SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
Current Report Pursuant to Section 13 or 15(d) of
The Securities Act of 1934
Date of Report (Date of earliest event reported):
July 24, 1998
Bausch & Lomb Incorporated
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(Exact name of registrant as specified in its charter)
New York 1-14105 16-0345235
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(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation
One Bausch & Lomb Place, Rochester, New York 14604-2701
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (716)338-8444
Not Applicable
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(Former name or former address, if changed since
last report.)
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ITEM 5. OTHER EVENTS
On July 24,1998, the Company entered into an underwriting agreement
with Morgan Stanley & Co. Incorporated, for itself and as agent for the other
underwriters named therein,(the "Debenture Underwriters") pursuant to which the
Debenture Underwriters will purchase $200,000,000 7.125% Debentures Due August
1, 2028 (the "Debentures"). On July 24, 1998, Bausch & Lomb Incorporated (the
"Company" or "Registrant") entered into underwriting agreements with Morgan
Stanley & Co. Incorporated, Warburg Dillon Read, LLC and J. P. Morgan Securities
Inc., in each case for itself and the other underwriters named therein, (the
"Note Underwriters")pursuant to which the Note Underwriters; respectively, will
purchase $100,000,000 6.15% Putable/Callable Notes Due August 1, 2011,
$100,000,000 6.375% Putable/Callable Notes Due August 1, 20013, and $100,000,000
6.50% Notes Due August 1, 2025 (the "Notes"). The Company also agreed to enter
into three separate remarketing agreements with respect to the Notes with Morgan
Stanley & Co., Warburg Dillon Read LLC, and J.P.
Morgan Securities, Inc., respectively.
On May 13, 1998, the Company entered into Supplemental Indenture No. 1,
supplementing the Indenture, dated as of September 1, 1991, between the Company
and Citibank, N.A. The Company will enter into a Supplemental Indenture No. 2,
to be dated July 29, 1998, with respect to the Notes.
The Company filed with the Securities and Exchange Commission a
Prospectus Supplement, dated July 29, 1998, with respect to offer of the
Debentures and supplementing its Prospectus, dated February 13, 1998, which
forms a portion of the Company's Registration Statement on Form S-3 (No.
333-45223) (the "Registration Statement"). The Company also filed with the
Securities and Exchange Commission a Prospectus Supplement, dated July 29, 1998,
with respect to offer of the Notes and supplementing its Prospectus, dated
February 13, 1998, which forms a portion of the Registration Statement.
This Report on Form 8-K contains the Underwriting Agreements with the
Debentures Underwriters and the Note Underwriters, the Supplemental Indentures
and the Remarketing Agreements with respect to the Notes, all of which are
incorporated as exhibits to the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
a. Financial Statements of Businesses Acquired.
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None
b. Pro Forma Financial Information.
None.
c. Exhibits
1.1 Form of Underwriting Agreement, dated July 24, 1998, between
the Company and the Debenture Underwriters and the Note Underwriters.
1.2 Form of Remarketing Agreement, dated as of July 29, 1998,
between the Company and Morgan Stanley & Co., Warburg Dillon Read LLC, and J.P.
Morgan Securities, Inc.
3.1 Supplemental Indenture No. 1, dated May 13, 1998, between the
Company and Citibank, N.A., as trustee ("Trustee").
3.2 Supplemental Indenture No. 2, dated as of July 29, 1998,
between the Company and the Trustee.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
Dated: July 28, 1998
Bausch & Lomb Incorporated
By: /s/ Alan H. Resnick
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Vice President and
Treasurer
July 24, 1998
To the Representatives named in
Schedule I hereto of the Underwriters
named in Schedule I hereto
Ladies and Gentlemen:
SECTION 1. Introductory. Bausch & Lomb Incorporated, a New York
corporation (the "Company"), proposes to issue and sell the Debt Securities
identified in Schedule I hereto (the "Securities") to the several Underwriters
named in Schedule I hereto (the "Underwriters"), who are being represented by
the representative named in Schedule I hereto (the "Representatives"). The
Securities are to be issued pursuant to the provisions of an Indenture, dated as
of September 1, 1991 as supplemented (hereinafter called the "Indenture"),
between the Company and Citibank, N.A., as Trustee (the "Trustee"). The Company
hereby agrees with the Underwriters as follows:
SECTION 2. Representations, Warranties and Agreements of the Company .
The Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-4223),
including a prospectus, relating to the Securities has been filed with
the Securities and Exchange Commission (the "Commission") and has been
declared effective under the Securities Act of 1933, as amended (the
"Act"), and any post-effective amendments filed with the Commission
prior to the execution and delivery of this Agreement have been
declared effective. For purposes of this Agreement, "Effective Time"
means the date and time as of which such registration statement or the
most recent post-effective amendment thereto (if any) filed prior to
the execution and delivery of this Agreement was declared effective by
the Commission, and "Effective Date" means the date of the Effective
Time. No proceeding for the purpose of suspending such effectiveness
has been initiated or threatened or, to the knowledge of the Company,
is contemplated by the Commission. 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 each such
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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 ("Rule 424(b)"), each as amended through and including
the date hereof, is hereinafter referred to as the "Registration
Statement." The prospectus (including the prospectus supplement
relating to the Securities), in the form first filed, or transmitted
for filing, with the Commission pursuant to Rule 424(b) under the Act
on or after the date of this Agreement, is hereinafter referred to as
the "Prospectus." Any preliminary prospectus included in such
Registration Statement or filed with the Commission pursuant to Rule
424(a) under the Act or Rule 424(b) is hereinafter referred to as a
"Preliminary Prospectus." Any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and to 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 to the Registration Statement shall be deemed to refer to and
include any 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. The terms "supplement" and "amendment" or "amend" as used in
this Agreement shall include all documents subsequently filed by the
Company with the Commission pursuant to the Securities Exchange Act of
1934, as amended (the "Exchange Act"), that are incorporated by
reference in the Prospectus.
(b) On the Effective Date, the Registration Statement
conformed, on the date of this Agreement, 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 to the requirements of the Act and 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 Effective Date as to the
Registration Statement, as of its effective date as to any amendment
thereto and as of its applicable filing date as to the Prospectus or
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
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information furnished to the Company by the Representatives
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 therein or necessary to make the statements therein not
misleading; and 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 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) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission and no
proceedings for that purpose have been instituted or threatened or, to
the knowledge of the Company, are contemplated by the Commission, and
each Preliminary Prospectus, at the time of filing thereof, conformed
in all respects to the requirements of the Act and the Rules and
Regulations and the Trust Indenture Act and did not contain an untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with written information furnished to
the Company by the Representatives specifically for use therein.
(e) 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. Pricewaterhouse Coopers
L.L.P., who have certified certain
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financial statements of the Company and its subsidiaries, are
independent public accountants as required by the Act and the Rules and
Regulations.
(f) 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.
(g) Each subsidiary of the Company listed in Exhibit No. 21 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 incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and conduct its business as described in the
Prospectus and 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. All
of the issued and outstanding capital stock of each Significant
Subsidiary 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.
(h) Neither the Company nor any of its Significant
Subsidiaries is in violation of its or any of their charters 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
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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 hereby and by the Indenture [and the Remarketing Agreement
(as defined below)], 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 [, the
Remarketing Agreement] and the issue and sale of the Securities as
contemplated herein and in the Indenture and the consummation of the
transactions contemplated hereby and thereby 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 Significant 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 Significant 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 Significant 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 or business 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
[, the Remarketing Agreement] or the Securities.
(i) Since the respective dates as of which information is
given in or incorporates by reference 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 or business 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 transactions entered into by
the Company or any of its subsidiaries other than in the ordinary
course of business which are material to the company and its
subsidiaries considered as a whole.
(j) The Company's operations and products, including the
marketing thereof, are in compliance in all material respects with the
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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"),
the failure to comply with which would have a material adverse effect
on the condition, financial or otherwise, earnings, or business of the
Company and its subsidiaries considered as a whole.
(k) Except as set forth or incorporated by reference 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 or business 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.
(l) [Each of] This Agreement [and the Remarketing Agreement
(the "Remarketing Agreement") dated July __, 1998 between the Company
and __________, as Remarketing dealer,] has been duly authorized,
executed and delivered by the Company.
(m) The Indenture has been duly authorized, executed and
delivered by the Company and the Trustee, has been duly qualified under
the Trust Indenture Act 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.
(n) The Securities have been duly authorized and, when
executed and authenticated in accordance with the terms of the
Indenture and issued and delivered in accordance with the terms of this
Agreement, will have been duly authorized, executed, authenticated,
issued and delivered by the Company, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their 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, will conform to the description
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thereof contained in the Prospectus, and will be entitled to the
benefits of the Indenture.
SECTION 3. Purchase, Sale and Delivery of Securities. On the basis of
the representations, warranties and agreements herein contained, and subject to
the terms and conditions herein set forth, the Company hereby agrees to issue
and sell to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Company, at the purchase price set forth in
Schedule I hereto, the respective principal amounts of Securities set forth
opposite the names of the Underwriters in Schedule I hereto.
Securities to be purchased by each Underwriter hereunder, in definitive
form, and in such authorized denominations and registered in such names as the
Representatives may request upon at least forty-eight hours' prior notice to the
Company, shall be delivered by or on behalf of the Company to the
Representatives for the account of such Underwriter, against payment by such
Underwriter or on its behalf of the purchase price therefor by wire transfer of
immediately available funds payable to the order of the Company, all at the
place and at the date and time set forth in Schedule I hereto, or at such other
date and time as the Representatives and the Company may agree upon in writing,
such date and time being herein called the "Closing Date." Certificates
representing the Securities will be made available for checking and packaging at
least twenty-four hours prior to the Closing Date at the office of the Trustee.
SECTION 4. Offering by Underwritters. It is understood that the several
Underwriters propose to offer the Securities for sale to the public on the terms
and conditions as set forth in the Prospectus.
SECTION 5. Covenants of the Company. The Company covenants and agrees
with the several Underwriters that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with the appropriate subparagraph of Rule
424(b) not later than the second business day following the execution
and delivery of this Agreement: The Company will advise the
Representatives promptly of any proposal to amend or supplement the
Registration Statement as filed, or the related Prospectus, prior to
the Closing Date, and will not effect such amendment or supplement
without the Representatives' consent; the Company will also advise the
Representatives promptly (i) of any amendment or supplement to the
Registration Statement or the Prospectus (except for periodic or
current reports filed under the Exchange Act), (ii) of receipt of
notification of the institution by the Commission of any stop order
proceedings in respect of the
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Registration Statement or of any order preventing or suspending the use
of any Preliminary Prospectus or any Prospectus, (iii) of the
suspension of the qualification of the Securities for offering or sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, or (iv) of any request by the Commission to amend or
supplement the Registration Statement or Prospectus or for additional
information; and the Company will use its reasonable commercial effort
to best efforts to prevent the issuance of any such stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or any prospectus or suspending any such qualification and
to obtain as soon as possible its lifting, if issued.
(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Prospectus as then amended or supplemented
would, in the judgment of the Representatives, include an untrue
statement of a material fact, or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend or supplement the Prospectus to comply
with the Act, the Exchange Act, the Trust Indenture Act or any other
law, the Company promptly will prepare and file with the Commission an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance and will notify the
Representatives and upon their request prepare and furnish without
charge to each Underwriter and to any dealer in securities as many
copies as the Representatives may from time to time reasonably request
of an amended Prospectus or a supplement to the Prospectus complying
with Section 10(a) of the Act which will correct such statement or
omission or effect such compliance.
(c) The Company will make generally available to its security
holders 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 (including, at the option of
the Company, Rule 158).
(d) The Company will deliver to each of the Representatives a
conformed copy of the Registration Statement and each amendment thereto
for each of the Underwriters (including documents incorporated therein
by reference).
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(e) The Company will take such action as the Representatives
may reasonably request, in cooperation with the Representatives, to
qualify the Offered Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions of
the United States as the Representatives may designate and will
maintain such qualifications in effect for as long as may be required
for the distribution 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. The Company will file such statements and reports
as may be required by the laws of each jurisdiction in which the
Securities have been qualified as above provided.
(f) During the period of five years hereafter, the Company
will furnish to the Representatives and, upon request, to each of the
other Underwriters, as soon as practicable after the end of each fiscal
year, a copy of its annual report to shareholders for such year, and
the Company will furnish to the Representatives (1) as soon as
available, a copy of each report or definitive proxy statement of the
Company filed with the Commission under the Exchange Act or mailed to
shareholders and (ii) from time to time, such other information
concerning the Company as the Representatives may reasonably request,
provided such information shall not include any material non-public
information.
(g) During the period beginning on the date hereof and
continuing to and including the Closing Date, the Company will not
offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company which mature more than one year after the
Closing Date other than the Securities without the Representatives'
prior written consent.
(h) During the period when the prospectus relating to the
Securities is required to be delivered under the Act, the Company will
file promptly all documents required to be filed with the Commission
pursuant to Section 13, 14 or 15 of the Exchange Act.
SECTION 6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Securities
on the Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company herein as of the date hereof and as of the
Closing Date with the same force and effect as if made as of that date, to the
performance by the Company of its obligations hereunder and to the following
additional conditions precedent:
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(a) The Company shall have filed the Prospectus with the
Commission pursuant to Rule 424(b) in the manner and within the
applicable time period prescribed for such filing by the Rules and
Regulations and in accordance with Section 5(a) hereof. Prior to the
Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for
that purpose shall have been instituted, or to the knowledge of the
Company or the Representatives threatened by the Commission; and the
Company shall have complied with all requests for additional
information on the part of the Commission to the reasonable
satisfaction of the Representatives.
(b) The Representatives shall have received a written opinion,
dated the Closing Date, of Robert B. Stiles, Esq., Senior Vice
President and General Counsel of the Company, to the effect that:
(i) The Company and each of its Significant
Subsidiaries has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct
its business as described in or incorporated by reference 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
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. All of the issued and outstanding
capital stock of each Significant Subsidiary 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.
(ii) The Securities have been duly authorized,
executed, authenticated, issued and delivered and constitute
valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture.
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(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) This Agreement has been duly authorized, executed
and delivered by the Company. [Each of this Agreement and the
Remarketing Agreement has been duly authorized, executed and
delivered by the Company.]
(v) 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 or business of
the Company and its subsidiaries considered as a whole.
(vi) 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 or business of the
Company and its subsidiaries considered as a whole.
(vii) 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 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
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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 of 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 the breach of default under or failure to be in
compliance with would have a material adverse effect on the
condition, financial or otherwise, earnings or business of the
Company and its subsidiaries taken as a whole, 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.
(viii) The descriptions in the Registration Statement
and Prospectus, other than as described under the heading
"United States Federal Income Taxation", of statutes legal and
governmental proceedings, contracts and other documents are
accurate in all material respects 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 described in filings 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.
(ix) 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.
(x) 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 Debentures [Offered Securities]" no
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.
<PAGE>
-13-
(xi) 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
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, 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 and including the documents incorporated therein
by reference, contained any untrue statements 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.
(c) The Representatives shall have received from Davis Polk &
Wardwell, counsel for the Underwriters, an opinion or opinions, dated
the Closing 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
the Representatives may reasonably request, and such counsel shall have
been furnished with such documents and opinions as they may reasonably
request.
[(d) The Representatives shall have received from Nixon,
Hargrave, Devans & Doyle LLP, special tax counsel to the Company, an
opinion dated the date hereof confirming that the information set forth
in the Prospectus Supplement under the caption "United States Federal
Taxation", subject to the limitations therein, fairly present the
principal potential United States federal income tax consequences of
ownership and dispositions of the Securities to the holders described
therein under current law.]
<PAGE>
-14-
(e) [(f)] 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, or business 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 the Representatives so material and adverse as to make
it impracticable or inadvisable to proceed with the purchase by the
Representatives of the Securities from the Company on the terms and in
the manner contemplated in the Prospectus as amended and supplemented.
(f) [(g)] The Representatives shall have received from the
President or any Vice President and a principal financial or accounting
officer of the Company a certificate, dated the Closing Date, in which
such officers, to the best of their knowledge after reasonable
investigation, shall state that there have not been, since the
respective dates as of which information is given or incorporated by
reference in the Registration Statement and the Prospectus, any
material transactions entered into by the Company or any of its
subsidiaries other than in the ordinary course of business, except as
set forth in or contemplated by the Prospectus; that the
representations and warranties of the Company herein are true and
correct with the same force and effect as though made on and as of the
Closing Date; that the Company has complied in all material respects
with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to the Closing Date; and
that no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
initiated or threatened or are contemplated by the Commission.
(g) [(h)] The Representatives shall have received from
Pricewaterhouse Coopers L.L.P., Arthur Andersen LLP and KPMG Peat
Marwick LLP independent public accountants, a letter, dated the Closing
Date, in form and substance satisfactory to the Underwriters,
containing statements and information of the type ordinarily included
in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Prospectus.
(h) [(i)] The Company shall have executed and delivered the
Remarketing Agreement.]
SECTION 7. The Company will pay or cause to be paid the following,
provided that such expenses have been authorized and
<PAGE>
-15-
approved in advance by the Company: all costs, expenses, fees, disbursements and
taxes incident to (i) the preparation by the Company, printing, filing and
distribution of the Registration Statement (including financial statements and
exhibits), the Prospectus, each Preliminary Prospectus and all amendments and
supplements to any of them prior to or during the period specified in Section
5(b), (ii) the preparation, printing (including word processing and duplication
costs) and delivery of any Agreement Among Underwriters, this Agreement, the
Indenture, Blue Sky and Legal Investment Memoranda and all other agreements,
memoranda, correspondence and other documents printed and delivered in
connection with the offering of the Securities, (iii) the registration with the
Commission, and the issuance by the Company, of the Securities, (iv) the
registration or qualification of the Securities for offer and sale under the
securities or Blue Sky laws of the several states (including the reasonable fees
and disbursements of counsel for the Underwriters relating thereto), (v) fees
and expenses, if any, incurred in connection with the listing of the Securities
on any stock exchange, (vi) any filings and clearance with the National
Association of Securities Dealers, Inc. in connection with the offering, (vii)
any fees charged by securities rating services for rating the Securities, (viii)
the fees and expenses of the Trustee and any agent of the Trustee and the fees
and disbursements of counsel for the Trustee in connection with the Indenture
and the Securities and (ix) the performance by the Company of its other
obligations under this Agreement, and all other costs and expenses incident to
the performance of its obligations hereunder which are not specifically provided
for in this Section 7.
If this Agreement is terminated by the Representatives in accordance
with the provisions of Section 11 hereof, the Company shall not then be under
any liability to any Underwriter except as provided in Sections 7 and 8 hereof,
but if for any other reason the Securities are not delivered by or on behalf of
the Company as provided herein, the Company shall reimburse the Representatives
for all reasonable out-of-pocket expenses incurred by the Representatives in
connection with marketing and preparing for the purchase, sale and delivery of
the Securities, including the reasonable fees and disbursements of counsel for
the Underwriters, but the Company shall then be under no further liability to
any Underwriter except as provided herein and in Section 8 hereof.
SECTION 8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of either 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
investigating or defending 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
<PAGE>
-16-
statement of a material fact contained in the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or any Preliminary
Prospectus, 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 the Representatives 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 Section 8(a).
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, the directors of the Company,
the officers of the Company who signed the Registration Statement and
each person, if any, who controls the Company within the meaning of
either Section 15 of the Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities or judgements
(including, without limiting the foregoing, the reasonable legal and
other expenses incurred in connection with investigating or defending
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, or any amendment or
supplement thereto, or any Preliminary Prospectus, 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 furnished in writing
to the Company by the Representatives expressly for use therein. This
indemnity agreement will be in addition to any liability which the
Underwriters may otherwise have to the persons referred to above in
this Section 8(b).
(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 any 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. 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
that 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
<PAGE>
-17-
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 Underwriters and all persons, if
any, who control Underwriters within the meaning of either Section 15
of the 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 signed
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 Underwriters and such control persons
of Underwriters, such firm shall be designated in writing by the
Representatives. 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 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 8 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, 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 the
Underwriters on the other from the
<PAGE>
-18-
offering of the Securities 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 the Underwriters 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 the Underwriters on the other shall be deemed to be in the
same proportions as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other shall be determined by 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 relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission.
(e) The Company and the Underwriters agree that it would not
be just and equitable if contribution pursuant to Section 8(d) were
determined by pro rata allocation (even if the Underwriters 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 or liabilities (or actions in respect thereof) 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 Section 8(d), in no event shall any
Underwriter be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by
it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter 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 Underwriters' obligations to
contribute pursuant to Section 8(d) are several in proportion
<PAGE>
-19-
to the respective principal amounts of Securities to be purchased by
them and not joint.
SECTION 9. Representations, Warranties and Agreements to Survive
Delivery. All representations, warranties and agreements contained in this
Agreement, or in certificates of officers of the Company furnished pursuant
hereto, including indemnity and contribution agreements, shall remain operative
and in full force and effect, regardless of any termination of this Agreement,
or any investigation, or any statement as to the results thereof, made by or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its officers or directors or controlling persons, and
shall survive acceptance of and payment for the Securities hereunder.
If for any reason the purchase of the Securities by the Underwriters is
not consummated, the Company shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 7, and the respective obligations
of the Company and the Underwriters pursuant to Section 8 shall remain in
effect.
SECTION 10. Termination. This Agreement may be terminated for any
reason at any time prior to the delivery and payment of the Securities on the
Closing Date by the Representatives upon the giving of written notice of such
termination to the Company, if prior to such time (i) there shall have been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, (A) any material adverse change in the condition,
financial or otherwise, earnings or business of the Company and its subsidiaries
considered as a whole, whether or not arising in the ordinary course of
business, or (B) any material transaction entered into by the Company or any
subsidiary other than in the ordinary course of business which has not been
described in or incorporated by reference in the Registration Statement or the
Prospectus as of the date of this Agreement, or (ii) there occurred any outbreak
or escalation of hostilities or other calamity or crisis or material change in
existing national or international financial, political, economic or securities
market conditions, the effect of which is such as to make it, in the judgment of
the Representatives, impracticable or inadvisable to market the Securities in
the manner contemplated in the Prospectus or enforce contracts for the sale of
the Securities, or (iii) reporting of bid and asked prices of the Common Stock
of the Company shall have been suspended by the National Association of
Securities Dealers, Inc., or trading in the Common Stock of the Company shall
have 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 shall have been suspended, or minimum or maximum prices for trading
shall have been fixed, or maximum ranges for prices for securities shall have
been required, by either of said exchanges or by order of the Commission or any
other governmental authority, or if a banking moratorium
<PAGE>
-20-
shall have been declared by either Federal or New York authorities or (iv) any
downgrading shall have occurred in the rating accorded any of 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 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. In the event of any such termination, the
provisions of Section 7, the indemnity agreement and contribution provisions set
forth in Section 8, and the provisions of Sections 9 and 14 shall remain in
effect.
SECTION 11. Default. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on such date, and the aggregate principal amount of
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate principal
amount of the Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the principal amount of the
Securities set forth opposite their respective names in Schedule I hereto bears
to the aggregate principal amount of the Securities set forth opposite the names
of all such non-defaulting Underwriters, or in such other proportions as the
Representatives may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase on such
date; provided that in no event shall the principal amount of the Securities
that any Underwriter has agreed to purchase pursuant to Section 3 be increased
pursuant to this Section 11 by an amount in excess of one-ninth of such
principal amount of the Securities without the written consent of such
Underwriter. If on the Closing Date any Underwriter or Underwriters shall fail
or refuse to purchase the Securities and the aggregate principal amount of the
Securities with respect to which such default occurs is more than one-tenth of
the aggregate principal amount of Securities to be purchased on such date, and
arrangements satisfactory to the Representatives and the Company for the
purchase of such Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case, either the
Representatives or the Company shall have the right to postpone the Closing Date
but in no event for longer than seven days, in order that the required changes,
if any, in the Registration Statement and in the Prospectus or in any other
documents or arrangements may be effected. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
SECTION 12. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
<PAGE>
-21-
Underwriters shall be directed to the Representatives at their address(es) set
forth in Schedule I hereto, and notices to the Company shall be directed to it
at Bausch & Lomb Inc., One Bausch & Lomb Place, Rochester, New York 14604,
Attention: Corporate Treasurer.
SECTION 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company, its directors and officers who signed the
Registration Statement, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person, firm or corporation any legal or equitable right, remedy or claim under
or in respect of this Agreement or any provision herein contained. No purchaser
of the Securities from any Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
SECTION 15. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures were upon the same instrument.
SECTION 16. Representation of Underwriters. The Representatives will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives will be binding upon
all Underwriters. In the event that no Underwriters are named in Schedule I
hereto, the term "Underwriters" shall be deemed for all purposes of this
Agreement to be the Underwriter or Underwriters named as Representatives in
Schedule I hereto, the principal amount of the Securities to be purchased by any
Underwriter shall be the amount set forth opposite its name in Schedule I hereto
and all references to the "Representatives" shall be deemed to be the
Underwriter or Underwriters named in such Schedule I.
<PAGE>
-22-
If the foregoing is in accordance with your understanding of our
agreement, please sign this Agreement and return to us a counterpart hereof,
whereupon this letter shall constitute a binding agreement between the Company
and each of the Underwriters in accordance with its terms.
Very truly yours,
BAUSCH & LOMB INCORPORATED
By:____________________________
Name:
Title:
The foregoing Underwriting Agreemen
is hereby confirmed and accepted as of
thedate set forth in Schedule I hereto.
MORGAN STANLEY & CO. INCORPORATED
[MORGAN STANLEY & CO. INCORPORATED
WARBURG DILLON READ LLC
J.P. MORGAN SECURITIES INC.]
Acting severally on behalf of themselves
and as Representatives of the several
Underwriters, if any, named in Schedule
I hereto.
By:________________________
Name:
Title:
<PAGE>
-23-
SCHEDULE I
Underwriting Agreement dated July 24, 1998
Registration Statement No. 333-45223
Representatives: [Morgan Stanley & Co. Incorporated
Morgan Stanley & Co. Incorporated
Warburg Dillon Read LLC,
J.P. Morgan Securities Inc.]
Title and Description of Securities:
Aggregate Principal Amount: $200,000,000 [$100,000,000]
Price to Public:
Purchase Price by Underwriter
(include accrued interest or
amortization if applicable): ____% plus accrued interest, if any from
____ __, 1998
Maturity:
Interest Rate:
Interest Payment Dates:
Regular Record Dates:
Redemption Provisions: The Securities are redeemable in whole or in
part, at the option of the Company at a price
equal to the greater of (i) 100% of their
principal amount or (ii) the sum of the
present value of the remaining scheduled
payments of principal thereon discounted
to the date of redemption on a semiannual
basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Yield
(as defined in the Prospectus) plus _____
<PAGE>
-24-
basis points, plus in each case accrued
interest to the date of redemption.
Call Option; Mandatory Put: On ______ __, holders of the Securities will be
entitled to receive 100% of the principal amount
thereof either (i) through the exercise of a
call option, as provided for in the Indenture
and the Remarketing Agreement or (ii) in the
event the call option is not exercised or the
call price is not paid, the automatic exercise
of a mandatory put to the Company by the Trustee
on behalf of the holders f the Securities, as
provided for in the Indenture and the
Remarketing Agreement.
Sinking Fund Provisions: None
Resale by the Remarketing
Deal: If, in the reasonable opinion of counsel (which
may be internal counsel) for either of [Morgan
Stanley & Co. Incorporated Warburg Dillon Read
LLC J.P.Morgan Securities Inc.] or the Company,
a Prospectus is required by the Securities Act
to be delivered in connection with any sale of
the Securities by the Remarketing Dealer, or any
of its affiliates following the exercise of its
right to remarket the Securities (as set forth
in the Indenture and the Remarketing Agreement),
the Company shall prepare and file with the
Commission (a) a supplement to a prospectus or
(b) a registration statement (which may be in
the form of a post-effective amendment to an
existing registration statement), in each case
so as to provide to the Remarketing Dealer such
prospectus as may be necessary for such purpose.
In connection with the Remarketing
Dealer's resale of the Securities,
the Company shall,
<PAGE>
-25-
no later than the
Coupon Reset Date, furnish (a) to
the Remarketing Dealer and any such
number of copies of such Prospectus
or offering memorandum as it may
reasonably request; and (b) to the
Remarketing Dealer, (i) an officers'
certificate to the effect set forth
in Section 5(d)(iii) of the
Underwriting Agreement; (ii) an
opinion of internal counsel for the
Company covering the matters set
forth in Sections 5(d)(i) of the
Underwriting Agreement; and a
"comfort" letter from the
independent accountants for the
Company substantially to the effect
set forth in Section 5(d)(iv) of the
Underwriting Agreement. The Company
and the Remarketing Dealer shall
each provide indemnification in
substantially the form set forth in
Section 8 of the Underwriting
Agreement.
Payments under the Remarketing
Agreement:
SALE AND DELIVERY PROVISIONS UNDER SECTION 3:
Obligation to Purchase is: several and not joint / /
several and not joint; provided,
however that, notwithstanding the
provisions of Section 9 of the
Underwriting Agreement, the
Representative(s) listed above will,
subject to the terms and conditions
hereof, purchase or cause to be
purchased any Securities which any
defaulting Underwriter or
Underwriters have agreed but failed
or refused to purchase pursuant to
Section 3 hereof /x/
joint and several / /
<PAGE>
-26-
Payment to Be Made in: New York Clearinghouse (next day) funds o or
Federal (same day) funds /x/
Delivery of Securities: Physical delivery to Underwriters through
Representatives / /
or delivery to Underwriters through facilities
of DTC by delivery to DTC of one or more
definitive global securities in book-entry
form /x/
CLOSING DATE, TIME AND LOCATION: July 29, 1998, 9:00 a.m., Davis Polk &
Wardwell,
450 Lexington Avenue
New York, NY 10017
ADDRESS FOR NOTICE TO REPRESENTATIVES: c/o [Morgan Stanley & Co. Inc
1585 Broadway, 3rd Floor
New York, NY 10036
Attn: DPG
Legal & Documentation
Warburg Dillon
Reed LLC 677
Washington Street
Stamford, CT 06912
Attn:
J.P. Morgan Securities Inc.
60 Wall Street
New York, NY 10260
REMARKETING AGREEMENT, dated as of
July __, 1998 (this "AGREEMENT"), between BAUSCH &
LOMB INCORPORATED, a New York corporation (the
"COMPANY"), and [MORGAN STANLEY & CO. INCORPORATED]
[[UNION BANK OF SWITZERLAND AG, LONDON BRANCH]]
[[[J.P. MORGAN SECURITIES INC.]]] (["MORGAN STANLEY"]
[["UBS"]] [[["J.P. MORGAN"]]]and, in its capacity as
the remarketing dealer hereunder, the "REMARKETING
DEALER") [[and WARBURG DILLON READ, LLC, ("WDR" and
in its capacity as calculation agent the "CALCULATION
AGENT")]].
