<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 22, 1994
REGISTRATION NO. 33-51117
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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BAUSCH & LOMB INCORPORATED
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
<TABLE>
<S> <C>
NEW YORK 16-0345235
(STATE OR OTHER JURISDICTION OF INCORPORATION OR (IRS EMPLOYER IDENTIFICATION NUMBER)
ORGANIZATION)
</TABLE>
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<TABLE>
<S> <C>
ONE CHASE SQUARE STEPHEN A. HELLRUNG, ESQ.
ROCHESTER, NEW YORK 14601-0054 VICE PRESIDENT AND GENERAL COUNSEL
(716) 338-6000 BAUSCH & LOMB INCORPORATED
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER ONE CHASE SQUARE
INCLUDING AREA CODE, OF REGISTRANT'S PRINCIPAL ROCHESTER, NEW YORK 14601-0054
EXECUTIVE OFFICES) (716) 338-6000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND
TELEPHONE NUMBER, INCLUDING AREA CODE, OF AGENT
FOR SERVICE)
</TABLE>
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Copies of Communications to:
RICHARD R. HOWE, ESQ.
SULLIVAN & CROMWELL
125 BROAD STREET
NEW YORK, NEW YORK 10004
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC:
FROM TIME TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED
PURSUANT TO DIVIDEND OR INTEREST REINVESTMENT PLANS, PLEASE CHECK
THE FOLLOWING BOX. / /
IF ANY OF THE SECURITIES BEING REGISTERED ON THIS FORM ARE TO BE OFFERED ON A
DELAYED OR CONTINUOUS BASIS PURSUANT TO RULE 415 UNDER THE SECURITIES ACT OF
1933, OTHER THAN SECURITIES OFFERED ONLY IN CONNECTION WITH DIVIDEND OR
INTEREST REINVESTMENT PLANS, CHECK THE FOLLOWING BOX. /X/
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE> 2
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
PROSPECTUS
SUBJECT TO COMPLETION
APRIL 22, 1994
$300,000,000
BAUSCH & LOMB INCORPORATED
DEBT SECURITIES
------------------------
Bausch & Lomb Incorporated (the "Company" or "Bausch & Lomb") may offer
from time to time its debt securities, consisting of debentures, notes and/or
other unsecured evidences of indebtedness in one or more series (the "Debt
Securities"), having an aggregate initial offering price of up to $300,000,000
(or, if the Debt Securities are denominated or payable in a foreign or composite
currency or currencies, the equivalent value thereof at the time of the
offering) on terms determined by market conditions at the time of sale.
The Debt Securities may be sold directly, through agents designated from
time to time, to or through underwriting syndicates led by one or more managing
underwriters, or to or through one or more underwriters acting alone. If any
agents of the Company, or any underwriters, are involved in the sale of the
Offered Debt Securities (as defined below), the name of such agents or
underwriters and any applicable commissions or discounts will be set forth in a
Prospectus Supplement (as defined below). The net proceeds to the Company from
such sale will also be set forth in the Prospectus Supplement. Any underwriters,
dealers, or agents participating in the offering may be deemed "underwriters"
within the meaning of the Securities Act of 1933.
When a particular series of Debt Securities is offered, a supplement to
this Prospectus ("Prospectus Supplement") will be delivered together with this
Prospectus. The Prospectus Supplement will set forth, as applicable with respect
to the Debt Securities being offered (the "Offered Debt Securities"): the
specific title; the aggregate principal amount; maturity; authorized
denominations; interest rate or rates (which may be fixed or variable) and time
of payment of interest, if any; initial public offering price or purchase price;
any terms for redemption or early repayment; the currency or currencies
(including composite currencies) in which the Offered Debt Securities are
denominated or payable, if other than U.S. dollars; any other special terms and
the names of the underwriters, dealers, or agents, if any, for the Offered Debt
Securities, together with the terms of offering of the Offered Debt Securities.
------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED
UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
------------------------
THE DATE OF THIS PROSPECTUS IS APRIL , 1994.
<PAGE> 3
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Securities Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549, as well as the Regional Offices of the Commission
located at 500 West Madison Street, Chicago, Illinois 60661, and 7 World Trade
Center, 13th Floor, New York, New York 10048. Copies of such information can be
obtained by mail from the Public Reference Section of the Commission, 450 Fifth
Street, N.W., Washington, D.C. 20549 at prescribed rates. The Company's Common
Stock is listed on the New York Stock Exchange. Reports, proxy statements and
other information concerning the Company can also be inspected at the offices of
such Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company has filed with the Commission a registration statement on Form
S-3 under the Securities Act of 1933, as amended (the "Securities Act"), with
respect to the Debt Securities offered hereby (the "Registration Statement").
This Prospectus does not contain all of the information set forth in the
Registration Statement, certain parts of which are omitted in accordance with
the rules and regulations of the Commission. For further information pertaining
to the Debt Securities and the Company, reference is made to the Registration
Statement.
The following documents filed by the Company with the Commission pursuant
to the Securities Exchange Act (File No. 1-4105) are incorporated in this
Prospectus by reference: (i) Annual Report on Form 10-K for the fiscal year
ended December 25, 1993.
All documents filed by the Company with the Commission pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act subsequent to the date
of this Prospectus and prior to the termination of the offering of the Debt
Securities made by this Prospectus shall be deemed to be incorporated by
reference in this Prospectus and to be a part hereof from the date of filing of
each such document. Any statement contained in a document incorporated or deemed
to be incorporated by reference herein shall be modified or superseded for
purposes of this Prospectus to the extent that a statement contained herein or
in any subsequently filed document which is deemed to be incorporated by
reference herein or contained in the accompanying Prospectus Supplement modifies
or supersedes such statement. Any statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
Upon written or oral request, the Company will provide without charge to
each person to whom a copy of this Prospectus is delivered a copy of any and all
of the documents incorporated herein by reference (other than exhibits to such
documents unless such exhibits are specifically incorporated by reference into
such documents). Such requests should be directed to Investor Relations
Department, Bausch & Lomb Incorporated, One Chase Square, Rochester, New York
14601-0054, telephone (716) 338-6000.
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER. THIS PROSPECTUS DOES NOT
CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR ANY OFFER TO SELL OR
THE SOLICITATION OF AN OFFER TO BUY SUCH SECURITIES IN ANY CIRCUMSTANCES IN
WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER THE DELIVERY OF THIS
PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE THE DATE HEREOF OR THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
2
<PAGE> 4
THE COMPANY
Bausch & Lomb Incorporated is engaged in the development, manufacture and
marketing of products for the personal health, medical, biomedical and optics
fields. The Company has manufacturing or marketing organizations in 33 countries
and distributes its products through a variety of channels in over 70 other
nations.
Except where the context otherwise requires, the term "Company" includes
Bausch & Lomb Incorporated and its subsidiaries. The Company's executive offices
are located at One Chase Square, Rochester, New York 14601-0054, telephone
number (716) 338-6000.
USE OF PROCEEDS
Except as otherwise provided in the Prospectus Supplement, the net proceeds
from the sale of the Debt Securities will be added to the Company's general
funds and will be used for general corporate purposes, including additions to
working capital and capital expenditures. Pending such use, the Company plans to
invest the proceeds in marketable securities.
SELECTED FINANCIAL INFORMATION
The following selected financial information of the Company with respect to
the years 1989 through 1993 has been derived from the audited consolidated
financial statements and other information contained in the Company's Form 10-K
with respect to those years and should be read in conjunction with the
consolidated financial statements and related notes contained in those Form
10-Ks.
<TABLE>
<CAPTION>
FOR THE YEARS ENDED
--------------------------------------------------------------------
DECEMBER 30, DECEMBER 29, DECEMBER 28, DECEMBER 26, DECEMBER 25,
1989 1990 1991 1992 1993
------------ ------------ ------------ ------------
(DOLLAR AMOUNTS IN THOUSANDS EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C> <C>
Sales............................................... $1,220,299 $1,368,580 $1,520,104 $1,709,086 $1,872,184
Earnings before Income Taxes, Minority Interest and
Cumulative Effect of Change in Accounting
Principle(1)...................................... 173,862 198,426 149,518 262,644 242,024
Provision for Income Taxes.......................... 56,664 64,675 59,426 85,125 80,761
Earnings before Minority Interest and Cumulative
Effect of Change in Accounting Principle.......... 117,198 133,751 90,092 177,519 161,263
Minority Interest in Subsidiaries................... 2,831 2,317 4,151 6,099 4,716
Earnings before Cumulative Effect of Change in
Accounting Principle.............................. 114,367 131,434 85,941 171,420 156,547
Cumulative Effect of Change in Accounting Principle
Net of Tax(2)..................................... (58,311)
Net Earnings........................................ $ 114,367 $ 131,434 $ 27,630 $ 171,420 156,547
------------ ------------ ------------ ------------ ------------
------------ ------------ ------------ ------------ ------------
Net Earnings per Common Share(3).................... $ 1.89 $ 2.19 $ 0.46 $ 2.84 $ 2.60
Ratio of Earnings to Fixed Charges(4)............... 6.17 5.50 4.73 9.30 7.79
</TABLE>
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(1) Includes restructuring and special charges of $76.3 million in 1991 and
restructuring charges of $50.0 million in 1993, as described in Note 2 on
page 50 of the Annual Report to Shareholders filed as an exhibit to and
incorporated by reference in the Company's Form 10-K for the year ended
December 25, 1993.
(2) Amount relates to the adoption of Statement of Financial Accounting
Standards No. 106, as described in Note 11 on page 57 of the Annual Report
to Shareholders filed as an exhibit to and incorporated by reference in the
Company's Form 10-K for the year ended December 25, 1993.
(3) Prior year information restated to reflect two-for-one stock split effective
July 1, 1991.
(4) For the purposes of computing the ratios of earnings to fixed charges,
"earnings" are consolidated earnings from continuing operations before
income taxes and minority interest, exclusive of the period's undistributed
equity earnings of affiliated companies, plus fixed charges charged to
earnings. Fixed charges comprise interest on indebtedness, amortization of
debt issuance costs and that portion of rent expense which is deemed to be
representative of an interest factor.
3
<PAGE> 5
DESCRIPTION OF DEBT SECURITIES
The following description of the terms of the Debt Securities sets forth
certain general terms and provisions of the Debt Securities to which any
Prospectus Supplement may relate. The particular terms of the Debt Securities
offered by any Prospectus Supplement (the "Offered Debt Securities") will be
described in the Prospectus Supplement relating to such Offered Debt Securities.
The Debt Securities are to be issued under an Indenture, dated as of
September 1, 1991 (the "Indenture"), between the Company and Citibank, N.A., as
Trustee (the "Trustee"), a copy of which is an exhibit to the Registration
Statement of which this Prospectus is a part. The following summaries of certain
provisions of the Indenture do not purport to be complete and are subject to,
and are qualified in their entirety by reference to, all the provisions of the
Indenture, including the definitions therein of certain terms. Wherever
particular Sections or defined terms of the Indenture are referred to, such
Sections or defined terms are incorporated herein by reference.
GENERAL
The Debt Securities will be unsecured obligations of the Company and will
rank pari passu with all other unsecured and unsubordinated indebtedness of the
Company.
The Indenture does not limit the aggregate principal amount of the debt
securities that may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series.
Reference is made to the Prospectus Supplement for the following terms or
additional provisions of the Offered Debt Securities: (i) the title of the
Offered Debt Securities; (ii) any limit on the aggregate principal amount of the
Offered Debt Securities; (iii) the price (expressed as a percentage of the
aggregate principal amount thereof) at which the Offered Debt Securities will be
issued; (iv) the date or dates on which the principal of the Offered Debt
Securities will be payable; (v) the rate or rates (which may be fixed or
variable) per annum at which the Offered Debt Securities will bear interest, if
any; (vi) the date or dates from which such interest, if any, on the Offered
Debt Securities will accrue, the dates on which such interest, if any, will be
payable, the date on which payment of such interest, if any, will commence and
the regular dates for any such interest payment dates; (vii) any provision
relating to the mandatory or optional redemption of the Offered Debt Securities;
(viii) the place or places at which the Company will make payment of principal
of and any premium and interest on the Offered Debt Securities and the method of
such payment; (ix) the person to whom any Offered Debt Security will be payable,
if other than the person in whose name that Offered Debt Security (or one or
more Predecessor Debt Securities) is registered at the close of business on the
Regular Record Date for such interest; (x) if other than U.S. dollars, the
currency (including composite currencies) in which payment of principal of and
any premium and interest on the Offered Debt Securities shall be payable; (xi)
any currency (including composite currencies) other than the stated currency of
the Offered Debt Securities in which the principal of and any premium and
interest on the Offered Debt Securities may, at the election of the Company or
the Holders, be payable, and the periods within which, and terms and conditions
upon which, such election may be made; (xii) if the amount of payments of
principal of and any premium and interest on the Offered Debt Securities may be
determined with reference to an index, the manner in which such amounts shall be
determined; (xiii) the right of the Company to defease the Offered Debt
Securities or certain restrictive covenants and certain Events of Default under
the Indenture; (xiv) whether the Offered Debt Securities will be issued in whole
or in part in the form of one or more Global Securities and, in such case, the
Depositary for such Global Security or Global Securities; (xv) any restrictive
covenants, Events of Default, or other terms relating to the Offered Debt
Securities in addition to those described herein; and (xvi) any other specific
terms of the Offered Debt Securities.
Principal and any premium or interest will be payable, and the Debt
Securities will be transferable, at the Place of Payment designated for such
Debt Securities (Sections 305 and 1002); provided that the payment of any
interest may, at the option of the Company, be made by check mailed to the
address of the Person entitled thereto as it appears on the Security Register.
4
<PAGE> 6
Unless otherwise indicated in the Prospectus Supplement relating thereto,
the Debt Securities will be issued only in fully registered form, without
coupons, in denominations of $1,000 or any integral multiple thereof. (Section
302) No service charge will be made for any registration of transfer or exchange
of Debt Securities, but the Company may require payment of a sum sufficient to
cover any tax or governmental charge payable in connection therewith. (Section
305)
Debt Securities may be issued under the Indenture as Original Issue
Discount Securities to be offered and sold at a discount (which may be
substantial) below their stated principal amount. Federal income tax
consequences and other special considerations applicable to any such Original
Issue Discount Securities will be described in the Prospectus Supplement
relating thereto. "Original Issue Discount Security" means any security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the maturity thereof following the
occurrence of an Event of Default and the continuation thereof. (Section 101)
SUBSIDIARIES
The term "Subsidiary" is defined as a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company or by one or more other Subsidiaries, or by the Company and one or more
other Subsidiaries. The term "Significant Subsidiary" has the meaning specified
in Article I, sec. 210.1-02(v) of Regulation S-X of the Securities and Exchange
Commission as in effect on September 1, 1991.
LIMITATION UPON SECURED DEBT OF THE COMPANY AND ITS SIGNIFICANT SUBSIDIARIES
If the Company or any Significant Subsidiary incurs, issues, assumes,
guarantees or suffers to exist any Debt secured by a Mortgage on any property of
the Company or any Significant Subsidiary, or on any shares of stock or Debt of
any Significant Subsidiary, the Company will secure or cause such Significant
Subsidiary to secure the Debt Securities equally and ratably with (or, at the
Company's option, prior to) such secured Debt, for as long as such secured Debt
is so secured, unless the aggregate amount of all such secured Debt plus all
Attributable Debt of the Company and its Significant Subsidiaries in respect of
sale and leaseback transactions (other than those exempt under clause (b) under
"Limitation Upon Sale and Leaseback Transactions" below), would not exceed 10%
of Consolidated Net Tangible Assets. (Section 1008) This restriction will not
apply to, and there will be excluded from secured Debt in any computation under
such restriction, Debt secured by (a) Mortgages on property of, or on any shares
of stock of or Debt of, any corporation existing at the time such corporation
becomes a Significant Subsidiary, (b) Mortgages in favor of the Company or any
Significant Subsidiary, (c) Mortgages in favor of any governmental bodies to
secure progress, advance or other payments, (d) Mortgages on property (including
leasehold estates), shares of stock or Debt existing at the time of acquisition
thereof (including acquisition through merger or consolidation) and purchase
money and construction Mortgages which are created or for which commitments are
received within specified time limits, and (e) within certain limitations, any
extension, renewal or refunding of any Mortgage referred to in the foregoing
clauses (a) through (d), inclusive. (Section 1008) "Attributable Debt" means the
total net amount of rent required to be paid during the remaining term of any
lease, discounted at a rate per annum equal to the weighted average interest
rate, or yield to maturity in the case of an Original Issue Discount Security,
borne by all the Outstanding Securities compounded semi-annually. (Section 101)
"Consolidated Net Tangible Assets" means the aggregate amount of assets (less
applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities (excluding any thereof constituting Funded
Debt, as defined below, by reason of being renewable or extendable) and (ii) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles, as set forth on the Company's most recent
consolidated balance sheet. (Section 101)
LIMITATION UPON SALE AND LEASEBACK TRANSACTIONS
Sale and leaseback transactions (except such transactions involving leases
for less than three years) by the Company or any Significant Subsidiary are
prohibited unless (a) the Company or Significant Subsidiary would be entitled to
incur Debt secured by a Mortgage on the assets to be leased in an amount at
least equal to
5
<PAGE> 7
the Attributable Debt in respect of such transaction without equally and ratably
securing the Debt Securities, or (b) the proceeds of the sale or transfer of the
assets to be leased are at least equal to their fair market value and, within
120 days after the sale or transfer, the proceeds are applied to the purchase or
acquisition (or, in the case of real property, the construction) of assets or to
the retirement of Funded Debt. (Section 1009) "Funded Debt" means indebtedness
for money borrowed having a maturity of more than 12 months from the date as of
which the amount thereof is to be determined or having a maturity of less than
12 months but by its terms being renewable or extendable beyond 12 months at the
option of the borrower. (Section 101)
MERGER AND CONSOLIDATION
The Company may consolidate with, or sell or convey all or substantially
all of its assets to, or merge with or into any other corporation, provided that
in any such case, (i) either the Company shall be the continuing corporation, or
the successor corporation shall be a corporation organized and existing under
the laws of the United States of America or a State thereof and such successor
corporation shall expressly assume the due and punctual payment of the principal
of and interest on all the Debt Securities, according to their tenor, and the
due and punctual performance and observance of all of the covenants and
conditions of the Indenture to be performed by the Company, and (ii) the Company
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale or conveyance, be in default in the
performance of any such covenant or condition. (Section 801) If, after giving
effect to any such consolidation or merger of the Company with or into any other
corporation, or after giving effect to any sale or conveyance of the property of
the Company as an entirety or substantially as an entirety to any other
corporation, the corporation formed by or resulting or surviving therefrom or
which shall have received such property would have outstanding any Debt secured
by any Mortgage on any property of the Company or any Significant Subsidiary, or
any shares of stock or Debt of any Significant Subsidiary, which such Debt could
not at such time be incurred by such corporation under Section 1008 of the
Indenture without equally and ratably securing the Securities, the Company,
prior to such consolidation, merger, sale or conveyance, will secure the
Securities Outstanding under the Indenture, equally and ratably with (or prior
to) the Debt secured by such Mortgage in the manner described in Section 1008 of
the Indenture. (Section 803)
EVENTS OF DEFAULT
With respect to Debt Securities of any series, the following will be Events
of Default under the Indenture: (a) default in the payment of any interest on a
Debt Security of that series when due, continued for 30 days; (b) default in the
payment of principal of (or premium, if any, on) a Debt Security of that Series
when due; (c) failure to deposit any sinking fund payment, when due, in respect
of any Debt Security of that series; (d) default in the performance of any other
covenant by the Company (other than a covenant included in the Indenture solely
for the benefit of series of Debt Securities other than that series), continued
for 60 days after written notice to the Company by the Trustee or to the Trustee
and the Company by Holders of at least 10% of the principal amount of
Outstanding Debt Securities of such series; (e) acceleration of any indebtedness
for money borrowed in excess of $10,000,000 by the Company as the result of a
default under the terms of the instrument under which such indebtedness is or
may be issued, or by which it may be secured or evidenced, if such acceleration
is not rescinded or annulled, or such indebtedness not discharged, within 10
days after written notice to the Company by the Trustee or to the Trustee and
the Company by the Holders of at least 10% of the principal amount of
Outstanding Debt Securities of such series; (f) certain events in bankruptcy,
insolvency or reorganization; and (g) any other Event of Default provided with
respect to Debt Securities of that series. (Section 501) Subject to the
provisions of the Indenture relating to the duties of the Trustee in case an
Event of Default shall occur and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. (Section 603) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of any series will
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to Debt Securities of such series.
