maturity and complies with the other provisions of
the Indenture relating thereto, the Company shall be deemed to have paid and
discharged the entire Indebtedness represented by the outstanding Notes, except
for the rights of Holders to receive payments in respect of the principal of,
and premium, if any, interest and Additional Interest, if any, on the Notes when
such payments are due from the deposits referred to above.
12. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture, the Notes or the Guarantees
may be amended or supplemented with the written consent of the Holders of at
least a majority in aggregate principal amount of the Notes then outstanding,
and any existing Default or Event of Default or noncompliance with any provision
may be waived with the written consent of the Holders of a majority in aggregate
principal amount of the Notes then outstanding. Without consent of any Holder,
the parties thereto may amend or supplement the Indenture, the Notes or the
Guarantees to, among other things, cure any ambiguity, defect or inconsistency,
provide for uncertificated Notes or Guarantees in addition to or in place of
certificated Notes or Guarantees, comply with the TIA, or comply with Article
Five or Section 10.04 of the Indenture or make any other change that does not
adversely affect in any material respect the rights of any Holder of a Note.
13. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company and
the Restricted Subsidiaries to, among other things, incur additional
Indebtedness or grant Liens, make payments in respect of their Capital Stock or
certain Indebtedness, enter into transactions with Affiliates, create dividend
or other payment restrictions affecting Subsidiaries, merge or consolidate with
any other Person, sell, assign, transfer, lease, convey or otherwise dispose of
all or substantially all of its assets or adopt a plan of liquidation. Such
limitations are subject to a number of important qualifications and exceptions.
The Company must annually report to the Trustee on compliance with such
limitations.
14. Successors.
When a successor assumes, in accordance with the Indenture, all the
obligations of its predecessor under the Notes, the Guarantees and the
Indenture, the predecessor will be released from those obligations.
15. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee or the Holders
of at least 25% in aggregate principal amount of the Notes then outstanding may
declare all the Notes to be due and payable in the manner, at the time and with
the effect provided in the Indenture. Holders of Notes may not enforce the
Indenture except as provided in the Indenture. The Trustee is not obligated to
enforce the Indenture or the Notes unless it has received indemnity satisfactory
to it. The Indenture permits, subject to certain limitations therein provided,
Holders of a majority in aggregate principal amount of the Notes then
outstanding to direct the Trustee in its exercise of any trust or power. The
Trustee may withhold from Holders of Notes notice of any continuing Default or
Event of Default (except a Default in payment of principal or interest) if it
determines that withholding notice is in their interest.
16. Trustee Dealings with Company.
Subject to the terms of the TIA and the Indenture, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with the Company, the Subsidiaries or
their respective Affiliates as if it were not the Trustee.
17. No Recourse Against Others.
No past, present or future stockholder, director, officer, employee or
incorporator, as such, of the Company or the Guarantors shall have any liability
for any obligation of the Company under the Notes, the Guarantees or the
Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder of a Note by accepting a Note waives
and releases all such liability. The waiver and release are part of the
consideration for the issuance of the Notes.
18. Guarantees.
Payment of principal and interest and Additional Interest, if any
(including interest on overdue principal and overdue interest, if lawful), is
unconditionally guaranteed, jointly and severally, by each of the Guarantors.
19. Authentication.
This Note shall not be valid until the Trustee or Authenticating Agent
manually signs the certificate of authentication on this Note.
20. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THIS NOTE, THE GUARANTEES
AND THE INDENTURE, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
21. Waiver of Jury Trial.
Each of the parties hereto and the holders (by their acceptance of the
Note) hereby irrevocably waives, to the fullest extent permitted by law, any and
all right to trial by jury in any action or proceeding arising out of or in
connection with the Indenture, this Note, the Guarantees or the transactions
contemplated by the Indenture.
22. Abbreviations and Defined Terms.
Customary abbreviations may be used in the name of a Holder of a Note or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder of a Note upon written request and
without charge a copy of the Indenture. Requests may be made to: Hawk
Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇.
ASSIGNMENT FORM
If you the Holder want to assign this Note, fill in the form below and have
your signature guaranteed:
I or we assign and transfer this Note to:
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(Print or type name, address and zip code and
social security or tax ID number of assignee)
and irrevocably appoint _______________________________________________________
agent to transfer this Note on the books of the Company. The agent may
substitute another to act for him.
Dated: _________________________ Signed: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _________________________________________________
In connection with any transfer of this Note occurring prior to the date
which is the earlier of (i) the date of the declaration by the SEC of the
effectiveness of a registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), covering resales of this Note (which
effectiveness shall not have been suspended or terminated at the date of the
transfer) and (ii) November 1, 2006, the undersigned confirms that it has not
utilized any general solicitation or general advertising in connection with the
transfer and that this Note is being transferred:
[CHECK ONE]
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[_] (1) to the Company or a subsidiary thereof; or
[_] (2) pursuant to and in compliance with Rule 144A under the Securities Act;
or
[_] (3) to an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act) that has furnished
to the Trustee a signed letter containing certain representations and
agreements (the form of which letter can be obtained from the Trustee);
or
[_] (4) outside the United States to a person other than a "U.S. person" in
compliance with Rule 904 of Regulation S under the Securities Act; or
[_] (5) pursuant to the exemption from registration provided by Rule 144 under
the Securities Act; or
[_] (6) pursuant to an effective registration statement under the Securities
Act.
Unless one of the boxes is checked, the Trustee will refuse to register any of
the Notes evidenced by this certificate in the name of any person other than the
registered Holder thereof; provided that if box (3), (4) or (5) is checked, the
Company or the Trustee may require, prior to registering any such transfer of
the Notes, in its sole discretion, such legal opinions, certifications
(including an investment letter in the case of box (3) or (4)) and other
information as the Trustee or the Company has reasonably requested to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the Securities Act.
If none of the foregoing boxes is checked, the Trustee or Registrar shall
not be obligated to register this Note in the name of any person other than the
Holder hereof unless and until the conditions to any such transfer of
registration set forth herein and in Section 2.15 of the Indenture shall have
been satisfied.
Dated: _________________________ Signed: __________________________________
(Sign exactly as your name appears
on the other side of this Note)
Signature Guarantee: _________________________________________________
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED
The undersigned represents and warrants that it is purchasing this Note for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act and is aware that the
sale to it is being made in reliance on Rule 144A and acknowledges that it has
received such information regarding the Company as the undersigned has requested
pursuant to Rule 144A or has determined not to request such information and that
it is aware that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration provided by
Rule 144A.
Dated: _________________________ _________________________________________
NOTICE: To be executed by an executive
officer
[OPTION OF HOLDER TO ELECT PURCHASE]
If you want to elect to have this Note purchased by the Company pursuant to
Section 4.10 or 4.19 of the Indenture, check the appropriate box:
[_] Section 4.10
[_] Section 4.19
If you want to elect to have only part of this Note purchased by the
Company pursuant to Section 4.10 or 4.19 of the Indenture, state the amount you
elect to have purchased:
$____________________________________
Dated: _________________________ _________________________________________
NOTICE: The signature on this assignment
must correspond with the name
as it appears upon the face
of the within Note in every
particular without alteration
or enlargement or any change
whatsoever and be guaranteed
by the endorser's bank or broker.
Signature Guarantee: