<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER __, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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FORM S-3
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
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BECTON, DICKINSON AND COMPANY
(Exact name of Registrant as specified in its charter)
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NEW JERSEY 22-0760120
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
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1 Becton Drive,
Franklin Lakes, New Jersey 07417-1880
(201) 847-6800
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
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JOHN W. GALIARDO
VICE CHAIRMAN AND GENERAL COUNSEL
BECTON, DICKINSON AND COMPANY
1 BECTON DRIVE, FRANKLIN LAKES, NEW JERSEY 07417-1880
(201) 847-6800
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time to
time after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration number of the earlier effective registration statement for the same
offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH CLASS AMOUNT PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
OF SECURITIES TO BE REGISTERED TO BE AGGREGATE PRICE PER AGGREGATE OFFERING REGISTRATION FEE
REGISTERED UNIT PRICE
<S> <C> <C> <C> <C>
Debt Securities $400,000,000 (1)(2) 100 % (3) $400,000,000 (2)(3) $121,213 (2)
- -------------------------------------------------------------------------------------------------------------------------
Warrants to Purchase Debt Securities (4)
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Or, if any Debt Securities are issued (i) at an original issue discount,
such greater principal amount as shall result in an aggregate initial offering
price of not more than $400,000,000 or (ii) with a principal amount denominated
in a foreign or composite currency, such principal amount as shall result in an
aggregate initial offering price equivalent to $400,000,000.
(2) Does not include an additional $100,000,000 of securities being carried
forward from the Registrant's Registration Statement No. 333-23559 on Form S-3
pursuant to Rule 429 of the Securities Act of 1933. A registration fee of
$30,303 for such additional securities was previously paid with the filing of
such previous registration statement.
(3) Estimated solely for the purposes of determining the registration fee.
Exclusive of accrued interest, if any.
(4) Warrants may be issued to purchase Debt Securities. The amount to be
registered is the maximum aggregate principal amount of Debt Securities to be
issued with or without any such Warrants and includes all Debt Securities
deliverable upon the exercise of such Warrants.
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
Pursuant to Rule 429 under the Securities Act of 1933, this Registration
Statement contains a prospectus that also relates to and describes $100,000,000
of Debt Securities registered under, and constitutes Post-Effective Amendment
No. 1 to, Registration Statement No. 333-23559 on Form S-3 previously filed by
the Registrant and declared effective on March 28, 1997.
================================================================================
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement becomes
effective. This prospectus shall not constitute an offer to sell or the
solicitation of an offer to buy nor shall there be any sale of these securities
in any state in which such offer, solicitation or sale would be unlawful prior
to registration or qualification under the securities laws of any such state.
SUBJECT TO COMPLETION, DATED OCTOBER 17, 1997
BECTON, DICKINSON AND COMPANY
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
Becton, Dickinson and Company (the "Company") from time to time may offer, at
an aggregate initial offering price not to exceed $500,000,000, its unsecured
debt securities consisting of debentures, notes or other unsecured evidences of
indebtedness (the "Debt Securities") and warrants to purchase Debt Securities
(the "Warrants" and, together with the Debt Securities, the "Securities"). The
Debt Securities and Warrants may be offered, separately or together, in separate
series, in amounts, at prices and on terms to be determined at the time of sale
and to be set forth in supplements to this Prospectus (each, a "Prospectus
Supplement"). The Company may sell the Securities to or through underwriters,
and also may sell the Securities directly to other purchasers or through agents.
See "Plan of Distribution."
The terms of the Securities, including with respect to the Debt Securities,
the specific designation, aggregate principal amount, denominations, maturity,
rate (which may be fixed or variable) and time of payment of interest, if any,
and terms for redemption, and, with respect to any Warrants, where applicable,
the offering price, exercise price, duration and detachability, and the names
and compensation of any underwriters or agents and the other terms in connection
with the offering and sale of the Securities in respect of which this Prospectus
is being delivered, will be set forth in the Prospectus Supplement relating to
such Securities. As used herein, Securities shall include securities
denominated in United States dollars or, at the option of the Company, if so
specified in the applicable Prospectus Supplement, in any other currency,
including composite currencies. This Prospectus may not be used to consummate
sales of Securities unless accompanied by the Prospectus Supplement applicable
to the Securities being sold.
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THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF
THIS PROSPECTUS. ANY REPRESENTATION TO
THE CONTRARY IS A CRIMINAL OFFENSE.
---------------
THE DATE OF THIS PROSPECTUS IS OCTOBER __, 1997
<PAGE>
NO DEALER, SALESMAN OR OTHER PERSON HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED IN THIS PROSPECTUS OR
ANY PROSPECTUS SUPPLEMENT AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATION MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE COMPANY
OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS AND ANY PROSPECTUS
SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO
BUY ANY OF THE SECURITIES IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH AN OFFER IN SUCH JURISDICTION. NEITHER THE DELIVERY OF
THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT NOR ANY SALE MADE HEREUNDER OR
THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION THAT THERE HAS
BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF OR
THAT INFORMATION CONTAINED OR INCORPORATED BY REFERENCE HEREIN OR THEREIN IS
CORRECT AS OF ANY TIME SUBSEQUENT TO ITS DATE.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN OR OTHERWISE AFFECT THE PRICE OF THE SECURITIES, INCLUDING
OVERALLOTMENT, STABILIZING AND SHORT COVERING TRANSACTIONS IN SUCH SECURITIES,
AND THE IMPOSITION OF A PENALTY BID, DURING AND AFTER THE OFFERING. FOR A
DESCRIPTION OF THESE ACTIVITIES, SEE "PLAN OF DISTRIBUTION."
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith, files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities maintained by the Commission at Room
1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
Regional Offices located at 7 World Trade Center, Suite 1300, New York, New York
10048, and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661. Copies
of such materials can also be obtained upon written request from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a World Wide Web site that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The address
of the site is http://www.sec.gov. The Company's Common Stock is listed on the
New York Stock Exchange, and reports, proxy statements and other information
concerning the Company can also be inspected and copied at the offices of the
New York Stock Exchange, 20 Broad Street, New York, New York 10005.
This Prospectus does not contain all of the information contained in the
Registration Statement filed by the Company with the Commission under the
Securities Act of 1933, as amended (the "Securities Act"), and reference is
hereby made to the Registration Statement and to the exhibits thereto for
further information with respect to the Company and the Securities offered
hereby.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which are on file with the Commission pursuant to the
Exchange Act (File No. 1-4802), are incorporated herein by reference and made a
part hereof:
(a) The Company's most recently filed Annual Report on Form 10-K;
(b) The Company's Quarterly Reports on Form 10-Q filed since the end of the
Company's fiscal year covered by its most recent Annual Report on Form 10-K;
(c) The Company's Current Reports on Form 8-K filed since the end of the
Company's fiscal year covered by its most recent Annual Report on Form 10-K; and
<PAGE>
(d) All other documents filed by the Company pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act, filed since the end of the Company's
fiscal year covered by its most recent Annual Report on Form 10-K and prior to
the termination of the offering of the Securities hereunder.
Any statement contained in a document, all or a portion of which is
incorporated or deemed to be incorporated by reference herein, shall be deemed
to be modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any such statement so modified shall not be deemed
to constitute a part of this Prospectus except as so modified, and any statement
so superseded shall not be deemed to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of any such person, a copy of any and all of the
documents incorporated herein by reference, other than exhibits to such
documents (unless such exhibits are specifically incorporated by reference into
such documents). Requests for such copies should be directed to the Secretary,
Becton, Dickinson and Company, 1 Becton Drive, Franklin Lakes, New Jersey 07417-
1880, telephone (201) 847-6800.
THE COMPANY
The Company was incorporated under the laws of the State of New Jersey in
November 1906, as successor to a New York business started in 1897. Its
executive offices are located at 1 Becton Drive, Franklin Lakes, New Jersey
07417-1880 and its telephone number is (201) 847-6800. All references herein to
the "Company" refer to Becton, Dickinson and Company and its domestic and
foreign subsidiaries unless otherwise indicated by the context.
The Company is engaged principally in the manufacture and sale of a broad line
of medical supplies and devices and diagnostic systems used by health care
professionals, medical research institutions and the general public. The
Company's operations are comprised of two worldwide business segments, Medical
Supplies and Devices ("Medical") and Diagnostic Systems ("Diagnostic").
The major products in the Company's Medical segment are hypodermic products,
specially designed devices for diabetes care, prefillable drug delivery systems,
vascular access products and specialty and surgical blades. The Medical segment
also includes specialty needles, drug infusion systems, disposable scrubs,
elastic support products and thermometers.
The major products in the Company's Diagnostic segment are manual and
instrumented microbiology products, sample collection products, flow cytometry
systems for cellular analysis, tissue culture labware, hematology instruments
and other diagnostic systems, including immunodiagnostic test kits.
The Company's products are manufactured and sold worldwide. The principal
markets for the Company's products outside of the United States are Europe,
Japan, Mexico, Asia-Pacific, Canada and Brazil. The principal products sold by
the Company outside the United States are hypodermic needles and syringes,
diagnostic systems, VACUTAINER (R) brand sample collection products, HYPAK (R)
brand prefillable syringe systems and infusion therapy products. The Company
has manufacturing operations in Australia, Brazil, China, France, Germany,
Ireland, Japan, Mexico, Singapore, Spain, the United Kingdom and the United
States, and in 1996 commenced construction of a hypodermic syringe manufacturing
facility in India.
The Company's products and services are marketed in the United States both
through independent distribution channels and directly to end-users. The
Company's products are marketed outside of the United States through independent
distributors and sales representatives, and in some markets directly to end-
users.
2
<PAGE>
USE OF PROCEEDS
Except as may be set forth in the Prospectus Supplement with respect to any
Securities, the net proceeds to the Company from the sale of the Securities
offered hereby will be added to the general funds of the Company and may be used
to repay outstanding debt and to meet capital expenditure and working capital
requirements. The Company has not allocated a specific portion of the net
proceeds for any particular use at this time. Pending application of the net
proceeds, such proceeds may be invested in marketable securities.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for the
Company for the periods indicated.
<TABLE>
<CAPTION>
NINE MONTHS YEAR ENDED SEPTEMBER 30,
ENDED JUNE ----------------------------
30, 1997 1996 1995 1994 1993 1992
-------- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges
(unaudited)........................ 6.60 6.25 5.43 4.59 3.49 3.68
</TABLE>
Earnings used to compute this ratio are earnings before income taxes and the
cumulative effect of accounting changes and before fixed charges (excluding, for
purposes of such computation, interest capitalized during the period) and after
excluding undistributed earnings and losses of minority-owned affiliates. Fixed
charges consist of interest, whether expensed or capitalized, amortization of
debt discount and expense and the portion of rental expense representative of an
interest factor.
DESCRIPTION OF DEBT SECURITIES
The following description sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement and
the extent, if any, to which such general provisions may apply to the Debt
Securities so offered will be described in the Prospectus Supplement relating to
such Debt Securities.
The Debt Securities are to be issued under an Indenture, dated as of March 1,
1997 (the "Indenture"), between the Company and The Chase Manhattan Bank, as
Trustee (the "Trustee") (a copy of which is filed (by incorporation by
reference) with the Commission as an exhibit to the Registration Statement of
which this Prospectus is a part). The following summaries of certain provisions
of the Indenture do not purport to be complete and are subject to, and are
qualified in their entirety by reference to, all of the provisions of the
Indenture, including the definitions therein of certain terms capitalized in
this Prospectus. Wherever particular provisions or defined terms of the
Indenture are referred to, such provisions or defined terms are incorporated
herein by reference.
GENERAL
The Debt Securities will be unsecured and unsubordinated obligations of the
Company. The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and provides that Debt Securities may
be issued thereunder from time to time in one or more series.
3
<PAGE>
The Debt Securities will be issued in registered form without coupons unless
otherwise provided in a supplemental indenture or Board Resolution (Section
2.03). Unless otherwise provided in a Prospectus Supplement, principal (unless
the context otherwise requires, "principal" includes premium, if any) of and any
interest on the Debt Securities will be payable, and the Debt Securities will be
exchangeable and transfers thereof will be registrable, at an office or agency
designated for the Debt Securities, provided that, at the option of the Company,
payment of interest may be made by check to the address of the Person entitled
thereto as it appears in the Security Register (Sections 2.04 and 2.06). Subject
to the limitations provided in the Indenture, such services will be provided
without charge, other than any tax or other governmental charge payable in
connection therewith (Section 2.06).
Reference is made to the Prospectus Supplement for the following terms of the
Debt Securities of each series offered thereby (to the extent such terms are
applicable to such Debt Securities): (a) the designation of the Debt Securities
of the series; (b) any limit upon the aggregate principal amount of the Debt
Securities of the series and any limitation on the ability of the Company to
increase such aggregate principal amount after the initial issuance of such Debt
Securities; (c) any date on which the principal of the Debt Securities of the
series is payable (which date may be fixed or extendible); (d) any rate (which
may be fixed or variable) per annum at which any Debt Securities of the series
shall bear interest, any interest accrual, payment and record dates and/or any
method by which any such rate or date shall be determined; (e) if other than as
provided in the Indenture, any place where principal of and interest on Debt
Securities of the series shall be payable, where Debt Securities of the series
may be surrendered for exchange, where notices or demands may be served and
where notice to Holders may be published and any time of such payment at any
place of payment; (f) any right of the Company to redeem Debt Securities of the
series and any terms thereof; (g) any obligation of the Company to redeem,
purchase or repay Debt Securities of the series and any terms thereof; (h) if
other than denominations of $1,000 and any integral multiple thereof, the
denominations in which Debt Securities of the series shall be issuable; (i) if
other than the principal amount thereof, the portion of the principal amount of
Debt Securities of the series which shall be payable upon declaration of
acceleration of the maturity thereof; (j) if other than the coin or currency in
which the Debt Securities of the series are denominated, the coin or currency in
which payment of the principal of or interest on the Debt Securities of the
series shall be payable or, if the amount of any payments of principal of and/or
interest on the Debt Securities of the series may be determined with reference
to an index based on a coin or currency other than that in which the Debt
Securities of the series are denominated, the manner in which such amounts shall
be determined; (k) if other than the currency of the United States of America,
the currency or currencies, including composite currencies, in which payment of
the principal of and interest on the Debt Securities of the series shall be
payable, and the manner in which any such currencies shall be valued against
other currencies in which any other Debt Securities shall be payable; (l) any
obligation of the Company to pay additional amounts on the Debt Securities of
the series in respect of any tax, assessment or governmental charge withheld or
deducted and any right of the Company to redeem such Debt Securities rather than
pay such additional amounts; (m) any provisions for the Debt Securities of the
series to be issued in bearer form, with or without coupons, and if the Debt
Securities of the series are to be issuable in definitive form (whether upon
original issue or upon exchange of a temporary Debt Security of such series)
only upon receipt of certain certificates or other documents or satisfaction of
other conditions, the form and terms of such certificates, documents or
conditions; (n) if other than the Person acting as Trustee, any Agent acting
with respect to the Debt Securities of the series; (o) any provisions for the
defeasance of any Debt Securities of the series in addition to, in substitution
for or in modification of the provisions described in "Defeasance and Covenant
Defeasance;" (p) the identity of any Depositary for Registered Global Securities
of the series other than The Depository Trust Company and any circumstances
other than those described in "Global Securities" in which any Person may have
the right to obtain Debt Securities in exchange therefor; (q) any provisions for
Events of Default applicable to any Debt Securities of the series in addition
to, in substitution for or in modification of those described in "Events of
Default;" (r) any provision for covenants applicable to any Debt Securities of
the series in addition to, in substitution for or in modification of those
described in "Covenants;" and (s) any other terms of the Debt Securities of the
series not inconsistent with the Indenture (Section 2.03).
Debt Securities may be issued under the Indenture as Original Issue Discount
Securities to be offered and sold at a substantial discount from the principal
amount thereof. If any Debt Securities are Original Issue Discount Securities,
special federal income tax, accounting and other considerations applicable
thereto will be described in the Prospectus Supplement relating thereto.
"Original Issue Discount Security" means any security which provides for an
amount
4
<PAGE>
less than the principal amount thereof to be due and payable upon the
declaration of acceleration of the maturity thereof upon the occurrence of an
Event of Default and the continuation thereof. (Section 1.01)
GLOBAL SECURITIES
The Debt Securities of each series may be issued in the form of one or more
fully registered global Debt Securities (each a "Registered Global Security")
registered in the name of The Depository Trust Company (the "Depositary") or a
nominee thereof, unless otherwise established for the Debt Securities of such
series. Except as described in a Prospectus Supplement hereto, Debt Securities
in definitive form will not be issued. Unless and until a Registered Global
Security is exchanged in whole or in part for Debt Securities in definitive
form, it may not be registered for transfer or exchange except as a whole by the
Depositary for such Registered Global Security to a nominee of such Depositary
or by such Depositary or any such nominee to a successor Depositary or a nominee
of such successor Depositary (Section 2.06).
Upon the issuance of any Registered Global Security, and the deposit of such
Registered Global Security with or on behalf of the Depositary, the Depositary
will credit, on its book-entry registration and transfer system, the respective
principal amounts of the Debt Securities represented by such Registered Global
Security to the accounts of institutions ("participants") entitled thereto that
have accounts with the Depositary designated by the underwriters or their agents
engaging in any distribution of the Debt Securities. Ownership of beneficial
interests in a Registered Global Security will be limited to participants or
Persons that may hold interests through participants. Ownership of beneficial
interests by participants in a Registered Global Security will be shown on, and
the transfer of such beneficial interests will be effected only through, records
maintained by the Depositary or by its nominee. Ownership of beneficial
interests in a Registered Global Security by Persons that hold through
participants will be shown on, and the transfer of such beneficial interests
within such participants will be effected only through, records maintained by
such participants. The laws of some jurisdictions require that certain
purchasers of securities take physical delivery of such securities in
certificated form. The foregoing limitations and such laws may impair the
ability to own, transfer or pledge beneficial interests in Registered Global
Securities.
As long as the Depositary, or its nominee, is the registered owner of a
Registered Global Security, the Depositary or such nominee, as the case may be,
will be considered the sole owner or holder of the Debt Securities represented
by such Registered Global Security for all purposes under the Indenture. Except
as specified below, owners of beneficial interests in a Registered Global
Security will not be entitled to have Debt Securities represented by such
Registered Global Security registered in their names, will not receive or be
entitled to receive physical delivery of Debt Securities in certificated form
and will not be considered the Holders thereof for any purposes under the
Indenture (Section 2.06). Accordingly, each Person owning a beneficial interest
in a Registered Global Security must rely on the procedures of the Depositary
and, if such Person is not a participant, on the procedures of the participant
through which such person owns its interest, to exercise any rights of a holder
of Debt Securities under the Indenture. The Depositary may grant proxies and
otherwise authorize participants to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action which a holder
of Debt Securities is entitled to give or take under the Indenture. The Company
understands that, under existing industry practices, if the Company requests any
action of holders of Debt Securities or any owner of a beneficial interest in a
Registered Global Security desires to give any notice or take any action a
holder of Debt Securities is entitled to give or take under the Indenture, the
Depositary would authorize the participants holding the relevant beneficial
interests to give such notice or take such action, and such participants would
authorize the beneficial owners owning through such participants to give such
notice or take such action or would otherwise act upon the instructions of the
beneficial owners owning through them.
The Depositary or a nominee thereof, as holder of record of a Registered
Global Security, will be entitled to receive payments of principal and interest
for payment to beneficial owners in accordance with customary procedures
established from time to time by the Depositary. On the date hereof, the agent
for the payment, transfer and exchange of the Securities is the Trustee
therefor, acting through its Corporate Trust Office located in the Borough of
Manhattan, The City of New York.
5
<PAGE>
The Company expects that the Depositary, upon receipt of any payment of
principal or interest in respect of a Registered Global Security, will
immediately credit participants' accounts with payments in amounts proportionate
to their respective beneficial interests in the principal amount of such
Registered Global Security as shown on the records of the Depositary. The
Company also expects that payments by participants to owners of beneficial
interests in a Registered Global Security held through such participants will be
governed by standing instructions and customary practices, and will be the
responsibility of such participants. None of the Company, the Trustee or any
agent of the Company or the Trustee shall have any responsibility or liability
for any aspect of the records relating to or payments made on account of
beneficial ownership interests in a Registered Global Security, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests (Section 2.13).
If the Depositary is at any time unwilling or unable to continue as Depositary
or ceases to be a clearing agency registered or in good standing under the
Exchange Act, and a successor depositary registered as a clearing agency under
the Exchange Act is not appointed by the Company within 90 days, if the Company
determines that Debt Securities shall no longer be maintained as Registered
Global Securities, or, if at any time an Event of Default shall have occurred
and be continuing under the Indenture, the Company will issue Debt Securities in
definitive certificated form in exchange for the Registered Global Securities
(Section 2.06).