(Section 512)
6
<PAGE> 8
If an Event of Default with respect to Debt Securities of any series shall
occur and be continuing, then in every such case the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Debt Securities of that
series may declare the principal amount (or, if any of the Debt Securities of
that series are Original Issue Discount Securities, such portion of the
principal amount of such Debt Securities as may be specified in the terms of
that series) of all of the Debt Securities of that series to be due and payable
immediately by a notice in writing to the Company (and to the Trustee if given
by Holders). Upon such declaration, such principal amount (or specified amount),
plus any interest accrued on such Debt Securities to the date of declaration,
shall become immediately due and payable. Upon payment (i) of (A) such principal
amount and (B) such interest and (ii) of interest on any overdue principal and
overdue interest (in each case to the extent that the payment of such interest
shall be legally enforceable), all of the Company's obligations in respect of
the payment of principal of and interest on such Debt Securities shall
terminate. At any time after such declaration of acceleration with respect to
the Debt Securities of any series, but before a judgment or decree based on such
declaration has been obtained by the Trustee, the Holders of a majority in
aggregate principal amount of the Outstanding Debt Securities of that series
may, under certain circumstances, rescind and annul such declaration if all
Events of Default, other than the non-payment of accelerated principal, have
been cured or waived as provided in the Indenture. (Section 502)
No Holder of any Debt Security will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default and unless also the Holders of at least 25% in
principal amount of the Outstanding Debt Securities of such series shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Outstanding
Debt Securities of such series a direction inconsistent with such request and
shall have failed to institute such proceeding within 60 days. (Section 507)
However, such limitations do not apply to a suit instituted by a Holder of a
Debt Security for enforcement of payment of the principal of or interest on such
Debt Security on or after the respective due dates expressed in such Debt
Security. (Section 508)
The Company will be required to furnish to the Trustee annually a statement
as to the performance by the Company of certain of its obligations under the
Indenture and as to any default in such performance. (Section 1004)
MODIFICATION, AMENDMENT OR WAIVER
With certain limited exceptions, modifications and amendments of the
Indenture may not be made by the Company and the Trustee without the consent of
the Holders of not less than a majority in principal amount of the Outstanding
Debt Securities of each series affected thereby, provided that without the
consent of each Holder of Debt Securities affected thereby no such modification
or amendment may (1) change the stated maturity of the principal of, or any
installment of principal of or interest on, any Debt Security; (2) reduce the
principal amount of, or the rate of interest on, or any premium payable upon the
redemption of, any Debt Security; (3) reduce the amount of the principal of an
Original Issue Discount Security that would be due and payable upon a
declaration of acceleration of the maturity thereof; (4) change the place or
currency of payment of principal of, or interest or premium, if any, on, any
Debt Security; (5) impair the right to institute suit for the enforcement of any
payment on or with respect to any Debt Security on or after the stated maturity
thereof (or redemption date thereof, if applicable); (6) reduce the percentage
in principal amount of the Outstanding Debt Securities of any series the consent
of whose Holders is required for any supplemental indenture or waiver provided
for in the Indenture; or (7) modify the foregoing requirements except to
increase any such percentage or to provide that certain other provisions of the
Indenture cannot be modified or waived without the consent of the Holder of each
Outstanding Debt Security affected thereby. (Sections 901 and 902)
Compliance with certain covenants (including those referred to above
relating to restrictions on secured debt and on sales and leasebacks) may be
waived with respect to the Debt Securities of any series, either generally or in
a specific instance, before the time for compliance with such covenants, by the
Holders of at least a majority in principal amount of the Outstanding Securities
of that series. (Section 1010) The Holders
7
<PAGE> 9
of not less than a majority in principal amount of the Outstanding Debt
Securities of any series may waive any past default under the Indenture with
respect to such series, except a default in the payment of principal (or
premium, if any) or interest or a default in respect of those covenants or
provisions of the Indenture which cannot be modified without the consent of each
Holder of Outstanding Securities of such series affected. (Section 513)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides that, if provision therefor is made with respect to
the Debt Securities of any series pursuant to Section 301 of the Indenture, the
Company may elect either (A) to defease and be discharged from any and all
obligations with respect to such Debt Securities (except from the obligations to
register the transfer or exchange of such Debt Securities, to replace temporary
or mutilated, destroyed, lost or stolen Debt Securities, to maintain an office
or agency in respect of the Debt Securities and to hold moneys for payment in
trust) ("defeasance") or (B) to be released from its obligations with respect to
such Debt Securities under Sections 501(5), 1008 and 1009 of the Indenture
(being the cross-default provision described in clause (e) under "Events of
Default" and the restrictions described under "Limitation Upon Secured Debt of
the Company and its Significant Subsidiaries" and "Limitation Upon Sale and
Leaseback Transactions", respectively) ("covenant defeasance"), upon the deposit
with the Trustee (or other qualifying trustee), in trust for such purpose, of
money and/or U.S. Government Obligations which through the payment of principal
and interest in accordance with their terms will provide money in an amount
sufficient to pay the principal of and any premium and interest on such Debt
Securities, and any mandatory sinking fund or analogous payments thereon, on the
scheduled due dates therefor. In the case of defeasance, the Holders of such
Debt Securities are entitled to receive payments in respect of such Debt
Securities solely from such trust. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an opinion of
Counsel (as specified in the Indenture) to the effect that the Holders of such
Debt Securities will not recognize income, gain or loss for Federal income tax
purposes as a result of such defeasance or covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such defeasance or covenant defeasance
had not occurred. Such opinion, in the case of defeasance under clause (A)
above, must refer to and be based upon a ruling of the Internal Revenue Service
or a change in applicable Federal income tax law occurring after the date of the
Indenture. (Article Thirteen).
CONCERNING THE TRUSTEE
Citibank, N.A. will act as Trustee under the Indenture. The Company
receives a variety of banking services from Citibank, including unconfirmed
credit lines, cash management services, foreign currency trading arrangements
and domestic and international factoring of accounts receivable. Citibank also
provides certain banking services to the Company's foreign subsidiaries.
PLAN OF DISTRIBUTION
The Company may sell Debt Securities to or through underwriters to be
designated from time to time and also may sell Debt Securities directly to other
purchasers or through agents, or broker-dealers, including broker-dealers acting
as principals. Unless otherwise set forth in the Prospectus Supplement, the
obligations of the underwriters, if any, to purchase the Offered Debt Securities
will be subject to certain conditions precedent and the underwriters will be
obligated to purchase all the Offered Debt Securities if any are purchased.
The distribution of the Debt Securities may be effected from time to time
in one or more transactions at a fixed price or prices, which may be changed, at
market prices prevailing at the time of sale, at prices related to such
prevailing market price or at negotiated prices. The Prospectus Supplement
describes the method of distribution of the Offered Debt Securities.
The Debt Securities are a new issue of securities with no established
trading market. It has not presently been established whether the
underwriter(s), if any, of the Debt Securities will make a market in such
8
<PAGE> 10
securities. If a market in the Debt Securities is made by such underwriter(s),
such market making may be discontinued at any time without notice. No assurance
can be given as to the liquidity of the trading market for the Debt Securities.
In connection with the sales of Debt Securities, underwriters may receive
compensation from the Company or from purchasers of Debt Securities for whom
they may act as agents, in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of Debt
Securities may be deemed to be underwriters, and any discounts or commissions
received by them and any profit on the resale of Debt Securities by them may be
deemed to be underwriting discounts and commissions, under the Securities Act.
Any such underwriter or agent will be identified, and any such compensation will
be described, in the Prospectus Supplement.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of Debt Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act, or to contribution with respect
to payments which the underwriters, dealers or agents may be required to make in
respect thereof.
If so indicated in the Prospectus Supplement, the Company will authorize
dealers or other persons acting as the Company's agent to solicit offers by
certain institutions to purchase Debt Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions with
which such contracts may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and charitable
institutions and others.
VALIDITY OF OFFERED DEBT SECURITIES
The validity of the Offered Debt Securities will be passed upon for the
Company by Stephen A. Hellrung, Esq., Vice President and General Counsel of the
Company, and for the Underwriters by Sullivan & Cromwell, 125 Broad Street, New
York, New York 10004. Mr. Hellrung owns 8,560 shares and has options to purchase
37,408 additional shares of Common Stock of the Company.
EXPERTS
The financial statements and financial statement schedules incorporated in
this Prospectus by reference to the Company's Annual Report on Form 10-K for the
year ended December 25, 1993 have been so incorporated in reliance on the
reports of Price Waterhouse, independent accountants, given on the authority of
said firm as experts in auditing and accounting.
9
<PAGE> 11
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the Debt
Securities being registered, other than underwriting compensation are:
<TABLE>
<S> <C>
Filing Fee for Registration Statement........................... $103,448.28
Accountants' Fees and Expenses.................................. 10,000.00
Trustee's Fees and Expenses..................................... 15,000.00
Legal Fees and Expenses......................................... 125,000.00
Rating Agency Fees.............................................. 75,000.00
Printing and Engraving Fees..................................... 17,500.00
Miscellaneous................................................... 7,551.72
-----------
Total................................................. $353,500.00
-----------
-----------
</TABLE>
- ---------------
All of the above amounts, except the filing fee, are estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
The New York Business Corporation Law (BCL) provides that, under certain
circumstances, directors and officers of a New York corporation may be
indemnified against judgments, fines, amounts paid in settlement and reasonable
expenses actually and necessarily incurred by them in connection with settling,
or otherwise disposing of, actions or proceedings to which they are a party or
threatened to be made a party by reason of acting in any such capacities, if
such persons acted in good faith in a manner which they reasonably believed to
be in the best interests of the corporation, and, in criminal actions or
proceedings, in addition, had no reasonable cause to believe that their conduct
was unlawful. The By-laws of the Company provide for indemnification to the
fullest extent permitted by such New York law, including the payment of expenses
in advance of the resolution of any such action or proceeding. The Company's
Certificate of Incorporation limits the potential personal monetary liability of
the members of the Company's Board of Directors to the Company or its
shareholders for certain breaches of their duty as directors. The BCL permits
the purchase of liability insurance by the Company on behalf of officers and
directors, and the Company has purchased such insurance.
ITEM 16. EXHIBITS
The following Exhibits are filed as part of this Registration Statement:
<TABLE>
<S> <C> <C>
Exhibit 1 (a) Form of Distribution Agreement.
(b) Form of Underwriting Agreement.*
Exhibit 4 (a) Indenture dated as of September 1, 1991 between Bausch & Lomb
Incorporated and Citibank, N.A., as Trustee. (Incorporated by reference
to Exhibit 4(a) of Registration Statement No. 33-42858.)
(b) Table of Contents and cross-reference sheet for Indenture dated as of
September 1, 1991 between Bausch & Lomb Incorporated and Citibank,
N.A., as Trustee.*
(c) Form of Fixed Rate Medium-Term Note.
(d) Form of Floating Rate Medium-Term Note.
Exhibit 5 Opinion of Stephen A. Hellrung, Esq. as to the legality of the Debt
Securities to be issued.*
</TABLE>
II-1
<PAGE> 12
<TABLE>
<S> <C> <C>
Exhibit 12 Computation of ratio of earnings to fixed charges. (Incorporated by
reference to Exhibit 12 of the Annual Report on Form 10-K dated March
22, 1994 and filed with the Securities and Exchange Commission on March
24, 1994.)
Exhibit 23 (a) Consent of Price Waterhouse.
(b) Consent of Stephen A. Hellrung, Esq. (included in Exhibit 5).*
Exhibit 24 Powers of Attorney.*
Exhibit 25 Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939
of Citibank, N.A., as Trustee.*
</TABLE>
- ---------------
* Previously filed
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(a) (1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising from
the effective date of this Registration Statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this Registration Statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not
apply if the information required to be included in a post-effective
amendment by such paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in this
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
that is incorporated by reference in this Registration Statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions referred to in Item 15 of this
Registration Statement, or otherwise, the Registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Registrant will,
unless in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in that Act and
will be governed by the final adjudication of such issue.
II-2
<PAGE> 13
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3, and has duly caused this Amendment No. 1 to
the Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized in the City of Rochester, State of New York, on the
21st day of April, 1994.
BAUSCH & LOMB INCORPORATED
/s/ DANIEL E. GILL
Daniel E. Gill
Chairman of the Board and
Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 1 to the Registration Statement has been signed by the following persons in
the capacities and on the date indicated.
Principal Executive Officer:
<TABLE>
<S> <C>
/S/ DANIEL E. GILL Dated: April 21, 1994
- ---------------------------------------------
Daniel E. Gill
Chairman of the Board and
Chief Executive Officer
Principal Financial Officer:
/S/ PETER STEPHENSON Dated: April 21, 1994
- ---------------------------------------------
Peter Stephenson
Senior Vice President, Finance
Principal Accounting Officer:
/s/ STEPHEN C. MCCLUSKI Dated: April 21, 1994
- ---------------------------------------------
Stephen C. McCluski
Vice President and Controller
</TABLE>
A Majority of the Board of Directors:
Franklin E. Agnew
William Balderston III
Bradford R. Boss
Daniel E. Gill
Ruth R. McMullin
John R. Purcell
Linda Johnson Rice
Robert L. Tarnow
Alvin W. Trivelpiece
William H. Waltrip
Kenneth L. Wolfe
Ronald L. Zarrella
<TABLE>
<S> <C>
/s/ JAY T. HOLMES Dated: April 21, 1994
- ---------------------------------------------
Jay T. Holmes
Attorney-in-fact and Director
</TABLE>
II-3
<PAGE> 14
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
SEQUENTIALLY
EXHIBIT NUMBERED
NO. DESCRIPTION PAGE
------------ ----------------------------------------------------------- -----------
<S> <C> <C>
Exhibit 1(a) Form of Distribution Agreement.
(b) Form of Underwriting Agreement.*
Exhibit 4(a) Indenture dated as of September 1, 1991 between Bausch &
Lomb Incorporated and Citibank, N.A., as Trustee.
(Incorporated by reference to Exhibit 4(a) of Registration
Statement No. 33-42858.)
(b) Table of Contents and cross-reference sheet for Indenture
dated as of September 1, 1991 between Bausch & Lomb
Incorporated and Citibank, N.A., as Trustee.*
(c) Form of Fixed Rate Medium-Term Note.
(d) Form of Floating Rate Medium-Term Note.
Exhibit 5 Opinion of Stephen A. Hellrung, Esq. as to the legality of
the Debt Securities to be issued.*
Exhibit 12 Computation of ratio of earnings to fixed charges.
(Incorporated by reference to Exhibit 12 of the Annual
Report on Form 10-K dated March 22, 1994 and filed with the
Securities and Exchange Commission on March 24, 1994.)
Exhibit 23(a) Consent of Price Waterhouse.
(b) Consent of Stephen A. Hellrung, Esq. (included in Exhibit
5).*
Exhibit 24 Powers of Attorney.*
Exhibit 25 Form T-1 Statement of Eligibility under the Trust Indenture
Act of 1939 of Citibank, N.A., as Trustee.*
</TABLE>
- ---------------
* Previously filed
<PAGE> 1
Exhibit 1(a)
BAUSCH & LOMB INCORPORATED
$300,000,000
MEDIUM-TERM NOTES, SERIES B
DISTRIBUTION AGREEMENT
April , 199_
LAZARD FRERES & CO.,
One Rockefeller Plaza,
New York, New York 10020.
CHASE SECURITIES, INC.,
1 Chase Manhattan Plaza,
New York, New York 10081.
CITICORP SECURITIES, INC.,
399 Park Avenue,
New York, New York 10043.
MORGAN STANLEY & CO. INCORPORATED,
1221 Avenue of the Americas,
New York, New York 10020.
Dear Sirs:
Bausch & Lomb Incorporated, a New York corporation (the "Company"),
proposes to issue and sell from time to time its Medium-Term Notes, Series B,
due from 9 months to 30 years from Date of Issue (the "Securities") in an
aggregate amount up to $300,000,000 and agrees with each of you (individually,
an "Agent", and collectively, the "Agents") as set forth in this Agreement.
Subject to the terms and conditions stated herein and to the reservation by
the Company of the right to sell Securities directly on its own behalf (or to or
through underwriters pursuant to an underwriting agreement), the Company hereby
(i) appoints each Agent as an agent of the Company for the purpose of soliciting
and receiving offers to purchase Securities from the Company pursuant to Section
2(a) hereof and (ii) agrees that, except as otherwise contemplated herein,
whenever it determines to sell Securities directly to any Agent as principal, it
will enter into a separate agreement relating to such sale in accordance with
Section 2(b) hereof (each a "Terms Agreement"), in the form of either (i) a
written agreement between such Agent and the Company, which may be substantially
in the form of Annex I hereto, or (ii) an oral agreement between such Agent and
the Company confirmed in writing by such Agent to the Company.
The Securities will be issued under an indenture, dated as of September 1,
1991 (the "Indenture"), between the Company and Citibank, N.A., as Trustee (the
"Trustee"). The Securities shall have the maturity ranges, interest rates, if
any, redemption provisions and other terms set forth in the Prospectus referred
to below as it may be amended or supplemented from time to time. The Securities
will be issued, and the terms and rights thereof established, from time to time
by the Company in accordance with the Indenture.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 in respect of $300,000,000
aggregate amount of debt securities of the
<PAGE> 2
Company, including the Securities. Any preliminary prospectus included in such
registration statement or filed with the Commission pursuant to Rule 424(a) of
the rules and regulations of the Commission under the Securities Act of 1933, as
amended (the "Act"), is hereinafter called a "Preliminary Prospectus." The
various parts of such registration statement, including all exhibits thereto and
the documents incorporated by reference in the prospectus contained in the
registration statement at the time such part of the registration statement
became effective but excluding Form T-1 and, if applicable, including the
information contained in the form of final prospectus filed with the Commission
pursuant to Rule 424(b) under the Act, each as amended at the time such part of
the registration statement became effective, is hereinafter collectively called
the "Registration Statement." The prospectus (including, if applicable, any
prospectus supplement) relating to the Securities, in the form in which it has
most recently been filed, or transmitted for filing, with the Commission on or
prior to the date of this Agreement, is hereinafter called the "Prospectus." Any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein pursuant
to the applicable form under the Act, as of the date of such Preliminary
Prospectus or Prospectus, as the case may be. Any reference to any amendment or
supplement to any Preliminary Prospectus or the Prospectus, including any
supplement to the Prospectus that sets forth only the terms of a particular
issue of the Securities (a "Pricing Supplement"), shall be deemed to refer to
and include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated therein by reference. Any
reference to any amendment to the Registration Statement shall be deemed to
refer to and include any annual report of the Company filed pursuant to Section
13(a) or 15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement. Any
reference to the Prospectus as amended or supplemented shall be deemed to refer
to and include the Prospectus as amended or supplemented (including by the
applicable Pricing Supplement filed in accordance with Section 4(a) hereof) in
relation to Securities sold pursuant to this Agreement, in the form filed with
the Commission pursuant to Rule 424(b) under the Act and in accordance with
Section 4(a) hereof, including any documents incorporated by reference therein
as of the date of such filing.
1. Representations and Warranties. The Company represents and warrants to,
and agrees with, each Agent that:
(a) The Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to such Agent, excluding
exhibits to such Registration Statement but including all documents
incorporated by reference in the prospectus included therein, have been
declared effective by the Commission in such form; no other document with
respect to such Registration Statement or document incorporated by
reference therein has heretofore been filed or transmitted for filing with
the Commission (other than the Prospectus and related documents copies of
which have been delivered to the Agents); and no stop order suspending
the effectiveness of such Registration Statement has been issued and no
proceeding for that purpose has been initiated or threatened by the
Commission.
(b) The Registration Statement and the Prospectus conform, and any
further amendments or supplements to the Registration Statement and
Prospectus will conform, in all material respects with the requirements of
the Act, the rules and regulations (the "Rules and Regulations") of the
Commission thereunder and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment thereto
and as of the applicable filing date as to the Prospectus and any amendment
or supplement thereto, contain any untrue statement of a material fact or
omit to state any material fact required to be stated therein or necessary
to make the statements therein not misleading; except that the foregoing
does not apply to (i) that part of the Registration Statement that
constitutes the Statement of Eligibility (Form T-1) under the Trust
Indenture Act of the Trustee, and (ii) to statements or omissions in the
Registration Statement or the Prospectus, as amended or supplemented, if
applicable, based upon written information furnished to the Company by any
Agent specifically for use therein.
(c) The documents incorporated by reference in the Prospectus, at the
time they became effective or were filed with the Commission, conformed in
all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations thereunder, and none of such
documents contained an untrue statement of a material fact or omitted to
state a material fact required to be stated
2
<PAGE> 3
therein or necessary to make the statements therein not misleading; any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
(d) The consolidated financial statements included or incorporated by
reference in the Registration Statement and Prospectus present fairly the
consolidated financial position of the Company and its consolidated
subsidiaries as at the dates indicated and the results of their operations
and the changes in their consolidated financial position for the periods
specified; said financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved, except as indicated therein; and the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to be stated
therein. Price Waterhouse, who have certified certain financial statements
of the Company and its subsidiaries, are independent public accountants as
required by the Act and the Rules and Regulations.
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New York with
corporate power and authority to own, lease and operate its properties and
conduct its business as described in the Prospectus; and the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which it owns or leases properties or in
which the conduct of its business requires such qualification, except to
the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries
considered as a whole.
(f) Each subsidiary of the Company listed in Exhibit No. 22 to the
Form 10-K annual report of the Company filed with the Commission under
Section 13 of the Exchange Act for the most recent fiscal year which is a
"significant subsidiary" as defined in Rule 405 of Regulation C of the
Rules and Regulations (each a "Significant Subsidiary") has been duly
organized and is validly existing in good standing under the laws of the
jurisdiction of its organization, has power and authority to own, lease
and operate its properties and conduct its business as described in the
Prospectus and is duly qualified to transact business and is in good
standing in each jurisdiction other than the jurisdiction of its
organization in which it owns or leases properties or in which the conduct
of its business requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries considered as a whole;
all of the issued and outstanding capital stock of each Significant
Subsidiary which is a corporation has been duly authorized and validly
issued and is fully paid and non-assessable, and all such capital stock
of each Significant Subsidiary owned by the Company, directly or through
subsidiaries, is owned free and clear of any mortgage, pledge, lien,
encumbrance or claim in equity except to the extent that certain of such
shares may be held by nominee shareholders to satisfy local law
requirements, in which event such nominee shareholders have delivered to
the Company executed stock powers for such shares, and all of the
partnership interests of each Significant Subsidiary which is a
partnership owned by the Company, directly or through subsidiaries, is
owned free and clear of any mortgage, pledge, lien, encumbrance or claim
in equity.
(g) Neither the Company nor any of its Significant Subsidiaries is in
violation of its or any of their organizational documents or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any material contract, indenture, mortgage, loan
agreement, note, lease or other agreement or instrument to which it or any
of them is a party or by which it or any of them or their properties may
be bound except for such violations or defaults which taken in the
aggregate would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; no consent, approval, authorization or
order of any court or governmental authority or agency is required for
the issue and sale of the Securities as contemplated herein and in the
Indenture or the consummation by the Company of the transactions
contemplated by this Agreement, except such as may be required under the
Act, the Trust Indenture Act, the Rules and Regulations or state
securities or Blue Sky laws; and the execution and delivery of this
Agreement and the issue and sale of the Securities as contemplated herein
and in the Indenture and the consummation of the transactions
contemplated in the Indenture and this Agreement will not conflict with
or constitute a breach of, or default under, or result in the creation or
3
<PAGE> 4
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to, any material
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any of its subsidiaries is
a party or by which it or any of them may be bound or to which any of the
property or assets of the Company or any of its subsidiaries is subject,
nor will any such action result in any violation of the provisions of the
charter or by-laws of the Company or any law, administrative regulation or
administrative or court decree, except, in each case, where such conflict,
breach, default, lien, charge or other encumbrance or violation would not
have a material adverse effect on (i) the condition, financial or
otherwise, earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole and (ii) the Company's ability to
perform its obligations under this Agreement, the Indenture or the
Securities.
(h) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated
therein, (i) there has not been any material adverse change in the
condition, financial or otherwise, earnings, affairs or business prospects
of the Company and its subsidiaries considered as a whole, whether or not
arising in the ordinary course of business, and (ii) there have not been
any material transactions entered into by the Company or any of its
subsidiaries other than in the ordinary course of business.
(i) The Company's operations and products, including the marketing
thereof, are in compliance in all material respects with the requirements,
regulations and procedures established by all federal, state and foreign
regulatory authorities having jurisdiction, including without limitation
the federal Food and Drug Administration ("FDA"), failure to comply with
which would have a material adverse effect on the condition, financial or
otherwise, earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole.
(j) Except as set forth in the Prospectus, there is no action, suit or
proceeding before or by any court or governmental agency or body, domestic
or foreign, now pending, or, to the knowledge of the Company, threatened
against or affecting, the Company or any of its subsidiaries, which might
result in any material adverse change in the condition, financial or
otherwise, earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole, or might materially and adversely
affect the properties or assets thereof or might materially and adversely
affect the offering of the Securities in the manner contemplated by the
Prospectus; and there are no material contracts or other documents which
are required to be filed as exhibits to the Registration Statement by the
Act or the Rules and Regulations which have not been so filed.
(k) This Agreement has been duly authorized, executed and delivered by
the Company.
(l) The Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles, and the Indenture has been duly qualified
under the Trust Indenture Act.
(m) The series of Securities have been duly authorized, and, when
issued and delivered pursuant to such authorization, this Agreement and any
Terms Agreement, each of the Securities will have been duly authorized,
completed, executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture, which will be substantially in the
form filed as an exhibit to the Registration Statement.
2. Appointment of Agents. (a) On the basis of the representations and
warranties, and subject to the terms and conditions herein set forth, each of
the Agents hereby severally and not jointly agrees, as agent of the Company, to
use its reasonable efforts to solicit and receive offers to purchase the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. Subject to the
provisions of this section, offers for the purchase of Securities may be
solicited by an Agent as agent for the Company at such time and in such amounts
as such Agent deems advisable. The Company may from time to time offer
Securities for sale otherwise than through an Agent; provided, however,
4
<PAGE> 5
that so long as this Agreement shall be in effect the Company shall not solicit
offers to purchase Securities through any agent other than an Agent. The Company
reserves the right to sell, and may solicit and accept offers to purchase,
Securities directly on its own behalf, and, in the case of any such sale not
resulting from a solicitation made by any Agent, no commission will be payable
to any Agent with respect to such sale. The Company may accept an offer to
purchase Securities through an agent other than an Agent, provided that (i) the
Company did not solicit such offer, (ii) the Company and such agent execute an
agreement with respect to such purchase having terms and conditions (including,
without limitation, commission rates) with respect to such purchase identical to
the terms and conditions that would apply to such purchase under this Agreement
if such agent was an Agent (which may be accomplished by incorporating by
reference in such agreement the terms and conditions of this Agreement), (iii)
such agreement shall not provide for further offers or purchases and (iv) the
Company shall provide the Agents with a copy of such agreement promptly
following such purchase. These provisions shall not limit Section 4(f) hereof or
any similar provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities, the
solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Securities. As soon as practicable, but
in any event no later than one business day in New York City, after receipt of
notice from the Company, the Agents will suspend solicitation of offers to
purchase Securities from the Company until such time as the Company has advised
the Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of Securities by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the aggregate principal amount of such Securities sold:
<TABLE>
<CAPTION>
COMMISSION (PERCENTAGE OF
AGGREGATE PRINCIPAL
AMOUNT
RANGE OF MATURITIES OF SECURITIES SOLD)
- ------------------------------------------------------------------ -------------------------
<S> <C>
From 9 months to less than 1 year................................. .125%
From 1 year to less than 18 months................................ .150%
From 18 months to less than 2 years............................... .200%
From 2 years to less than 3 years................................. .250%
From 3 years to less than 4 years................................. .350%
From 4 years to less than 5 years................................. .450%
From 5 years to less than 6 years................................. .500%
From 6 years to less than 7 years................................. .550%
From 7 years to less than 10 years................................ .600%
From 10 years to less than 15 years............................... .625%
From 15 years to less than 20 years............................... .675%
From 20 years to less than 30 years............................... .750%
30 years.......................................................... .875%
</TABLE>
(b) Each sale of Securities to any Agent as principal shall be made in
accordance with the terms of this Agreement and (unless the Company and such
Agent shall otherwise agree) a Terms Agreement which will provide for the sale
of such Securities to, and the purchase thereof by, such Agent at such discount
as shall be agreed upon by the Company and such Agent. A Terms Agreement may
also specify certain provisions
5
<PAGE> 6
relating to the reoffering of such Securities by such Agent. The commitment of
any Agent to purchase Securities as principal, whether pursuant to any Terms
Agreement or otherwise, shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement shall
specify the principal amount of Securities to be purchased by any Agent pursuant
thereto, the price to be paid to the Company for such Securities, any provisions
relating to rights of, and default by, underwriters acting together with such
Agent in the reoffering of the Securities and the time and date and place of
delivery of and payment for such Securities. Such Terms Agreement shall also
specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof.
For each sale of Securities to an Agent as principal that is not made
pursuant to a Terms Agreement, the procedural details relating to the issue and
delivery of such Securities and payment therefor shall be as set forth in the
Administrative Procedure. For each such sale of Securities to an Agent as
principal that is not made pursuant to a Terms Agreement, the Company agrees to
pay such Agent a commission (or grant an equivalent discount) as provided in
Section 2(a) hereof and in accordance with the schedule set forth in Section
2(a) hereof.
Each time and date of delivery of and payment for Securities to be
purchased by an Agent as principal, whether set forth in a Terms Agreement or in
accordance with the Administrative Procedure, is referred to herein as a "Time
of Delivery".
(c) Each Agent agrees, with respect to any Securities denominated in a
currency other than U.S. dollars, as agent, directly or indirectly, not to
solicit offers to purchase, and as principal under any Terms Agreement or
otherwise, directly or indirectly, not to offer, sell or deliver, such
Securities in, or to residents of, the country issuing such currency, except as
permitted by applicable law.
3. Delivery of Documents on Commencement Date. The documents required to
be delivered pursuant to Section 6 hereof on the Commencement Date (as defined
below) shall be delivered to the Agents at the offices of Sullivan & Cromwell,
125 Broad Street, New York, New York, at 11:00 a.m., New York City time, on the
date of this Agreement, which date and time of such delivery may be postponed by
agreement between the Agents and the Company but in no event shall be later than
the day prior to the date on which solicitation of offers to purchase Securities
is commenced or on which a Terms Agreement is executed (such time and date being
referred to herein as the "Commencement Date").
4. Certain Agreements and Covenants of the Company. The Company covenants
and agrees with each Agent:
(a)(i) To make no amendment or supplement to the Registration
Statement or the Prospectus (except for periodic or current reports filed
under the Exchange Act) after the date of any Terms Agreement or other
agreement by an Agent to purchase Securities as principal and prior to the
related Time of Delivery which shall be disapproved by any Agent which is a
party to such Terms Agreement or so purchasing as principal promptly after
reasonable notice thereof; (ii) to prepare, with respect to any Securities
to be sold through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously approved by
such Agent and to file such Pricing Supplement pursuant to the applicable
paragraph of Rule 424(b) under the Act within the time period prescribed
therein; (iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, any supplement
relating to debt securities other than the Securities or the filing of a
proxy statement under the Exchange Act, at any time prior to having
afforded each Agent a reasonable opportunity to review and comment thereon;
(iv) to file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission pursuant
to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the
delivery of a prospectus is required in connection with the offering or
sale of the Securities, and during such same period to advise such Agent,
promptly after the Company receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or has become
effective or any supplement to the Prospectus or any amended Prospectus
(other than any Pricing Supplement that relates to Securities not purchased
through or by such Agent) has been filed with the Commission, of the
issuance by the
6
<PAGE> 7
Commission of any stop order or of any order preventing or suspending the
use of any prospectus relating to the Securities, of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction,
of the initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amendment or supplement of the
Registration Statement or Prospectus or for additional information; and (v)
in the event of the issuance of any such stop order or of any such order
preventing or suspending the use of any such prospectus or suspending any
such qualification, to use promptly its best efforts to obtain its
withdrawal;
(b) Promptly from time to time to take such action as such Agent may
reasonably request to qualify the Securities for offering and sale under
the securities laws of such jurisdiction as such Agent may request and to
comply with such laws so as to permit the continuance of sales and dealings
therein for as long as may be necessary to complete the distribution or
sale of the Securities; provided, however, that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) To furnish such Agent with copies of the Registration Statement
and each amendment thereto, with copies of the Prospectus as each time
amended or supplemented, other than any Pricing Supplement (except as
provided in the Administrative Procedure), in the form in which it is filed
with the Commission pursuant to Rule 424 under the Act, and with copies of
the documents incorporated by reference therein, all in such quantities as
such Agent may reasonably request from time to time; and, if the delivery
of a prospectus is required at any time in connection with the offering or
sale of the Securities (including Securities purchased from the Company by
such Agent as principal) and if at such time any event shall have occurred
as a result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act, the Exchange Act or the Trust Indenture Act,
to notify such Agent and request such Agent, in its capacity as agent of
the Company, to suspend solicitation of offers to purchase Securities from
the Company (and, if so notified, such Agent shall cease such solicitations
as soon as practicable, but in any event not later than one business day
later); and if the Company shall decide to amend or supplement the
Registration Statement or the Prospectus as then amended or supplemented,
to so advise such Agent promptly by telephone (with confirmation in
writing) and to prepare and cause to be filed promptly with the Commission
an amendment or supplement to the Registration Statement or the Prospectus
as then amended or supplemented that will correct such statement or
omission or effect such compliance; provided, however, that if during such
same period such Agent continues to own Securities purchased from the
Company by such Agent as principal or such Agent is otherwise required to
deliver a prospectus in respect of transactions in the Securities, the
Company shall promptly prepare and file with the Commission such an
amendment or supplement;
(d) To make generally available to its securityholders as soon as
practicable, but in any event no later than eighteen months after the
"effective date of the Registration Statement" (as defined in Rule 158(c)),
an earnings statement of the Company and its subsidiaries (which need not
be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158);
(e) So long as any Securities sold to such Agent as principal or by
such Agent hereunder are outstanding, to furnish to such Agent copies of
all reports or other communications with respect to the financial position,
earnings, business affairs or business prospects of the Company (financial
or other) furnished to stockholders, and deliver to such Agent (i) as soon
as they are available, copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange on which any class of securities of the Company is listed; and
(ii) such additional information concerning the business and financial
condition of the Company as such Agent may from time to time reasonably
request (such financial statements to be on a consolidated basis to the
extent the accounts of
7
<PAGE> 8
the Company and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent or
other agreement by such Agent to purchase Securities as principal and
continuing to and including the earlier of (i) the date such Agent notified
the Company that the restrictions imposed by this subsection (f) are
terminated and (ii) the related Time of Delivery, not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the Company
which both mature more than 9 months after such Time of Delivery and are
substantially similar to the Securities, without the prior written consent
of such Agent;
(g) That each acceptance by the Company of an offer to purchase
Securities hereunder (including any purchase by such Agent as principal not
pursuant to a Terms Agreement), and each execution and delivery by the
Company of a Terms Agreement with such Agent, shall be deemed to be an
affirmation to such Agent that the representations and warranties of the
Company contained in this Agreement are true and correct as of the date of
such acceptance or of such Terms Agreement, as the case may be, as though
made at and as of such date, and an undertaking that such representations
and warranties will be true and correct as of the settlement date for the
Securities relating to such acceptance or as of the Time of Delivery
relating to such sale, as the case may be, as though made at and as of such
date (except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities to such date);
(h) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or a
supplement relating to debt securities other than the Securities), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus (other than (i) a proxy statement which, if
incorporated by reference into an Annual Report on Form 10-K, is filed with
the Commission on or prior to the date such Annual Report on Form 10-K is
filed, (ii) an Annual Report of employee stock purchase, savings and
similar plans on Form 11-K or (iii) a Current Report on Form 8-K filed
solely for the purpose of incorporating a press release announcing the
Company's quarterly or annual results of operations, unless an Agent
otherwise reasonably requests an opinion in connection with such Current
Report), and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies
the delivery of an opinion under this Section 4(h) as a condition to the
purchase of Securities pursuant to such Terms Agreement, the Company shall
furnish or cause to be furnished forthwith to such Agent a written opinion
of its General Counsel, or at the Company's election such other counsel
acceptable to such Agent, dated the date of such amendment, supplement,
incorporation or Time of Delivery relating to such sale, as the case may
be, in form satisfactory to such Agent to the effect of the opinion set
forth in Section 6(c), or in lieu of such opinion, an opinion to the effect
that such Agent may rely on the opinion of such counsel to the effect of
the opinion referred to in Section 6(c) hereof which was last furnished to
such Agent to the same extent as though it were dated the date of such
letter authorizing reliance (except that the statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date);
(i) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement or a
supplement relating to debt securities other than the Securities), each
time a document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus (other than (i) a proxy statement which, if
incorporated by reference into an Annual Report on Form 10-K, is filed with
the Commission on or prior to the date such Annual Report on Form 10-K is
filed, (ii) an Annual Report of employee stock purchase, savings and
similar plans on Form 11-K or (iii) a Current Report on Form 8-K filed
solely for the purpose of incorporating a press release announcing the
Company's quarterly or annual results of operations, unless the Agent
otherwise reasonably requests a certificate), and each time the Company
sells Securities to an Agent as principal and the applicable Terms
Agreement specifies the delivery of a certificate under this Section 4(i)
as a condition to the purchase of Securities pursuant to such Terms
Agreement, the Company shall furnish or cause to be furnished forthwith to
the Agent a certificate, dated the date of such supplement, amendment,
incorporation or Time of Delivery relating to such sale, as the case may
be, in such form and
8
<PAGE> 9
executed by such officers of the Company as shall be reasonably
satisfactory to such Agent, to the effect that the statements contained in
the certificate referred to in Section 6(f) hereof which was last furnished
to such Agent are true and correct at such date as though made at and as of
such date (except that such statements shall be deemed to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date) or, in lieu of such certificate, certificates of the same tenor
as the certificates referred to in said Section 6(f) but modified to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date; and
(j) To offer to any person who has agreed to purchase Securities as
the result of an offer to purchase solicited by such Agent the right to
refuse to purchase and pay for such Securities if, on the related
settlement date fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(e) or 10(b) hereof shall not have
been satisfied (it being understood that the judgment of such person with
respect to the impracticability or inadvisability of such purchase of
Securities shall be substituted, for purposes of this Section 4(j), for the
respective judgments of an Agent with respect to certain matters referred
to in such Sections 6(a), 6(e) and 10(b), and that such Agent shall have no
duty or obligation whatsoever to exercise the judgment permitted under such
Sections 6(a), 6(e) and 10(b) on behalf of any such person).
5. Expenses. The Company covenants and agrees with each Agent that the
Company will pay or cause to be paid the following: (A) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act; and (B) provided that such
expenses have been authorized and approved in advance by the Company, (i) the
fees, disbursements and expenses of counsel for the Agents in connection with
the establishment of the program contemplated hereby, any opinions to the
rendered by such counsel hereunder and the transactions contemplated hereunder;
(ii) all other expenses in connection with the preparation, printing and filing
of the Registration Statement, any Preliminary Prospectus, the Prospectus and
any Pricing Supplements and all other amendments and supplements thereto and the
mailing and delivering of copies thereof to such Agent; (iii) the cost of
printing or reproducing this Agreement, any Terms Agreement, any Indenture, any
Blue Sky and Legal Investment Memoranda and any other documents in connection
with the offering, purchase, sale and delivery of the Securities; (iv) all
expenses in connection with the qualification of the Securities for offering and
sale under state securities laws as provided in Section 4(b) hereof, including
the fees and disbursements of counsel for the Agents in connection with such
qualification and in connection with the Blue Sky and legal investment surveys;
(v) any fees charged by securities rating services for rating the Securities;
(vi) any filing fees incident to any required review by the National Association
of Securities Dealers, Inc. of the terms of the sale of the Securities; (vii)
the cost of printing the Securities; (viii) the fees and expenses of the Trustee
and any agent of the Trustee and any transfer or paying agent of the Company and
the fees and disbursements of counsel for the Trustee or such agent in
connection with the Indenture and the Securities; (ix) any advertising expenses
connected with the solicitation of offers to purchase and the sale of
Securities; and (x) all other costs and expenses incident to the performance of
its obligations hereunder which are not otherwise specifically provided for in
this Section. Except as provided in Sections 7 and 8 hereof, each Agent shall
pay all other expenses it incurs.
6. Conditions. The obligation of any Agent, as agent of the Company, at
any time ("Solicitation Time") to solicit offers to purchase the Securities and
the obligation of any Agent to purchase Securities as principal, pursuant to any
Terms Agreement or otherwise, shall in each case be subject, in such Agent's
discretion, to the condition that all representations and warranties and other
statements of the Company herein (and, in the case of an obligation of an Agent
under a Terms Agreement, in or incorporated in such Terms Agreement by
reference) are true and correct at and as of the Commencement Date and any
applicable date referred to in Section 4(i) hereof that is prior to such
Solicitation Time or Time of Delivery, as the case may be, and at and as of such
Solicitation Time or Time of Delivery, as the case may be, the condition that
prior to such Solicitation Time or Time of Delivery, as the case may be, the
Company shall
9
<PAGE> 10
have performed all of its obligations hereunder theretofore to be performed, and
the following additional conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, if the
Prospectus or any amendment or supplement thereto (including the Pricing
Supplement) is required to be filed with the Commission pursuant to Rule
424(b) under the Act, the Prospectus and any such amendment or supplement
shall have been filed in the manner and within the applicable time period
prescribed for such filing by the rules and regulations under the Act and
in accordance with Section 4(a) hereof; (ii) no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and (iii) all requests for additional information on the part
of the Commission shall have been complied with to the reasonable
satisfaction of such Agent;
(b) Sullivan & Cromwell, counsel to the Agents, shall have furnished
to such Agent (i) such opinion or opinions, dated the Commencement Date,
with respect to the incorporation of the Company, the validity of the
Indenture, the Securities, the Registration Statement, the Prospectus as
amended or supplemented and other related matters as such Agent may
reasonably request, and (ii) if required pursuant to any Terms Agreement to
which such Agent is a party, or if and to the extent requested by such
Agent, on each applicable date that is on or prior to such Solicitation
Time or Time of Delivery referred to in Section 4(h) hereof with respect to
the opinion of the General Counsel of the Company, if in the reasonable
judgment of such Agent, such amendment or supplement contains information
of such a nature that an opinion of counsel to the Agents should be
furnished, an opinion or opinions, dated such applicable date, to the
effect that such Agent may rely on the opinion or opinions which were last
furnished to such Agent pursuant to this Section 6(b) to the same extent as
though it or they were dated the date of such letter authorizing reliance
(except that the statements in such last opinion or opinions shall be
deemed to relate to the Registration Statement and the Prospectus as
amended and supplemented to such date) or, in any case, in lieu of such an
opinion or opinions, an opinion or opinions of the same tenor as the
opinion or opinions referred to in clause (i) but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented to
such date; and in each case such counsel shall have received such papers
and information as they may reasonably request to enable them to pass upon
such matters;
(c) Stephen A. Hellrung, General Counsel of the Company, shall have
furnished to such Agent a written opinion, dated the Commencement Date and
each applicable date referred to in Section 4(h) hereof that is on or prior
to such Solicitation Time or Time of Delivery, as the case may be, in form
and substance satisfactory to such Agent, to the effect that:
(i) The Company and each of its Significant Subsidiaries has been
duly organized and is validly existing in good standing under the laws
of the jurisdiction of its organization, has power and authority to
own, lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus as amended
or supplemented, and, to the best of such counsel's knowledge and
information after reasonable investigation, is duly qualified to
transact business and is in good standing in each jurisdiction other
than the jurisdiction of its organization in which it owns or leases
properties or in which the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries considered as a whole; all of the issued
and outstanding capital stock of each Significant Subsidiary which is a
corporation has been duly authorized and validly issued and is fully
paid and non-assessable, and all of such capital stock, to the
best of such counsel's knowledge and information, is owned by the
Company free and clear of any pledge, lien, encumbrance or claim in
equity except to the extent that certain of such shares may be held by
nominee shareholders to satisfy local law requirements, in which event
such nominee shareholders have delivered to the Company executed stock
powers for such shares; and all of the partnership interests of each
significant subsidiary which is a partnership owned by the Company,
directly or through subsidiaries, to the best of such counsel's
knowledge and information, is owned free and clear of any mortgage,
pledge, lien, encumbrance or claim in equity;
(ii) The Securities have been duly authorized and, when duly
executed, authenticated, issued and delivered by the Company in
accordance with the Indenture and such authorization, and paid
10
<PAGE> 11
for by the purchaser thereof, will constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the
Indenture;
(iii) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
agreement of the Company, enforceable against the Company in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles, and the Indenture has been duly qualified under the Trust
Indenture Act;
(iv) Except as set forth, or incorporated by reference, in the
Prospectus, there is not pending or, to the knowledge of such counsel,
threatened, any action, suit or proceeding (including arbitration) to
which the Company or any of its subsidiaries is a party before or by any
court or governmental agency or body or arbitrator, domestic or foreign,
which would result in any material adverse change in the condition,
financial or otherwise, earnings, affairs or business prospects of the
Company and its subsidiaries considered as a whole;
(v) The Company holds all necessary licenses, permits and
authorizations from regulatory authorities required in its operations
and for the marketing of its products, failure to hold which would have
a material adverse effect on the condition, financial or otherwise,
earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole;
(vi) No consent, approval, authorization or order of any court or
governmental authority or agency is required for the issue and sale of
the Securities or the consummation of the transactions contemplated by
this Agreement, any applicable Terms Agreement or the Indenture, except
such as may be required under the Act, the Trust Indenture Act, the
Rules and Regulations or state securities or Blue Sky laws; and, to the
best of such counsel's knowledge and information, the execution and
delivery of this Agreement and the Securities and the consummation of
the transactions contemplated herein will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any of its subsidiaries pursuant to, any
material contract, indenture, mortgage, loan agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound or to
which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of
the provisions of the charter or by-laws of the Company, or any law,
administrative regulation or administrative or court decree;
(vii) The descriptions in the Registration Statement and Prospectus
of statutes, legal and governmental proceedings, contracts and other
documents are accurate and fairly present the information required to be
shown; and such counsel does not know of any statutes or legal or
governmental proceedings required to be described in the Prospectus that
are not described in the Registration Statement or Prospectus (or
required to be filed under the Exchange Act if upon such filing they
would be incorporated therein, in whole or in part, by reference) or to
be filed as exhibits to the Registration Statement that are not
described and filed as required;
(viii) The Registration Statement is effective under the Act and,
to the best of such counsel's knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the Act or proceedings therefor initiated or threatened by
the Commission;
(ix) The statements set forth in the Prospectus under the headings
"Description of Debt Securities" and "Plan of Distribution" and in the
Prospectus Supplement under the headings "Description of Notes" and
"Supplemental Plan of Distribution" and in the Registration Statement
under Item 15 insofar as such statements constitute a summary of the
legal matters or documents referred to therein are an accurate summary
of such legal matters or documents; and
(x) Such counsel (1) is of the opinion that each document
incorporated by reference in the Registration Statement and the
Prospectus (other than the financial statements, as to which no opinion
need be rendered) complied as to form when filed with the Commission in
all material
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<PAGE> 12
respects with the Exchange Act and the rules and regulations of the
Commission thereunder, (2) is of the opinion that the Registration
Statement (other than the financial statements included therein, as to
which no opinion need be expressed) complies as to form in all material
respects with the requirements of the Act, the Trust Indenture Act and
the Rules and Regulations, and (3) has no reason to believe that (other
than the financial statements included therein, as to which no belief
need be expressed and except for that part of the Registration Statement
that constitutes the Form T-1 hereinafter referred to) any part of the
Registration Statement, at the time such part became effective,
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that, as of the date of such
opinion, the Prospectus, as amended or supplemented, contained any
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(d) On the Commencement Date and each time the Registration Statement
or the Prospectus has been amended or supplemented, and each time that a
document filed under the Act or the Exchange Act has been incorporated by
reference into the Prospectus, in either case to set forth financial
information included in or derived from the Company's consolidated
financial statements or accounting records (other than (i) a proxy
statement which, if incorporated by reference into an Annual Report on Form
10-K, was filed with the Commission on or prior to the date such Annual
Report on Form 10-K was filed, (ii) an Annual Report of employee stock
purchase, savings and similar plans on Form 11-K or (iii) a Current Report
on Form 8-K filed solely for the purpose of incorporating a press release
announcing the Company's quarterly or annual results or operations, unless
an Agent otherwise reasonably requested a letter from the independent
accountants in connection with such Current Report), on the date of such
amendment or supplement or on the date of such filing, and each time the
Company sells Securities to an Agent as principal pursuant to a Terms
Agreement and such Terms Agreement specifies the delivery of a letter under
this Section 6(d) as a condition to the purchase of Securities pursuant to
such Terms Agreement, at the Time of Delivery with respect to such
Securities, the independent public accountants who have certified the
financial statements of the Company and its subsidiaries included in or
incorporated by reference in the Registration Statement shall have
furnished to such Agent a letter, dated the Commencement Date or dated the
date of such amendment, supplement, filing or Time of Delivery, as the case
may be, in form and substance reasonably satisfactory to such Agent
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters in similar circumstances
with respect to the financial statements and certain financial information
contained in or incorporated by reference in the Registration Statement or
Prospectus and confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder.
(e) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, as amended or supplemented,
there shall not have been a material adverse change in the condition,
financial or otherwise, earnings, affairs or business prospects of the
Company and its subsidiaries considered as a whole, whether or not arising
in the ordinary course of business, the effect of which is in the judgment
of such Agent so material and adverse as to make it impracticable or
inadvisable to proceed with the solicitation by such Agent of offers to
purchase Securities from the Company or the purchase by such Agent of
Securities from the Company as principal, as the case may be, on the terms
and in the manner contemplated in the Prospectus as amended or
supplemented; and
(f) The Company shall have furnished or caused to be furnished to such
Agent certificates of officers of the Company dated the Commencement Date
and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in
such form and executed by such officers of the Company as shall be
reasonably satisfactory to such Agent, as to the accuracy of the
representations and warranties of the Company herein at and as of the
Commencement Date or such applicable date, as the case may be, as to the
performance by the Company of all of its obligations hereunder to be
performed at or prior to the Commencement Date or
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<PAGE> 13
such applicable date, as the case may be, as to the matters set forth in
subsections (a) and (e) of this Section 6, and as to such other matters as
such Agent may reasonably request.
7. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls any Agent
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities or judgments
(including without limiting the foregoing the reasonable legal and other
expenses incurred in connection with any action, suit or proceeding or any claim
asserted, as such expenses are incurred) arising out of or based on any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus, as amended or supplemented, or caused
by any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished in writing to the Company by such
Agent expressly for use therein. This indemnity agreement will be in addition to
any liability which the Company may otherwise have to the persons referred to
above in this subsection.
(b) Each Agent agrees, severally and not jointly, to indemnify and hold
harmless the Company, the directors of the Company, the officers of the Company
who sign the Registration Statement and each person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act from and against any and all losses, claims, damages,
liabilities or judgments (including without limiting the foregoing the
reasonable legal and other expenses incurred in connection with any action, suit
or proceeding or any claim asserted, as such expenses are incurred) caused by
any untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus, as amended or supplemented, or
caused by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only with reference to information relating to such Agent
furnished to the Company in writing by such Agent expressly for use in the
Registration Statement, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus. This indemnity agreement will be in addition to any
liability which such Agent may otherwise have to the persons referred to above
in this subsection.
(c) In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be instituted involving any person
in respect of which indemnity may be sought pursuant to either of the two
preceding paragraphs, such person (hereinafter called the indemnified party)
shall promptly notify the person against whom such indemnity may be sought
(hereinafter called the indemnifying party) in writing and the indemnifying
party, upon request of the indemnified party, shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying party
may designate and shall pay the fees and disbursements of such counsel related
to such proceeding. In any such action or proceeding, any indemnified party
shall have the right to retain its own counsel, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for (a)
the reasonable fees and expenses of more than one separate firm (in addition to
any local counsel) for all Agents and all persons, if any, who control Agents
within the meaning of either Section 15 of the Securities Act or Section 20 of
the Exchange Act and (b) the reasonable fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either such Section and that all such
fees and expenses shall be reimbursed as they are incurred. In the case of any
such separate firm for the Agents and such control persons of the Agents, such
firm shall be designated in writing by the Agents. In the case of any such
separate firm for the Company, and such directors, officers and control persons
of the Company, such firm shall be designated in writing by the Company. The
indemnifying party shall not be liable for any settlement of any proceeding
13
<PAGE> 14
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party from all liability on claims that are the subject matter
of such proceeding.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party in respect of any losses, claims, damages, liabilities or
judgments referred to herein, then each indemnifying party, in lieu of
indemnifying such indemnified party, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages,
liabilities and expenses (i) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such losses, claims, damage
or liability relates or (ii) if the allocation provided by clause (i) above is
not permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand and each Agent on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent in respect thereof. The relative fault of the
Company on the one hand and each Agent on the other shall be determined by the
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading relates to information supplied by the Company or by such
Agent and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to Section 7 (d) were determined by per
capita allocation (even if all Agents were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of the
immediately preceding paragraph, an Agent shall not be required to contribute
any amount in excess of the amount by which the total public offering price at
which the Securities purchased by or through such Agent were sold exceeds the
amount of any damages which such Agent has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The obligations of each
of the Agents to contribute pursuant to Section 7(d) are several in proportion
to the respective purchases made by or through it to which such loss, claim,
damage or liability relates and are not joint.
8. Acting Solely as Agents. Each Agent, in soliciting offers to purchase
Securities from the Company and in performing the other obligations of such
Agent hereunder (other than in respect of any purchase by an Agent as principal,
pursuant to a Terms Agreement or otherwise), is acting solely as agent for the
Company and not as principal. Each Agent will make reasonable efforts in good
faith to assist the Company in obtaining performance by each purchaser whose
offer to purchase Securities from the Company was solicited by such Agent and
has been accepted by the Company, but such Agent shall not have any liability to
the Company in the event such purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Securities to a purchaser
whose offer it has accepted, the Company shall (i) hold each Agent harmless
against any loss, claim or damage arising from or as a result of such default by
the Company and
14
<PAGE> 15
(ii) notwithstanding such default, pay to the Agent that solicited such offer
any commission to which it would be entitled in connection with such sale.
9. Survival. The respective indemnities, agreements, representations,
warranties and other statements by any Agent and the Company set forth in or
made pursuant to this Agreement shall remain in full force and effect regardless
of any investigation (or any statement as to the results thereof) made by or on
behalf of any Agent or any controlling person of any Agent, or the Company, or
any officer or director or any controlling person of the Company, and shall
survive each delivery of and payment for any of the Securities.
10. Termination. (a) The provisions of this Agreement relating to the
solicitation of offers to purchase Securities from the Company may be suspended
or terminated at any time by the Company as to any Agent or by any Agent as to
such Agent upon the giving of written notice of such suspension or termination
to such Agent or the Company, as the case may be. In the event of such
suspension or termination with respect to any Agent, (x) this Agreement shall
remain in full force and effect with respect to any Agent as to which such
suspension or termination has not occurred, (y) this Agreement shall remain in
full force and effect with respect to the rights and obligations of any party
which have previously accrued or which relate to Securities which are already
issued, agreed to be issued or the subject of a pending offer at the time of
such suspension or termination and (z) in any event, this Agreement shall remain
in full force and effect insofar as the fourth paragraph of Section 2(a),
Section 4(d), Section 4(e), Section 5, Section 7, Section 8, Section 9 and
Section 10(b) hereof are concerned.
(b) Any agreement by an Agent to purchase Securities as principal, whether
pursuant to a Terms Agreement or otherwise, may be terminated by such Agent if,
since the date of the acceptance of any offer to purchase Securities or the date
of the relevant Terms Agreement, there shall have occurred any of the following:
(i) any outbreak or escalation of hostilities or other calamity or crisis or
material change in existing financial, political, economic or securities market
conditions, the effect of which is such as to make it, in the reasonable
judgment of such Agent, impracticable or inadvisable in the manner contemplated
in the Prospectus to proceed with the solicitation of the offer to purchase the
Securities or to purchase Securities from the Company as principal, pursuant to
the applicable Terms Agreement or otherwise, as the case may be, or enforce
contracts for the sale of the Securities, (ii) reporting of bid and asked prices
of the Common Stock of the Company has been suspended by the National
Association of Securities Dealers, Inc. or trading in the Common Stock of the
Company has been suspended by the Commission or a national securities exchange,
or trading generally on either the American Stock Exchange or the New York Stock
Exchange has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities; (iii) any material adverse change in the condition, financial
or otherwise, earnings, affairs or business prospects of the Company and its
subsidiaries considered as a whole, whether or not arising in the ordinary
course of business; (iv) any downgrading in the rating accorded the Company's
debt securities by any "nationally recognized statistical rating organization",
as that term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act; or (v) any such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities.
11. Notices. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and if to Lazard Freres & Co. shall be sufficient in all respects when delivered
or sent by facsimile transmission or registered mail to One Rockefeller Plaza,
New York, New York 10020, Facsimile Transmission No. 212 632-6984, Attention:
Head of Syndicate Department; if to Chase Securities Inc. shall be sufficient in
all respects when delivered or sent by telex, facsimile transmission or
registered mail to Chase Securities Inc., 1 Chase Plaza, New York, New York
10081, Facsimile Transmission: 212 552-2214, Attention: Louis DeCaro; if to
Citicorp Securities, Inc. shall be sufficient in all respects when delivered or
sent by telex, facsimile transmission or registered mail to Citicorp Securities,
Inc., 399 Park Avenue, New York, New York 10043, Facsimile Transmission No. 212
291-3910, Attention: Kimberly Conyngham; if to Morgan Stanley & Co. Incorporated
shall be sufficient in all respects when delivered or sent by telex, facsimile
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<PAGE> 16
transmission or registered mail to Morgan Stanley & Co. Incorporated, 1251
Avenue of the Americas, New York 10020, Facsimile Transmission No. 212 703-4575,
Attention: Manager, Credit Department, with a copy to Morgan Stanley & Co.