The Company proposes to issue and sell its[ ___% Putable/Callable Notes
due ______ __, 2011] [[___% Putable/Callable Notes due ______ __, 2013]] [[[___%
Putable/Callable Notes due ______ __, 2025]]] (the "NOTES"), described in the
Prospectus Supplement, dated July __, 1998 (the "PROSPECTUS SUPPLEMENT"), to the
Prospectus (the "BASE PROSPECTUS"), dated February 13, 1998 included in the
registration statement on Form S-3 filed with the Securities and Exchange
Commission (the "COMMISSION") (Registration No.333-45223). The Notes are to be
issued pursuant to an indenture dated as of September 1, 1991 (as supplemented,
the "INDENTURE"), between the Company and Citibank, N.A., as Trustee, in an
aggregate principal amount of $100,000,000. The Notes will be issued and the
terms thereof established in accordance with the Indenture, the form of note
(the "FORM OF NOTE"), the Prospectus Supplement and the Base Prospectus. The
interest rate on the Notes will be ___% upon issuance and may be reset in
accordance with Section 4(d) and the Form of Note attached hereto as Appendix A.
Capitalized terms used but not defined herein shall have the same meanings as in
the Form of Note or the Indenture.
NOW, THEREFORE, for and in consideration of the covenants herein made,
and subject to the conditions herein set forth, the parties hereto agree as
follows:
SECTION 1. Appointment of Remarketing Dealer. (a) The Company hereby
appoints [Morgan Stanley] [[UBS]] [[[J.P. Morgan]]] as the Remarketing Dealer
for the purpose of remarketing the Notes and calculating the Coupon Reset Rate
(as defined below).
(b) All acts taken by the Remarketing Dealer [[or the Calculation
Agent]] under this Agreement or in connection with the Notes, including the
calculation of the Coupon Reset Rate, shall be deemed to have been taken [[by
<PAGE>
-2-
each of]] by the Remarketing Dealer [[and the Calculation Agent]] solely in its
capacity as an agent acting on behalf of the Company under this Agreement and
shall not create or imply any obligation to, or any agency or trust relationship
with, any holder or beneficial owner of Notes.
SECTION 2. Representations and Warranties. (a) Each party represents
and warrants to the other party that:
(i) Status. It is duly organized and validly existing under
the laws of the jurisdiction of its organization or incorporation and,
if relevant under such laws, in good standing.
(ii) Powers. It has the power to execute, deliver and perform
its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance.
(iii) No Violation or Conflict. Such execution, delivery and
performance do not violate or conflict with any law applicable to it,
any provision of its constitutional documents, any order or judgment of
any court or other agency of government applicable to it or any of its
assets or any contractual restriction binding on or affecting it or any
of its assets.
(iv) Consents. All governmental and other consents that are
required to have been obtained by it with respect to this Agreement
have been obtained and are in full force and effect and all conditions
of any such consents have been complied with.
(v) Obligations Binding. Its obligations under this Agreement
constitute its legal, valid and binding obligations, enforceable in
accordance with their respective terms (subject to applicable
bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application
(regardless of whether enforcement is sought in a proceeding in equity
or at law)).
(vi) Absence of Litigation There is not pending or, to its
knowledge, threatened against it or any of its Affiliates any action,
suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely
to affect the legality, validity or enforceability against it of this
Agreement or its ability to perform its obligations under this
Agreement.
(vii) Non-Reliance.It is acting for its own account, and it had
made its own independent decisions to enter into this Agreement and as
to whether this Agreement is appropriate or proper for it based upon
its own judgment and upon advice from such advisers as it has deemed
necessary.
<PAGE>
-3-
It is not relying on any communication (written or oral) of the other
party as investment advice or as a recommendation to enter into this
Agreement; it being understood that information and explanations
related to the terms and conditions of this Agreement shall not be
considered investment advice or a recommendation to enter into this
Agreement. No communication (written or oral) received from the other
party shall be deemed to be an assurance or guarantee as to the
expected results of this Agreement.
(viii) Assessment and Understanding. It is capable of assessing
the merits of and understanding (on its own behalf or through
independent professional advice), and understands and accepts, the
terms, conditions and risks of this Agreement. It is also capable of
assuming, and assumes, the risks of this Agreement.
(ix) Status of Parties. The other party is not acting as a
fiduciary for or an adviser to it in respect of this Agreement.
(b) The Company represents and warrants to the Remarketing Dealer
that: no Event of Default under the Indenture has occurred and is continuing and
no such event or circumstance would occur as a result of its entering into or
performing its obligations under this Agreement.
SECTION 3. The Company hereby covenants with [Morgan Stanley] [[UBS]]
[[[J.P. Morgan]]] and the Remarketing Dealer as follows:
(a) Maintain Authorizations. The Company shall use all reasonable
efforts to maintain in full force and effect all consents of any governmental or
other authority that are required to be obtained by it with respect to this
Agreement and shall use all reasonable efforts to obtain any that may become
necessary in the future.
(b) Comply with Laws. The Company shall comply in all material
respects with all applicable laws and orders to which it may be subject if
failure so to comply would materially impair its ability to perform its
obligations under this Agreement.
(c) Purchase of Notes. Expect as described in Section 4(g) hereof,
without the prior approval of the Remarketing Dealer, the Company may not
purchase any of the Notes provided, however, that after the Coupon Reset Date
the Company may purchase the Notes without the prior approval of the Remarketing
Dealer.
(d) Book-entry Form. At all times prior to, and including, the Coupon
Reset Date, notwithstanding any provisions to the contrary set forth in the
<PAGE>
-4-
Indenture, (i) the Company shall use its best efforts to maintain the Notes in
book-entry form with The Depository Trust Company or any successor thereto and
to appoint a successor depository to the extent necessary to maintain the Notes
in book-entry form (The Depository Trust Company or any such successor, "DTC")
and (ii) the Company shall waive any discretionary right it otherwise may have
under the Indenture to cause the Notes to be issued in certificated form.
(e) Compliance With Coupon Reset Process. If requested by the
Remarketing Dealer, the Company shall enforce, for the benefit of the
Remarketing Dealer, compliance by the holders and beneficial owners of the Notes
with the terms of the Notes and the Indenture relating to the purchase rights of
the Remarketing Dealer.
(f) During the five Business Day period ending on the Coupon Reset
Date, the Company will not, without the consent of the Remarketing Dealer,
offer, sell or contract to sell, or otherwise dispose of, directly or
indirectly, or announce the offering of, any debt securities with a maturity of
more than one year.
SECTION 4. Appointment and Obligations of the Remarketing Dealer[[and
the Calculation Agent]] . (a) On the terms, but subject to the conditions, of
this Agreement, [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]] hereby accepts the
appointment as the exclusive Remarketing Dealer [[Calculation Agent]] with
respect to the Notes.
(b) It is expressly understood and agreed by the parties hereto that
the obligations of the Remarketing Dealer hereunder to purchase the Notes to be
remarketed on the Coupon Reset Date are conditioned on (i) the issuance and
delivery of such Notes pursuant to the terms and conditions of the Underwriting
Agreement and (ii) the Remarketing Dealer's election on the Notification Date to
purchase the Notes for remarketing on the Coupon Reset Date.
(c) Prior to 4:00 p.m., New York time, on a Business Day not later
than 15 calendar days prior to the Coupon Reset Date (the "NOTIFICATION DATE"),
the Remarketing Dealer may notify the Company and the Trustee in writing (the
"REMARKETING NOTIFICATION") that the Remarketing Dealer elects to purchase all
but not less than all of the Notes on the Coupon Reset Date. If, and only if,
the Remarketing Dealer gives the Remarketing Notification, the Notes shall be
subject to mandatory purchase by the Remarketing Dealer for remarketing on the
Coupon Reset Date, subject to the conditions described herein. The Remarketing
Notification may be revoked by the Remarketing Dealer at any time prior to 4:00
p.m., New York time, on the third Business Day preceding the Coupon Reset Date.
(d) If the Remarketing Dealer gives the Remarketing Notification, the
following steps (the "COUPON RESET PROCESS") shall be taken in order to
<PAGE>
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determine the interest rate to be paid on the Notes from and including the
Coupon Reset Date to the Maturity Date. The Company [[,]] and the Remarketing
Dealer [[and the Calculation Agent]] shall use reasonable efforts to cause the
actions contemplated below to be completed in as timely a manner as possible.
Notwithstanding the foregoing, the Coupon Reset Process shall not start or occur
if any Termination Event occurs and, if the Coupon Reset Process has commenced
at the time of any Termination Event, the Coupon Reset Process shall
automatically terminate upon the occurrence of such Termination Event.
(i) The Company shall provide the Remarketing Dealer
[[Calculation Agent]] with (A) a list (the "DEALER LIST"), no later
than five Business Days prior to the Coupon Reset Date, containing the
names and addresses of no fewer than three and no more than five
dealers and one of which shall be the Remarketing Dealer [[Calculation
Agent]], from which the Company desires the Remarketing Dealer
[[Calculation Agent]] to obtain the Bids (as defined below) for the
purchase of such Notes, and (B) a copy of any other material reasonably
requested by the Remarketing Dealer [[Calculation Agent]] to facilitate
a successful Coupon Reset Process.
(ii) Within one Business Day following receipt by the
Remarketing Dealer [[Calculation Agent]] of the Dealer List, the
Remarketing Dealer [[Calculation Agent]] shall provide to each dealer
("DEALER") on the Dealer List (A) a copy of the Prospectus Supplement
and the Base Prospectus, (B) a copy of the Form of Note and (C) a
written request that each such Dealer submit a Bid to the Remarketing
Dealer no later than 3:00 pm, New York time, on the third Business Day
prior to the Coupon Reset Date (the "BID DATE"). "BID" shall mean an
irrevocable written offer given by a Dealer for the purchase of all of
the Notes settling on the Coupon Reset Date, and shall be quoted by
such Dealer as a stated yield to maturity on the Notes ("YIELD TO
Maturity"). Each Dealer shall also be provided with (A) the name of the
Company, (B) an estimate of the Purchase Price (which shall be stated
as a US Dollar amount and be calculated by the Remarketing Dealer
[[Calculation Agent]] in accordance with paragraph (iii) below), (C)
the principal amount and Maturity Date of the Notes and (D) the method
by which interest will be calculated on the Notes.
(iii) The purchase price that would be paid by any Dealer for
the Notes (the "PURCHASE PRICE") shall be equal to (A) the total
principal amount of the Notes, plus (B) a premium (the "NOTES PREMIUM")
which shall be equal to the excess, if any, on the Coupon Reset Date of
(1) the discounted present value to the Coupon Reset Date of a bond
with a maturity of ______ __, [2011] [[2013]] [[[2025]]] which has an
interest rate of ___%, semiannual interest payments on each ______ __
and
<PAGE>
-6-
______ __, commencing ______ __ ____, and a principal amount equal
to the principal amount of the Notes, and assuming a discount rate
equal to the Treasury Rate over (2) the principal amount of Notes. The
"TREASURY RATE" means the per annum rate equal to the offer side yield
to maturity of the current on-the-run ____ -year United States Treasury
security per Telerate page 500, or any successor page, no later than
3:00 pm, New York time, on the Bid Date (or such other date and time
that may be agreed upon by the Company and the Remarketing Dealer) or,
if such rate does not appear on Telerate page 500, or any successor
page, at such time, the rates on GovPx End-of-Day Pricing at 3:00 p.m.,
New York time, on the Bid Date (or such other date and time that may be
agreed upon by the Company and the Remarketing Dealer).
(iv) The Remarketing Dealer [[Calculation Agent]] shall provide
written notice to the Company and the [[Remarketing Dealer]] as soon as
practicable on the Bid Date setting forth (A) the names of each of the
Dealers from whom such Remarketing Dealer received Bids on the Bid
Date, (B) the Bid submitted by each such Dealer and (C) the Purchase
Price as determined pursuant to paragraph (iii) above. Except as
provided below, the Remarketing Dealer [[the Calculation Agent]] shall
thereafter select from the Bids received the Bid with the lowest Yield
to Maturity (the "SELECTED BID"); provided, however, that (A) if the
Remarketing Dealer [[the Calculation Date]] has not received a timely
Bid from a Dealer on or before the Bid Date, the Selected Bid shall be
the lowest of all Bids received by such time. The Remarketing Dealer
[[the Calculation Date]] shall set the Coupon Reset Rate equal to the
interest rate which would amortize the Notes Premium fully over the
term of the Notes at the Yield to Maturity indicated by the Selected
Bid, and (B) if any two or more of the lowest Bids are equivalent, the
Company shall in its discretion select any of such equivalent Bids (and
such selected Bid shall be the Selected Bid). In all cases, [Morgan
Stanley] [[WDR]] [[[J.P. Morgan]]] shall have the right to match the
Bid with the lowest Yield to Maturity whereby [Morgan Stanley] [[WDR]]
[[[J.P. Morgan]]]'s Bid shall be the Selected Bid.
(v) Immediately after calculating the Coupon Reset Rate, the
Remarketing Dealer [[Calculation Agent]] shall provide written notice
to the Company [[, the Remarketing Dealer]] and the and the Trustee,
setting forth such rate. At the request of the Holders, the Remarketing
Dealer shall provide to the Holders the Coupon Reset Rate. The Coupon
Reset Rate for such Notes will be effective from and including the
Coupon Reset Date.
(e) If the Remarketing Dealer gives the Remarketing Notification,
unless a Termination Event (as defined below) occurs, (i) not later than 2:00
p.m., New York time, on the Business Day prior to the Coupon Reset Date, the
<PAGE>
-7-
Remarketing Dealer shall deliver to the Trustee in immediately available funds
an amount equal to 100% of the principal amount of the Notes for payment to the
beneficial owners of the Notes, (ii) the Company shall make, or cause the
Trustee to make, payment of interest and principal to each beneficial owner of
Notes due on the Coupon Reset Date by book-entry through DTC by 1:00 p.m., New
York City time, on the Coupon Reset Date and (iii) each beneficial owner of
Notes will be required to deliver and will be deemed to have delivered such
Notes to the Remarketing Dealer against payment therefor at 1:00 p.m., New York
time, on the Coupon Reset Date by book-entry through DTC. No holder or
beneficial owner of Notes or any interest therein will have any right or claim
against the Remarketing Dealer's decision whether or not to give the Remarketing
Notification or performance or nonperformance with respect thereto.
(f) If any Termination Event occurs or if the Remarketing Dealer fails
to make the payment required under Section 4(e)(i) other than due to the
occurrence of a Market Disruption Event, the Company shall repurchase the entire
principal amount of the Notes on the Coupon Reset Date at a price equal to 100%
of the principal amount of the Notes plus all accrued and unpaid interest, if
any, on the Notes to but excluding the Coupon Reset Date; provided, that any
such repurchase by the Company as a result of clause (ii) above shall not
constitute a waiver of any claim for breach of this Agreement that the Company
may have against the Remarketing Dealer. In any such case, payment shall be made
by the Company by book-entry through DTC by 1:00 p.m., New York City time, on
the Coupon Reset Date against delivery through DTC of the Notes.
(g) If the Remarketing Dealer gives the Remarketing Notification, then
not later than the fourth Business Day following the Notification Date, the
Company may irrevocably elect, in its sole and absolute discretion, by notice in
writing to the Remarketing Dealer and the Trustee, to terminate the Coupon Reset
Process.
(h) Upon the occurrence of a Settlement Event (as defined below), the
Company shall pay to the Remarketing Dealer the Settlement Amount promptly
following calculation thereof.
(i) For purposes of this Agreement:
"AFFILIATE" shall mean, in relation to any party, any entity
controlled, directly or indirectly, by the party, any entity that controls,
directly or indirectly, the party or any entity directly or indirectly under a
common control with the party. For this purpose, "control" of any entity or
party means ownership of a majority of the voting power of the entity or party.
"MARKET DISRUPTION EVENT" shall mean any of the following events, if
such events occur or are continuing on any day from, and including, the
<PAGE>
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Notification Date to, and including, the Coupon Reset Date in the judgment of
the Remarketing Dealer: (a) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or the establishment of
minimum prices on such exchange; (b) a general moratorium on commercial banking
activities declared by either federal or New York State authorities; (c) an
outbreak or escalation of hostilities or other calamity or crisis or material
change in existing national or international financial, political, economic or
securities market conditions; (d) an outbreak or escalation, of major
hostilities involving the, United States of America or the declaration of a
national emergency or war by the United States of America; (e) any material
disruption of the U.S. Treasury securities market, U.S. corporate bond market or
U.S. federal wire system or (f) the occurrence of any material adverse change,
in the condition, financial or otherwise, earnings or business of the Company
and its subsidiaries, considered as a whole, whether or not arising in the
ordinary course of business; provided, in each case, that in the judgment of the
Remarketing Dealer the effect of the foregoing makes it impracticable or
inadvisable to conduct the Coupon Reset Process or to remarket the Notes or to
enforce contracts for the sale of the Notes.
"REFERENCE DEALER" shall mean a market dealer, selected in good faith
by [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]], subject to the approval of the
Company which shall not unreasonably withheld, that makes markets in derivative
transactions for corporate and U.S.
Treasury securities in the normal course of business.
"SETTLEMENT AMOUNT" shall mean the fair market value, as of the date of
the termination of this Agreement, of the option to receive the Notes Premium on
the Coupon Reset Date from a financial institution rated Aa/AA by Moody's or
S&P, respectively. If this Agreement terminates on or after 15 calendar days
prior to the Coupon Reset Date, then the Settlement Amount shall be deemed to
equal the Notes Premium (calculated as if the Coupon Reset Date were the date of
termination of the Agreement). Fair market value shall be determined by [Morgan
Stanley] [[WDR]] [[[J.P. Morgan]]], by requesting bids from five Reference
Dealers, one of which shall be [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]],
within five Business Days of the date this Agreement terminates. [Morgan
Stanley] [[WDR]] [[[J.P. Morgan]]] shall (i) if five bids were made, disregard
the lowest and the highest bid and (ii) average such bids to determine the fair
market value; provided that, if [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]] has
not received a bid within 10 Business Days following the request for such bid,
the fair market value shall be the average of the bids that have been received
by 5:00 p.m. as of the tenth Business Day following [Morgan Stanley] [[WDR]]
[[[J.P. Morgan]]]'s initial request for such bids. If [Morgan Stanley] [[WDR]]
[[[J.P. Morgan]]] determines that the bids provided do not reflect a reasonably
accurate valuation of the Settlement Amount, the Settlement Amount shall equal
the amount that [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]] and the Company
<PAGE>
-9-
reasonably determine in good faith to be the total losses and costs of the
Remarketing Dealer in connection with this Agreement.
"SETTLEMENT EVENT" means any of the following: (a) at any time on or
prior to the sale of the Notes on the Coupon Reset Date, (i) an Event of Default
(as defined in the Indenture) has occurred and is continuing under Sections 501
(3) or (4) under the Indenture (in which case, the occurrence of a Settlement
Event is at the Remarketing Dealer's option), (ii) a default, event of default
or other similar condition or event (however described) in respect of the
Company or any of its subsidiaries (individually or collectively) has occurred
under one or more agreements or instruments relating to indebtedness of the
Company or any of its subsidiaries in an aggregate amount of not less than
$20,000,000 which has resulted in such indebtedness becoming due and payable,
under such agreements or instruments, before it would otherwise have been due
and payable (in which case, the occurrence of a Settlement Event is at the
Remarketing Dealer's option), (iii) the Company or any of its subsidiaries has
defaulted in making one or more payments on the due date thereof in an aggregate
amount of not less than $20,000,000 under such agreements or instruments (after
giving effect to any applicable notice requirement or grace period) (in which
case, the occurrence of a Settlement Event is at the Remarketing Dealer's
option), (iv) an Event of Default has occurred and is continuing under Sections
501(6) or (7) under the Indenture (in which case, the occurrence of a Settlement
Event is automatic), or (v) the Notes shall have been assigned a rating below
Investment Grade by any of the Rating Agencies (in which case, the occurrence of
the Settlement Event is at the Remarketing Dealer's option), (b) if less than
two Dealers have submitted Bids in a timely manner (in which case, the
occurrence of a Settlement Event is automatic), or (c) the Company terminates
the Coupon Reset Process pursuant to Section 4(g) (in which case, the occurrence
of a Settlement Event is automatic), or (d) a Defeasance or a Covenant
Defeasance with respect to the Notes occurs pursuant to Section 1302 or 1303,
respectively, of the Indenture (in which case, the occurrence of a Settlement
Event is automatic), or (e) the Remarketing Dealer fails to make the payment
required under Section 4(e)(i) due to the occurrence of a Market Disruption
Event (in which case, the occurrence of a Settlement Event is automatic). For
purposes of the foregoing, "RATING AGENCY" shall mean Standard & Poor's
Corporation and its successors and Moody's Investor's Services, Inc. and its
successors; and "INVESTMENT GRADE" shall mean that the Company's long-term,
unsecured debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
"TERMINATION EVENT" means (i) the Remarketing Dealer does not give the
Remarketing Notification, (ii) the Remarketing Dealer validly revokes the
Remarketing Notification, (iii) prior to the Notification Date the Remarketing
Dealer resigns and no successor has been appointed or (iv) any Settlement Event.
<PAGE>
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SECTION 5. Fees and Expenses. For its services in performing its duties
set forth herein, the Remarketing Dealer shall not receive any fees or
reimbursement of expenses from the Company other than as provided in Sections
4(h) and 8.
SECTION 6. Resignation of the Remarketing Dealer. The Remarketing
Dealer may resign at any time as Remarketing Dealer, such resignation to be
effective ten Business Days after the delivery to the Company and the Trustee of
notice of such resignation. The Company may appoint a new Remarketing Dealer
other than the incumbent Remarketing Dealer if the incumbent Remarketing Dealer
resigns. If a new Remarketing Dealer is appointed pursuant to this Section 6,
the Company shall provide the Trustee with notice thereof.
SECTION 7. Appointment of Successor Remarketing Dealer. Any successor
Remarketing Dealer appointed by the Company or by a court pursuant to the
provisions of Section 6 shall execute and deliver to the incumbent Remarketing
Dealer and to the Company an instrument accepting such appointment and thereupon
such successor Remarketing Dealer shall, without any further act or instrument,
become vested with all the rights, immunities, duties and obligations of the
incumbent Remarketing Dealer, with like effect as if originally named as initial
Remarketing Dealer hereunder, and the incumbent Remarketing Dealer shall
thereupon be obligated to transfer and deliver, and such successor Remarketing
Dealer shall be entitled to receive and accept, copies of any available records
maintained by the incumbent Remarketing Dealer in connection with the
performance of its obligations hereunder.
SECTION 8. Indemnification. The Company shall indemnify and hold
harmless [Morgan Stanley] [[WDR]] [[[J.P. Morgan]]], the Remarketing Dealer and
their respective officers and employees from and against all actions, claims,
damages, liabilities and losses, and costs and expenses related thereto
(including reasonable legal fees and costs) relating to or arising out of
actions or omissions in any capacity hereunder, except actions, claims, damages,
liabilities, losses, costs and expenses caused by the bad faith, gross
negligence or wilful misconduct of such indemnified party. This Section 8 shall
survive the termination of the Agreement and the payment in full of all
obligations under the Notes and this Agreement, whether by purchase, repurchase,
redemption or otherwise.
SECTION 9. Merger, Consolidation or Sale of Business by Remarketing
Dealer. Any corporation or other entity into which the Remarketing Dealer may be
merged, converted or consolidated, or any corporation or other entity resulting
from any merger, conversion or consolidation to which such Remarketing Dealer
may be a party, or any corporation or other entity to which such Remarketing
Dealer may sell or otherwise transfer all or substantially all of its business,
shall, to the extent permitted by applicable law, become the Remarketing Dealer
under
<PAGE>
-11-
this agreement without the execution of any document or any further act by
the parties hereto.
SECTION 10. Notices. Any notice or other communication required to be
given hereunder shall be delivered in person, sent by letter, telecopy or telex
or communicated by telephone (subject, in the case of communication by
telephone, to written confirmation dispatched within 24 hours) to the addresses
given below or such other address as each party hereto may subsequently
designate in writing.
<PAGE>
-12-
To the Company:
Bausch & Lomb Incorporated
One Bausch & Lomb Place
Rochester, New York 14604-2701
Attention: ____________
Telephone No.: (716) ___-____
Facsimile No.: (716) ___-____
To the Trustee:
Citibank, N.A.
_________________________
_________________________
Attention: ___________
Telephone No.: (___) ___-____
Facsimile No.: (___) ___-____
To the Remarketing Dealer:
[MorganStanley & Co. Incorporated
1585 Broadway, 3rd Floor
New York, New York 10036
Attention: DPG
Telephone No.:(212)761-2566
Telecopy No.:(212)761-0580]
[[Union Bank of Switzerland Ag, London Branch
100 Liverpool Street
London EC2M 2RH England
Facsimile No: ____________]]
<PAGE>
-13-
[[[J.P.Morgan Securities Inc.
60 Wall Street
New York, New York 10260
Attention:
Syndicate Department
Facsimile No.: (212) 648-5909]]]
If to the Calculation Agent:
[[Warbur Dillon Read LLC
677 Washington Street
Stamford, CT 06912
Attn:
Syndicate Dept.
Facsimile No.: (203) 719-1088]]
Any notice hereunder given by telecopy or telex shall be deemed to have been
given when transmitted. Any notice hereunder given by letter shall be deemed to
have been given five business days after mailing such notice.
SECTION 11. Benefit of Agreement. Except as provided herein, this
Agreement is solely for the benefit of the parties hereto and their successors
and assigns, and no other person shall acquire or have any rights under or by
virtue hereof. The terms "SUCCESSORS" and "ASSIGNS" shall not include any
purchasers of any Notes merely because of such purchase.
SECTION 12. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements entered into and performed in such State.
<PAGE>
-14-
SECTION 13. Severability. If any provision of this Agreement shall be
held or deemed to be or shall, in fact, be invalid, inoperative or unenforceable
as applied in any particular case in any or all jurisdictions because it
conflicts with any provision of any constitution, statute, rule or public policy
or for any other reason, such circumstances shall not have the effect of
rendering the provision in question invalid, inoperative or unenforceable in any
other case, circumstances or jurisdiction, or of rendering any other provision
or provisions of this Agreement invalid, inoperative or unenforceable to any
extent whatsoever.
SECTION 14. Counterparts. This Agreement may be executed in several
counterparts,each of which shall be regarded as an original and all of which
shall constitute one and the same instrument.
SECTION 15. Amendments. This Agreement may be amended by any instrument
in writing executed and delivered by each of the parties hereto.
IN WITNESS WHEREOF, this Agreement has been entered into as of the day
of July __, 1998.
BAUSCH &LOMB INCORPORATED
By:____________________________
Name:
Title:
[MORGAN STANLEY & CO. INCORPORATED]
[[WARBURG DILLON READ LLC,
AS CALCULATION AGENT]]
[[[J.P. MORGAN SECURITIES INC.]]]
By:______________________________
Name:
Title:
UNION BANK OF SWITZERLAND AG,
LONDON BRANCH
By:_______________________________
Name:
Title:
SUPPLEMENTAL INDENTURE NO. 1
This SUPPLEMENTAL INDENTURE, dated as of May 13, 1998, is made by and
between Bausch & Lomb Incorporated, a corporation duly organized and existing
under the laws of the State of New York (the "Company"), and Citibank, N.A., a
national banking association duly organized and existing under the laws of the
United States of America, as trustee (the "Trustee").
WHEREAS, the Company and the Trustee are parties to an indenture dated
as of September 1, 1991 (the "Indenture"), pursuant to which the Company may
issue from time to time its notes or other evidences of indebtedness (the
"Securities"), in one or more series as the Indenture provided.
WHEREAS, Section 901(5) of the Indenture provides that a supplemental
indenture may be entered into by the Company and the Trustee without the consent
of the holders to add to, change or eliminate any of the provisions of the
Indenture in respect of one or more series of Securities, provided that any such
addition, change or elimination (i) shall neither (A) apply to any Security of
any series created prior to the execution of such supplemental indenture and
entitled to the benefit of such provision nor (B) modify the rights of the
Holder of any such Security with respect to such provision or (ii) shall become
effective only when there is no such Security Outstanding (the "Supplemental
Indenture").
NOW, THEREFORE, each party agrees as follows for the benefit of the
other parties and for the equal and ratable benefit of the Holders of the
Securities.
ARTICLE ONE
Section 101. Section 501(5) of the Indenture is hereby amended to
change the cross-default provision to raise the default threshold from $10
million to $20 million, and to increase the cure period from 10 days to 30 days.
Section 102. Section 1008 of the Indenture is hereby amended to change
the concept of "Consolidated Net Tangible Assets" to "Consolidated Net Worth" as
follows: The concept of "Consolidated Net Tangible Assets" shall be changed to
"Consolidated Net Worth", which latter term shall be defined as the total
consolidated shareholders' equity, less the consolidated translation adjustment
portion of equity, as set forth in the most recent available consolidated
<PAGE>
-2-
balance sheet of the company, prepared in accordance with GAAP. Further, the
triggering threshold contained in this Section 1008 with respect to Consolidated
Net Worth shall be raised from 10% to 15%.
Section 103. The Supplemental Indenture shall not (A) apply to any
Security of any series created prior to the execution of the Supplemental
Indenture nor shall it (B) modify the rights of the Holder of any such Security
with respect to Sections 501(5) or 1008 of the Indenture. Without limiting the
generality of the foregoing, the Supplemental Indenture shall not apply to any
of the following Securities of the Company:
5.95% Medium Term Notes due September 8, 2003
6.56% Medium Term Notes due August 12, 2026 or 2001
6.75% Notes due December 15, 2004
MISCELLANEOUS
All capitalized terms not otherwise defined herein shall have the same
meaning as defined in the Indenture.
Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
This Supplemental Indenture shall be governed by and construed in
accordance with the laws of the State of New York.
This Supplemental Indenture shall be effective upon the signing by all
parties named hereto.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
<PAGE>
-3-
IN WITNESS WHEREOF, the undersigned have executed this Supplemental Indenture as
of the date first above written.
(Seal)
BAUSCH & LOMB INCORPORATED
By: /s/ Alan H. Resnick
-------------------
Alan H. Resnick
Vice President &
Treasurer
Attest.
By: /s/ Jean F. Geisel
------------------
Jean F. Geisel
Secretary
CITIBANK, N.A.
By: /s/ F. Mills
---------------
F. Mills
Attest. Senior Trust Officer
/s/_______
<PAGE>
-4-
STATE OF NEW YORK
COUNTY OF MONROE
On the 21 st day of May, 1998, before me personally came Alan H. Resnick, to me
known, who, being by me duly sworn, did depose and sav that he is Vice President
and Treasurer of Bausch & Lomb Incorporated, one of the corporations described
in and which executed the foregoing instrument; that he knows the seal of said
corporation; that the seal affixed to said instrument is such corporate seal;
that it was so affixed by authority of the Board of Directors of said
corporation, and that he signed his name thereto by like authority.
Notary Public
STATE OF NEW YORK
COUNTY OF NEW YORK
On the 26 th day of May personally came F. Mills to me known, who, being by me
duly sworn, did depose and say that he/she is Senior Trust Officer of Citibank,
N.A., one of the corporations described in and which executed the foregoing
instrument; that he/she knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation, and that he/she signed
his/her name thereto by like authority.