In the event that the book-entry system is discontinued, the following
provisions shall apply. The Trustee or any successor registrar under the
Indenture shall keep a register for the Debt Securities in definitive
certificated form at its Corporate Trust Office. Subject to the further
conditions contained in the Indenture, Debt Securities in definitive
certificated form may be transferred or exchanged for one or more Debt
Securities in different authorized denominations upon surrender thereof at the
Corporate Trust Office of the Trustee or any successor Registrar under the
Indenture by the registered Holders or their duly authorized attorneys. Upon
surrender of any Debt Security to be transferred or exchanged, the Trustee or
any successor registrar under the Indenture shall record the transfer or
exchange in the Security Register and the Company shall issue, and the Trustee
shall authenticate and deliver, new Debt Securities in definitive certificated
form appropriately registered and in appropriate authorized denominations
(Section 2.06). The Trustee shall be entitled to treat the registered Holders
of the Debt Securities in definitive certificated form, as their names appear in
the Security Register as of the appropriate date, as the owners of such Debt
Securities for all purposes under the Indenture (Section 2.13).
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company shall not consolidate or merge with any other Person, sell,
transfer, lease or otherwise dispose of all or substantially all of its
properties and assets as an entirety in one transaction or series of
transactions to any Person, or allow another Person to sell, transfer, lease or
otherwise dispose of substantially all of its assets to the Company unless (a)
either (i) the Company shall be the surviving Person or (ii) such Person shall
be a corporation organized and validly existing under the laws of the United
States of America or any State thereof or the District of Columbia and shall
expressly assume by a supplemental indenture all of the Company's obligations
under the Debt Securities and under the Indenture; (b) immediately before and
after such transaction or each element of such series, no Default or Event of
Default shall have occurred and be continuing; and (c) certain other conditions
are met. Upon any such consolidation, merger, sale, transfer, lease or other
disposition, the successor corporation formed by such consolidation, or into
which the Company is merged, or to which such sale, transfer, lease or other
disposition is made, shall succeed to, and be substituted for, and may exercise
every right and power of the Company under the Indentures and under the Debt
Securities (Section 5.02).
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to Debt
Securities of any series: (a) failure to pay any installment of interest on any
Debt Security of such series when due and the continuance of such failure for 30
days; (b) failure to pay the principal of any Debt Security of such series when
due; (c) failure to deposit any sinking fund payment, when due, in respect of
any Debt Security of such series; (d) failure for 60 days after notice to the
Company by the Trustee, or by the Holders of 25% in aggregate principal amount
of the Debt Securities of such series then outstanding, to perform or observe
any other covenant, condition or agreement in the Debt Securities of such series
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or in the Indenture (other than a covenant included in the Indenture solely for
the benefit of a series of Debt Securities other than that series); (e) certain
events of bankruptcy, insolvency or reorganization of the Company; or (f) any
other Event of Default established for the Debt Securities of such series
(Section 6.01).
The Indenture provides that, if an Event of Default with respect to the Debt
Securities of any series then outstanding thereunder occurs and is continuing,
then, either the Trustee for or the Holders of not less than 25% in aggregate
principal amount of the Debt Securities of any such affected series then
outstanding (each such series treated as a separate class) by notice in writing
to the Company (and to the Trustee if given by the Holders), may declare the
entire principal (or, if the Debt Securities of any such series are Original
Issue Discount Securities, such portion of the principal amount as may be
established for such series) of all Debt Securities of such affected series, and
the interest accrued thereon, if any, to be due and payable immediately, and
upon any such declaration the same shall become immediately due and payable
(Section 6.02). However, at any time after a declaration of acceleration with
respect to Debt Securities of any series has been made, but before a judgment or
decree based on such acceleration has been obtained, the Holders of a majority
in principal amount of the Debt Securities of that series may, under certain
circumstances, rescind and annul such declaration (Section 6.02).
The Company is required to furnish to the Trustee annually an Officer's
Certificate as to the Company's compliance with all conditions and covenants
under the Indenture. The Company must notify the Trustee within five days of
any Default or Event of Default (Section 4.06).
The Indenture provides that the Trustee thereunder will, within 60 days after
the occurrence of a Default with respect to the Debt Securities of any series,
give to the Holders of the Debt Securities notice of all Defaults with respect
to such series known to such Trustee, provided that, except in the case of a
Default in payment on the Debt Securities or sinking fund installment with
respect thereto, the Trustee may withhold such notice if and so long as a
Responsible Officer in good faith determines that withholding such notice is in
the interest of the Holders of the Debt Securities (Section 7.05). "Default"
means any event which is, or after notice or passage of time or both would be,
an Event of Default (Section 1.01).
The Indenture provides that the holders of a majority in aggregate principal
amount of the then outstanding Debt Securities thereunder, by notice to the
Trustee therefor, may direct the time, method and place of conducting any
proceeding for any remedy available to such Trustee, or exercising any trust or
power conferred on such Trustee (Section 6.05).
Subject to the further conditions contained in the Indenture, the holders of a
majority in aggregate principal amount outstanding of the Debt Securities of any
series may waive, on behalf of the holders of all Debt Securities of such
series, any past Default or Event of Default and its consequences except a
Default or Event of Default (a) in the payment of the principal of or interest,
if any, on any Debt Security of such series or (b) in respect of a covenant or
provision of such Indenture which cannot under the terms of the Indenture be
amended or modified without the consent of the holder of each outstanding Debt
Security adversely affected thereby (Section 6.04).
The applicable Prospectus Supplement will describe any provisions for Events
of Default applicable to the Debt Securities of any series in addition to, in
substitution for, or in modification of, the provisions described above.
CERTAIN COVENANTS OF THE COMPANY
DEFINITIONS
"Attributable Debt" is defined to mean, as to any particular lease, the total
net amount of rent (discounted at a rate per annum equivalent to the interest
rate inherent in such lease, as determined in good faith by the Company,
compounded semiannually) required to be paid during the remaining term of such
lease, including any period for which such lease has been extended or may, at
the option of the lessor, be extended. (Section 1.01)
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"Consolidated Net Tangible Assets" is defined as the total amount of assets of
the Company and its Restricted Subsidiaries (less applicable reserves and other
properly deductible items) after deducting (i) all current liabilities
(excluding any liabilities constituting Funded Debt by reason of being renewable
or extendible), (ii) all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles, (iii) investments in and
advances to Subsidiaries which are not Restricted Subsidiaries, and (iv)
minority interests in the equity of Restricted Subsidiaries. (Section 1.01)
"Funded Debt" is defined to mean all indebtedness for borrowed money maturing
more than 12 months after the time of computation thereof, guarantees of such
indebtedness of others (except guarantees of collection arising in the ordinary
course of business), and all obligations in respect of lease rentals which,
under generally accepted accounting principles, are shown on a balance sheet as
a non-current liability. (Section 1.01)
"Principal Property" is defined to mean any building, structure or other
facility (together with the land on which it is erected and fixtures comprising
a part thereof) now owned or hereafter acquired by the Company or any Restricted
Subsidiary and used primarily for manufacturing, processing or warehousing and
located in the United States (excluding its territories and possessions, but
including Puerto Rico), the gross book value (without deduction of any
depreciation reserves) of which is in excess of 2.0% of Consolidated Net
Tangible Assets, other than any such building, structure or other facility or
portion thereof which, in the opinion of the Board of Directors of the Company,
is not of material importance to the total business conducted by the Company and
its Restricted Subsidiaries as an entirety. (Section 1.01)
"Restricted Subsidiary" is defined to mean any Subsidiary substantially all of
the property and operations of which are located in the United States (excluding
its territories and possessions, but including Puerto Rico), and which owns or
leases a Principal Property, except a Subsidiary which is primarily engaged in
the business of a finance company. (Section 1.01)
"Subsidiary" is defined to mean a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and by one or more other
Subsidiaries. (Section 1.01)
Restrictions on Secured Debt
If the Company or any Restricted Subsidiary shall incur, issue, assume or
guarantee any Debt secured by a Mortgage on any Principal Property or on any
shares of stock or Debt of any Restricted Subsidiary, the Company will secure,
or cause such Restricted Subsidiary to secure, the Debt Securities (and, if the
Company so elects, any other Debt of the Company or such Restricted Subsidiary
which is not subordinate to the Debt Securities) equally and ratably with (or
prior to) such secured Debt, unless after giving effect thereto the aggregate
amount of all such Debt so secured, together with all Attributable Debt of the
Company and its Restricted Subsidiaries in respect of certain sale and leaseback
transactions involving Principal Properties, would not exceed 10% of
Consolidated Net Tangible Assets. This restriction will not apply to, and there
shall be excluded in computing secured Debt for the purpose of such restriction,
Debt secured by (a) Mortgages existing on properties on the date of the
Indenture, (b) Mortgages on properties, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation), purchase money Mortgages and construction Mortgages, (c)
Mortgages on property of, or on any shares of stock or Debt of, any corporation
existing at the time such corporation becomes a Restricted Subsidiary, (d)
Mortgages in favor of Federal and State governmental bodies to secure progress,
advance or other payments pursuant to any contract or provision of any statute,
(e) Mortgages in favor of the Company or a Restricted Subsidiary, (f) Mortgages
in connection with the issuance of certain tax-exempt industrial development
bonds, (g) Mortgages under workers' compensation laws, unemployment insurance
laws or similar legislation, or certain deposits including those to secure
statutory obligations or certain bonds (or pledges or deposits for similar
purposes in the ordinary course of business), or liens imposed by law and
certain other liens or other encumbrances, and (h) subject to certain
limitations, any extension, renewal or replacement of any Mortgage referred to
in the foregoing clauses (a) through (g), inclusive. (Section 4.04)
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Restrictions on Sale and Leasebacks
Neither the Company nor any Restricted Subsidiary may enter into any sale and
leaseback transaction involving the taking back of a lease, for a period of
three or more years, of any Principal Property, the acquisition, completion of
construction or commencement of full operation of which has occurred more than
120 days prior thereto, unless (a) the commitment to enter into such sale and
leaseback transaction was obtained during such 120 day period, (b) the Company
or such Restricted Subsidiary could create Debt secured by a Mortgage on such
Principal Property as described under "Restrictions on Secured Debt" above in an
amount equal to the Attributable Debt with respect to such sale and leaseback
transaction without equally and ratably securing the Debt Securities, (c) the
Company, within 120 days after the sale or transfer shall have been made,
applies to the retirement of its Funded Debt an amount (the "Designated
Amount"), subject to credits for certain voluntary retirements of Funded Debt,
equal to the greater of (i) the net proceeds of the sale of such Principal
Property and (ii) the fair market value of such Principal Property, or (d) the
Company or any Restricted Subsidiary, within a period commencing 180 days prior
to and ending 180 days after the sale or transfer, has expended or reasonably
expects to expend within such period any monies to acquire or construct any
Principal Property or Properties in which event the Company or such Restricted
Subsidiary may enter into such sale and leaseback transaction, but (unless
certain other conditions are met) only to the extent that the Designated Amount
in respect thereof is less than such monies expended or to be expended. This
restriction will not apply to any sale and leaseback transactions between the
Company and a Restricted Subsidiary or between a Restricted Subsidiary and
another Restricted Subsidiary. (Section 4.05)
MODIFICATION AND WAIVER
The Indenture contains provisions permitting the Company and the Trustee to
enter into one or more supplemental indentures without the consent of the
holders of Debt Securities in order (a) to evidence the succession of another
corporation to the Company and the assumption of the covenants of the Company by
such successor, (b) to provide for a successor Trustee with respect to the Debt
Securities of all or any series, (c) to establish the forms and terms of the
Debt Securities of any series, (d) to provide for uncertificated or unregistered
Debt Securities, or (e) to cure any ambiguity or correct any mistake or to make
any change that does not materially adversely affect the legal rights of any
holder of the Debt Securities under such Indenture (Section 9.01).