Incorporated, 1221 Avenue of the Americas, New York, New York 10020, Facsimile
Transmission No. 212 764-7490, Attention: Managing Director, Debt Syndicate, and
if to the Company shall be sufficient in all respects when delivered or sent by
facsimile transmission (provided that the original of such facsimile
transmission is promptly delivered or sent to the Company by mail) or registered
mail to Bausch & Lomb Incorporated, One Lincoln First Square, Rochester, New
York 14601-0054, Attention: Corporate Treasurer, Facsimile Transmission No. 716
338-6007.
12. Successors. This Agreement and any Terms Agreement shall be binding
upon, and inure solely to the benefit of, each Agent and the Company, and to the
extent provided in Section 7, Section 8 and Section 9 hereof, the officers and
directors of the Company and any person who controls any Agent or the Company,
and their respective personal representatives, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any Terms Agreement. No purchaser of any of the Securities through
or from any Agent hereunder shall be deemed a successor or assign by reason
merely of such purchase.
13. Time of Essence. Time shall be of the essence in this Agreement and
any Terms Agreement. As used herein, the term "business day" shall mean any day
when the Commission's office in Washington, D.C. is open for business.
14. Governing Law. This Agreement and any Terms Agreement shall be
governed by, and construed in accordance with, the laws of the State of New
York.
15. Counterparts. This Agreement and any Terms Agreement may be executed
by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such respective
counterparts shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding, please sign and
return to us five counterparts hereof, whereupon this letter and the acceptance
by each of you thereof shall constitute a binding agreement between the Company
and each of you in accordance with its terms.
Very truly yours,
BAUSCH & LOMB INCORPORATED
By:
----------------------------------
Name:
Title:
16
<PAGE> 17
Accepted in New York, New York,
as of the date hereof:
- ------------------------------------
(Lazard Freres & Co.)
CHASE SECURITIES, INC.
By:
---------------------------------
Name:
Title:
CITICORP SECURITIES, INC.
By:
---------------------------------
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
---------------------------------
Name:
Title:
17
<PAGE> 18
ANNEX I
BAUSCH & LOMB INCORPORATED
MEDIUM-TERM NOTES, SERIES B
TERMS AGREEMENT
April , 1994
[Insert Names and Addresses of Agent(s)]
Dear Sirs:
Bausch & Lomb Incorporated (the "Company") proposes, subject to the terms
and conditions stated herein and in the Distribution Agreement, dated April
,1994 (the "Distribution Agreement"), between the Company, on the one hand, and
Lazard Freres & Co., Chase Securities Inc., Citicorp Securities, Inc. and
Morgan Stanley & Co. Incorporated (the "Agents"), on the other hand, to issue
and sell to [insert name(s) of Agent(s)] the securities specified in the
Schedule hereto (the "Purchased Securities"). Each of the provisions of the
Distribution Agreement not specifically related to the solicitation by the
Agents, as agents of the Company, of offers to purchase Securities is
incorporated herein by reference in its entirety, and shall be deemed to be
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Nothing contained herein or in the Distribution
Agreement shall make any party hereto an agent of the Company or make such
party subject to the provisions therein relating to the solicitation of offers
to purchase securities from the Company, solely by virtue of its execution of
this Terms Agreement. Each of the representations and warranties set forth
therein shall be deemed to have been made at and as of the date of this Terms
Agreement, except that each representation and warranty in Section 1 of the
Distribution Agreement which makes reference to the Prospectus shall be deemed
to be a representation and warranty as of the date of the Distribution
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Terms Agreement in relation
to the Prospectus as amended and supplemented to relate to the Purchased
Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth in the Distribution Agreement
incorporated herein by reference, the Company agrees to issue and sell to
[insert name(s) of Agent(s)] and [insert name(s) of Agent(s)] agree(s) to
purchase from the Company the Purchased Securities, at the time and place, in
the principal amount and at the purchase price set forth in the Schedule hereto.
I-1
<PAGE> 19
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you this
letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company.
BAUSCH & LOMB INCORPORATED
By:
--------------------------------------
Name:
Title:
Accepted:
[Name(s)]
By:
- ------------------------------------
Name:
Title:
I-2
<PAGE> 20
SCHEDULE TO ANNEX I
Title of Purchased Securities:
[ %] Medium-Term Notes
Aggregate Principal Amount:
[$ or units of other Specified Currency]
[Price to Public:]
Purchase Price by :
% of the principal amount of the Purchased Securities [, plus accrued
interest from to ][and accrued amortization, if any, from
to ]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of the
Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next day]
[immediately available] funds]
Indenture:
Indenture, dated as of September 1, 1991, between the Company and Citibank,
N.A., as Trustee
Time of Delivery:
Closing Location:
Maturity:
Interest Rate:
Interest Payment Dates:
Documents to be Delivered:
The following documents referred to in the Distribution Agreement shall be
delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 6(b).]
[(2) The opinion of counsel to the Company referred to in Section 4(h).]
[(3) The accountants' letter referred to in Section 4(i).]
[(4) The officers' certificate referred to in Section 4(j).]
Other Provisions (including Syndicate Provisions, if applicable):
I-3
<PAGE> 21
ANNEX II
BAUSCH & LOMB INCORPORATED
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated , 199 (the "Distribution Agreement"),
between Bausch & Lomb Incorporated (the "Company") and Lazard Freres & Co.,
Chase Securities Inc., Citicorp Securities, Inc. and Morgan Stanley & Co.
Incorporated (together, the "Agents"), to which this Administrative Procedure is
attached as Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the Prospectus
as amended or supplemented or the Indenture.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
The Securities will be issued only in fully registered form and each will
be represented by either a global security (a "Global Security") delivered to
the Trustee, as agent for The Depository Trust Company (the "Depositary"), and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security"), or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Certificated Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Book-Entry Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
The Company may solicit offers to purchase the Notes by posting rates, as
described below, receiving offers solicited by an Agent or such other means as
the Company and the Agents may agree from time to time.
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. In advising the Company of any such
offer, the Agent shall provide such Sale Information (as defined below) as the
Company may request. Each Agent may, in its discretion reasonably exercised,
reject any offer received by it in whole or in
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<PAGE> 22
part. Each Agent also may make offers to the Company to purchase Certificated
Securities as a Purchasing Agent. The Company will have the sole right to accept
offers to purchase Certificated Securities and may reject any such offer in
whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Selling Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than 5:00 p.m. on the Business Day following acceptance of such offer, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and the
initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency;
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount, as the
case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Certificated Security, such of the following as
are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(11) If a Floating Rate Certificated Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Rate Reset Period,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
II-2
<PAGE> 23
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement; and
(14) Specification that the offer is for Certificated Security.
Preparation of Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Pricing Supplement reflecting the terms of such Certificated
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the Business Day following the receipt of
the Sale Information, or if the Company and the purchaser agree to settlement on
the Business Day following the date of acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have ten Pricing
Supplements filed with the Commission on the date such Pricing Supplement is
required to be filed under the applicable paragraph of Rule 424(b).
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Certificated Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Certificated Security.
Date of Settlement:
All offers solicited by a Selling Agent or made by a Purchasing Agent and
accepted by the Company will be settled on a date (the "Settlement Date") which
is the fifth business day after the date of acceptance of such offer, unless the
Company and the purchaser agree to settlement (a) on any other business day
after the acceptance of such offer or (b) with respect to an offer accepted by
the Company prior to 10:00 a.m., New York City time, on the date of such
acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or Purchasing
Agent, as the case may be, the Company will communicate such Sale Information to
the Trustee by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or other
acceptable written means to authenticate and deliver the Certificated Securities
no later than 2:15 p.m., New York City time, on the Settlement Date. Such
instruction will be given by the Company prior to 3:00 p.m., New York City time,
on the business day prior to the Settlement Date unless the Settlement Date is
the date of acceptance by the Company of the offer to purchase Certificated
Securities in which case such instruction will be given by the Company by 11:00
a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser solicited
by an Agent, the Trustee will, by 2:15 p.m., New York City time, on the
Settlement Date, deliver the Certificated Securities to the Selling Agent for
the benefit of the purchaser of such Certificated Securities against delivery by
the Selling Agent of a
II-3
<PAGE> 24
receipt therefor. On the Settlement Date the Selling Agent will deliver payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Selling Agent's commission; provided that the Selling Agent reserves the right
to withhold payment for which it has not received funds from the purchaser. The
Company shall not use any proceeds advanced by a Selling Agent for the purpose
of carrying any "margin stock" within the meaning of the regulations of the
Board of Governors of the Federal Reserve System.
In the case of a sale of Certificated Securities to a Purchasing Agent, the
Trustee will, by 2:15 p.m., New York City time, on the Settlement Date, deliver
the Certificated Securities to the Purchasing Agent against delivery of payment
for such Certificated Securities in immediately available funds to the Company
in an amount equal to the issue price of the Certificated Securities less the
Purchasing Agent's discount.
Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to the
Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which the
failure occurred, make appropriate entries in its records and, unless otherwise
instructed by the Company, destroy the Certificated Security.
PART II: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date hereof, and a Medium-Term Note Certificate Agreement between the Trustee
and the Depositary, dated as of (the "Certificate Agreement"), and
its obligations as a participant in the Depositary, including the Depositary's
Same-Day Funds Settlement System ("SDFS").
The Company may solicit offers to purchase the Notes by posting rates, as
described below, receiving offers solicited by an Agent or such other means as
the Company and the Agents may agree from time to time.
Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Securities, other than
those rejected by such Agent. In advising the Company of any such offer, the
Agent shall advise the Company of any Sale Information requested by the Company.
Each Agent may, in its discretion reasonably exercised, reject any offer
received by it in whole or in part. Each Agent also may make offers to the
Company to purchase Book-Entry Securities as a Purchasing Agent. The Company
II-4
<PAGE> 25
will have the sole right to accept offers to purchase Book-Entry Securities and
may reject any such offer in whole or in part.
The Company will promptly notify the Selling Agent or Purchasing Agent, as
the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Selling Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and the
initial interest payment date;
(3) Maturity Date;
(4) Specified Currency and, if the Specified Currency is other than
U.S. dollars, the applicable Exchange Rate for such Specified Currency (it
being understood that currently the Depositary accepts deposits of Global
Securities denominated in U.S. dollars only);
(5) Indexed Currency, the Base Rate and the Exchange Rate
Determination Date, if applicable;
(6) Issue Price;
(7) Selling Agent's commission or Purchasing Agent's discount or
commission, as the case may be;
(8) Net proceeds to the Company;
(9) Settlement Date;
(10) If a redeemable Book-Entry Security, such of the following as are
applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par), and
(iii) Amount (% of par) that the Redemption Price shall decline
(but not below par) on each anniversary of the Redemption Commencement
Date;
(11) If a Floating Rate Book-Entry Security, such of the following as
are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Interest Rate,
(vii) Interest Rate Reset Period,
(viii) Calculation Dates,
(ix) Interest Determination Dates,
(x) Interest Payment Dates,
II-5
<PAGE> 26
(xi) Regular Record Dates, and
(xii) Calculation Agent;
(12) Name, address and taxpayer identification number of the
registered owner(s);
(13) Denomination of certificates to be delivered at settlement; and
(14) Specification that the offer is for Book-Entry Security.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, the Company will communicate such Sale Information to the
Trustee by facsimile transmission or other acceptable written means and request
the Trustee to complete and authenticate the Global Security. The Company will
assign a CUSIP number to the Global Security from a list of CUSIP numbers
representing such Book-Entry Security and then advise the Trustee and the
Selling Agent or Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Corporation:
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such Book-Entry
Security;
(3) Whether such Global Security will represent any other Book-Entry
Security (to the extent known at such time);
(4) Number of the Participant account maintained by the Depositary on
behalf of the Selling Agent or Purchasing Agent, as the case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security, number
of days by which such date succeeds the record date for the Depositary's
purposes (which, in the case of Floating Rate Securities which reset weekly
shall be the date five calendar days immediately preceding the applicable
Interest Payment Date and in the case of all other Book-Entry Securities
shall be the Regular Record Date as defined in the Security) and, if
calculable at that time the amount of interest payable on such Interest
Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary to (i) debit such
Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission. The entry of such a deliver order shall constitute a representation
and warranty by the Trustee to the Depositary that (a) the Global Security
representing such Book-Entry Security has been issued and authenticated and (b)
the Trustee is holding such Global Security pursuant to the Certificate
Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the Participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
Participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
II-6
<PAGE> 27
H. Transfers of funds in accordance with SDFS deliver orders described in
Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to the
account of the Company maintained at Citibank, N.A. (Account No. 0000-2022), New
York, New York, or such other account as the Company may have previously
specified to the Trustee, in funds available for immediate use in the amount
transferred to the Trustee in accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement setting
forth the principal amount of Book-Entry Securities outstanding as of that date
under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to the
purchaser either by transmitting to the Participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
Preparation of Pricing Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it will
prepare a Pricing Supplement reflecting the terms of such Book-Entry Security
and arrange to have delivered to the Selling Agent or Purchasing Agent, as the
case may be, at least ten copies of such Pricing Supplement, not later than 5:00
p.m., New York City time, on the Business Day following the receipt of the Sale
Information, or if the Company and the purchaser agree to settlement on the
Business Day following the date of acceptance, not later than noon, New York
City time, on such date. The Company will arrange to have ten Pricing
Supplements filed with the Commission not later than the close of business of
the Commission on the date such Pricing Supplement is required to be filed under
the applicable paragraph of Rule 424(b).
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security a
written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for a
Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders accepted by the Company will be settled
on the fifth Business Day pursuant to the timetable for settlement set forth
below unless the Company and the purchaser agree to settlement on another day
which shall be no earlier than the next Business Day.
II-7
<PAGE> 28
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by an Agent, as agent, and
accepted by the Company, Settlement Procedures "A" through "I" set forth above
shall be completed as soon as possible but not later than the respective times
(New York City time) set forth below:
<TABLE>
<CAPTION>
SETTLEMENT
PROCEDURE TIME
---------- -------------------------------------------------------------------
<C> <S> <C>
A 5:00 p.m. on the Business Day following the acceptance of an offer by the
Company or 10:00 a.m. on the Business Day prior to the settlement
date, whichever is earlier
B 12:00 noon on the Business Day following A or on the Business Day prior to the
Settlement Date, whichever is earlier
C 2:00 p.m. on the Business Day following A or on the Business Day prior to the
Settlement Date, whichever is earlier
D 9:00 a.m. on settlement date
E 10:00 a.m. on settlement date
F-G 2:00 p.m. on settlement date
H 4:45 p.m. on settlement date
I 5:00 p.m. on settlement date
</TABLE>
If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m., on the second Business Day before
the settlement date. Settlement Procedure "H" is subject to extension in
accordance with any extension of Fedwire closing deadlines and in the other
events specified in the SDFS operating procedures in effect on the settlement
date.
If settlement of a Book-Entry Security is rescheduled or cancelled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the Business Day immediately
preceding the scheduled settlement date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
mark such Global Security "cancelled", make appropriate entries in the Trustee's
records and send such cancelled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be cancelled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be cancelled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to the
participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn,
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's
II-8
<PAGE> 29
account and then debiting such Book-Entry Security to such Agent's participant
account and crediting such Book-Entry Security to the Trustee's participant
account and shall notify the Company and the Trustee thereof. Thereafter, the
Trustee will (i) immediately notify the Company of such order and the Company
shall transfer to such Agent funds available for immediate use in an amount
equal to the price of such Book-Entry Security which was credited to the account
of the Company maintained at the Trustee in accordance with Settlement Procedure
"I", and (ii) deliver the withdrawal message and take the related actions
described in the preceding paragraph. If such failure shall have occurred for
any reason other than default by the applicable Agent to perform its obligations
hereunder or under the Distribution Agreement, the Company will reimburse such
Agent on an equitable basis for the loss of its use of funds during the period
when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect to a
Book-Entry Security, the Depositary may take any actions in accordance with its
SDFS operating procedures then in effect. In the event of a failure to settle
with respect to one or more, but not all, of the Book-Entry Securities to have
been represented by a Global Security, the Trustee will provide, in accordance
with Settlement Procedure "D" for the authentication and issuance of a Global
Security representing the other Book-Entry Securities to have been represented
by such Global Security and will make appropriate entries in its records. The
Company will, from time to time, furnish the Trustee with a sufficient quantity
of Securities.
PART III: TRUSTEE TO PROVIDE INFORMATION AS TO SCHEDULED PAYMENTS
Notice of Interest Payments and Regular Record Dates:
On the first Business Day of January, April, July and October of each year,
the Trustee will deliver to the Company and, with respect to Book-Entry
Securities, DTC a written list of Regular Record Dates and Interest Payment
Dates that will occur during the six-month period beginning on such first
Business Day with respect to Floating Rate Securities. Promptly after each
Interest Determination Date for Floating Rate Securities issued in book-entry
form, the Corporation will notify Standard & Poor's of the interest rates
determined on such Interest Determination Date.
Payments of Interest Only:
Promptly after each Regular Record Date, the Trustee will deliver to the
Corporation and, with respect to Book-Entry Securities, DTC a written notice
specifying by CUSIP number the amount of interest to be paid on each Security on
the following Interest Paying Date (other than an Interest Date coinciding with
Maturity) and the total of such amounts.
Payments at Maturity:
On or about the first Business Day of each month, the Trustee will deliver
to the Corporation and, with respect to Book-Entry Securities, DTC a written
list of principal, interest and premium, if any, to be paid on each Security
having a Maturity in the following month. The Trustee and, with respect to the
Book-Entry Securities, DTC will confirm the amounts of such principal, premium
and interest payments with respect to a Security on or about the fifth Business
Day preceding the Maturity of such Security.
II-9
<PAGE> 1
2REGISTERED NO. CUSIP NO.
BAUSCH & LOMB INCORPORATED
MEDIUM-TERM FIXED RATE NOTE, SERIES B
Due From 9 Months to 30 Years From Date of Issue
<TABLE>
<S> <C> <C>
PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: INTEREST RATE PER ANNUM: STATED MATURITY:
ISSUE PRICE: % REDEEMABLE ON OR AFTER: SPECIFIED CURRENCY:
(AT OPTION OF THE COMPANY) (if other than U.S. dollars)
INITIAL DATE ON WHICH THE NOTE IS
REPAYABLE AT THE OPTION OF THE
HOLDER: EXCHANGE RATE AGENT:
INITIAL REDEMPTION (Only applicable if
PERCENTAGE: Specified Currency is other
than U.S. dollars)
DEFAULT RATE:
ANNUAL REDEMPTION (Only applicable if Note
PERCENTAGE REDUCTION: issued at original issue
discount)
DEPOSITARY:
AUTHORIZED DENOMINATIONS: (Only applicable if Note is
(Only applicable if Specified a Global Note)
Currency is other than U.S. dollars)
INTEREST PAYMENT DATES: REGULAR RECORD DATES:
ORIGINAL ISSUE DISCOUNT:
yes: -- no: --
IF YES, OID DEFAULT AMOUNT:
OTHER PROVISIONS:
</TABLE>
BAUSCH & LOMB INCORPORATED, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to -------------------------,
or registered assigns, the principal sum of ------------------------
(any coin or currency other than U.S. dollars being hereinafter referred to
as a "Specified Currency") at the office or agency of the Company maintained
for such purpose in the Borough of Manhattan, The City of New York (the
"Paying Agent"), on the Stated Maturity specified above
-2-
<PAGE> 2
(the "Stated Maturity") or if such date is not a Business Day (as defined
herein), the next succeeding Business Day, in such coin or currency specified
above as at the time of payment shall be legal tender for the payment of public
and private debts, and to pay interest on said principal sum in like coin or
currency, at the interest rate per annum (computed on the basis of a 360-day
year of twelve 30-day months) specified above, from and including the Original
Issue Date specified above or from and including the most recent Interest
Payment Date to which interest has been duly paid or provided for, on the
Interest Payment Date(s) specified above in each year following the Original
Issue Date and at Maturity, until the principal sum hereof has been paid or
duly provided for; provided, however, that the Company will make such payments
in respect of non-U.S. dollar denominated Notes in the Specified Currency
specified above in amounts determined as set forth on the reverse hereof;
provided, further, that payments of principal and any premium and interest on
Notes denominated in a Specified Currency will nevertheless be made in U.S.
dollars (i) at the election of the Holder as provided herein and (ii) at the
election of the Company in the case of imposition of exchange controls or other
circumstances beyond the control of the Company as provided herein. The first
payment of interest on a Note originally issued and dated between a Regular
Record Date and an Interest Payment Date will be due and payable on the
Interest Payment Date following the next succeeding Regular Record Date to the
Holder at the close of business on such next succeeding Regular Record Date.