Notary Public
SUPPLEMENTAL INDENTURE No. 2, dated July 29, 1998, between BAUSCH &
LOMB INCORPORATED, a duly organized corporation and existing under laws of the
State of New York (herein referred to as the "Company") having its principal
office at One Lincoln First Square, Rochester, New York 14601-0054 and CITIBANK,
N.A., a national banking association duly organized and existing under the laws
of the United States of America, as trustee (hereinafter referred to as the
"Trustee"),
WITNESSETH THAT:
WHEREAS, the Company and the Trustee have entered into an Indenture
dated September 1, 1991, as amended by Supplemental Indenture No. 1 dated May
13, 1998 (the "Indenture") providing for the issuance of debt securities;
WHEREAS, on the date hereof, the Company will issue under the Indenture
its 7.125% Debentures Due August 1, 2028 in an aggregate principal amount of Two
Hundred Million Dollars ($200,000,000);
WHEREAS, for its lawful corporate purposes, the Company desires to
create and authorize the Putable/Callable Notes (hereinafter referred to as the
"Notes") in an aggregate principal amount of Three Hundred Million Dollars
($300,000,000) and to provide the terms and conditions upon which the Notes are
to be executed, registered, authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Supplemental Indenture;
WHEREAS, the Notes and the certificates of authentication to be borne
by the Notes are to be substantially in the form of the Form of Note, attached
as Exhibits A, B and C hereto;
AND WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by or on behalf of the
Trustee as in this Indenture provided, the valid, binding and legal obligations
of the Company, and to constitute these presents a valid indenture and agreement
according to its terms, have been done and performed;
NOW, THEREFORE:
In order to declare the terms and conditions upon which the Notes are
executed, registered, authenticated, issued and delivered, and in consideration
of the premises, of the purchase and acceptance of such Notes by the holders
thereof and of the sum of one dollar to it duly paid by the Trustee at the
execution of these presents, the receipt whereof is hereby acknowledged, the
Company covenants and agrees with the Trustee, for the equal and proportionate
benefit of the respective holders from time to time of such Notes, as follows:
CREATION AND AUTHORIZATION OF NOTES
There is hereby created and authorized the Notes entitled the
"Putable/Callable Notes," which limited to $300,000,000 aggregate principal
amount (except for Notes authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes pursuant to Section
3.04, 3.05 or 3.06).
MISCELLANEOUS
All capitalized terms not otherwise defined herein shall have the same
meaning as defined in the Indenture.
<PAGE>
Except as expressly supplemented hereby, the Indenture is in all
respects ratified and confirmed and all the terms, provisions and conditions
thereof shall be and remain in full force and effect.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
This Supplemental Indenture shall be effective upon the signing by all
parties named hereto.
This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
The Indenture and each Note shall be governed by and construed in
accordance with the laws of the State of New York, except as otherwise required
by mandatory provisions of law.
-2-
<PAGE>
IN WITNESS WHEREOF, Bausch & Lomb Incorporated has caused this
Supplemental Indenture to be signed and delivered and its corporate seal to be
affixed hereunto and the same to be attested, and Trustee has caused this
Supplemental Indenture to be signed and delivered and its corporate seal to be
fixed hereunto and the same to be attested, all as of the day and year first
written above.
BAUSCH & LOMB INCORPORATED
By:____________________________
Name:
Title:
[CORPORATE SEAL]
ATTEST:
By:____________________________
Name:
Title:
CITIBANK, N.A., AS TRUSTEE
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
[CORPORATE SEAL]
ATTEST:
------------------------------
-3-
<PAGE>
[FACE OF NOTE] EXHIBIT A
CUSIP NO.: PRINCIPAL AMOUNT: $100,000,000
REGISTERED NO.
BAUSCH & LOMB INCORPORATED
6.150% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2011
/X/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation, to the issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
<TABLE>
<CAPTION>
<S> <C> <C>
INTEREST RATE PER ANNUM: From and MATURITY DATE: August 1, 2011, ISSUE PRICE: 99.891% (as a
including August 1, 1998 to but subject to mandatory repayment of percentage of principal amount)
excluding August 1, 2001, 6.150%. principal to the existing Holder
From and including August 1, 2001, hereof pursuant to the purchase and
as described under "Interest Rate repurchase rights described on the
and Interest Payment Dates" on the reverse of this Note
reverse of this Note.
INTEREST PAYMENT DATES: REPURCHASE BY THE COMPANY: The Notes REMARKETING: The Notes may be
February 1, and August 1 of each are subject to repurchase by the purchased by the Remarketing
year, commencing February 1, 1999. Company prior to maturity if the Dealer prior to maturity, as
Notes are not purchased by the described on the reverse of this
Remarketing Dealer, as described on Note under "Purchase by the
the reverse of this Note under Remarketing Dealer; Remarketing."
"Mandatory Repurchase by the Company" and
"Optional Repurchase by the Company."
DEPOSITARY: The Depository Trust
Company.
</TABLE>
Bausch & Lomb Incorporated, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of U.S. $100,000,000 on the
<PAGE>
Maturity Date, and to pay interest on said principal sum at the rate per annum
(computed on the basis of a 360-day year of twelve 30-day months) shown above,
semi-annually on each Interest Payment Date set forth above from and including
the immediately preceding Interest Payment Date in respect of which interest has
been paid or duly made available for payment to but excluding the applicable
Interest Payment Date or Maturity Date, as the case may be.
The interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the fifteenth calendar day next preceding
such Interest Payment Date (each such date a " Record Date"). Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the holder on such Record Date and may either be paid to the Person in whose
name this Note is registered at the close of business on a Special Record Date
for the payment of such defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to holders of the Notes not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture, as defined below.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City of New York, in such coin
or currency of the United States of America as at that time of payment is a
legal tender for payment of public and private debts. So long as this instrument
is registered in the name of Cede & Co., payments of interest hereon shall be
made in immediately available funds; otherwise payment of interest may be made
at the option of the Company by check or draft mailed to the address of the
person entitled thereto at such address as shall appear on the Note register.
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.
<PAGE>
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 herein below.
A-4
<PAGE>
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:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
designated therein referred
to in the within-mentioned
Indenture.
CITIBANK, N.A.
as Trustee
By: _________________________
Authorized Officer
A-5
<PAGE>
(REVERSE OF NOTE)
BAUSCH & LOMB INCORPORATED
6.150% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2011
This Note is one of a duly authorized issue of Securities of the
Company, all issued or to be issued under and pursuant to an indenture dated as
of September 1, 1991,as amended (the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A. , as Trustee (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 Notes. This Note is one of the
Securities created by the Supplemental Indenture No. 2, dated July 29. 1998, to
the Indenture and designated as the, 6.150% Putable Callable Notes Due August 1,
2011, which Securities are limited in aggregate principal amount to $100,000,000
(the "Notes").
INTEREST RATE AND INTEREST PAYMENT DATES
The Notes will bear interest at the rate of 6.150% from and including
August 1, 1998 to but excluding August 1, 2001 (the "Coupon Reset Date").
Interest on the Notes will be payable semi-annually on February 1 and August 1
of each year, commencing February 1, 1999 (each , an "Interest Payment Date").
Interest will be calculated based on a 360-day year consisting of twelve 30-day
months. "Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law or regulation to be closed.
If the Remarketing Dealer (as defined below) purchases the Notes as
described below, the Remarketing Dealer will reset the interest rate for the
Notes effective on the Coupon Reset Date, pursuant to the Coupon Reset Process
described below. In such circumstance, (i) this Note will be purchased by the
Remarketing Dealer at purchase price equal to 100% of the principal amount
hereof on the Coupon Reset Date, on the terms and subject to the conditions
described herein (interest accrued to but excluding the Coupon Reset Date will
be paid by the Company on
A-6
<PAGE>
such date to the Holder hereof on the most recent Record Date), and (ii) from
and including the Coupon Reset Date, the Notes will bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
under "Coupon Reset Process if Notes Are Remarketed" below.
MATURITY DATE
The Notes will mature on August 1, 2011 (the "Maturity Date"). On the
Coupon Reset Date pursuant to automatic purchase of this Note, the Holder hereof
will be entitled to receive 100% of the principal amount hereof (interest
accrued to but excluding the Coupon Reset Date will be paid by the Company on
such date to the holders of the Notes on the most recent Record Date) from
either (i) the Remarketing Dealer, if the Remarketing Dealer purchases this
Note, or (ii) the Company, pursuant to the mandatory repurchase of this Note by
the Company.
If the applicable Remarketing Dealer purchases, or the Company
repurchases, the Notes on the Coupon Reset Date, the Remarketing Dealer or the
Company, as the case may be, will deposit an amount equal to 100% of the
principal amount of the Notes with the Trustee not later than 2.00 p.m, on the
Business Day prior to the Coupon Reset Date and the Notes shall be transferred
through a book entry on the books of DTC to the Remarketing Dealer, or the
Company, upon receipt of notice from the Trustee that such funds, together with
accrued interest on the Notes to the Coupon Reset Date, have been received by
the Trustee. The Trustee will distribute to the holders of record of the
purchased/repurchased Notes such principal amount and accrued interest.
If the Remarketing Dealer does not purchase the Notes on the Coupon
Reset Date for the Notes for any reason, the Trustee shall exercise the right of
the holders of the Notes under the Indenture to require the Company to
repurchase the Notes in their entirety at 100% of the principal amount thereof
plus accrued interest on the Coupon Reset Date. By its purchase of the Note the
Holder hereof irrevocably agrees that the Trustee shall exercise this "put"
right on behalf of the holders of the
A-7
<PAGE>
Notes. If the Trustee exercises this "put" right on behalf of the holders of the
Notes, the Company is required under the Indenture to deliver to the Trustee in
immediately available funds on the Coupon Reset Date an amount equal to 100% of
the principal amount of the Notes plus accrued interest thereon to the Coupon
Reset Date.
PURCHASE BY THE REMARKETING DEALER; REMARKETING
If the Remarketing Dealer gives notice in writing (the "Remarketing
Notification") to the Company and the Trustee on a Business Day (the
"Notification Date") not later than fifteen calendar days prior to the Coupon
Reset Date of its intention to purchase the Notes for remarketing, the Notes
will be purchased by the Remarketing Dealer at purchase price equal to 100% of
the principal amount hereof on the Coupon Reset Date, except in the
circumstances described below. The obligation of the Remarketing Dealer to
purchase the Notes is subject to several conditions set forth in the Remarketing
Agreement relating to the Notes. Interest accrued to but excluding the Coupon
Reset Date will be paid by the Company on such date to the Holder hereof on the
most recent Record Date. From and after the Coupon Reset Date, the Notes will
bear interest at the Coupon Reset Rate. After purchase of the Notes by the
Remarketing Dealer for remarketing, such Remarketing Dealer may remarket the
Notes for its account at varying prices to be determined by such Remarketing
Dealer at this time of each sale. The Remarketing Dealer's notice to the Trustee
must contain the requisite delivery details, including the identity of the
Remarketing Dealer's Depositary account. The Remarketing Dealer may revoke its
notice, and terminate its obligation, to remarket the Notes at any time prior to
4:00 p.m., New York City time, on the third Business Day prior to the Coupon
Reset Date. Such revocation will terminate the Coupon Reset Process. The
Remarketing Dealer's obligation to purchase the Notes will be terminated and the
Coupon Reset Process will terminate upon the occurrence of certain Termination
Events, as defined herein, and may, at the option of the Remarketing Dealer, be
terminated upon the occurrence of other Termination Events. See "Termination
Events".
A-8
<PAGE>
The transactions described above will be executed on the Coupon Reset
Date through the Depositary in accordance with the procedures of the Depositary,
and the accounts of participants will be debited and credited and the Notes
delivered by book-entry as necessary to effect the purchases and sales thereof.
For further information with respect to transfers and settlement through the
Depositary, see "Description of the Notes--Book-Entry System" in the Prospectus
Supplement.
NOTICE TO HOLDERS BY TRUSTEE
In anticipation of the purchase of the Notes by the Remarketing Dealer
or the repurchase of the Notes by the Company on the Coupon Reset Date, the
Trustee will notify the holders of the Notes, not less than 30 days nor more
than 60 days prior to the Coupon Reset Date, that all Notes shall be delivered
on the Coupon Reset Date through the facilities of the Depositary against
payment of a purchase price equal to 100% of the principal amount hereof by the
Remarketing Dealer or the Company and accrued interest thereon to the Coupon
Reset Date which will be paid by the Company.
COUPON RESET PROCESS IF NOTES ARE REMARKETED
If the Remarketing Dealer elects to remarket the Notes, then the
following steps (the "Coupon Reset Process") will be taken in order to determine
the Coupon Reset Rate. The Company and the Remarketing Dealer will use
reasonable efforts to cause the actions contemplated below to be completed in as
timely a manner as possible.
(a) No later than five Business Days prior to the Coupon Reset Date,
the Company will provide the Remarketing Dealer with a list (the "Dealer List"),
containing the names and addresses of not less than three but not more than five
dealers, one of whom shall be the Remarketing Dealer, from whom the Company
desires the Remarketing Dealer to obtain Bids for the purchase of the Notes and
such other material as may reasonably be requested by the Remarketing Dealer to
facilitate a successful Coupon Reset Process.
A-9
<PAGE>
(b) Within one Business Day following receipt by the Remarketing Dealer
of the Dealer List, the Remarketing Dealer will provide to each dealer
("Dealer") on the Dealer List a copy the Prospectus Supplement dated July 24,
1998 (the "Prospectus Supplement") and the accompanying Prospectus dated
February 13, 1998 relating to the offering of the Notes, a copy of the form of
Notes and a written request that each Dealer submit a Bid to the Remarketing
Dealer no later than 3:00 p.m., New York City time, on the third Business Day
prior to the Coupon Reset Date (the "Bid Date"). The time on the Bid date upon
which Bids will be requested may be changed by the Remarketing Dealer. "Bid"
means an irrevocable written offer given by a Dealer for the purchase of all of
the Notes, settling on the Coupon Reset Date, and shall be quoted by such Dealer
as stated yield to maturity quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum on the Notes ("Yield to Maturity"). Each
Dealer shall also be provided with (i) the name of the Company, (ii) an estimate
of the Remarketing Purchase Price (which shall be stated as a U.S. dollar amount
and be calculated by the Remarketing Dealer in accordance with paragraph (c)
below), (iii) the principal amount and maturity of the Notes and (iv) the method
by which interest will be calculated on the Notes.
(c) The purchase price for the Notes in connection with the Coupon
Reset Process (the "Remarketing Purchase Price") shall be equal to the principal
amount of the Notes, plus a premium (the "Notes Premium") which shall be equal
to the excess, if any, on the Coupon Reset Date of the discounted present value
to the Coupon Reset Date of a bond with a maturity of August 1, 2011 which has
an interest rate of 5.445%, semiannual interest payments on each February 1 and
August 1, commencing February 1, 2002, and a principal amount equal to the
principal amount of the Notes, and assuming a discount rate equal to the
Treasury Rate over such principal amount of Notes. The "Treasury Rate" means the
per annum rate equal to the offer side yield to maturity of the current
on-the-run ten-year United States Treasury Security per Telerate page 500, or
any successor page, no later than 3:00 p.m., New York City time, on the Bid Date
(or such other time or date that may be agreed upon by the Company and the
Remarketing Dealer)
A-10
<PAGE>
or, if such rate does not appear on Telerate page 500, or any successor page, at
such time, the rates on GovPX End-of-Day Pricing at 3:00 p.m., New York City
time, on the Bid Date (or such other time or date that may be agreed upon by the
Company and the Remarketing Dealer).