The Indenture also contains provisions permitting the Company and the Trustee,
with the consent of the holders of a majority in aggregate principal amount of
the then outstanding Debt Securities of any series, to execute supplemental
indentures adding any provisions to or changing or eliminating any of the
provisions of the Indenture or any supplemental indenture or modifying the
rights of the holders of such Debt Securities, except that no such supplemental
indenture, or any amendment or waiver, may, without the consent of the holder of
each Debt Security, (a) extend the stated maturity of the principal of, or any
sinking fund obligation or any installment of interest on, such holder's Debt
Security, or reduce the principal amount thereof or the rate of interest thereon
(including any amount in respect of original issue discount), or any premium
payable with respect thereto, or adversely affect the rights of such Holder
under any mandatory redemption or repurchase provision or any right of
redemption or repurchase at the option of the Company or such Holder, or reduce
the amount of the principal of an Original Issue Discount Security that would be
due and payable upon an acceleration of the maturity thereof or the amount
thereof provable in bankruptcy, or change any place of payment where, or the
currency in which, any Debt Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any such
payment on or after the due date therefor, or change the manner of determining
any of the foregoing; (b) reduce the percentage in principal amount of
outstanding Debt Securities of the relevant series, the consent of whose Holders
is required for any such supplemental indenture, for any waiver of compliance
with certain provisions of this Indenture or certain Defaults and their
consequences provided for in this Indenture; (c) waive a Default in the payment
of principal of or interest on any Debt Security of such Holder; (d) change any
obligation of the Company to maintain an office or agency in the places and for
the purposes in the Indenture provided; or (e) modify any of the foregoing
provisions, except to increase any such percentage or to provide that certain
other provisions of the Indenture cannot be modified or waived without the
consent of the Holder of each outstanding Debt Security affected thereby
(Section 9.02). After a supplemental indenture, amendment or waiver becomes
effective, the Company shall mail a notice to the holders of the Debt Securities
affected thereby briefly describing the supplemental indenture, amendment or
waiver (Section 9.02).
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DEFEASANCE AND COVENANT DEFEASANCE
Unless the terms of the Debt Securities of any series provide otherwise, the
Company may elect either (a) to defease and be discharged from any and all
obligations with respect to (i) Debt Securities of any series payable within one
year or (ii) other Debt Securities of any series upon certain conditions
described below (except as otherwise provided in the Indenture) ("defeasance")
or (b) to be released from its obligations with respect to certain covenants
applicable to the Debt Securities of any series ("covenant defeasance"), upon
(or, with respect to defeasance of Debt Securities payable later than one year
from the date of defeasance, on the 91st day after) the deposit with the
Trustee, in trust for such purpose, of money and/or U.S. Government Obligations
which through the payment of principal and interest in accordance with their
terms will provide money in an amount sufficient without reinvestment to pay the
principal of and interest on the Debt Securities and the satisfaction of certain
other conditions set forth in such Indenture. As a condition to defeasance of
any Debt Securities of any series payable later than one year from the time of
defeasance, the Company must deliver to the Trustee an Opinion of Counsel (who
may be an employee of or counsel for the Company) or a ruling of the Internal
Revenue Service to the effect that holders of the Debt Securities will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if such
defeasance or covenant defeasance had not occurred (Article 8).
The Company may exercise either defeasance option with respect to the Debt
Securities of any series notwithstanding its prior exercise of its covenant
defeasance option with respect thereto. If the Company exercises its defeasance
option, payment of the Debt Securities of any series may not be accelerated
because of a Default or an Event of Default. If the Company exercises its
covenant defeasance option, payment of the Debt Securities of any series may not
be accelerated by reason of an Event of Default with respect to the covenants to
which such covenant defeasance is applicable. If such acceleration were to
occur by reason of another Event of Default, the realizable value at the
acceleration date of the money and U.S. Government Obligations in the defeasance
trust could be less than the principal and interest then due on the Debt
Securities, in that the required deposit in the defeasance trust is based upon
scheduled cash flow rather than market value, which will vary depending upon
interest rates and other factors. The Company will, however, remain liable for
such payments at the time of the acceleration.
GOVERNING LAW
The Indenture and the Debt Securities are governed by and construed in
accordance with the laws of the State of New York (Section 10.07).
THE TRUSTEE
The Company maintains a banking relationship with the Trustee in the ordinary
course of business. The Trustee also acts as Trustee of another indenture of the
Company.
DESCRIPTION OF WARRANTS
The Company may issue Warrants for the purchase of Debt Securities. Warrants
may be issued independently or together with any Debt Securities offered by any
Prospectus Supplement and, if issued together with any Debt Securities, may be
attached to or separate from such Debt Securities.
The following description sets forth certain general terms and provisions of
the Warrants to which any Prospectus Supplement may relate. The particular
terms of the Warrants offered by any Prospectus Supplement and the extent, if
any, to which such general terms may apply to the Warrants so offered will be
described in the Prospectus Supplement relating to such Warrants.
The Offered Warrants (as defined below) are to be issued under Warrant
Agreements (each a "Warrant Agreement") to be entered into between the Company
and a bank or trust company, as Warrant Agent (the "Warrant Agent"), all as set
forth in the Prospectus Supplement relating to the particular issue of Warrants
and shall be
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evidenced by Warrant Certificates (each a "Warrant Certificate"). A copy of the
forms of Warrant Agreement and Warrant Certificate are on file with the
Commission and are incorporated herein by reference as exhibits to the
Registration Statement of which this Prospectus is a part. The following summary
of certain provisions of the forms of Warrant Agreement and Warrant Certificate
does not purport to be complete and is qualified in its entirety by reference to
the Warrant Agreement and the Warrant Certificate.
GENERAL
The Prospectus Supplement or Prospectus Supplements relating to any Warrants
will describe the terms of the Warrants offered thereby (the "Offered
Warrants"), the Warrant Agreement relating to such Warrants and the Warrant
Certificates representing such Warrants, including the following: (a) the
offering price; (b) the currency or currencies for which the Offered Warrants
may be purchased; (c) the designation, aggregate principal amount, currency or
currencies and terms of the Debt Securities purchasable upon exercise of the
Offered Warrants and the procedures and conditions relating to the exercise of
such Offered Warrants; (d) if applicable, the designation and terms of the Debt
Securities with which the Offered Warrants are issued and the number of Offered
Warrants issued with each such Debt Security; (e) if applicable, the date on and
after which the Offered Warrants and such related Debt Securities will be
separately transferable; (f) the principal amount of Debt Securities purchasable
upon exercise of one Offered Warrant and the price and currency at which such
principal amount of Debt Securities may be purchased upon such exercise; (g) the
date on which the right to exercise the Offered Warrants shall commence and the
date (the "Expiration Date") on which such right shall expire; (h) federal
income tax consequences; and (i) any additional terms of the Offered Warrants.
Warrant Certificates will be issued only in fully registered form and may be
exchanged for new Warrant Certificates of different denominations, may be
presented for registration of transfer, and may be exercised at the corporate
trust office of the Warrant Agent or any other office indicated in the
Prospectus Supplement describing the terms of the Offered Warrants. Prior to
the exercise of their Offered Warrants, holders of Offered Warrants will not
have any of the rights of holders of the Debt Securities purchasable upon such
exercise, including the right to receive payments of principal or interest on
the Debt Securities purchasable upon such exercise or to enforce covenants in
the Indenture, except as otherwise provided in the Indenture or pursuant
thereto.
EXERCISE OF WARRANTS
Each Offered Warrant will entitle the holder to purchase such principal amount
of Debt Securities at such exercise price as shall in each case be set forth in,
or calculable from, the Prospectus Supplement relating to the Offered Warrants.
Offered Warrants may be exercised at any time up to 5:00 P.M., New York time, on
the Expiration Date and in the manner set forth in the Prospectus Supplement
relating to such Warrants. After the close of business on the Expiration Date
(or such later date to which such Expiration Date may be extended by the
Company), unexercised Offered Warrants will become void.
Offered Warrants may be exercised by delivery to the Warrant Agent of payment
as provided in the Prospectus Supplement describing the terms of the Offered
Warrants of the amount required to purchase the Debt Securities purchasable upon
such exercise together with certain information set forth on the reverse side of
the Warrant Certificate. Offered Warrants will be deemed to have been exercised
upon receipt by the Warrant Agent of the exercise price, subject to the receipt
within five business days of the Warrant Certificate evidencing such Offered
Warrants. Upon receipt of such payment and the Warrant Certificate properly
completed and duly executed at the corporate trust office of the Warrant Agent
or any other office indicated in the Prospectus Supplement describing the terms
of the Offered Warrants, the Company will, as soon as practicable, issue and
deliver the Debt Securities purchasable upon such exercise. If fewer than all
of the Offered Warrants represented by such Warrant Certificate are exercised, a
new Warrant Certificate will be issued for the remaining amount of Warrants.