Subject to certain exceptions provided in the Indenture referred to on the
reverse hereof, the interest so payable on any Interest Payment Date shall be
paid to the Holder at the close of business on the Regular Record Date
(specified above) next preceding such Interest Payment Date, and interest
payable at Maturity shall be paid to the Person to whom said principal sum is
payable.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity) payable
in U.S. dollars shall be made by check drawn upon a bank in The City of New
York mailed to the Person entitled thereto at its last address as it appears in
the Security Register or in immediately available funds by wire transfer to
such account as may have been designated by the Person entitled thereto as set
forth herein in time for the Paying Agent to make such payment in accordance
with its normal procedures. Payment of the principal of and any premium and
interest on this Note due to the Holder hereof at Maturity payable in U.S.
dollars shall be paid in immediately available funds upon presentation of this
Note for surrender at the office of the Paying Agent in the Borough of
Manhattan, The City of New York, provided that this Note is presented for
surrender to the Paying Agent in time for the Paying Agent to make such payment
in such funds in accordance with its normal procedures.
Payments of interest to be made in a Specified Currency (other than
interest on this Note due to the Holder hereof at Maturity) shall be paid by
wire transfer of immediately available funds to a designated account maintained
with a bank located
-3-
<PAGE> 3
in the country issuing the Specified Currency (or, in the case of a Note
denominated in European Currency Units ("ECUs"), to an ECU account) or such
other jurisdiction acceptable to the Company and the Trustee as shall have been
designated at least five Business Days prior to the Interest Payment Date by
the Holder hereof on the relevant Regular Record Date. Payment in a Specified
Currency of the principal of and any premium and interest on this Note due to
the Holder hereof at Maturity shall be made by wire transfer of immediately
available funds to a designated account maintained with a bank located in the
country issuing the Specified Currency (or, in the case of a Note denominated
in ECUs, to an ECU account) or such other jurisdiction acceptable to the
Company and the Trustee as shall have been designated at least five Business
Days prior to Maturity by the Holder hereof at Maturity, provided that this
Note is presented for surrender to the Paying Agent in time for the Paying
Agent to make such payment in such funds in accordance with its normal
procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Paying Agent at its Corporate Trust
Office in the Borough of Manhattan, The City of New York and, unless revoked by
written notice to the Paying Agent received by the Paying Agent on or prior to
the Regular Record Date immediately preceding the applicable Interest Payment
Date or the fifteenth calendar day preceding Maturity shall remain in effect
with respect to any further payments with respect to this Note payable to such
Holder.
If a payment with respect to this Note cannot be made by wire
transfer because the required designation has not been received by the Paying
Agent on or before the requisite date or for any other reason, a notice shall
be mailed by the Paying Agent to the Holder at its last address as it appears
in the Security Register requesting a designation pursuant to which such wire
transfer can be made and, upon the Paying Agent's receipt of such a
designation, such payment will be made within five Business Days of such
receipt. The Company shall pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon such payments shall be borne by the Holder or
Holders of this Note in respect of which such payments are made.
The Holder of any Note denominated in a Specified Currency may elect
to receive payments in U.S. dollars in lieu of such Specified Currency by
transmitting a written request for such payment to the principal office of the
Paying Agent on or prior to the Regular Record Date immediately preceding any
Interest Payment Date or at least fifteen calendar days prior to Maturity.
Such request may be in writing (mailed or hand delivered) or by cable or telex
or, if promptly confirmed in writing, by other form of facsimile transmission.
The Holder of any such Note may elect to receive payment in U.S. dollars in
lieu of such Specified Currency for all principal, premium and interest
payments, if any, and need not file a separate election for each payment. Any
such election shall remain in effect until revoked by written notice to the
Paying Agent, but
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<PAGE> 4
written notice of any such revocation must be received by the Paying Agent on
or prior to the Regular Record Date immediately preceding the applicable
Interest Payment Date or the fifteenth calendar day preceding Maturity.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and such Specified Currency is not available
due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company shall be entitled to satisfy its
obligations to the Holder of this Note by making such payment in U.S. dollars
on the basis of the most recently available exchange rate as specified by the
Exchange Rate Agent, specified above, as provided herein.
Any payment on this Note due on any day which is not a Business Day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the due date and no interest
shall accrue on such payment for the period from and after such due date to
such next succeeding Business Day.
"Business Day" shall mean, as used herein, each Monday, Tuesday,
Wednesday, Thursday and Friday which is (a) not a day on which banking
institutions in The City of New York are authorized or obligated by law or
executive order to close and (b) in the event that this Note is denominated in
a Specified Currency, not a day on which banking institutions in the principal
financial center of the country issuing the Specified Currency (or, if this
Note is denominated in ECUs, in Luxembourg, in which case "Business Day" shall
not include any day that is a non-ECU clearing day as determined by the ECU
Banking Association in Paris) are authorized or obligated by law or executive
order to close.
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
-5-
<PAGE> 5
IN WITNESS WHEREOF, BAUSCH & LOMB INCORPORATED has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated: BAUSCH & LOMB INCORPORATED
By:
-----------------------------
Attest:
- ------------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Note is one of a designated series
of Debt Securities described in the
Indenture referred to on the reverse
hereof.
CITIBANK, N.A.,
as Trustee,
By:
-----------------------
Authorized Officer
[SEAL]
-6-
<PAGE> 6
[Reverse of Note]
BAUSCH & LOMB INCORPORATED
MEDIUM-TERM FIXED RATE NOTE, SERIES B
Due From 9 Months to 30 Years From Date of Issue
This Note is one of a duly authorized issue of debentures, notes and
other evidences of indebtedness of the Company (hereinafter called the "Debt
Securities"), all issued or to be issued under and pursuant to an indenture
dated as of September 1, 1991 (hereinafter called the "Indenture"), duly
executed and delivered by the Company to Citibank, N.A., as Trustee
(hereinafter called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
duties and immunities thereunder of the Trustee and the rights thereunder of
the Holders of the Debt Securities. As provided in the Indenture, the Debt
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption or repayment provisions, if any, may be subject to different
sinking, purchase or analogous funds, if any, may be subject to different
covenants and events of default, and may otherwise vary as provided or
permitted in the Indenture. This Note is one of a series of the Debt
Securities, which series is limited in aggregate initial offering price of up
to $300,000,000, designated as the Medium-Term Notes, Series B, due from 9
months to 30 years from Date of Issue (the "Notes") of the Company. The Notes
may mature at different times, bear interest, if any, at different rates, be
redeemable at different times or not at all, be repayable at the option of the
Holder at different times or not at all, be issued at an original issue
discount, be extendable and be denominated in different currencies.
If this Note is denominated in a Specified Currency, a Holder of this
Note, who in accordance with the provisions of this Note elects to receive
payments in U.S. dollars, shall receive payments of principal and any premium
and interest in U.S. dollars determined with reference to the highest bid
quotation (rounded up to the nearest cent) in The City of New York received by
the Exchange Rate Agent as of 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) selected
by the Exchange Rate Agent for the purchase by the quoting dealer of the
Specified Currency for U.S. dollars for settlement on such payment date, in an
amount equal to the aggregate amount of the Specified Currency payable to all
Holders of Notes electing to receive U.S. dollar payments on such payment date
and at which the applicable dealer commits to execute a contract. If three
such bid quotations are not available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payments in U.S.
dollars shall be borne by the Holder of the Note by deductions from such
payments.
-7-
<PAGE> 7
If the principal and any premium or interest on this Note is payable
in a Specified Currency and, due to the imposition of exchange controls or
other circumstances beyond the control of the Company, the Specified Currency
is not available at the time of any scheduled payment of principal, premium or
interest to be made in the Specified Currency, then the Company shall be
entitled to satisfy its obligations hereunder by making such payment in U.S.
dollars. Any such payment made in U.S. dollars pursuant to the preceding
sentence shall be made on the basis of the noon buying rate in The City of New
York for cable transfers of the Specified Currency as certified for customs
purposes by the Federal Reserve Bank of New York (the "Market Exchange Rate")
on the second Business Day prior to such payment, or if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate. Any payment under such circumstances in U.S. dollars where
required payment is in a Specified Currency shall not constitute a default
under the Indenture.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and payable
in the manner, with the effect and subject to the conditions 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 Debt 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 not less than a majority in principal amount of
the Debt 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 Debt Securities of each series at the
time Outstanding, on behalf of the Holders of all Debt 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 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note 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 Note.
If so provided on the face of this Note, this Note may be redeemed by
the Company on and after the date so indicated on the face hereof. On and
after the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company at a Redemption
Price equal to the product of the principal amount of this Note to be redeemed
multiplied by the Redemption Percentage as defined herein. The "Redemption
Percentage" shall initially equal the Initial Redemption Percentage specified
on the face of this Note, and shall decline at each anniversary of the initial
date that this Note is redeemable by the amount of the Annual
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<PAGE> 8
Redemption Percentage Reduction specified on the face of this Note, until the
Redemption Percentage is equal to 100%.
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples referred to on
the face hereof under "Authorized Denominations" (or, if no such reference is
made, an amount equal to the minimum Authorized Denomination) provided that the
remaining principal amount of any Note surrendered for partial repayment shall
be at least $100,000 or, in the case of Notes denominated in a Specified
Currency, the minimum Authorized Denomination referred to on the face hereof,
on any Business Day on or after the "Initial Date on Which the Note is
Repayable at the Option of the Holder" (as stated on the face hereof), at the
option of the Holder, at 100% of the principal amount to be repaid, plus
accrued interest, if any, to the repayment date. In order for the exercise of
the option to be effective and the Note to be repaid, the Company must receive
at the applicable address of the Paying Agent set forth below or at such other
place or places of which the Company shall from time to time notify the Holder
of this Note, on or before the fifteenth, but not earlier than the
twenty-fifth, calendar day, or, if such day is not a Business Day, the next
succeeding Business Day, prior to the repayment date, either (i) this Note,
with the form below entitled "Option to Elect Repayment" duly completed, or
(ii) a telegram, telex, facsimile transmission, or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or a trust company in the United States of America
setting forth (a) the name, address and telephone number of the Holder of this
Note, (b) the principal amount of this Note and the amount of this Note to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby, and (d) a guarantee stating that the Paying Agent on behalf of the
Company will receive this Note, with the form below entitled "Option to Elect
Repayment" duly completed, not later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter (and this Note and form
duly completed are received by the Paying Agent on behalf of the Company by
such fifth Business Day). Any such election shall be irrevocable. The address
of the Paying Agent to which such deliveries are to be made is Citibank, N.A.,
Attention: Corporate Trust Office, 120 Wall Street, New York, New York 10043
(or at such other places as the Company shall notify the Holders of the Notes).
All questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
If this Note is issued with an original issue discount, (i) if an
Event of Default with respect to the Notes shall have occurred and be
continuing, the amount of principal of this Note which may be declared due and
payable in the manner, with the effect and subject to the conditions provided
in the Indenture, shall be determined in the manner set forth under "OID
Default Amount" on the face hereof, and (ii) in the case of a default of
payment in principal upon acceleration, redemption, repayment at the
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<PAGE> 9
option of the Holder or at the Stated Maturity hereof, in lieu of any interest
otherwise payable, the overdue principal of this Note shall bear interest at a
rate of interest per annum equal to the Default Rate specified on the face
hereof (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such acceleration,
redemption, repayment at the option of the Holder or Stated Maturity, as the
case may be, to the date payment has been made or duly provided for or such
default has been waived in accordance with the terms of the Indenture.
The Notes are issuable in global or definitive form without coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof
or, if the Note is denominated in a Specified Currency, in the denominations
specified on the face hereof. Upon due presentment for registration of
transfer of this Note at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York, a new Note or
Notes in authorized denominations in U.S. dollars or the Specified Currency, as
the case may be, for an equal aggregate principal amount and like tenor will be
issued to the transferee in exchange therefor, subject to the limitations
provided in the Indenture and to the limitations described below if applicable,
without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Note is a Global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form or (z) an Event of Default, or an event which with notice or
lapse of time would be an Event of Default, with respect to the Notes
represented hereby has occurred and is continuing. If this Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
definitive Notes in registered form, bearing interest (if any) at the same rate
or pursuant to the same formula, having the same date of issuance, redemption
provisions, if any, Specified Currency, Stated Maturity and other terms and of
differing denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the places, at the respective times, at the rate and in the currency herein
prescribed.
The Company, the Trustee and any Paying Agent may deem and treat the
Holder hereof as the absolute owner of this Note at such Holder's address as it
appears in the Security Register as kept by the Trustee or duly authorized
agent of the Company (whether or not this Note shall be overdue), for the
purpose of receiving payment of or on account hereof and for all other
purposes, and neither the Company nor the Trustee
-10-
<PAGE> 10
nor any Paying Agent shall be affected by any notice to the contrary. All
payments made to or upon the order of such Holder shall, to the extent of the
sum or sums paid, effectually satisfy and discharge liability for moneys
payable on this Note.
Capitalized terms used herein which are defined in the Indenture and
not defined herein shall have the respective meanings assigned thereto in the
Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
-11-
<PAGE> 11
-------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at
------------------------------------------------------------
(Please print or type name and address of the undersigned)
For the within Note to be repaid the Company must receive at the
applicable address of the Paying Agent set forth in the Note or at such other
place or places of which the Company shall from time to time notify the Holder
of the within Note, on or before the fifteenth, but not earlier than the
twenty-fifth, calendar day, or, if such day is not a Business Day, the next
succeeding Business Day, prior to the repayment date, (i) the Note, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth (a) the name, address and telephone number of the Holder of the Note, (b)
the principal amount of the Note and the amount of the Note to be repaid, (c) a
statement that the option to elect repayment is being exercised hereby, and (d)
a guarantee stating that the Note to be repaid with this form duly completed
will be received by the Paying Agent on behalf of the Company not later than
five Business Days after the date of such telegram, telex, facsimile
transmission, or letter (and such Note and form duly completed are received by
the Paying Agent on behalf of the Company by such fifth Business Day).
Exercise of the repayment option by the Holder shall be irrevocable.
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to on the face of the Note
under "Authorized Denominations" (or, if no such reference is made, an amount
equal to the minimum Authorized Denomination)) which the Holder elects to have
repaid: -------------; and specify the denomination or denominations (which
shall be $100,000 or an integral multiple of $1,000 in excess thereof or, if
the Note is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder for the portion
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<PAGE> 12
of the within Note not being repaid (in the absence of any specification, one
such Note will be issued for the portion not being repaid): ----------------.
Date:
----------------------- ----------------------------------------------
Notice: The signature to this Option to
Elect Repayment must correspond with the name
as written upon the face of the Note in every
particular, without alteration or enlargement
or any other change whatsoever.
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<PAGE> 13
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C> <C>
TEN COM --as tenants in common UNIF GIFT MIN ACT- ...... Custodian ......
TEN ENT --as tenants by the entireties (Cust) (Minor)
JT TEN --as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
..............................
(State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- ------------------------------------
/ /
- -------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of BAUSCH & LOMB INCORPORATED, and does hereby irrevocably
constitute and appoint --------------------------------------------- attorney
to transfer the said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
----------------------- -----------------------------------------
-----------------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
-14-
<PAGE> 1
EXHIBIT 4(d)
[FORM OF FLOATING-RATE MEDIUM-TERM NOTE]
[INCLUDE LEGEND IF THIS IS A GLOBAL NOTE --- THIS NOTE 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 NOTE MAY NOT
BE TRANSFERRED TO, OR REGISTERED OR EXCHANGED FOR SECURITIES REGISTERED IN THE
NAME OF, ANY PERSON OTHER THAN THE DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH
TRANSFER MAY BE REGISTERED, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN
THE INDENTURE. EVERY NOTE AUTHENTICATED AND DELIVERED UPON REGISTRATION OR
TRANSFER OF, OR IN EXCHANGE FOR OR IN LIEU OF, THIS NOTE SHALL BE A GLOBAL
SECURITY SUBJECT TO THE FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.]
REGISTERED NO. CUSIP NO.