(d) The Remarketing Dealer will provide written notice to the Company
as soon as practicable on the Bid Date, setting forth the names of each of the
Dealers from whom the Remarketing Dealer received Bids on the Bid Date, the Bid
submitted by each such Dealer and the Remarketing Purchase Price as determined
pursuant to paragraph (c) above. Except as provided below, the Remarketing
Dealer will thereafter select from the Bids received the Bid with the lowest
Yield to Maturity (the "Selected Bid"); provided, however, that if the
Remarketing Dealer has not received a timely Bid from a Dealer on or before the
Bid Date, the Selected Bid shall be the lowest of all Bids received by such time
and provided, further that if any two or more of the lowest Bids submitted are
equivalent the Company shall in its sole discretion select any of such
equivalent Bids (and such selected bid shall be the Selected Bid). In all cases,
Morgan Stanley & Co. Incorporated, in its capacity as a Remarketing Dealer,
shall have the right to match the Bid with the lowest Yield to Maturity in which
case Morgan Stanley & Co. Incorporated Bid shall be the Selected bid. The
Remarketing Dealer will set the Coupon Reset Rate equal to the interest rate
that will amortize the Notes Premium fully over the term of the Notes at the
Yield to Maturity indicated by the Selected Bid.
(e) Immediately after calculating the Coupon Reset Rate for the Notes,
the Remarketing Dealer will provide written notice to the Company and the
Trustee, setting forth the Coupon Reset Rate. The Company shall thereafter
establish a Coupon Reset Rate as the new interest rate on the Notes effective
from and including the Coupon Reset Date by delivery to the Trustee on or before
the Coupon Reset Date of an Officer's Certificate.
THE REMARKETING DEALER
On or prior to the date of original issuance of the Notes, the Company
and Morgan Stanley & Co. Incorporated (the "Remarketing Dealer") will enter into
a Remarketing Agreement
A-11
<PAGE>
(a "Remarketing Agreement"). No holder or beneficial owner of any Notes shall
have any rights or claims under the Remarketing Agreement or against the Company
or the Remarketing Dealer as a result of the Remarketing Dealer not purchasing
the Notes.
The Remarketing Dealer, in its individual or any other capacity, may
buy, sell, hold and deal in any of the Notes. The Remarketing Dealer may
exercise any vote or join in any action which any holder or beneficial owner of
the Notes may be entitled to exercise or take with like effect as if such
Remarketing Dealer did not act in any capacity under its respective Remarketing
Agreement. The Remarketing Dealer in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity under its respective Remarketing Agreement.
TERMINATION EVENTS
The Remarketing Dealer's obligations to purchase the Note may be
terminated and the Coupon Reset Process may be terminated, if any of the
following (each a "Termination Event") occurs: (i) an Event of Default occurs
under Section 501, subsections (3) or (4) of the Indenture (in which case,
termination is at the Remarketing Dealer's option); (ii) a default, event of
default or similar condition or event (however described) in respect of the
Company or any of its subsidiaries (individually or collectively)has occurred
under one or more agreements or instruments relating to indebtedness of the
Company or any of its subsidiaries in an aggregate amount of not less than
$20,000,000, which has resulted in such indebtedness becoming due and payable
under such agreements or instruments before it would otherwise have been due and
payable (in which case, termination is at the Remarketing Dealer's option);
(iii) the Company or any of its subsidiaries (individually or collectively) has
defaulted in making one or more payments on the due date thereof in an aggregate
principal amount of not less than $20,000,000 under such agreements or
instruments (after giving effect to any applicable notice requirement or grace
period) (in which case, termination is at the Remarketing Dealer's option); (iv)
an Event of Default has occurred and is continuing under Section 501subsection
(6) or (7) of the Indenture (in
A-12
<PAGE>
which case, termination is automatic); (v) the Notes shall have been assigned a
rating below Investment Grade by any of the Rating Agencies, both as defined
below; (vi) on the Bid Date, fewer than two Dealers submit timely Bids
substantially as provided below (in which case, termination is automatic); (vii)
the Company exercises its right to repurchase the Notes as described under
"--Optional Repurchase by the Company" below (in which case, termination is
automatic); (viii) a Defeasance (as defined in the Indenture) or a Covenant
Defeasance (as defined in the Indenture) has occurred pursuant to Section 1302
or Section 1303, respectively, of the Indenture(in which case, termination is
automatic); (ix) the Remarketing Dealer fails to pay the Purchase/Repurchase
Price by 2:00p.m., New York City time, on the Business Day prior to the Coupon
Reset Date as set forth in the Remarketing Agreement (in which case, termination
is automatic); (x) the Remarketing Dealer does not give the Remarketing
Notification (in which case, termination is automatic); (xi) the Remarketing
Dealer validly revokes the Remarketing Notification (in which case, termination
is automatic); or (xi) prior to the Notification Date the Remarketing Dealer
resigns and no successor has been appointed (in which case, termination is
automatic).
For purposes of the foregoing, "Rating Agency" shall mean Standard &
Poor's Corporation and its successors and Moody's Investor's Services, Inc. and
its successors; and "Investment Grade" shall mean that the Company's long-term,
unsecured debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
If the Remarketing Dealer's obligation to purchase the Notes is
terminated by the Remarketing Dealer or the Company, notice of such termination
will be immediately given in writing to the Trustee by the Remarketing Dealer or
the Company, as the case may be. If such obligation so terminates or is
automatically terminated, the Company will repurchase the Notes on the Coupon
Reset Date as described below.
A-13
<PAGE>
MANDATORY REPURCHASE BY THE COMPANY
If the Remarketing Agent does not give the Remarketing Notification as
to the Notes or if it revokes its Notification for any reason, the Trustee shall
exercise the rights of the holders of the Notes under the Indenture to require
the Company to repurchase the entire principal amount of the Notes on the Coupon
Reset Date at 100% of the principal amount of the Notes plus accrued interest
thereon to the Coupon Reset Date. In addition, if any Termination Event occurs,
the Company will repurchase the entire principal amount of the Notes on the
applicable Coupon Reset Date at 100% of the principal amount of the Notes plus
accrued and unpaid interest, if any, on the Notes.
OPTIONAL REPURCHASE BY THE COMPANY
If the Remarketing Dealer gives the Remarketing Notification, then, not
later than the fourth Business Day following the Notification Date, the Company
may irrevocably elect, by notice in writing to the Remarketing Dealer and the
Trustee, to terminate the Coupon Reset Process whereupon the Company will
repurchase the entire principal amount of the Notes on the Coupon Reset Date at
the purchase price equal to 100% of the principal amount hereof plus accrued and
unpaid interest, if any on the Notes.
GENERAL MATTERS
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 Notes with the consent of the
holders of not less than a majority in principal amount of the Outstanding
Notes. The Indenture also contains provisions permitting the holders of not less
than a majority in principal amount of the Outstanding Notes, on behalf of the
holders of all the Notes, 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
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<PAGE>
exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
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 any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
Terms used herein which are defined in the Indenture shall have the
receptive 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.
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<PAGE>
_______________________
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:
TEN COM --as tenants in common UNIF GIFT MIN ACT--______CUSTODIAN_______
TEN ENT --as tenants by the (Cust) (Minor)
entireties Under Uniform Gifts to Minors Act
JT TEN --as joint tenants with __________________________
right of survivorship (State)
and not as tenants in
common
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 ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Note of Bausch & Lomb Incorporated and does hereby irrevocably
constitute and appoint ________________________ attorney to transfer 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 whatever.
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<PAGE>
[FACE OF NOTE] EXHIBIT B
CUSIP NO.: PRINCIPAL AMOUNT: $100,000,000
REGISTERED NO.
BAUSCH & LOMB INCORPORATED
6.375% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2013
/X/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation, to the issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
<TABLE>
<S> <C> <C>
INTEREST RATE PER ANNUM: From and MATURITY DATE: August 1, 2013, ISSUE PRICE: 99.978% (as a
including August 1, 1998 to but subject to mandatory repayment of percentage of principal amount).
excluding August 1, 2003, 6.375%. principal to the existing Holder
From and including August 1, 2003, hereof pursuant to the purchase and
as described under "Interest Rate repurchase rights described on the
and Interest Payment Dates" on reverse of this Note.
the reverse of this Note.
INTEREST PAYMENT DATES: REPURCHASE BY THE COMPANY: The Notes REMARKETING: The Notes may be
ebruary 1, and August 1 of each are subject to repurchase by the purchased by the Remarketing Dealer
year, commencing February 1, 1999. Company prior to maturity if the prior to maturity, as described
Notes are not purchased by the on the reverse of this Note under
Remarketing Dealer, as "Purchase by the Remarketing Dealer;
described on the reverse of this Remarketing."
Note under "Mandatory Repurchase
by the Company" and "Optional
Repurchase by the Company."
DEPOSITARY: The Depository Trust
Company
</TABLE>
<PAGE>
Bausch & Lomb Incorporated, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of U.S. $100,000,000 on the Maturity Date, and to pay interest on
said principal sum at the rate per annum (computed on the basis of a 360-day
year of twelve 30-day months) shown above, semi-annually on each Interest
Payment Date set forth above from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid or duly made
available for payment to but excluding the applicable Interest Payment Date or
Maturity Date, as the case may be.
The interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the fifteenth calendar day next preceding
such Interest Payment Date (each such date a " Record Date"). Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the holder on such Record Date and may either be paid to the Person in whose
name this Note is registered at the close of business on a Special Record Date
for the payment of such defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to holders of the Notes not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture, as defined below.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City of New York, in such coin
or currency of the United States of America as at that time of payment is a
legal tender for payment of public and private debts. So long as this instrument
is registered in the name of Cede & Co., payments of interest hereon shall be
made in immediately available funds; otherwise payment of interest may be made
at the option of the
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Company by check or draft mailed to the address of the person entitled thereto
at such address as shall appear on the Note register.
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 herein below.
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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:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
designated therein referred
to in the within-mentioned
Indenture.
CITIBANK, N.A.
as Trustee
By: _________________________
Authorized Officer
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<PAGE>
(REVERSE OF NOTE)
BAUSCH & LOMB INCORPORATED
6.375% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2013
This Note is one of a duly authorized issue of Securities of the
Company, all issued or to be issued under and pursuant to an indenture dated as
of September 1, 1991,as amended (the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A. , as Trustee (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 Notes. This Note is one of the
Securities created by the Supplemental Indenture No. 2, dated July 29. 1998, to
the Indenture and designated as the, 6.375% Putable Callable Notes Due August 1,
2013, which Securities are limited in aggregate principal amount to $100,000,000
(the "Notes").
INTEREST RATE AND INTEREST PAYMENT DATES
The Notes will bear interest at the rate of 6.375% from and including
August 1, 1998 to but excluding August 1, 2003 (the "Coupon Reset Date").
Interest on the Notes will be payable semi-annually on February 1 and August 1
of each year, commencing February 1, 1999 (each , an "Interest Payment Date").
Interest will be calculated based on a 360-day year consisting of twelve 30-day
months. "Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law or regulation to be closed.
If the Remarketing Dealer (as defined below) purchases the Notes as
described below, the Remarketing Dealer will reset the interest rate for the
Notes effective on the Coupon Reset Date, pursuant to the Coupon Reset Process
described below. In such circumstance, (i) this Note will be purchased by the
Remarketing Dealer at purchase price equal to 100% of the principal amount
hereof on the Coupon Reset Date, on the terms and subject to the conditions
described herein (interest accrued to but excluding the Coupon Reset Date will
be paid by the Company on
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<PAGE>
such date to the Holder hereof on the most recent Record Date), and (ii) from
and including the Coupon Reset Date, the Notes will bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
under "Coupon Reset Process if Notes Are Remarketed" below.
MATURITY DATE
The Notes will mature on August 1, 2013 (the "Maturity Date"). On the
Coupon Reset Date pursuant to automatic purchase of this Note, the Holder hereof
will be entitled to receive 100% of the principal amount hereof (interest
accrued to but excluding the Coupon Reset Date will be paid by the Company on
such date to the holders of the Notes on the most recent Record Date) from
either (i) the Remarketing Dealer, if the Remarketing Dealer purchases this
Note, or (ii) the Company, pursuant to the mandatory repurchase of this Note by
the Company.
If the applicable Remarketing Dealer purchases, or the Company
repurchases, the Notes on the Coupon Reset Date, the Remarketing Dealer or the
Company, as the case may be, will deposit an amount equal to 100% of the
principal amount of the Notes with the Trustee not later than 2.00 p.m, on the
Business Day prior to the Coupon Reset Date and the Notes shall be transferred
through a book entry on the books of DTC to the Remarketing Dealer, or the
Company, upon receipt of notice from the Trustee that such funds, together with
accrued interest on the Notes to the Coupon Reset Date, have been received by
the Trustee. The Trustee will distribute to the holders of record of the
purchased/repurchased Notes such principal amount and accrued interest.
If the Remarketing Dealer does not purchase the Notes on the Coupon
Reset Date for the Notes for any reason, the Trustee shall exercise the right of
the holders of the Notes under the Indenture to require the Company to
repurchase the Notes in its entirety at 100% of the principal amount thereof
plus accrued interest on the Coupon Reset Date. By its purchase of the Note the
Holder hereof irrevocably agrees that the Trustee shall exercise this "put"
right on behalf of the holders of the Notes. If the Trustee exercises this "put"
right on behalf of the holders of the
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Notes, the Company is required under the Indenture to deliver to the Trustee in
immediately available funds on the Coupon Reset Date an amount equal to 100% of
the principal amount of the Notes plus accrued interest thereon to the Coupon
Reset Date.
PURCHASE BY THE REMARKETING DEALER; REMARKETING
If the Remarketing Dealer gives notice in writing (the "Remarketing
Notification") to the Company and the Trustee on a Business Day (the
"Notification Date") not later than fifteen calendar days prior to the Coupon
Reset Date of its intention to purchase the Notes for remarketing, the Notes
will be purchased by the Remarketing Dealer at purchase price equal to 100% of
the principal amount hereof on the Coupon Reset Date, except in the
circumstances described below. The obligation of the Remarketing Dealer to
purchase the Notes is subject to several conditions set forth in the Remarketing
Agreement relating to the Notes. Interest accrued to but excluding the Coupon
Reset Date will be paid by the Company on such date to the Holder hereof on the
most recent Record Date. From and after the Coupon Reset Date, the Notes will
bear interest at the Coupon Reset Rate. After purchase of the Notes by the
Remarketing Dealer for remarketing, such Remarketing Dealer may remarket the
Notes for its account at varying prices to be determined by such Remarketing
Dealer at this time of each sale.
The Remarketing Dealer's notice to the Trustee must contain the
requisite delivery details, including the identity of the Remarketing Dealer's
Depositary account. The Remarketing Dealer may revoke its notice, and terminate
its obligation, to remarket the Notes at any time prior to 4:00 p.m., New York
City time, on the third Business Day prior to the Coupon Reset Date. Such
revocation will terminate the Coupon Reset Process.
The Remarketing Dealer's obligation to purchase the Notes will be
terminated and the Coupon Reset Process will terminate upon the occurrence of
certain Termination Events, as defined herein, and may, at the option of the
Remarketing Dealer, be terminated upon the occurrence of other Termination
Events. See "Termination Events".
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The transactions described above will be executed on the Coupon Reset
Date through the Depositary in accordance with the procedures of the Depositary,
and the accounts of participants will be debited and credited and the Notes
delivered by book-entry as necessary to effect the purchases and sales thereof.
For further information with respect to transfers and settlement through the
Depositary, see "Description of the Notes--Book-Entry System" in the Prospectus
Supplement.