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PLAN OF DISTRIBUTION
GENERAL
The Company may sell the Securities through underwriters or dealers, directly
to purchasers or through agents or through a combination of any such methods of
sale. If an underwriter or underwriters are utilized in the sale, the Company
will execute an underwriting agreement with such underwriters and the terms of
the transaction will be set forth in the Prospectus Supplement, which will be
used by the underwriters to make resales of the Securities in respect of which
this Prospectus is delivered to the public.
In connection with the sale of the Securities, underwriters may receive
compensation from the Company or from purchasers of the Securities for whom they
may act as agents in the form of discounts, concessions or commissions. Any
underwriting compensation paid by the Company to underwriters or agents in
connection with the offering of the Securities, and any discounts, concessions
or commissions allowed by underwriters to participating dealers, and the names
of such underwriters, dealers and agents, will be set forth in the applicable
Prospectus Supplement to the extent required. Underwriters, dealers and agents
that participate in the distribution of Securities may be deemed to be
underwriters and any discounts or commissions received by them and any profit on
the resale of Securities by them may be deemed to be underwriting discounts and
commissions under the Securities Act.
During and after the offering, underwriters may purchase and sell the
Securities in the open market. These transactions may include overallotment and
stabilizing transactions and purchases to cover short positions created by
underwriters in connection with the offering. Underwriters may also impose a
penalty bid, whereby selling concessions allowed to broker-dealers in respect of
the Securities sold in the offering for their account may be reclaimed by
underwriters if such Securities are repurchased by underwriters in stabilizing
or covering transactions. These activities may stabilize, maintain or otherwise
affect the market price of the Securities which may be higher than the price
that might otherwise prevail in the open market; and these activities, if
commenced, may be discontinued at any time. These transactions may be effected
in the over-the-counter market or otherwise.
Under agreements which may be entered into by the Company, underwriters,
dealers and agents who participate in the distribution of the Securities may be
entitled to indemnification by the Company against certain liabilities,
including liabilities under the Securities Act.
DELAYED DELIVERY ARRANGEMENTS
If so indicated in the Prospectus Supplement, the Company will authorize
underwriters or other persons acting as the Company's agents to solicit offers
by certain institutions to purchase the Securities from the Company pursuant to
contracts providing for payment and delivery on a future date. Institutions
with which such contracts may be made include commercial and savings banks,
insurance companies, pension funds, investment companies, educational and
charitable institutions and others, but in all cases such institutions must be
approved by the Company. The obligations of any purchaser under any such
contract will not be subject to any conditions except that (i) the purchase of
the Securities shall not at the time of delivery be prohibited under the laws of
the jurisdiction to which such purchaser is subject, and (ii) if the Securities
are also being sold to underwriters, the Company shall have sold to such
underwriters the Securities not sold for delayed delivery. The underwriters and
such other persons will not have any responsibility in respect of the validity
or performance of such contracts.
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VALIDITY OF SECURITIES
Unless otherwise indicated in the Prospectus Supplement with respect to any
Securities, the validity of the Securities will be passed upon for the Company
by John W. Galiardo, Vice Chairman and General Counsel of the Company, and for
the underwriters by Sullivan & Cromwell, 125 Broad Street, New York, New York
10004. As of September 30, 1997, Mr. Galiardo owned 107,609 shares of the
Company's common stock, had options to acquire 831,737 shares, was entitled to
receive 18,504 shares under the Company's Stock Award Plan and had rights to 400
shares under the Company's 1996 Directors' Deferral Plan. In addition, Mr.
Galiardo had a vested interest, as of August 31, 1997, under the Company's
Savings Incentive Plan in 8,843 shares of the Company's common stock and in 453
shares of the Company's Series B ESOP Convertible Preferred Stock.
EXPERTS
The consolidated financial statements of the Company, incorporated by
reference into the Company's Annual Report on Form 10-K for the year ended
September 30, 1996 (the "1996 10-K"), and the related schedule thereto included
in the 1996 10-K have been audited by Ernst & Young LLP, independent auditors,
as set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements and schedule are incorporated
herein by reference in reliance upon such report given upon the authority of
such firm as experts in accounting and auditing.
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PART II.
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution.
Securities and Exchange Commission registration fee $121,212
Legal fees and expenses 50,000
Blue Sky fees and expenses 6,000
Accounting fees and expenses 110,000
Printing and engraving fees 35,000
Trustee's fees and expenses 30,000
Rating agency fees 130,000
Miscellaneous 17,788
--------
Total $500,000
========
All of the above items except the registration fees are estimated.
ITEM 15. Indemnification of Directors and Officers.
Article XI of the by-laws of the Company provides as follows:
"The Company shall indemnify to the full extent authorized or permitted by the
New Jersey Business Corporation Act, any corporate agent (as defined in said
Act), or his legal representative, made, or threatened to be made, a party to
any action, suit or proceeding (whether civil, criminal, administrative or
investigative) by reason of the fact that he is or was a corporate agent of this
Company."
The New Jersey Business Corporation Act permits or requires indemnification of
officers and directors in the event that certain statutory standards of conduct
are met.
The Company maintains policies of insurance under which the respective
directors and officers (as defined therein) of the Company are insured subject
to specified exclusions and deductible and maximum amounts against loss arising
from any civil claim or claims which may be made against any director or officer
(as so defined) of the Company by reason of any breach of duty, neglect, error,
misstatement, misleading statement, omission or act done or alleged to have been
done while acting in their respective capacities.
ITEM 16. Exhibits.
1 -- Form of Underwriting Agreement.
4(a) -- Indenture dated as of March 1, 1997, between the Company and The
Chase Manhattan Bank, Trustee (incorporated by reference to Exhibit
4(a) to the Company's Form 8-K filed on July 31, 1997).
4(b) -- Forms of Warrant Agreement (incorporated by reference to Exhibit
4(b) to the Company's Form S-3 Registration Statement No. 33-47957).
4(c) -- Forms of Warrant Certificate (incorporated by reference to Exhibit
4(c) to the Company's Form S-3 Registration Statement No. 33-47957).
5 -- Opinion of John W. Galiardo, Vice Chairman and General Counsel of
the Company.
12 -- Calculation of Ratio of Earnings to Fixed Charges.
23(a) -- Consent of Independent Auditors, Ernst & Young LLP.
23(b) -- Consent of John W. Galiardo (included in his opinion filed herewith
as Exhibit 5).
24 -- Powers of Attorney.
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25 -- Form T-1, Statement of Eligibility of The Chase Manhattan Bank, as
Trustee.
ITEM 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) to file, during any period in which offers or sales of the registered
securities are being made, a post-effective amendment to this Registration
Statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities
Act of 1933, unless the information required to be included in such post-
effective amendment is contained in a periodic report filed by the registrant
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
and incorporated herein by reference;
(ii) to reflect in the prospectus any facts or events arising after the
effective date of the Registration Statement (or the most recent post-effective
amendment thereof) which, individually or in the aggregate, represent a
fundamental change in the information set forth in the Registration Statement,
unless the information required to be included in such post-effective amendment
is contained in a periodic report filed by the registrant pursuant to Section 13
or Section 15(d) of the Securities Exchange Act of 1934 and incorporated herein
by reference. Notwithstanding the foregoing, any increase or decrease in the
volume of securities offered (if the total dollar value of securities offered
would not exceed that which was registered) and any deviation from the low or
high end of the estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent no more than a 20 percent
change in the maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this Registration Statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in the Registration Statement or any
material change to such information in the Registration Statement;
(2) that, for the purpose of determining any liability under the Securities
Act of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof;
(3) to remove from registration by means of a post-effective amendment any of
the securities being registered which remain unsold at the termination of the
offering; and
(4) that, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to Section
15(d) of the Securities Exchange Act of 1934) that is incorporated by reference
in this Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of
II-2
<PAGE>
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in Franklin Lakes, New Jersey on the 17th day of October, 1997.
BECTON, DICKINSON AND COMPANY
(Registrant)
By /s/ Bridget M. Healy
------------------------------------------
Bridget M. Healy
Vice President and Secretary
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed below on the 17th day of October, 1997 by or on behalf
of the following persons in the capacities indicated.
Name Title
---- -----
* Chairman of the Board, President,
- ------------------------------ Chief Executive Officer and Director
(Clateo Castellini) (Principal Executive Officer)
* Senior Vice President - Finance and
- ------------------------------ Chief Financial Officer (Principal
(Edward J. Ludwig) Financial and Accounting Officer)
* Director
- ------------------------------
(Harry N. Beaty, M.D.)
* Director
- ------------------------------
(Henry P. Becton, Jr.)
* Director
- ------------------------------
(Albert J. Costello)
* Director
- ------------------------------
(Gerald M. Edelman, M.D.)
II-4
<PAGE>
* Director
- ------------------------------
(John W. Galiardo)
* Director
- ------------------------------
(Richard W. Hanselman)
* Director
- ------------------------------
(Frank A. Olson)
* Director
- ------------------------------
(James E. Perrella)
* Director
- ------------------------------
(Gloria M. Shatto)
* Director
- ------------------------------
(Raymond S. Troubh)
* Director
- ------------------------------
(Margaretha af Ugglas)
* Bridget M. Healy, by signing her name below, does sign this document on behalf
of the person indicated above pursuant to a power of attorney duly executed by
such person and filed with the Securities and Exchange Commission.
/s/ Bridget M. Healy
------------------------------
Bridget M. Healy,
Attorney-in-fact
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<PAGE>
EXHIBIT 1
---------
Becton, Dickinson and Company
Debt Securities and Warrants
to Purchase Debt Securities
_______________
Form of Underwriting Agreement
------------------------------
____________, 19__
To the Representatives of the
several Underwriters named in the
respective Pricing Agreements
hereinafter described.
Ladies and Gentlemen:
From time to time Becton, Dickinson and Company, a New Jersey corporation
(the "Company"), proposes to enter into one or more Pricing Agreements (each a
"Pricing Agreement") in the form of Annex I hereto, with such additions and
deletions as the parties thereto may determine, and, subject to the terms and
conditions stated herein and therein, to issue and sell to the firms named in
Schedule I to the applicable Pricing Agreement (such firms constituting the
"Underwriters" with respect to such Pricing Agreement and the securities
specified therein) certain of its debt securities (the "Securities") and/or
warrants (the "Warrants") to purchase such Securities, in each case as specified
in Schedule II to such Pricing Agreement (with respect to such Pricing
Agreement, the "Designated Securities").
The terms and rights of any particular issuance of Designated Securities
shall be as specified in the Pricing Agreement relating thereto and in or
pursuant to the indenture (the "Indenture") or warrant agreement (the "Warrant
Agreement") identified in such Pricing Agreement.