BAUSCH & LOMB INCORPORATED
MEDIUM-TERM FLOATING RATE NOTE, SERIES B
Due From 9 Months to 30 Years From Date of Issue
<TABLE>
<S> <C> <C>
PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: STATED MATURITY:
INTEREST RATE BASIS: INDEX MATURITY SPECIFIED CURRENCY
(if other than U.S. dollars)
REDEEMABLE ON OR AFTER
(AT OPTION OF COMPANY): SPREAD MULTIPLIER: SPREAD: +
-
MAXIMUM INTEREST RATE: MINIMUM INTEREST RATE: SPREAD MULTIPLIER:
EXCHANGE RATE AGENT: INITIAL REDEMPTION PERCENTAGE: INTEREST RATE RESET PERIOD:
(Only applicable if Specified
Currency is other than U.S. Dollars)
INTEREST PAYMENT DATES: ANNUAL REDEMPTION AUTHORIZED DENOMINATIONS:
PERCENTAGE REDUCTION: (Only applicable if Specified
Currency is other then U.S. dollars)
INTEREST CALCULATION DATES: DEPOSITARY:
ten calendar days after the Interest (Only applicable if Note is a Global Note)
Determination Date, unless otherwise
specified CALCULATION AGENT:
INITIAL DATE ON WHICH
OTHER PROVISIONS: NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER
</TABLE>
<PAGE> 2
BAUSCH & LOMB INCORPORATED, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company", which
term includes any successor Person under the Indenture hereinafter referred
to), for value received, hereby promises to pay to ----------------------------,
or registered assigns, the principal sum of ----------------------------------
(any coin or currency other than U.S. dollars being hereinafter referred to as
a "Specified Currency") at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York (the "Paying
Agent"), on the Stated Maturity specified above (the "Stated Maturity"), or if
such date is not a Business Day (as defined herein), the next succeeding
Business Day, in such coin or currency specified above as at the time of
payment shall be legal tender for the payment of public and private debts,
and to pay interest on said principal sum in like coin or currency on the
Interest Payment Date(s) specified above in each year following the Original
Issue Date and at Maturity, at a rate per annum equal to the Initial Interest
Rate specified above until the first Interest Reset Date (as defined herein)
following the Original Issue Date and thereafter at a rate per annum
determined in accordance with the provisions on the reverse hereof
under the heading "Determination of Interest Rate Per Annum for Commercial
Paper Rate Notes," "Determination of Interest Rate Per Annum for Prime Rate
Notes," "Determination of Interest Rate Per Annum for LIBOR Notes,"
"Determination of Interest Rate Per Annum for Treasury Rate Notes",
"Determination of Interest Rate Per Annum for CD Rate Notes" or "Determination
of Interest Rate Per Annum for Federal Funds Rate Notes", depending upon
whether the Interest Rate Basis is Commercial Paper Rate, Prime Rate, LIBOR,
Treasury Rate, CD Rate or Federal Funds Rate, as specified above until the
principal sum hereof has been paid or duly provided for; provided, however,
that if any Interest Payment Date would otherwise fall on a day that is not a
Business Day, such Interest Payment Date will be the next succeeding Business
Day, except that in the event that the Interest Rate Basis for this Note is
LIBOR, if such day falls in the next calendar month, such Interest Payment Date
will be the next preceding day that is a Business Day; provided, further, that
the Company will make such payments in respect of non-U.S. dollar denominated
Notes in the Specified Currency specified above in amounts determined as set
forth on the reverse hereof; provided, further, that payments of principal (and
premium, if any) and interest on Notes denominated in a Specified Currency will
nevertheless be made in U.S. dollars (i) at the election of the Holder as
provided herein and (ii) at the election of the Company in the case of
imposition of exchange controls or other circumstances beyond the control of
the Company as provided herein. Interest on this Note shall accrue (a) if the
rate at which interest on this Note is payable shall be adjusted monthly,
quarterly, semi-annually or annually, as specified above under "Interest Rate
Reset Period" and as determined in accordance with the provisions on the
reverse hereof, from the Interest Payment Date next preceding the date of this
Note to which interest has been paid, unless the date hereof is an Interest
Payment Date to which interest has been paid, in which case from the date of
this Note, or unless no interest has been paid on this Note, in which case from
the Original Issue Date specified above, until the principal sum hereof has
been paid or duly provided for or
-2-
<PAGE> 3
(b) if the rate at which interest on this Note is payable shall be adjusted
weekly, as specified above under "Interest Rate Reset Period" and as determined
in accordance with the provisions on the reverse hereof, from the day after the
Regular Record Date next preceding the date of this Note through which interest
has been paid, unless the date hereof is a Regular Record Date through which
interest has been paid, in which case from the day after the date of this Note,
or unless no interest has been paid on this Note, in which case from the
Original Issue Date specified above, until the principal sum hereof has been
paid or duly provided for; provided, however, that if the date of this Note is
after any Regular Record Date preceding any Interest Payment Date and before
such Interest Payment Date, interest on this Note shall accrue from such
Interest Payment Date unless the rate at which interest on this Note is payable
shall be adjusted weekly, as provided above under "Interest Rate Reset Period"
and as determined in accordance with the provisions on the reverse hereof, in
which case interest on this Note shall accrue from the day after such Regular
Record Date, or, in either case, if no interest has been paid on this Note,
from the Original Issue Date specified above. The first payment of interest on
a Note originally issued and dated between a Regular Record Date and an
Interest Payment Date will be due and payable on the Interest Payment Date
following the next succeeding Regular Record Date to the Holder at the close of
business on such next succeeding Regular Record Date. Subject to certain
exceptions provided in the Indenture referred to on the reverse hereof, the
interest so payable on any Interest Payment Date shall be paid to the Holder at
the close of business on the Regular Record Date next preceding such Interest
Payment Date, and interest payable at Maturity shall be paid to the Person to
whom said principal sum is payable. "Regular Record Date" shall mean the
fifteenth calendar day prior to any Interest Payment Date. "Business Day"
shall mean, as used herein, each Monday, Tuesday, Wednesday, Thursday and
Friday which is (a) not a day on which banking institutions in The City of New
York are authorized or obligated by law or executive order to close, (b) in the
event that the Interest Rate Basis for this Note is LIBOR, a London Business
Day (as defined herein) and (c) in the event that this Note is denominated in a
Specified Currency, not a day on which banking institutions are authorized or
obligated by law or executive order to close in the principal financial center
of the country issuing the Specified Currency (or, if this Note is denominated
in European Currency Units ("ECUs"), in Luxembourg, in which case "Business
Day" shall not include any day that is a non-ECU clearing day as determined by
the ECU Banking Association in Paris). "London Business Day" shall mean any
Business Day on which dealings in deposits in U.S. dollars are transacted in
the London interbank market.
Payment of interest on this Note due on any Interest Payment Date
(other than interest on this Note due to the Holder hereof at Maturity) payable
in U.S. dollars shall be made by check drawn upon a bank in The City of New
York mailed to the Person entitled thereto at his last address as it appears in
the Security Register or in immediately available funds by wire transfer to
such account as may have been designated by the Person entitled thereto as set
forth herein in time for the Paying Agent
-3-
<PAGE> 4
to make such payment in accordance with its normal procedures. Payment of the
principal of and any premium and interest on this Note due to the Holder hereof
at Maturity payable in U.S. dollars shall be made in immediately available
funds upon presentation of this Note for surrender at the office of the Paying
Agent in the Borough of Manhattan, The City of New York, provided that this
Note is presented for surrender in time for the Paying Agent to make such
payment in such funds in accordance with its normal procedures.
Payments of interest to be made in a Specified Currency (other than
interest on this Note due to the Holder hereof at Maturity) shall be paid by
wire transfer of immediately available funds to a designated account maintained
with a bank located in the country issuing the Specified Currency (or, in the
case of a Note denominated in ECUs, to an ECU account) or such other
jurisdiction acceptable to the Company and the Trustee as shall have been
designated at least five Business Days prior to the Interest Payment Date by
the Holder hereof on the relevant Regular Record Date. Payment in a Specified
Currency of the principal of and any premium and interest on this Note due to
the Holder hereof at Maturity shall be made by wire transfer of immediately
available funds to a designated account maintained with a bank located in the
country issuing the Specified Currency (or, in the case of a Note denominated
in ECUs, to an ECU account) or such other jurisdiction acceptable to the
Company and the Trustee as shall have been designated at least five Business
Days prior to Maturity by the Holder hereof at Maturity, provided that this
Note is presented for surrender to the Paying Agent in time for the Paying
Agent to make such payment in such funds in accordance with its normal
procedures.
Any such designation for wire transfer purposes shall be made by
filing the appropriate information with the Paying Agent at its Corporate Trust
Office in the Borough of Manhattan, The City of New York and, unless revoked by
written notice to the Paying Agent received by the Paying Agent on or prior to
the Regular Record Date immediately preceding the applicable Interest Payment
Date or the fifteenth calendar day preceding Maturity shall remain in effect
with respect to any further payments with respect to this Note payable to such
Holder.
If a payment with respect to this Note cannot be made by wire
transfer because the required designation has not been received by the Paying
Agent on or before the requisite date or for any other reason, a notice shall
be mailed by the Paying Agent to the Holder at its last address as it appears
on the Security Register requesting a designation pursuant to which such wire
transfer can be made and, upon the Paying Agent's receipt of such a
designation, such payment will be made within five Business Days of such
receipt. The Company shall pay any administrative costs imposed by banks in
connection with making payments by wire transfer, but any tax, assessment or
governmental charge imposed upon such payments shall be borne by the Holder or
Holders of this Note in respect of which such payments are made.
-4-
<PAGE> 5
The Holder of any Note denominated in a Specified Currency may elect
to receive payments in U.S. dollars in lieu of such Specified Currency by
transmitting a written request for such payment to the principal offices of the
Paying Agent on or prior to the Regular Record Date immediately preceding any
Interest Payment Date or at least fifteen calendar days prior to Maturity.
Such request may be in writing (mailed or hand delivered) or by cable or telex
or, if promptly confirmed in writing, by other form of facsimile transmission.
The Holder of any such Note may elect to receive payment in U.S. dollars in
lieu of such Specified Currency for all principal, premium, if any, and
interest payments and need not file a separate election for each payment. Any
such election shall remain in effect until revoked by written notice to the
Paying Agent, but written notice of any such revocation must be received by the
Paying Agent on or prior to the Regular Record Date immediately preceding the
applicable Interest Payment Date or the fifteenth calendar day preceding
Maturity.
If the principal of and any premium or interest on this Note is
payable in a Specified Currency and such Specified Currency is not available
due to the imposition of exchange controls or other circumstances beyond the
control of the Company, the Company shall be entitled to satisfy its
obligations to the Holder of this Note by making such payment in U.S. dollars
on the basis of the most recently available exchange rate as specified by the
Exchange Rate Agent, specified above, as provided herein.
Any payment on this Note due on any day which is not a Business Day
need not be made on such day, but may be made on the next succeeding Business
Day with the same force and effect as if made on the due date and no interest
shall accrue on such payment for the period from and after such due date to
such next succeeding Business Day.
Additional provisions of this Note are contained on the reverse
hereof and such provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose
until the Certificate of Authentication hereon shall have been signed by an
authorized officer of the Trustee or its duly authorized agent under the
Indenture referred to on the reverse hereof.
-5-
<PAGE> 6
IN WITNESS WHEREOF, BAUSCH & LOMB INCORPORATED has caused this
instrument to be signed by its duly authorized officer, and has caused a
facsimile of its corporate seal to be affixed hereto or imprinted hereon.
Dated: BAUSCH & LOMB INCORPORATED
By:
-----------------------------
Attest:
- ---------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This Note is one of a designated series
of Debt Securities described in the
Indenture referred to on the reverse
hereof.
CITIBANK, N.A.,
as Trustee,
By: -----------------
Authorized Officer
[SEAL]
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<PAGE> 7
[Reverse of Note]
BAUSCH & LOMB INCORPORATED
MEDIUM-TERM FLOATING RATE NOTE, SERIES B
Due From 9 Months to 30 Years From Date of Issue
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (hereinafter called the "Debt
Securities"), all issued or to be issued under and pursuant to an indenture
dated as of September 1, 1991 (hereinafter called the "Indenture"), duly
executed and delivered by the Company to Citibank, N.A., as Trustee
(hereinafter called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
duties and immunities thereunder of the Trustee and the rights thereunder of
the Holders of the Debt Securities. As provided in the Indenture, the Debt
Securities may be issued in one or more series, which different series may be
issued in various aggregate principal amounts, may mature at different times,
may bear interest, if any, at different rates, may be subject to different
redemption or repayment provisions, if any, may be subject to different
sinking, purchase or analogous funds, if any, may be subject to different
covenants and events of default, and may otherwise vary as provided or
permitted in the Indenture. This Note is one of a series of the Debt
Securities, which series is limited in aggregate initial offering price of up
to $300,000,000, designated as the Medium-Term Notes, Series B, due from 9
months to 30 years from Date of Issue (the "Notes) of the Company. The Notes
may mature at different times, bear interest, if any, at different rates, be
redeemable at different times or not at all, be repayable at the option of the
Holder at different times or not at all, be extendible and be denominated in
different currencies.
The interest rate in effect from the Original Issue Date to the first
Interest Reset Date (as defined herein) following the Original Issue Date shall
be the Initial Interest Rate specified on the face hereof. Commencing on the
first Interest Reset Date following the Original Issue Date, the rate at which
interest on this Note is payable shall be adjusted weekly, monthly, quarterly,
semi-annually or annually as specified on the face hereof under "Interest Rate
Reset Period"; provided, however, that the interest rate in effect hereon for
the 10 calendar days immediately prior to the Maturity hereof shall be that in
effect on the tenth calendar day next preceding Maturity. Each such adjusted
rate shall be applicable from and including the Interest Reset Date to which it
relates but not including the next succeeding Interest Reset Date or until
Maturity, as the case may be. Subject to applicable provisions of law and
except as specified herein, on each Interest Reset Date, the rate of interest
on this Note shall be the rate determined with respect to the Interest
Determination Date (as defined herein) next preceding such Interest Reset Date
in accordance with the provisions of the applicable heading below.
-7-
<PAGE> 8
Unless the Interest Rate Basis specified on the face hereof is
Treasury Rate, the Interest Determination Date with respect to any Interest
Reset Date shall be the second Business Day immediately preceding such Interest
Reset Date. If the Interest Rate Basis specified on the face hereof is
Treasury Rate, the Interest Determination Date with respect to any Interest
Reset Date shall be the day of the week on which Treasury bills are normally
sold at auction. If, as a result of a legal holiday, the auction of Treasury
bills with respect to any week is held on the preceding Friday, such Friday
shall be the Interest Determination Date with respect to the Interest Reset
Date occurring in the next succeeding week. If the Interest Rate Reset Period
specified on the face hereof is weekly, the Interest Reset Dates with respect
to this Note shall be Wednesday of each week; provided, however, that if the
Interest Rate Basis specified on the face hereof is the Treasury Rate, the
Interest Reset Dates with respect to this Note shall be Tuesday of each week.
If the Interest Rate Reset Period specified on the face hereof is monthly, the
Interest Reset Dates with respect to this Note shall be the third Wednesday of
each month. If the Interest Rate Reset Period specified on the face hereof is
quarterly, the Interest Reset Dates with respect to this Note shall be the
third Wednesday of March, June, September and December of each year. If the
Interest Rate Reset Period specified on the face hereof is semi-annually, the
Interest Reset Dates with respect to this Note shall be the third Wednesday of
the two months in each year specified on the face hereof under Interest Rate
Reset Period. If the Interest Rate Reset Period specified on the face hereof
is annually, the Interest Reset Dates with respect to this Note shall be the
third Wednesday of the month in each year specified on the face hereof under
Interest Rate Reset Period. If the Interest Rate Basis specified on the face
hereof is Treasury Rate and any Interest Reset Date with respect to this Note
falls on a day on which Treasury bills are to be auctioned, then such Interest
Reset Date shall be postponed to the next succeeding Business Day. If any
Interest Reset Date with respect to this Note would otherwise be a day that is
not a Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day; provided, however, if the Interest Rate Basis
specified on the face hereof is LIBOR, if such next succeeding Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
Determination of Interest Rate Per Annum for Prime Rate Notes. If
the Interest Rate Basis specified on the face hereof is Prime Rate, the
interest rate per annum determined with respect to any Interest Determination
Date shall equal the rate, adjusted by the addition or subtraction of the
Spread, if any, specified on the face hereof, or by multiplication by the
Spread Multiplier, if any, specified on the face hereof, and calculated to one
hundred-thousandth of a percentage point, rounded up, set forth for the
relevant Interest Determination Date in "Statistical Release H.15(519),
Selected Interest Rates", published by the Board of Governors of the Federal
Reserve System under the heading "Bank Prime Loan", or any successor
publication ("Release H.15(519)"). In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Interest Calculation
Date (specified on the face hereof) pertaining to such Interest
-8-
<PAGE> 9
Determination Date, then the Prime Rate with respect to such Interest Reset
Date shall be the arithmetic mean (adjusted or multiplied and calculated as
described above) of the rates of interest publicly announced by each bank that
appears on the display designated as page "NYMF" on the Reuters Monitor Money
Rates Service (or such other page as may replace the NYMF page on that service
for the purpose of displaying prime rates or base lending rates of major United
States banks) ("Reuters Screen NYMF Page") as such bank's prime rate or base
lending rate as in effect for such Interest Determination Date as quoted on the
Reuters Screen NYMF Page on such Interest Determination Date. If fewer than
four such rates appear on the Reuters Screen NYMF Page on such Interest
Determination Date, the Prime Rate with respect to such Interest Reset Date
shall be the arithmetic mean (adjusted or multiplied and calculated as
described above) of the prime rates or base lending rates (quoted on the basis
of the actual number of days in the year divided by a 360-day year) as of the
close of business on such Interest Determination Date by three major banks in
The City of New York selected by the Calculation Agent; provided, however, that
if fewer than three banks selected as aforesaid by the Calculation Agent are
quoted as mentioned in this sentence, the interest rate per annum hereon with
respect to such Interest Reset Date shall be the Prime Rate in effect hereon on
such Interest Determination Date.
Determination of Interest Rate Per Annum for LIBOR Notes. If the
Interest Rate Basis specified on the face hereof is LIBOR, the interest rate
per annum determined with respect to any Interest Determination Date shall be
determined as follows:
(i) if "Reuters" is specified on the face hereof, on the basis of the
offered rates for deposits of not less than U.S. $1,000,000 having the
specified Index Maturity, commencing on the second Business Day immediately
following such Interest Determination Date, which appear on the display
designated as page "LIBO" on the Reuters Monitor Money Rates Service (or such
other page as may replace the LIBO page on that service for the purpose of
displaying London interbank offered rates of major banks) ("Reuters Screen
LIBOR Page") as of 11:00 A.M., London time ("LIBOR Reuters"), adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof; or (b) if "Telerate" is specified on the face hereof, the rate for
deposits in U.S. dollars for the period of the Index Maturity that appears on
the Telerate Page 3750 (or such other page as may replace the 3750 page on that
service or such other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London interbank offered
rates for U.S. dollar deposits) ("Telerate Page 3750") at approximately 11:00
A.M., London time, on such Interest Determination Date ("LIBOR Telerate"),
adjusted by the addition or subtraction of the Spread, if any, specified on the
face hereof, or by multiplication by the Spread Multiplier, if any, specified
on the face hereof. If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR will be determined as if LIBOR Telerate had been
specified. If at least two such offered rates appear on the Reuters Screen
LIBO Page, LIBOR
-9-
<PAGE> 10
Reuters with respect to such Interest Reset Date will be the arithmetic mean
(calculated by the Calculation Agent specified on the face hereof to one
hundred-thousandth of a percentage point, rounded up) of such offered rates as
determined by the Calculation Agent. If fewer than two offered rates appear on
the Reuters Screen LIBO Page, or if no rate appears on the Telerate Page 3750,
as applicable, LIBOR with respect to such Interest Reset Date will be
determined as described in (ii) below.
(ii) With respect to an Interest Determination Date on which fewer
than two offered rates for the applicable Index Maturity appear on the Reuters
Screen LIBO Page as described in (i)(a) above or no rate appears on Telerate
Page 3750 as described in (i)(b) above, LIBOR will be determined on the basis
of the rates at approximately 11:00 A.M., London time, on such Interest
Determination Date at which deposits in U.S. dollars having the specified
Index Maturity are offered to prime banks in the London interbank market by
four major banks in the London interbank market selected by the Calculation
Agent commencing on the second Business Day immediately following such Interest
Determination Date and in a principal amount equal to an amount of not less
than U.S. $1,000,000 that in the Calculation Agent's judgment is representative
for a single transaction in such market at such time (a "Representative
Amount"). The Calculation Agent will request the principal London office of
each of such banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR with respect to such Interest Reset Date will be
the arithmetic mean (as calculated by the Calculation Agent to one
hundred-thousandth of a percentage point, rounded up) of such quotations. If
fewer than two quotations are provided, LIBOR with respect to such Interest
Reset Date will be the arithmetic mean (as calculated by the Calculation Agent
to one hundred- thousandth of a percentage point, rounded up) of the rates
quoted at approximately 11:00 A.M., New York City time, on such Interest
Determination Date by three major banks in The City of New York, selected by
the Calculation Agent, for loans in U.S. dollars to leading European banks
having the specified Index Maturity commencing on the Interest Reset Date and
in a Representative Amount; provided, however, that if fewer than three banks
selected as aforesaid by the Calculation Agent are quoting as mentioned in this
sentence, LIBOR with respect to such Interest Reset Date will be the LIBOR in
effect on such Interest Determination Date.
Determination of Interest Rate Per Annum for Treasury Rate Notes. If
the Interest Rate Basis specified on the face hereof is Treasury Rate, the
interest rate per annum determined with respect to any Interest Determination
Date shall equal the rate for the auction on such Interest Determination Date
of direct obligations of the United States ("Treasury bills") having the Index
Maturity specified on the face hereof as published in Release H.15(519), under
the heading "U.S. Government Securities/Treasury bills/Auction Average
(Investment)" or, if not so published by 9:00 A.M., New York City time, on the
Interest Calculation Date (specified on the face hereof) pertaining to such
Interest Determination Date, the auction average rate (expressed as a bond
equivalent, calculated to one hundred-thousandth of a percentage
-10-
<PAGE> 11
point, rounded up, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) for such auction as otherwise reported by the
United States Department of the Treasury, in either case, adjusted by the
addition or subtraction of the Spread, if any, specified on the face hereof, or
by multiplication by the Spread Multiplier, if any, specified on the face
hereof. In the event that the results of such auction of Treasury bills are
not published or reported as provided above by 3:00 P.M., New York City time,
on such Interest Calculation Date or if no such auction is held by the
applicable Interest Determination Date, then the interest rate per annum shall
be the rate set forth in Release H.15(519) with respect to such Interest
Determination Date for the specified Index Maturity under the heading "U.S.