NOTICE TO HOLDERS BY TRUSTEE
In anticipation of the purchase of the Notes by the Remarketing Dealer
or the repurchase of the Notes by the Company on the Coupon Reset Date, the
Trustee will notify the holders of the Notes, not less than 30 days nor more
than 60 days prior to the Coupon Reset Date, that all Notes shall be delivered
on the Coupon Reset Date through the facilities of the Depositary against
payment of a purchase price equal to 100% of the principal amount hereof by the
Remarketing Dealer or the Company and accrued interest thereon to the Coupon
Reset Date which will be paid by the Company.
COUPON RESET PROCESS IF NOTES ARE REMARKETED
If the Remarketing Dealer elects to remarket the Notes, then the
following steps (the "Coupon Reset Process") will be taken in order to determine
the Coupon Reset Rate. The Company and the Remarketing Dealer will use
reasonable efforts to cause the actions contemplated below to be completed in as
timely a manner as possible.
(a) No later than five Business Days prior to the Coupon Reset Date,
the Company will provide the Remarketing Dealer with a list (the "Dealer List"),
containing the names and addresses of not less than three but not more than five
dealers, one of whom shall be the Remarketing Dealer, from whom the Company
desires the Remarketing Dealer to obtain Bids for the purchase of the Notes and
such other material as may reasonably be requested by the Remarketing Dealer to
facilitate a successful Coupon Reset Process.
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<PAGE>
(b) Within one Business Day following receipt by the Remarketing Dealer
of the Dealer List, the Remarketing Dealer will provide to each dealer
("Dealer") on the Dealer List a copy the Prospectus Supplement dated July 24,
1998 (the "Prospectus Supplement") and the accompanying Prospectus dated
February 13, 1998 relating to the offering of the Notes, a copy of the form of
Notes and a written request that each Dealer submit a Bid to the Remarketing
Dealer no later than 3:00 p.m., New York City time, on the third Business Day
prior to the Coupon Reset Date (the "Bid Date"). The time on the Bid date upon
which Bids will be requested may be changed by the Remarketing Dealer. "Bid"
means an irrevocable written offer given by a Dealer for the purchase of all of
the Notes, settling on the Coupon Reset Date, and shall be quoted by such Dealer
as stated yield to maturity quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum on the Notes ("Yield to Maturity"). Each
Dealer shall also be provided with (i) the name of the Company, (ii) an estimate
of the Remarketing Purchase Price (which shall be stated as a U.S. dollar amount
and be calculated by the Remarketing Dealer in accordance with paragraph (c)
below), (iii) the principal amount and maturity of the Notes and (iv) the method
by which interest will be calculated on the Notes.
(c) The purchase price for the Notes in connection with the Coupon
Reset Process (the "Remarketing Purchase Price") shall be equal to the principal
amount of the Notes, plus a premium (the "Notes Premium") which shall be equal
to the excess, if any, on the Coupon Reset Date of the discounted present value
to the Coupon Reset Date of a bond with a maturity of August 1, 2013 which has
an interest rate of 5.450%, semiannual interest payments on each February 1 and
August 1, commencing February 1, 2004, and a principal amount equal to the
principal amount of the Notes, and assuming a discount rate equal to the
Treasury Rate over such principal amount of Notes. The "Treasury Rate" means the
per annum rate equal to the offer side yield to maturity of the current
on-the-run ten-year United States Treasury Security per Telerate page 500, or
any successor page, no later than 3:00 p.m., New York City time, on the Bid Date
(or such other time or date that may be agreed upon by the Company and the
Remarketing Dealer) or, if such rate does not appear on Telerate page 500, or
any successor page, at such time, the rates on GovPX End-of-Day Pricing at 3:00
p.m., New York City time, on the Bid Date (or such other time or date that may
be agreed upon by the Company and the Remarketing Dealer).
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<PAGE>
(d) The Remarketing Dealer will provide written notice to the Company
as soon as practicable on the Bid Date, setting forth the names of each of the
Dealers from whom the Remarketing Dealer received Bids on the Bid Date, the Bid
submitted by each such Dealer and the Remarketing Purchase Price as determined
pursuant to paragraph (c) above. Except as provided below, the Remarketing
Dealer will thereafter select from the Bids received the Bid with the lowest
Yield to Maturity (the "Selected Bid"); provided, however, that if the
Remarketing Dealer has not received a timely Bid from a Dealer on or before the
Bid Date, the Selected Bid shall be the lowest of all Bids received by such time
and provided, further that if any two or more of the lowest Bids submitted are
equivalent the Company shall in its sole discretion select any of such
equivalent Bids (and such selected bid shall be the Selected Bid). In all cases,
Warburg Dillon Read LLC, in its capacity as a Remarketing Dealer, shall have the
right to match the Bid with the lowest Yield to Maturity in which case Warburg
Dillon Read LLC's Bid shall be the Selected bid. The Remarketing Dealer will set
the Coupon Reset Rate equal to the interest rate that will amortize the Notes
Premium fully over the term of the Notes at the Yield to Maturity indicated by
the Selected Bid.
(e) Immediately after calculating the Coupon Reset Rate for the Notes,
the Remarketing Dealer will provide written notice to the Company and the
Trustee, setting forth the Coupon Reset Rate. The Company shall thereafter
establish a Coupon Reset Rate as the new interest rate on the Notes effective
from and including the Coupon Reset Date by delivery to the Trustee on or before
the Coupon Reset Date of an Officer's Certificate.
THE REMARKETING DEALER
On or prior to the date of original issuance of the Notes, the Company
and Warburg Dillon Read LLC (the "Remarketing Dealer") will enter into a
Remarketing Agreement (a
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"Remarketing Agreement"). No holder or beneficial owner of any Notes shall have
any rights or claims under the Remarketing Agreement or against the Company or
the Remarketing Dealer as a result of the Remarketing Dealer not purchasing the
Notes.
The Remarketing Dealer, in its individual or any other capacity, may
buy, sell, hold and deal in any of the Notes. The Remarketing Dealer may
exercise any vote or join in any action which any holder or beneficial owner of
the Notes may be entitled to exercise or take with like effect as if such
Remarketing Dealer did not act in any capacity under its respective Remarketing
Agreement. The Remarketing Dealer in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity under its respective Remarketing Agreement.
TERMINATION EVENTS
The Remarketing Dealer's obligations to purchase the Note may be
terminated and the Coupon Reset Process may be terminated, if any of the
following (each a "Termination Event") occurs: (i) an Event of Default occurs
under Section 501, subsections (3) or (4) of the Indenture (in which case,
termination is at the Remarketing Dealer's option); (ii) a default, event of
default or similar condition or event (however described) in respect of the
Company or any of its subsidiaries (individually or collectively)has occurred
under one or more agreements or instruments relating to indebtedness of the
Company or any of its subsidiaries in an aggregate amount of not less than
$20,000,000, which has resulted in such indebtedness becoming due and payable
under such agreements or instruments before it would otherwise have been due and
payable (in which case, termination is at the Remarketing Dealer's option);
(iii) the Company or any of its subsidiaries (individually or collectively) has
defaulted in making one or more payments on the due date thereof in an aggregate
principal amount of not less than $20,000,000 under such agreements or
instruments (after giving effect to any applicable notice requirement or grace
period) (in which case, termination is at the Remarketing Dealer's option); (iv)
an Event of Default has occurred and is continuing under Section 501subsection
(6) or (7) of the Indenture (in
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which case, termination is automatic); (v) the Notes shall have been assigned a
rating below Investment Grade by any of the Rating Agencies, both as defined
below; (vi) on the Bid Date, fewer than two Dealers submit timely Bids
substantially as provided below (in which case, termination is automatic); (vii)
the Company exercises its right to repurchase the Notes as described under
"--Optional Repurchase by the Company" below (in which case, termination is
automatic); (viii) a Defeasance (as defined in the Indenture) or a Covenant
Defeasance (as defined in the Indenture) has occurred pursuant to Section 1302
or Section 1303, respectively, of the Indenture(in which case, termination is
automatic); (ix) the Remarketing Dealer fails to pay the Purchase/Repurchase
Price by 2:00p.m., New York City time, on the Business Day prior to the Coupon
Reset Date as set forth in the Remarketing Agreement (in which case, termination
is automatic); (x) the Remarketing Dealer does not give the Remarketing
Notification (in which case, termination is automatic); (xi) the Remarketing
Dealer validly revokes the Remarketing Notification (in which case, termination
is automatic); or (xi) prior to the Notification Date the Remarketing Dealer
resigns and no successor has been appointed (in which case, termination is
automatic).
For purposes of the foregoing, "Rating Agency" shall mean Standard &
Poor's Corporation and its successors and Moody's Investor's Services, Inc. and
its successors; and "Investment Grade" shall mean that the Company's long-term,
unsecured debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
If the Remarketing Dealer's obligation to purchase the Notes is
terminated by the Remarketing Dealer or the Company, notice of such termination
will be immediately given in writing to the Trustee by the Remarketing Dealer or
the Company, as the case may be. If such obligation so terminates or is
automatically terminated, the Company will repurchase the Notes on the Coupon
Reset Date as described below.
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MANDATORY REPURCHASE BY THE COMPANY
If the Remarketing Agent does not give the Remarketing Notification as
to the Notes or if it revokes its Notification for any reason, the Trustee shall
exercise the rights of the holders of the Notes under the Indenture to require
the Company to repurchase the entire principal amount of the Notes on the Coupon
Reset Date at 100% of the principal amount of the Notes plus accrued interest
thereon to the Coupon Reset Date. In addition, if any Termination Event occurs,
the Company will repurchase the entire principal amount of the Notes on the
applicable Coupon Reset Date at 100% of the principal amount of the Notes plus
accrued and unpaid interest, if any, on the Notes.
OPTIONAL REPURCHASE BY THE COMPANY
If the Remarketing Dealer gives the Remarketing Notification, then, not
later than the fourth Business Day following the Notification Date, the Company
may irrevocably elect, by notice in writing to the Remarketing Dealer and the
Trustee, to terminate the Coupon Reset Process whereupon the Company will
repurchase the entire principal amount of the Notes on the Coupon Reset Date at
the purchase price equal to 100% of the principal amount hereof plus accrued and
unpaid interest, if any on the Notes.
GENERAL MATTERS
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 Notes with the consent of the
holders of not less than a majority in principal amount of the Outstanding
Notes. The Indenture also contains provisions permitting the holders of not less
than a majority in principal amount of the Outstanding Notes, on behalf of the
holders of all the Notes, 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
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exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
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 any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
Terms used herein which are defined in the Indenture shall have the
receptive 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.
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________________________
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 of regulations:
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)
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 ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Note of Bausch & Lomb Incorporated and does hereby irrevocably
constitute and appoint ________________________ attorney to transfer 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 whatever.
B-15
<PAGE>
[FACE OF NOTE] EXHIBIT C
CUSIP NO.: PRINCIPAL AMOUNT: $100,000,000
REGISTERED NO.
BAUSCH & LOMB INCORPORATED
6.500% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2025
/X/ Check this box if the Note is a Global Note.
Applicable if the Note is a Global Note:
Unless this certificate is presented by an authorized representative of
The Depository Trust Company, a New York corporation, to the issuer or its agent
for registration of transfer, exchange or payment, and any certificate issued is
registered in the name of Cede & Co. or such other name as requested by an
authorized representative of The Depository Trust Company (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of The Depository Trust Company), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the
registered owner hereof, Cede & Co., has an interest herein.
<TABLE>
<S> <C> <C>
INTEREST RATE PER ANNUM: From and MATURITY DATE: August 1, 2025, ISSUE PRICE: 99.523% (as a
including August 1, 1998 to but subject to mandatory repayment of percentage
excluding August 1, 2005, 6.500%. principal to the existing Holder of principal amount).
From and including August 1, 2005, hereof pursuant to the purchase and
as described under "Interest Rate repurchase rights described on the
and Interest Payment Dates" on the reverse of this Note.
reverse of this Note.
INTEREST PAYMENT DATES: REPURCHASE BY THE COMPANY: The Notes REMARKETING: The Notes may be
February 1, and August 1 of each are subject to repurchase by the purchased by the Remarketing
year, commencing February 1, 1999. Company prior to maturity if the Dealer prior to maturity, as
Notes are not purchased by the described on the reverse of
Remarketing Dealer, as described this Note under "Purchase by the
on the reverse of this Note under Remarketing Dealer; Remarketing."
under "Mandatory Repurchase by
the Company" and "Optional
Repurchase by the Company."
DEPOSITARY: The Depository Trust
Company.
</TABLE>
<PAGE>
Bausch & Lomb Incorporated, a corporation duly organized and existing
under the laws of the State of New York (herein called the "Company"), for value
received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of U.S. $100,000,000 on the Maturity Date, and to pay interest on
said principal sum at the rate per annum (computed on the basis of a 360-day
year of twelve 30-day months) shown above, semi-annually on each Interest
Payment Date set forth above from and including the immediately preceding
Interest Payment Date in respect of which interest has been paid or duly made
available for payment to but excluding the applicable Interest Payment Date or
Maturity Date, as the case may be.
The interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name this Note is
registered at the close of business on the fifteenth calendar day next preceding
such Interest Payment Date (each such date a " Record Date"). Any such interest
not so punctually paid or duly provided for will forthwith cease to be payable
to the holder on such Record Date and may either be paid to the Person in whose
name this Note is registered at the close of business on a Special Record Date
for the payment of such defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to holders of the Notes not less than 10 days prior to
such Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the Notes
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided in the Indenture, as defined below.
Payment of the principal of (and premium, if any) and any such interest
on this Security will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, the City of New York, in such coin
or currency of the United States of America as at that time of payment is a
legal tender for payment of public and private debts. So long as this instrument
is registered in the name of Cede & Co., payments of interest hereon shall be
made in immediately available funds; otherwise payment of interest may be made
at the option of the
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Company by check or draft mailed to the address of the person entitled thereto
at such address as shall appear on the Note register.
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 herein below.
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<PAGE>
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:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
designated therein referred
to in the within-mentioned
Indenture.
CITIBANK, N.A.
as Trustee
By: _________________________
Authorized Officer
C-4
<PAGE>
(REVERSE OF NOTE)
BAUSCH & LOMB INCORPORATED
6.500% PUTABLE/CALLABLE NOTES DUE AUGUST 1, 2025
This Note is one of a duly authorized issue of Securities of the
Company, all issued or to be issued under and pursuant to an indenture dated as
of September 1, 1991,as amended (the "Indenture"), duly executed and delivered
by the Company to Citibank, N.A. , as Trustee (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 Notes. This Note is one of the
Securities created by the Supplemental Indenture No. 2, dated July 29. 1998, to
the Indenture and designated as the, 6.500% Putable Callable Notes Due August 1,
2025, which Securities are limited in aggregate principal amount to $100,000,000
(the "Notes").
INTEREST RATE AND INTEREST PAYMENT DATES
The Notes will bear interest at the rate of 6.500% from and including
August 1, 1998 to but excluding August 1, 2005 (the "Coupon Reset Date").
Interest on the Notes will be payable semi-annually on February 1 and August 1
of each year, commencing February 1, 1999 (each , an "Interest Payment Date").
Interest will be calculated based on a 360-day year consisting of twelve 30-day
months. "Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law or regulation to be closed.
If the Remarketing Dealer (as defined below) purchases the Notes as
described below, the Remarketing Dealer will reset the interest rate for the
Notes effective on the Coupon Reset Date, pursuant to the Coupon Reset Process
described below. In such circumstance, (i) this Note will be purchased by the
Remarketing Dealer at purchase price equal to 100% of the principal amount
hereof on the Coupon Reset Date, on the terms and subject to the conditions
described herein (interest accrued to but excluding the Coupon Reset Date will
be paid by the Company on
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<PAGE>
such date to the Holder hereof on the most recent Record Date), and (ii) from
and including the Coupon Reset Date, the Notes will bear interest at the rate
determined by the Remarketing Dealer in accordance with the procedures set forth
under "Coupon Reset Process if Notes Are Remarketed" below.