1. Particular sales of Designated Securities may be made from time to time
to the Underwriters of such Securities or Warrants, for whom the firms
designated as representatives of the Underwriters of such Securities or Warrants
in the Pricing Agreement relating thereto will act as representatives (the
"Representatives"). The term "Representatives" also refers to a single firm
acting as sole representative of the Underwriters and to Underwriters who act
without any firm being designated as their representative. This Underwriting
Agreement shall not be construed as an obligation of the Company to sell any of
the Securities or Warrants or as an obligation of any of the Underwriters to
purchase the Securities or Warrants. The obligation of the Company to issue and
sell any of the Securities or Warrants and the obligation of any of the
Underwriters to purchase any of the Securities or Warrants shall be evidenced by
the Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the aggregate principal amount of
such Designated Securities, the initial public offering price of such Designated
Securities, the purchase price to the Underwriters of such Designated
Securities, the names of the Underwriters of such Designated Securities, the
names of the Representatives of such Underwriters and the principal amount of
such Designated Securities to be purchased by each Underwriter and shall set
forth the date, time and manner of delivery of such Designated Securities and
payment therefor. The Pricing Agreement shall also specify (to the extent not
set forth in the Indenture, the Warrant Agreement and the registration statement
and prospectus with respect thereto) the terms of such Designated Securities. A
Pricing Agreement shall be in the form of an executed writing (which may be in
counterparts), and may be evidenced by an exchange of telegraphic communications
or any other rapid transmission device designed to produce a written record of
communications transmitted. The obligations of the Underwriters under this
Agreement and each Pricing Agreement shall be several and not joint.
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<PAGE>
2. The Company represents and warrants to, and agrees with, each of the
Underwriters that:
(a) Two registration statements in respect of the Securities (including
any Securities issuable upon exercise of Warrants) and Warrants have been
filed with the Securities and Exchange Commission (the "Commission"); such
registration statements and any post-effective amendment thereto, each in the
form heretofore delivered or to be delivered to the Representatives and,
excluding exhibits to such registration statements, but including all
documents incorporated by reference in the prospectus contained in the most
recent registration statement (except for any document or portions thereof
which are deemed under Rule 412 under the Securities Act of 1933, as amended,
(the "Act") not to be incorporated by reference therein), the Representatives
for each of the other Underwriters, have been declared effective by the
Commission in such form; no other document with respect to such registration
statements or document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statements has been issued
and no proceeding for that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such registration
statements or filed with the Commission pursuant to Rule 424(a) of the rules
and regulations of the Commission under the Act being hereinafter called a
"Preliminary Prospectus"; the various parts of such registration statements,
including all exhibits thereto and the documents incorporated by reference in
the prospectus contained in the registration statements at the time such part
of the registration statements became effective but excluding Form T-1, each
as amended at the time such part of the registration statements became
effective, being hereinafter collectively called the "Registration
Statement"; the prospectus relating to the Securities and Warrants, in the
form in which it has most recently been filed, or transmitted for filing,
with the Commission on or prior to the date of this Agreement, being
hereinafter called the "Prospectus"; any reference herein to any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to the applicable form
under the Act, as of the date of such Preliminary Prospectus or Prospectus,
as the case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), and incorporated by reference in 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 annual report of the Company filed pursuant to Section 13(a) or
15(d) of the Exchange Act after the effective date of the Registration
Statement that is incorporated by reference in the Registration Statement;
and any reference to the Prospectus as amended or supplemented shall be
deemed to refer to the Prospectus as amended or supplemented in relation to
the applicable Designated Securities in the form in which it is filed with
the Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof, including any documents incorporated by reference
therein as of the date of such filing);
(b) The documents incorporated by reference in the Prospectus, when they
became effective or were filed with the Commission, as the case may be,
conformed in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the Commission
thereunder, and 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 documents so filed and incorporated by reference in the Prospectus or
any further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will conform
in all material respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission thereunder and
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with
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<PAGE>
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities or
Warrants;
(c) The Registration Statement and the Prospectus conforms, and any
further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act") and the rules and regulations of the Commission thereunder and do not
and will not, as of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, contain 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;
provided, however, that this representation and warranty shall not apply to
any statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an Underwriter of
Designated Securities through the Representatives expressly for use in the
Prospectus as amended or supplemented relating to such Securities or
Warrants;
(d) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or incorporated
by reference in the Prospectus any loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus,
which event is material to the Company and its subsidiaries, taken as a
whole; and, since the respective dates as of which information is given in
the Registration Statement and the Prospectus, there has not been any change
in the capital stock (other than the repurchase of shares pursuant to Rule
10b-18 of the Exchange Act and the issuance of shares under the Company's
stock option, stock award, restricted stock, dividend reinvestment, or
savings plans or upon conversion of outstanding convertible debt of the
Company) or long-term obligations of the Company or any of its subsidiaries
which are material to the Company and its subsidiaries taken as a whole or
any material adverse change, or any develop ment involving a prospective
material adverse change, in or affecting the general affairs, management,
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries taken as a whole, otherwise than as set forth or
contemplated in the Prospectus;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of New Jersey, with
power and authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus and is duly qualified as a
foreign corporation for the transaction of business and in good standing
under the laws of each other jurisdiction in which it owns or leases
properties, or conducts any business, so as to require such qualification;
and each subsidiary of the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of its jurisdiction
of incorporation and is duly qualified as a foreign corporation for the
transaction of business and in good standing under the laws of each other
jurisdiction in which it owns or leases properties, or conducts any business,
so as to require such qualification except in those instances with respect to
the Company and its subsidiaries where failure to be so qualified would not
have a material adverse effect on the business or financial condition of the
Company and its subsidiaries taken as a whole;
(f) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company have
been duly and validly authorized and issued and are fully paid and non-
assessable and all of the issued shares of capital stock of each subsidiary
of the Company have been duly and validly authorized and issued, are fully
paid and non-assessable and (except for directors' qualifying shares and
minority interests reflected in the Company's consolidated financial
statements included or incorporated in the Prospectus) are
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<PAGE>
owned directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(g) The Securities and Warrants have been duly authorized, and, when
Designated Securities are issued and delivered pursuant to this Agreement and
the Pricing Agreement with respect to such Designated Securities, such
Designated Securities will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding obligations of
the Company entitled to the benefits provided by the Indenture or the Warrant
Agreement, as the case may be, which will be substantially in the forms filed
as exhibits to the Registration Statement or such other form as shall have
previously been agreed to by the Representatives; the Indenture has been duly
authorized and duly qualified under the Trust Indenture Act and, at the Time
of Delivery (as defined in Section 4 hereof) for such Designated Securities,
the Indenture will constitute a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; when Securities have been issued and delivered upon
exercise of the Warrants pursuant to the Warrant Agreement, such Securities
will have been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled to
the benefits provided by the Indenture; at the Time of Delivery for such
Designated Securities (as defined in Section 4 hereof), the Warrant Agreement
will constitute a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability relating
to or affecting creditors' rights and to general equity principles; and the
Indenture and Warrant Agreement conform, and the Designated Securities will
conform, to the descriptions thereof contained in the Prospectus as amended
or supplemented with respect to such Designated Securities;
(h) The issue and sale of the Securities and Warrants and the compliance
by the Company with all of the provisions of the Securities, the Indenture,
the Warrants, the Warrant Agreement, this Agreement and any Pricing
Agreement, and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any
of the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation, as amended, or By-laws of the Company or any statute or any
order, rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the issue and sale of the Securities or the
Warrants or the consummation by the Company of the transactions contemplated
by this Agreement or any Pricing Agreement, the Indenture or the Warrant
Agreement, except such as have been, or will have been prior to the Time of
Delivery, obtained under the Act and the Trust Indenture Act and such
consents, approvals, authorizations, registrations or qualifications as may
be required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities or Warrants by the Underwriters;
and
(i) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of its
subsidiaries is the subject (other than litigation incidental to the kind of
business conducted by the Company and its subsidiaries) which, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a material adverse effect on the consolidated financial
position, stockholders' equity or results of operations of the Company and
its subsidiaries taken as a whole; and, to the best of the Company's
knowledge, no
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<PAGE>
such proceedings are threatened or contemplated by governmental authorities
or threatened by others.
3. Upon the execution of the Pricing Agreement applicable to any Designated
Securities and authorization by the Representatives of the release of such
Designated Securities, the several Underwriters propose to offer such
Designated Securities for sale upon the terms and conditions set forth in the
Prospectus as amended or supplemented.
4. Designated Securities to be purchased by each Underwriter pursuant to the
Pricing Agreement relating thereto, in definitive form to the extent
practicable, 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 certified or
official bank check or checks, payable to the order of the Company in the funds
specified in such Pricing Agreement, all at the place and time and date
specified in such Pricing Agreement or at such other place and time and date as
the Representatives and the Company may agree upon in writing, such time and
date being herein called the "Time of Delivery" for such Securities.