Government Securities/Treasury Bills/Secondary Markets", adjusted or multiplied
and calculated as described above. In the event such rate is not published by
3:00 P.M., New York City time, on the relevant Interest Calculation Date, then
the interest rate per annum hereon shall be calculated by the Calculation Agent
and shall be the yield to Maturity (expressed as a bond equivalent, calculated
to one hundred-thousandth of a percentage point, without rounding, on the basis
of a year of 365 or 366 days, as applicable, and applied on a daily basis) of
the arithmetic mean (adjusted or multiplied and calculated as described above)
of the secondary market bid rates, as of approximately 3:00 P.M., New York City
time, on such Interest Determination Date, of three leading primary United
States government securities dealers in The City of New York, selected by the
Calculation Agent, for the issue of Treasury bills with a remaining Maturity
closest to the Index Maturity specified on the face hereof, adjusted or
multiplied and calculated as described above; provided, however, that if fewer
than three dealers selected as aforesaid by the Calculation Agent are not
quoting as described in this sentence, the interest rate per annum hereon with
respect to such Interest Reset Date shall be the Treasury Rate in effect hereon
on such Interest Determination Date.
Determination of Interest Rate Per Annum for Commercial Paper Rate
Notes. If the Interest Rate Basis specified on the face hereof is Commercial
Paper Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal the Money Market Yield (as defined herein) of
the rate on such Interest Determination Date for commercial paper having the
Index Maturity specified on the face hereof, (i) as such rate is published in
Release H.15(519), under the heading "Commercial Paper," or (ii) if such rate
is not published at or prior to 9:00 A.M., New York City time, on the Interest
Calculation Date (specified on the face hereof) pertaining to such Interest
Determination Date, as published by the Federal Reserve Bank of New York in its
daily statistical release, "Composite 3:30 P.M. Quotations for U.S. Government
Securities," or any successor publication of the Federal Reserve Bank of New
York ("Composite Quotations"), under the heading "Commercial Paper." If by 3:00
P.M., New York City time, on such Interest Calculation Date, such rate is not
published in either of such publications, the interest rate per annum
determined with respect to such Interest Determination Date shall be calculated
by the Calculation Agent and shall be the Money Market Yield of the arithmetic
mean (calculated to one
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<PAGE> 12
hundred-thousandth of a percentage point, rounded up) of the offered rates, as
of 11:00 A.M., New York City time, on such Interest Determination Date, of
three leading dealers of commercial paper in The City of New York, selected by
the Calculation Agent, for commercial paper having the Index Maturity specified
on the face hereof placed for industrial issuers whose bond rating is "AA", or
the equivalent, from a nationally recognized rating agency, in each of the
above cases adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof; provided, however, that if fewer than three
such dealers are quoting as described above, the interest rate per annum hereon
with respect to such Interest Reset Date shall be the Commercial Paper Rate in
effect hereon on such Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = 100 x 360 x D
----------------------
360 - (D x M)
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal calculated to seven decimal places,
without rounding; and "M" refers to the actual number of days in the interest
period for which interest is being calculated.
Determination of Interest Rate Per Annum for CD Rate Notes. If the
Interest Rate Basis specified on the face hereof is CD Rate, the interest rate
per annum determined with respect to any Interest Determination Date shall
equal the rate, adjusted by the addition or subtraction of the Spread, if any,
specified on the face hereof, or by multiplication by the Spread Multiplier, if
any, specified on the face hereof and calculated to one hundred-thousandth of a
percentage point, rounded up, for the relevant Interest Determination Date for
negotiable certificates of deposit having the specified Index Maturity as
published in Release H.15(519) under the heading "CDs (Secondary Market)." In
the event that such rate is not published prior to 9:00 A.M., New York City
time, on the Interest Calculation Date (specified on the face hereof)
pertaining to such Interest Determination Date, then the CD Rate with respect
to such Interest Reset Date shall be the rate (adjusted or multiplied and
calculated as described above) on such Interest Determination Date for
negotiable certificates of deposit having the specified Index Maturity as
published in Composite Quotations under the heading "Certificates of Deposit."
If by 3:00 P.M., New York City time, on such Interest Calculation Date such
rate is not published in either Release H.15(519) or Composite Quotations, the
CD Rate with respect to such Interest Reset Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean (adjusted or multiplied and
calculated as described above) of the secondary market offered rates, as of
10:00 A.M., New York City time, on such Interest Determination Date, of three
leading nonbank dealers of negotiable U.S. dollar
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<PAGE> 13
certificates of deposit in The City of New York, selected by the Calculation
Agent, for negotiable certificates of deposit of major United States money
center banks with a remaining maturity closest to the specified Index Maturity
in a denomination of U.S. $5,000,000; provided, however, that, if fewer than
three dealers selected as aforesaid by the Calculation Agent are quoting as
mentioned in this sentence, the interest rate per annum hereon with respect to
such Interest Reset Date shall be the CD Rate in effect hereon on such Interest
Determination Date.
Determination of Interest Rate Per Annum for Federal Funds Rate
Notes. If the Interest Rate Basis specified on the face hereof is Federal Funds
Rate, the interest rate per annum determined with respect to any Interest
Determination Date shall equal the rate, adjusted by the addition or
subtraction of the Spread, if any, specified on the face hereof, or by
multiplication by the Spread Multiplier, if any, specified on the face hereof
and calculated to one hundred-thousandth of a percentage point, rounded up, on
the relevant Interest Determination Date for Federal Funds as published in
Release H.15(519) under the heading "Federal Funds (Effective)." In the event
that such rate is not published prior to 9:00 A.M., New York City time, on the
Interest Calculation Date (specified on the face hereof) pertaining to such
Interest Determination Date, then the Federal Funds Rate with respect to such
Interest Reset Date shall be the rate (adjusted or multiplied and calculated as
described above) on such Interest Determination Date as published in Composite
Quotations under the heading "Federal Funds/Effective Rate." If by 3:00 P.M.,
New York City time, on such Interest Calculation Date such rate is not
published in either Release H.15(519) or Composite Quotations, the Federal
Funds Rate with respect to such Interest Reset Date shall be calculated by the
Calculation Agent and shall be the arithmetic mean (adjusted or multiplied and
calculated as described above) of the rates, as of 9:00 A.M., New York City
time, on such Interest Determination Date, for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York, selected by the Calculation Agent;
provided, however, that if fewer than three brokers selected as aforesaid by
the Calculation Agent are quoting as mentioned in this sentence, the interest
rate per annum hereon with respect to such Interest Reset Date shall be the
Federal Funds Rate in effect hereon on such Interest Determination Date.
Notwithstanding the foregoing, the interest rate per annum hereon
shall not be greater than the Maximum Interest Rate, if any, or less than the
Minimum Interest Rate, if any, specified on the face hereof. The Calculation
Agent shall calculate the interest rate hereon in accordance with the foregoing
on or before each Interest Calculation Date, or if such date is not a Business
Day, the next succeeding Business Day.
The interest rate on this Note will in no event be higher than the
maximum rate permitted by New York law as the same may be modified by United
States law of general application.
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<PAGE> 14
At the request of the Holder hereof, the Calculation Agent will
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which will become effective on the next Interest
Reset Date.
Interest payments hereon will include interest accrued to but
excluding the applicable Interest Payment Date; provided, however, that if the
rate at which interest on this Note is payable shall be adjusted weekly as
specified on the face hereof under "Interest Rate Reset Period" and as
determined in accordance with the provisions hereof, interest payable on any
Interest Payment Date, other than interest payable on any date on which
principal hereof is payable, will include interest accrued to and including the
Regular Record Date next preceding such Interest Payment Date. Accrued
interest hereon from the Original Issue Date or from the last date to which
interest hereon has been paid, as the case may be, shall be an amount
calculated by multiplying the principal amount hereof by an accrued interest
factor. Such accrued interest factor shall be computed by adding the interest
factor calculated for each day from the Original Issue Date or from the last
date to which interest shall have been paid or duly provided for, as the case
may be, up to but not including the date for which accrued interest is being
calculated. The interest factor (expressed as a decimal calculated to seven
decimal places, without rounding) for each such day shall be computed by
dividing the interest rate per annum (expressed as a decimal calculated to
seven decimal places, without rounding) applicable to such day by 360 if the
Interest Rate Basis specified on the face hereof is Prime Rate, LIBOR,
Commercial Paper Rate, CD Rate or Federal Funds Rate or by the actual number of
days in the year if the Interest Rate Basis specified on the face hereof is
Treasury Rate.
If this Note is denominated in a Specified Currency, a Holder of this
Note, who in accordance with the provisions of this Note elects to receive
payments in U.S. dollars, shall receive payments of principal, premium, if any,
and interest in U.S. dollars determined with reference to the highest bid
quotation (rounded up to the nearest cent) in The City of New York received by
the Exchange Rate Agent as of 11:00 A.M., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent) selected
by the Exchange Rate Agent for the purchase by the quoting dealer of the
Specified Currency for U.S. dollars for settlement on such payment date, in an
amount equal to the aggregate amount of the Specified Currency payable to all
Holders of Notes electing to receive U.S. dollar payments on such payment date
and at which the applicable dealer commits to execute a contract. If three
such bid quotations are not available, payments will be made in the Specified
Currency. All currency exchange costs associated with any payments in U.S.
dollars shall be borne by the Holder of the Note by deductions from such
payments.
If the principal and any premium or interest on this Note is payable
in a Specified Currency and, due to the imposition of exchange controls or
other
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<PAGE> 15
circumstances beyond the control of the Company, the Specified Currency is not
available at the time of any scheduled payment of principal, premium or
interest to be made in the Specified Currency, then the Company shall be
entitled to satisfy its obligations hereunder by making such payment in U.S.
dollars. Any such payment made in U.S. dollars pursuant to the preceding
sentence shall be made on the basis of the noon buying rate in The City of New
York for cable transfers of the Specified Currency as certified for customs
purposes by the Federal Reserve Bank of New York (the "Market Exchange Rate")
on the second Business Day prior to such payment, or if such Market Exchange
Rate is not then available, on the basis of the most recently available Market
Exchange Rate. Any payment under such circumstances in U.S. dollars where
required payment is in a Specified Currency shall not constitute a default
under the Indenture.
In case an Event of Default, as defined in the Indenture, with
respect to the Notes shall have occurred and be continuing, the principal
hereof may be declared, and upon such declaration shall become, due and payable
in the manner, with the effect and subject to the conditions 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 Debt 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 not less than a majority in principal amount of
the Debt 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 Debt Securities of each series at the
time Outstanding, on behalf of the Holders of all Debt 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 Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note 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 Note.
If so provided on the face of this Note, this Note may be redeemed by
the Company on and after the date so indicated on the face hereof. On and
after the date, if any, from which this Note may be redeemed, this Note may be
redeemed in whole or in part, at the option of the Company at a Redemption
Price equal to the product of the principal amount of this Note to be redeemed
multiplied by the Redemption Percentage as defined herein. The "Redemption
Percentage" shall initially equal the Initial Redemption Percentage specified
on the face of this Note, and shall decline at each anniversary of the initial
date that this Note is redeemable by the amount of the Annual Redemption
Percentage Reduction specified on the face of this Note, until the Redemption
Percentage is equal to 100%.
-15-
<PAGE> 16
If so provided on the face of this Note, this Note will be repayable
in whole or in part in increments of $1,000 or, in the case of non-U.S. dollar
denominated Notes, of an amount equal to the integral multiples referred to on
the face hereof under "Authorized Denominations" (or, if no such reference is
made, an amount equal to the minimum Authorized Denomination) provided that the
remaining principal amount of any Note surrendered for partial repayment shall
be at least $100,000 or, in the case of Notes denominated in a Specified
Currency, the minimum Authorized Denomination referred to on the face hereof,
on any Business Day on or after the "Initial Date on Which the Note is
Repayable at the Option of the Holder" (as stated on the face hereof), at the
option of the Holder, at 100% of the principal amount to be repaid, plus
accrued interest, if any, to the repayment date. In order for the exercise of
the option to be effective and the Note to be repaid, the Company must receive
at the applicable address of the Paying Agent set forth below or at such other
place or places of which the Company shall from time to time notify the Holder
of this Note, on or before the fifteenth, but not earlier than the
twenty-fifth, calendar day, or, if such day is not a Business Day, the next
succeeding Business Day, prior to the repayment date, either (i) this Note,
with the form below entitled "Option to Elect Repayment" duly completed, or
(ii) a telegram, telex, facsimile transmission, or letter from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc., or a commercial bank or a trust company in the United States of America
setting forth (a) the name, address and telephone number of the Holder of this
Note, (b) the principal amount of this Note and the amount of this Note to be
repaid, (c) a statement that the option to elect repayment is being exercised
thereby, and (d) a guarantee stating that the Paying Agent on behalf of the
Company will receive this Note, with the form below entitled "Option to Elect
Repayment" duly completed, not later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter (and this Note and form
duly completed are received by the Paying Agent on behalf of the Company by
such fifth Business Day). Any such election shall be irrevocable. The address
of the Paying Agent to which such deliveries are to be made is Citibank, N.A.,
Attention: Corporate Trust Office, 120 Wall Street, New York, New York 10043
(or at such other places as the Company shall notify the Holders of the Notes).
All questions as to the validity, eligibility (including time of receipt) and
acceptance of any Note for repayment will be determined by the Company, whose
determination will be final and binding.
The Notes are issuable in global or definitive form without coupons
in denominations of $100,000 and integral multiples of $1,000 in excess thereof
or, if the Note is denominated in a Specified Currency, in the denominations
specified on the face hereof. Upon due presentment for registration of
transfer of this Note at the office or agency of the Company maintained for
such purpose in the Borough of Manhattan, The City of New York, a new Note or
Notes in authorized denominations in U.S. dollars or the Specified Currency, as
the case may be, for an equal aggregate principal amount and like tenor will be
issued to the transferee in exchange therefor, subject to the limitations
-16-
<PAGE> 17
provided in the Indenture and to the limitations described below if applicable,
without charge except for any tax or other governmental charge imposed in
connection therewith.
If this Note is a Global Note (as specified on the face hereof), this
Note is exchangeable only if (x) the Depositary notifies the Company that it is
unwilling or unable to continue as Depositary for this Global Note or if at any
time the Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for definitive Notes
in registered form or (z) an Event of Default, or an event which with notice of
lapse of time would be an Event of Default, with respect to the Notes
represented hereby has occurred and is continuing. If this Note is exchangeable
pursuant to the preceding sentence, it shall be exchangeable for definitive
Notes in registered form, bearing interest at the same rate or pursuant to the
same formula, having the same date of issuance, redemption provisions, if any,
Specified Currency, Stated Maturity and other terms and of differing
denominations aggregating a like amount.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the places, at the respective times, at the rate and in the currency herein
prescribed.
The Company, the Trustee and any Paying Agent may deem and treat the
Holder hereof as the absolute owner of this Note at such Holder's address as it
appears in the Security Register as kept by the Trustee or duly authorized
agent of the Company (whether or not this Note shall be overdue), for the
purpose of receiving payment of or on account hereof and for all other
purposes, and neither the Company nor the Trustee nor any Paying Agent shall be
affected by any notice to the contrary. All payments made to or upon the order
of such Holder shall, to the extent of the sum or sums paid, effectually
satisfy and discharge liability for moneys payable on this Note.
Capitalized terms used herein which are defined in the Indenture and
not defined herein shall have the respective meanings assigned thereto in the
Indenture.
This Note shall be governed by and construed in accordance with the
laws of the State of New York.
-17-
<PAGE> 18
-------------------------
OPTION TO ELECT REPAYMENT
TO BE COMPLETED ONLY IF THIS NOTE IS REPAYABLE
AT THE OPTION OF THE HOLDER AND THE HOLDER
ELECTS TO EXERCISE SUCH RIGHTS
The undersigned hereby irrevocably requests and instructs the Company
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the repayment date, to the undersigned, at
- --------------------------------------------------------------------------
(please print or type name and address of the undersigned).
For the within Note to be repaid the Company must receive at the
applicable address of the Paying Agent set forth in the Note or at such other
place or places of which the Company shall from time to time notify the Holder
of the within Note, on or before the fifteenth, but not earlier than the
twenty-fifth, calendar day, or, if such day is not a Business Day, the next
succeeding Business Day, prior to the repayment date, (i) the Note, with this
"Option to Elect Repayment" form duly completed, or (ii) a telegram, telex,
facsimile transmission, or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a
commercial bank or a trust company in the United States of America setting
forth (a) the name, address and telephone number of the Holder of the Note, (b)
the principal amount of the Note and the amount of the Note to be repaid, (c) a
statement that the option to elect repayment is being exercised hereby, and (d)
a guarantee stating that the Note to be repaid with this form duly completed
will be received by the Paying Agent on behalf of the Company not later than
five Business Days after the date of such telegram, telex, facsimile
transmission or letter (and such Note and form duly completed are received by
the Paying Agent on behalf of the Company by such fifth Business Day).
Exercise of the repayment option by the Holder shall be irrevocable.
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof (which shall be an integral multiple of
$1,000 or, if the Note is denominated in a currency other than U.S. dollars, of
an amount equal to the integral multiples referred to on the face of the Note
under "Authorized Denominations" (or, if no such reference is made, an amount
equal to the minimum Authorized Denomination)) which the Holder elects to have
repaid: - ; and specify the denomination or denominations (which shall
be $100,000 or an integral multiple of $1,000 in excess thereof or, if the Note
is denominated in a currency other than U.S. dollars, an Authorized
Denomination) of the Note or Notes to be issued to the Holder
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<PAGE> 19
for the portion of the within Note not being repaid (in the absence of any
specification, one such Note will be issued for the portion not being repaid):
- ---------------.
Date: --------------------- -------------------------------------
Notice: The signature to this
Option to Elect Repayment must
correspond with the name as written
upon the face of the Note in every
particular, without alteration or
enlargement or any other change
whatsoever.
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ----- Custodian ------------
TEN ENT -- as tenants by the entireties (Cust) (Minor)
JT TEN -- as joint tenants with right Under Uniform Gifts to Minors Act
of survivorship and not as
tenants in common
-----------------------------------------
(State)
</TABLE>
Additional abbreviations may also be used though not in the above
list.
-19-
<PAGE> 20
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
Please Insert Social Security or
Other Identifying Number of Assignee
- --------------------------------------------------------------------------------
- ---------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
the within Note of BAUSCH & LOMB INCORPORATED and does hereby irrevocably
constitute and appoint -------------------------------------------------------
- ------------------------- attorney to transfer the said Note on the books of the
Company, with full power of substitution in the premises.
Dated:
-------------------- -------------------------------
-------------------------------
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within instrument in every particular, without
alteration or enlargement or any change whatsoever.
-20-
<PAGE> 1
EXHIBIT 23(a)
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Amendment No. 1 to the Registration Statement on Form
S-3 of our report dated January 24, 1994, which appears on Page 63 of the 1993
Annual Report to Shareholders of Bausch & Lomb Incorporated, which is
incorporated by reference in Bausch & Lomb Incorporated's Annual Report on Form
10-K for the year ended December 25, 1993. We also consent to the
incorporation by reference of our report on the Financial Statement Schedules,
which appears on Exhibit (24) of such Annual Report on Form 10-K. We also
consent to the reference to us under the heading "Experts" and "Selected
Financial Information" in such Prospectus. However, it should be noted that
Price Waterhouse has not prepared or certified such "Selected Financial
Information."
/s/ Price Waterhouse
- -----------------------
PRICE WATERHOUSE
Rochester, New York
April 21, 1994