MATURITY DATE
The Notes will mature on August 1, 2025 (the "Maturity Date"). On the
Coupon Reset Date pursuant to automatic purchase of this Note, the Holder hereof
will be entitled to receive 100% of the principal amount hereof (interest
accrued to but excluding the Coupon Reset Date will be paid by the Company on
such date to the holders of the Notes on the most recent Record Date) from
either (i) the Remarketing Dealer, if the Remarketing Dealer purchases this
Note, or (ii) the Company, pursuant to the mandatory repurchase of this Note by
the Company.
If the applicable Remarketing Dealer purchases, or the Company
repurchases, the Notes on the Coupon Reset Date, the Remarketing Dealer or the
Company, as the case may be, will deposit an amount equal to 100% of the
principal amount of the Notes with the Trustee not later than 2.00 p.m, on the
Business Day prior to the Coupon Reset Date and the Notes shall be transferred
through a book entry on the books of DTC to the Remarketing Dealer, or the
Company, upon receipt of notice from the Trustee that such funds, together with
accrued interest on the Notes to the Coupon Reset Date, have been received by
the Trustee. The Trustee will distribute to the holders of record of the
purchased/repurchased Notes such principal amount and accrued interest.
If the Remarketing Dealer does not purchase the Notes on the Coupon
Reset Date for the Notes for any reason, the Trustee shall exercise the right of
the holders of the Notes under the Indenture to require the Company to
repurchase the Notes in its entirety at 100% of the principal amount thereof
plus accrued interest on the Coupon Reset Date. By its purchase of the Note the
Holder hereof irrevocably agrees that the Trustee shall exercise this "put"
right on behalf of the holders of the Notes. If the Trustee exercises this "put"
right on behalf of the holders of the
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Notes, the Company is required under the Indenture to deliver to the Trustee in
immediately available funds on the Coupon Reset Date an amount equal to 100% of
the principal amount of the Notes plus accrued interest thereon to the Coupon
Reset Date.
PURCHASE BY THE REMARKETING DEALER; REMARKETING
If the Remarketing Dealer gives notice in writing (the "Remarketing
Notification") to the Company and the Trustee on a Business Day (the
"Notification Date") not later than fifteen calendar days prior to the Coupon
Reset Date of its intention to purchase the Notes for remarketing, the Notes
will be purchased by the Remarketing Dealer at purchase price equal to 100% of
the principal amount hereof on the Coupon Reset Date, except in the
circumstances described below. The obligation of the Remarketing Dealer to
purchase the Notes is subject to several conditions set forth in the Remarketing
Agreement relating to the Notes. Interest accrued to but excluding the Coupon
Reset Date will be paid by the Company on such date to the Holder hereof on the
most recent Record Date. From and after the Coupon Reset Date, the Notes will
bear interest at the Coupon Reset Rate. After purchase of the Notes by the
Remarketing Dealer for remarketing, such Remarketing Dealer may remarket the
Notes for its account at varying prices to be determined by such Remarketing
Dealer at this time of each sale.
The Remarketing Dealer's notice to the Trustee must contain the
requisite delivery details, including the identity of the Remarketing Dealer's
Depositary account. The Remarketing Dealer may revoke its notice, and terminate
its obligation, to remarket the Notes at any time prior to 4:00 p.m., New York
City time, on the third Business Day prior to the Coupon Reset Date. Such
revocation will terminate the Coupon Reset Process.
The Remarketing Dealer's obligation to purchase the Notes will be
terminated and the Coupon Reset Process will terminate upon the occurrence of
certain Termination Events, as defined herein, and may, at the option of the
Remarketing Dealer, be terminated upon the occurrence of other Termination
Events. See "Termination Events".
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<PAGE>
The transactions described above will be executed on the Coupon Reset
Date through the Depositary in accordance with the procedures of the Depositary,
and the accounts of participants will be debited and credited and the Notes
delivered by book-entry as necessary to effect the purchases and sales thereof.
For further information with respect to transfers and settlement through the
Depositary, see "Description of the Notes--Book-Entry System" in the Prospectus
Supplement.
NOTICE TO HOLDERS BY TRUSTEE
In anticipation of the purchase of the Notes by the Remarketing Dealer
or the repurchase of the Notes by the Company on the Coupon Reset Date, the
Trustee will notify the holders of the Notes, not less than 30 days nor more
than 60 days prior to the Coupon Reset Date, that all Notes shall be delivered
on the Coupon Reset Date through the facilities of the Depositary against
payment of a purchase price equal to 100% of the principal amount hereof by the
Remarketing Dealer or the Company and accrued interest thereon to the Coupon
Reset Date which will be paid by the Company.
COUPON RESET PROCESS IF NOTES ARE REMARKETED
If the Remarketing Dealer elects to remarket the Notes, then the
following steps (the "Coupon Reset Process") will be taken in order to determine
the Coupon Reset Rate. The Company and the Remarketing Dealer will use
reasonable efforts to cause the actions contemplated below to be completed in as
timely a manner as possible.
(a) No later than five Business Days prior to the Coupon Reset Date,
the Company will provide the Remarketing Dealer with a list (the "Dealer List"),
containing the names and addresses of not less than three but not more than five
dealers, one of whom shall be the Remarketing Dealer, from whom the Company
desires the Remarketing Dealer to obtain Bids for the purchase of the Notes and
such other material as may reasonably be requested by the Remarketing Dealer to
facilitate a successful Coupon Reset Process.
C-8
<PAGE>
(b) Within one Business Day following receipt by the Remarketing Dealer
of the Dealer List, the Remarketing Dealer will provide to each dealer
("Dealer") on the Dealer List a copy the Prospectus Supplement dated July 24,
1998 (the "Prospectus Supplement") and the accompanying Prospectus dated
February 13, 1998 relating to the offering of the Notes, a copy of the form of
Notes and a written request that each Dealer submit a Bid to the Remarketing
Dealer no later than 3:00 p.m., New York City time, on the third Business Day
prior to the Coupon Reset Date (the "Bid Date"). The time on the Bid date upon
which Bids will be requested may be changed by the Remarketing Dealer. "Bid"
means an irrevocable written offer given by a Dealer for the purchase of all of
the Notes, settling on the Coupon Reset Date, and shall be quoted by such Dealer
as stated yield to maturity quoted to the nearest one hundred-thousandth
(0.00001) of one percent per annum on the Notes ("Yield to Maturity"). Each
Dealer shall also be provided with (i) the name of the Company, (ii) an estimate
of the Remarketing Purchase Price (which shall be stated as a U.S. dollar amount
and be calculated by the Remarketing Dealer in accordance with paragraph (c)
below), (iii) the principal amount and maturity of the Notes and (iv) the method
by which interest will be calculated on the Notes.
(c) The purchase price for the Notes in connection with the Coupon
Reset Process (the "Remarketing Purchase Price") shall be equal to the principal
amount of the Notes, plus a premium (the "Notes Premium") which shall be equal
to the excess, if any, on the Coupon Reset Date of the discounted present value
to the Coupon Reset Date of a bond with a maturity of August 1, 2025 which has
an interest rate of 5.675%, semiannual interest payments on each February 1 and
August 1, commencing February 1, 2006, and a principal amount equal to the
principal amount of the Notes, and assuming a discount rate equal to the
Treasury Rate over such principal amount of Notes. The "Treasury Rate" means the
per annum rate equal to the offer side yield to maturity of the current
on-the-run thirty-year United States Treasury Security per Telerate page 500, or
any successor page, no later than 3:00 p.m., New York City time, on the Bid Date
(or such other time or date that may be agreed upon by the Company and the
Remarketing Dealer)
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<PAGE>
or, if such rate does not appear on Telerate page 500, or any successor page, at
such time, the rates on GovPX End-of-Day Pricing at 3:00 p.m., New York City
time, on the Bid Date (or such other time or date that may be agreed upon by the
Company and the Remarketing Dealer).
(d) The Remarketing Dealer will provide written notice to the Company
as soon as practicable on the Bid Date, setting forth the names of each of the
Dealers from whom the Remarketing Dealer received Bids on the Bid Date, the Bid
submitted by each such Dealer and the Remarketing Purchase Price as determined
pursuant to paragraph (c) above. Except as provided below, the Remarketing
Dealer will thereafter select from the Bids received the Bid with the lowest
Yield to Maturity (the "Selected Bid"); provided, however, that if the
Remarketing Dealer has not received a timely Bid from a Dealer on or before the
Bid Date, the Selected Bid shall be the lowest of all Bids received by such time
and provided, further that if any two or more of the lowest Bids submitted are
equivalent the Company shall in its sole discretion select any of such
equivalent Bids (and such selected bid shall be the Selected Bid). In all cases,
Warburg Dillon Read LLC, in its capacity as a Remarketing Dealer, shall have the
right to match the Bid with the lowest Yield to Maturity in which case J.P.
Morgan Securities Inc.'s Bid shall be the Selected bid. The Remarketing Dealer
will set the Coupon Reset Rate equal to the interest rate that will amortize the
Notes Premium fully over the term of the Notes at the Yield to Maturity
indicated by the Selected Bid.
(e) Immediately after calculating the Coupon Reset Rate for the Notes,
the Remarketing Dealer will provide written notice to the Company and the
Trustee, setting forth the Coupon Reset Rate. The Company shall thereafter
establish a Coupon Reset Rate as the new interest rate on the Notes effective
from and including the Coupon Reset Date by delivery to the Trustee on or before
the Coupon Reset Date of an Officer's Certificate.
THE REMARKETING DEALER
On or prior to the date of original issuance of the Notes, the Company
and J.P. Morgan Securities Inc. (the "Remarketing Dealer") will enter into a
Remarketing Agreement (a
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"Remarketing Agreement"). No holder or beneficial owner of any Notes shall have
any rights or claims under the Remarketing Agreement or against the Company or
the Remarketing Dealer as a result of the Remarketing Dealer not purchasing the
Notes.
The Remarketing Dealer, in its individual or any other capacity, may
buy, sell, hold and deal in any of the Notes. The Remarketing Dealer may
exercise any vote or join in any action which any holder or beneficial owner of
the Notes may be entitled to exercise or take with like effect as if such
Remarketing Dealer did not act in any capacity under its respective Remarketing
Agreement. The Remarketing Dealer in its individual capacity, either as
principal or agent, may also engage in or have an interest in any financial or
other transaction with the Company as freely as if it did not act in any
capacity under its respective Remarketing Agreement.
TERMINATION EVENTS
The Remarketing Dealer's obligations to purchase the Note may be
terminated and the Coupon Reset Process may be terminated, if any of the
following (each a "Termination Event") occurs: (i) an Event of Default occurs
under Section 501, subsections (3) or (4) of the Indenture (in which case,
termination is at the Remarketing Dealer's option); (ii) a default, event of
default or similar condition or event (however described) in respect of the
Company or any of its subsidiaries (individually or collectively)has occurred
under one or more agreements or instruments relating to indebtedness of the
Company or any of its subsidiaries in an aggregate amount of not less than
$20,000,000, which has resulted in such indebtedness becoming due and payable
under such agreements or instruments before it would otherwise have been due and
payable (in which case, termination is at the Remarketing Dealer's option);
(iii) the Company or any of its subsidiaries (individually or collectively) has
defaulted in making one or more payments on the due date thereof in an aggregate
principal amount of not less than $20,000,000 under such agreements or
instruments (after giving effect to any applicable notice requirement or grace
period) (in which case, termination is at the Remarketing Dealer's option); (iv)
an Event of Default has occurred and is continuing under Section 501subsection
(6) or (7) of the Indenture (in
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which case, termination is automatic); (v) the Notes shall have been assigned a
rating below Investment Grade by any of the Rating Agencies, both as defined
below; (vi) on the Bid Date, fewer than two Dealers submit timely Bids
substantially as provided below (in which case, termination is automatic); (vii)
the Company exercises its right to repurchase the Notes as described under
"--Optional Repurchase by the Company" below (in which case, termination is
automatic); (viii) a Defeasance (as defined in the Indenture) or a Covenant
Defeasance (as defined in the Indenture) has occurred pursuant to Section 1302
or Section 1303, respectively, of the Indenture(in which case, termination is
automatic); (ix) the Remarketing Dealer fails to pay the Purchase/Repurchase
Price by 2:00p.m., New York City time, on the Business Day prior to the Coupon
Reset Date as set forth in the Remarketing Agreement (in which case, termination
is automatic); (x) the Remarketing Dealer does not give the Remarketing
Notification (in which case, termination is automatic); (xi) the Remarketing
Dealer validly revokes the Remarketing Notification (in which case, termination
is automatic); or (xi) prior to the Notification Date the Remarketing Dealer
resigns and no successor has been appointed (in which case, termination is
automatic).
For purposes of the foregoing, "Rating Agency" shall mean Standard &
Poor's Corporation and its successors and Moody's Investor's Services, Inc. and
its successors; and "Investment Grade" shall mean that the Company's long-term,
unsecured debt is rated BBB- or higher by S&P and Baa3 or higher by Moody's.
If the Remarketing Dealer's obligation to purchase the Notes is
terminated by the Remarketing Dealer or the Company, notice of such termination
will be immediately given in writing to the Trustee by the Remarketing Dealer or
the Company, as the case may be. If such obligation so terminates or is
automatically terminated, the Company will repurchase the Notes on the Coupon
Reset Date as described below.
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MANDATORY REPURCHASE BY THE COMPANY
If the Remarketing Agent does not give the Remarketing Notification as
to the Notes or if it revokes its Notification for any reason, the Trustee shall
exercise the rights of the holders of the Notes under the Indenture to require
the Company to repurchase the entire principal amount of the Notes on the Coupon
Reset Date at 100% of the principal amount of the Notes plus accrued interest
thereon to the Coupon Reset Date. In addition, if any Termination Event occurs,
the Company will repurchase the entire principal amount of the Notes on the
applicable Coupon Reset Date at 100% of the principal amount of the Notes plus
accrued and unpaid interest, if any, on the Notes.
OPTIONAL REPURCHASE BY THE COMPANY
If the Remarketing Dealer gives the Remarketing Notification, then, not
later than the fourth Business Day following the Notification Date, the Company
may irrevocably elect, by notice in writing to the Remarketing Dealer and the
Trustee, to terminate the Coupon Reset Process whereupon the Company will
repurchase the entire principal amount of the Notes on the Coupon Reset Date at
the purchase price equal to 100% of the principal amount hereof plus accrued and
unpaid interest, if any on the Notes.
GENERAL MATTERS
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 Notes with the consent of the
holders of not less than a majority in principal amount of the Outstanding
Notes. The Indenture also contains provisions permitting the holders of not less
than a majority in principal amount of the Outstanding Notes, on behalf of the
holders of all the Notes, 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
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exchange hereof or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
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 any premium and interest
on this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registerable in the Note Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium and interest on
this Note are payable, duly endorsed by, or accompanied by a written instrument
of transfer in form satisfactory to the Company and the Registrar duly executed
by, the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Notes and of like tenor, of authorized denominations and for the
same aggregate principal amount, will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes and of like tenor of
a different authorized denomination, as requested by the Holder surrendering the
same.
Terms used herein which are defined in the Indenture shall have the
receptive 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.
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_____________________
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 of regulations:
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)
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 ZIP CODE OF ASSIGNEE
________________________________________________________________________________
________________________________________________________________________________
the within Note of Bausch & Lomb Incorporated and does hereby irrevocably
constitute and appoint ________________________ attorney to transfer 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 whatever.
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