5. The Company agrees with each of the Underwriters of any Designated
Securities:
(a) To prepare the Prospectus as amended and supplemented in relation to
the applicable Designated Securities in a form approved by the
Representatives and to file such Prospectus pursuant to Rule 424(b) under the
Act not later than the Commission's close of business on the second business
day following the execution and delivery of the Pricing Agreement relating to
the applicable Designated Securities or, if applicable, such earlier time as
may be required by Rule 424(b); to make no further amendment or any
supplement to the Registration Statement or Prospectus as amended or
supplemented after the date of the Pricing Agreement relating to such
Securities and prior to the Time of Delivery for such Designated Securities
which shall be disapproved by the Representatives for such Designated
Securities promptly after reasonable notice thereof; to advise the
Representatives promptly of any such amendment or supplement after such Time
of Delivery and furnish the Representatives with copies thereof; to file
promptly all reports and any definitive proxy or information statements
required to be filed by the Company with the Commission pursuant to Section
13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of
a prospectus is required in connection with the offering or sale of such
Designated Securities, and during such same period to advise the
Representatives, promptly after it receives notice thereof, of the time when
any amendment to the Registration Statement has been filed or becomes
effective or any supplement to the Prospectus or any amended Prospectus has
been filed with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus
relating to the Securities or Warrants, of the suspension of the
qualification of such Securities or Warrants for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any prospectus relating to
the Securities or Warrants or suspending any such qualification, to use
promptly its best efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Representatives
may reasonably request to qualify such Securities and Warrants for offering
and sale under the securities laws of such jurisdictions as the
Representatives may request and to comply with such laws so as to permit the
continuance of sales and dealings therein in such jurisdictions for as long
as may be necessary to complete the distribution of such Securities and
Warrants, provided 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;
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<PAGE>
(c) To furnish the Underwriters with copies of the Prospectus as amended
or supplemented in such quantities as the Representatives may from time to
time reasonably request, and, if the delivery of a prospectus is required at
any time in connection with the offering or sale of the Designated Securities
and if at such time any event shall have occurred as a result of which the
Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made when such Prospectus is delivered, not misleading, or, if for
any other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act,
the Exchange Act or the Trust Indenture Act, to notify the Representatives
and upon their request to file such document and to 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 which will correct such
statement or omission or effect such compliance and in case the
Representatives or any of the Underwriters or any dealer in securities is
required to deliver a prospectus in connection with sales of any Designated
Securities at any time nine months or more after the time of issue of the
Prospectus as amended or supplemented relating to such Designated Securities,
then upon the request of the Representatives, but at the expense of the
Representatives, the relevant Underwriters or the relevant dealers in
securities, as the case may be, the Company shall prepare and deliver to the
Representatives, such Underwriters or such dealers in securities as many
copies as the Representatives may request of any amended or supplemented
prospectus complying with Section 10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)), an
earnings statement of the Company and its subsidiaries (which need not be
audited) complying with Section 11 (a) of the Act and the rules and
regulations of the Commission thereunder (including at the option of the
Company Rule 158); and
(e) During the period beginning from the date of the Pricing Agreement
for such Designated Securities and continuing to and including the earlier of
(i) the termination of trading restrictions for such Designated Securities,
as notified to the Company by the Representatives and (ii) the Time of
Delivery for such Designated Securities, not to offer, sell, contract to sell
or otherwise dispose of any debt securities of the Company which mature more
than one year after such Time of Delivery and which are substantially similar
to such Designated Securities, without the prior written consent of the
Representatives.
6. The Company covenants and agrees with the several Underwriters that the
Company will pay or cause to be paid the following: (i) the fees, disbursements
and expenses of the Company's counsel and accountants in connection with the
registration of the Securities and Warrants under the Act and all other expenses
in connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to the
Underwriters and dealers; (ii) the cost of printing or producing this Agreement,
any Pricing Agreement, any Indenture, any Blue Sky and Legal Investment
Memoranda and any other documents in connection with the offering, purchase,
sale and delivery of the Securities and Warrants; (iii) all expenses in
connection with the qualification of the Securities and Warrants for offering
and sale under state securities laws as provided in Section 5(b) hereof,
including the reasonable fees and disbursements of counsel for the Underwriters
in connection with such qualification and in connection with the Blue Sky and
legal investment surveys; (iv) any fees charged by securities rating services
for rating the Securities; (v) the cost of preparing the Securities or Warrants;
(vi) the fees and expenses of any Trustee or Warrant Agent and any agent of any
Trustee or Warrant Agent and the fees and disbursements of counsel for any
Trustee or Warrant Agent in connection with any Indenture, Warrant Agreement,
the Securities and the Warrants; and (vii) all other
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<PAGE>
costs and expenses incident to the Company's performance of its obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, Section 8 and
Section 11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale of any
of the Securities by them, and any advertising expenses connected with any
offers they may make.
7. The obligations of the Underwriters of any Designated Securities under
the Pricing Agreement relating to such Designated Securities shall be subject,
in the discretion of the Representatives, to the condition that all
representations and warranties and other statements of the Company in or
incorporated by reference in the Pricing Agreement relating to such Designated
Securities are, at and as of the Time of Delivery for such Designated
Securities, true and correct, the condition that the Company shall have
performed all of its obligations hereunder theretofore to be performed, and the
following additional conditions:
(a) The Prospectus as amended or supplemented in relation to the
applicable Designated Securities shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed for such
filing by the rules and regulations under the Act and in accordance with
Section 5 (a) hereof; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the part of the
Commission shall have been complied with to the Representatives' reasonable
satisfaction;
(b) Counsel for the Underwriters shall have furnished to the
Representatives such opinion or opinions, dated the Time of Delivery for such
Designated Securities, with respect to the incorporation of the Company, the
validity of the Indenture and any Warrant Agreement, the Designated
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 received such papers and information as
they may reasonably request to enable them to pass upon such matters;
(c) The General Counsel for the Company or Counsel for the Company
satisfactory to the Representatives shall have furnished to the
Representatives their written opinion, dated the Time of Delivery for such
Designated Securities, in form and substance reasonably satisfactory to the
Representatives, to the effect that:
(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of New Jersey,
with power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus as amended or
supplemented;
(ii) The Company has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of each
jurisdiction other than that of its incorporation in which it owns or
leases properties, or conducts any business, so as to require such
qualification and where the failure to so qualify would have a material
adverse effect on the Company (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of the
Company, provided that such counsel shall state that such counsel believes
that both the Representatives and such counsel are justified in relying
upon such opinions and certificates);
(iii) The Company has an authorized capitalization as set forth in the
Prospectus as amended or supplemented and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable;
(iv) Each subsidiary of the Company has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and has been duly qualified as a foreign
corporation for the transaction of business and is in good
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<PAGE>
standing under the laws of each other jurisdiction in which it owns or
leases properties, or conducts any business, so as to require such
qualification and where the failure to so qualify would have a material
adverse effect on the Company and its subsidiaries taken as a whole; and
all of the issued shares of capital stock of each such subsidiary have
been duly and validly authorized and issued, are fully paid and non-
assessable and (except for directors' qualifying shares and minority
interests reflected in the Company's consolidated financial statements
included or incorporated in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company or its
subsidiaries, provided that such counsel shall state that such counsel
believes that both the Representatives and such counsel are justified in
relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings
pending to which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries is the
subject (other than litigation incident to the kind of business conducted
by the Company and its subsidiaries) which, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate
have a material adverse effect on the Company and its subsidiaries taken
as a whole; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(vi) This Agreement and the Pricing Agreement with respect to the
Designated Securities have been duly authorized, executed and delivered by
the Company;
(vii) The Designated Securities have been duly authorized, executed,
authenticated or countersigned, issued and delivered and constitute valid
and legally binding obligations of the Company entitled to the benefits
provided by the Indenture or the Warrant Agreement; and the Designated
Securities and the Indenture conform to the descriptions thereof in the
Prospectus as amended or supplemented;
(viii) The Indenture has been duly authorized, executed and delivered
by the Company and constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to enforcement, to
bankruptcy, insolvency, reorganization and other 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;
(ix) When Securities have been issued and delivered upon exercise of
the Warrants pursuant to the Warrant Agreement, such Securities will have
been duly executed, authenticated, issued and delivered and will
constitute valid and legally binding obligations of the Company entitled
to the benefits provided by the Indenture; the Warrant Agreement
constitutes a valid and legally binding instrument, enforceable in
accordance with its terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; and the Warrant Agreement conforms, and the Securities
issuable upon exercise of the Warrants will conform, to the descriptions
thereof contained in the Prospectus as amended or supplemented with
respect to such Designated Securities;
(x) The issue and sale of the Designated Securities and the compliance
by the Company with all of the provisions of the Designated Securities,
the Indenture, the Warrant Agreement, this Agreement and the Pricing
Agreement with respect to the Designated Securities and the consummation
of the transactions herein and therein contemplated will not conflict with
or result in a breach or violation of any of the terms or provisions of,
or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or
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<PAGE>
instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries
is bound or to which any of the property or assets of the Company or any
of its subsidiaries is subject, nor will such actions result in any
violation of the provisions of the Certificate of Incorporation, as
amended, or By-laws of the Company or any statute or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its subsidiaries or
any of their properties;
(xi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required for the issue and sale of the Designated Securities or the
consummation by the Company of the transactions contemplated by this
Agreement or such Pricing Agreement, the Indenture or the Warrant
Agreement, except such as have been obtained under the Act and the Trust
Indenture Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Designated
Securities by the Underwriters;
(xii) The documents incorporated by reference in the Prospectus as
amended or supplemented (other than the financial statements and related
schedules or other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion), when they
became effective or were filed with the Commission, as the case may be,
complied as to form in all material respects with the requirements of the
Act or the Exchange Act, as applicable, and the rules and regulations of
the Commission thereunder; and such counsel has no reason to believe that
any of such documents, when they became effective or were so filed, as the
case may be, contained, in the case of a registration statement which
became effective under the Act, 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, or, in the case
of other documents which were filed under the Act or the Exchange Act with
the Commission, an untrue statement of a material fact or omitted to state
a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such documents
were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus as amended or
supplemented and any further amendments and supplements thereto made by
the Company prior to the Time of Delivery for the Designated Securities
(other than the financial statements and related schedules or other
financial data included or incorporated by reference therein, as to which
such counsel need express no opinion) comply as to form in all material
respects with the requirements of the Act and the Trust Indenture Act and
the rules and regulations thereunder; such counsel has no reason to
believe that, as of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related schedules or
other financial data included or incorporated by reference therein, as to
which such counsel need express no opinion) 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
or that, as of its date, the Prospectus as amended or supplemented or any
further amendment or supplement thereto made by the Company prior to the
Time of Delivery (other than the financial statements and related
schedules or other financial data included or incorporated by reference
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in light of the circumstances in
which they were made, not misleading or that, as of the Time of Delivery,
either the Registration Statement or the Prospectus as amended or
supplemented or any further amendment or supplement thereto made by the
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<PAGE>
Company prior to the Time of Delivery (other than the financial statements
and related schedules or other financial data included or incorporated by
reference therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading; and such counsel
does not know of any amendment to the Registration Statement required to
be filed or any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
incorporated by reference into the Prospectus as amended or supplemented
or required to be described in the Registration Statement or the
Prospectus as amended or supplemented which are not filed or incorporated
by reference or described as required;
(d) At the Time of Delivery for such Designated Securities, the
independent accountants of the Company who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement shall have furnished to the
Representatives a letter dated such Time of Delivery to the effect set forth
in Annex II hereto, and as to such other matters as the Representatives may
reasonably request and in form and substance satisfactory to the
Representatives;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus as amended or supplemented any
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus as amended or supplemented, and (ii) since the
respective dates as of which information is given in the Prospectus as
amended or supplemented there shall not have been any change in the capital
stock (other than issuance of shares under the Company's option, stock award
or savings plans or upon conversion of outstanding convertible debt of the
Company) or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting
the general affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise than as
set forth or contemplated in the Prospectus as amended or supplemented, the
effect of which, in any such case described in Clause (i) or (ii), is in the
judgment of the Representatives so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Designated Securities on the terms and in the manner
contemplated in the Prospectus as amended or supplemented;
(f) On or after the date of the Pricing Agreement relating to the
Designated Securities no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g) (2) under the Act;
(g) On or after the date of the Pricing Agreement relating to the
Designated Securities there shall not have occurred any of the following:
(i) a suspension or material limitation in trading in securities generally on
the New York Stock Exchange; (ii) a general moratorium on commercial banking
activities in New York declared by either Federal or New York State
authorities; or (iii) the outbreak or escalation of hostilities involving the
United States or the declaration by the United States of a national emergency
or war, if the effect of any such event specified in this clause (iii) in the
judgment of the Representatives makes it impracticable or inadvisable to
proceed with the public offering or the delivery of the Designated Securities
on the terms and in the manner contemplated by the Prospectus as amended and
supplemented; and
(h) The Company shall have furnished or caused to be furnished to the
Representatives at the Time of Delivery for the Designated Securities
certificates of officers of the Company reasonably satisfactory to the
Representatives as to the accuracy of the representations and warranties of
the
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<PAGE>
Company herein at and as of such Time of Delivery, as to the performance
by the Company of all of its obligations hereunder to be performed at or
prior to such Time of Delivery, as to the matters set forth in subsections
(a) and (e) of this Section and as to such other matters as the
Representatives may reasonably request.
8. (a) The Company will indemnify and hold harmless each Underwriter
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon an untrue statement or alleged untrue statement of a
material fact contained in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or Warrants, or
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim as such expenses are incurred; provided, however, that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, any preliminary prospectus supplement, the Registration Statement,
the Prospectus as amended or supplemented and any other prospectus relating to
the Securities or Warrants, or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by any
Underwriter of Designated Securities through the Representatives expressly for
use in the Prospectus as amended or supplemented relating to such Securities or
Warrants and provided, further, that the Company shall not be liable to any
Underwriter under the indemnity of this subsection (a) with respect to any
Preliminary Prospectus to the extent that any such loss, claim, damage or
liability of such Underwriter results from the fact that such Underwriter sold
Designated Securities to a person to whom there was not sent or given at or
prior to the written confirmation of such sale, a copy of the Prospectus as
amended or supplemented relating to such Designated Securities (excluding
documents incorporated by reference) if the Company has previously furnished
copies thereof to such Underwriter.
(b) Each Underwriter will indemnify and hold harmless the Company against
any losses, claims, damages or liabilities to which the Company may become
subject, under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, any preliminary prospectus supplement, the Registration
Statement, the Prospectus as amended or supplemented and any other prospectus
relating to the Securities or Warrants, or any amendment or supplement thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in any Preliminary Prospectus, any preliminary
prospectus supplement, the Registration Statement, the Prospectus as amended or
supplemented and any other prospectus relating to the Securities or Warrants, or
any such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by such Underwriter through the
Representatives expressly for use therein; and will reimburse the Company for
any legal or other expenses reasonably incurred by the Company in connection
with investigating or defending any such action or claim as such expenses are
incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case
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<PAGE>
any such action shall be brought against any indemnified party and it shall
notify the indemnifying party of the commencement thereof, the indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party) provided that in the event of such assumption the action may
not be compromised or settled by the indemnifying party without the consent of
the indemnified party, which consent shall not be unreasonably withheld. After
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under such subsection for any legal expenses of other
counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. The indemnifying party shall not be liable to the
indemnified party pursuant to the provisions of this Section 8 in respect of any
action compromised or settled by the indemnified party, unless the written
consent of the indemnifying party shall have been obtained to such compromise or
settlement (which consent shall not be unreasonably withheld).
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company on the one hand and the Underwriters of the Designated Securities
on the other from the offering of the Designated Securities to which such loss,
claim, damage or liability (or action in respect thereof) relates. If, however,
the allocation provided by the immediately preceding sentence is not permitted
by applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and the Underwriters of the Designated
Securities on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and such Underwriters on the
other shall be deemed to be in the same proportion as the total net proceeds
from such offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by such Underwriters.
The relative fault 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 on the one hand or such Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subsection (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 above in this subsection (d). 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 above in this subsection
(d) 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 this subsection (d), no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the applicable Designated 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
obligations of the
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Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities and not joint.
(e) The obligations of the Company under this Section 8 shall be in addition
to any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person, if
any, who controls the Company within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase the
Designated Securities which it has agreed to purchase under the Pricing
Agreement relating to such Designated Securities, the Representatives may in
their discretion arrange for themselves or another party or other parties to
purchase such Designated Securities on the terms contained herein. If within
thirty-six hours after such default by any Underwriter the Representatives do
not arrange for the purchase of such Designated Securities, then the Company
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to the Representatives to
purchase such Designated Securities on such terms. In the event that, within
the respective prescribed period, the Representatives notify the Company that
they have so arranged for the purchase of such Designated Securities, or the
Company notifies the Representatives that it has so arranged for the purchase of
such Designated Securities, the Representatives or the Company shall have the
right to postpone the Time of Delivery for such Designated Securities for a
period of not more than seven days, in order to effect whatever changes may
thereby be made necessary in the Registration Statement or the Prospectus as
amended or supplemented, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments or supplements to the
Registration Statement or the Prospectus which in the opinion of the
Representatives may thereby be made necessary. The term "Underwriter" as used
in this Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to the Pricing
Agreement with respect to such Designated Securities.
(b) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of such Designated Securities which remains
unpurchased does not exceed one-eleventh of the aggregate principal amount of
the Designated Securities, then the Company shall have the right to require each
non-defaulting Underwriter to purchase the principal amount of Designated
Securities which such Underwriter agreed to purchase under the Pricing Agreement
relating to such Designated Securities and, in addition, to require each non-
defaulting Underwriter to purchase its pro rata share (based on the principal
amount of Designated Securities which such Underwriter agreed to purchase under
such Pricing Agreement) of the Designated Securities of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Designated Securities of a defaulting Underwriter or Underwriters by the
Representatives and the Company as provided in subsection (a) above, the
aggregate principal amount of Designated Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of the Designated
Securities, as referred to in subsection (b) above, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Designated Securities of a defaulting Underwriter or
Underwriters, then the Pricing Agreement relating to such Designated Securities
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter or the Company, except for the expenses to be borne by the Company
and the Underwriters as provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
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<PAGE>
10. The respective indemnities, agreements, representations, warranties and
other statements of the Company and the several Underwriters, as set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement, shall remain in full force and effect, regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Underwriter or any controlling person of any Underwriter, or the Company,
or any officer or director or controlling person of the Company, and shall
survive delivery of and payment for the Designated Securities.
11. If any Pricing Agreement shall be terminated pursuant to Section 9
hereof, the Company shall not then be under any liability to any Underwriter
with respect to the Designated Securities covered by such Pricing Agreement
except as provided in Section 6 and Section 8 hereof; but, if for any other
reason Designated Securities are not delivered by or on behalf of the Company as
provided herein, the Company will reimburse the Underwriters through the
Representatives for all out-of-pocket expenses approved in writing by the
Representatives, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of such Designated Securities, but the Company shall then be under no
further liability to any Underwriter with respect to such Designated Securities
except as provided in Section 6 and Section 8 hereof.
12. In all dealings hereunder, the Representatives of the Underwriters of
Designated Securities shall act on behalf of each of such Underwriters, and the
parties hereto shall be entitled to act and rely upon any statement, request,
notice or agreement on behalf of any Underwriter made or given by such
Representatives jointly or by such of the Representatives, if any, as may be
designated for such purpose in the Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex
or facsimile transmission to the address of the Representatives as set forth
in the Pricing Agreement; and if to the Company shall be delivered or sent by
mail, telex or facsimile transmission to the address of the Company set forth in
the Registration Statement: Attention: Secretary; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by the
Representatives upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement and each Pricing Agreement shall be binding upon, and
inure solely to the benefit of, the Underwriters, the Company and, to the extent
provided in Section 8 and Section 10 hereof, the officers and directors of the
Company and each person who controls the Company or any Underwriter, and their
respective heirs, executors, administrators, successors and assigns, and no
other person shall acquire or have any right under or by virtue of this
Agreement or any such Pricing Agreement. No purchaser of any of the
Securities from any Underwriter shall be deemed a successor or assign by reason
merely of such purchase.
14. Time shall be of the essence of each Pricing Agreement. As used herein,
"business day" shall mean any day when the Commission's office in Washington,
D.C. is open for business.
15. This Agreement and each Pricing Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
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<PAGE>
16. This Agreement and each Pricing Agreement may be executed by any one or
more of the parties hereto and thereto in any number of counterparts, each of
which shall be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
Very truly yours,
Becton, Dickinson and Company
By: ______________________________
Name:
Title:
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ANNEX I
PRICING AGREEMENT
-----------------
[NAMES OF CO-REPRESENTATIVE(S),]
As Representatives of the several
Underwriters named in Schedule I hereto,
...................., 19..
Ladies and Gentlemen:
Becton, Dickinson and Company, a New Jersey corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement, dated .............., 19.. (the "Underwriting
Agreement"), to issue and sell to the Underwriters named in Schedule I hereto
(the "Underwriters") the Securities [and the Warrants] specified in Schedule II
hereto (the "Designated Securities"). Each of the provisions of the
Underwriting Agreement is incorporated herein by reference in its entirety, and
shall be deemed to be a part of this Agreement to the same extent as if such
provisions had been set forth in full herein; and each of the representations
and warranties set forth therein shall be deemed to have been made at and as of
the date of this Pricing Agreement, except that each representation and warranty
which refers to the Prospectus in Section 2 of the Underwriting Agreement shall
be deemed to be a representation or warranty as of the date of the Underwriting
Agreement in relation to the Prospectus (as therein defined), and also a
representation and warranty as of the date of this Pricing Agreement in relation
to the Prospectus as amended or supplemented relating to the Designated
Securities which are the subject of this Pricing Agreement. Each reference to
the Representatives herein and in the provisions of the Underwriting Agreement
so incorporated by reference shall be deemed to refer to you. Unless otherwise
defined herein, terms defined in the Underwriting Agreement are used herein as
therein defined. The Representatives designated to act on behalf of the
Representatives and on behalf of each of the Underwriters of the Designated
Securities pursuant to Section 12 of the Underwriting Agreement and the address
of the Representatives referred to in such Section 12 are set forth at the end
of Schedule II hereto.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Designated Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
Subject to the terms and conditions set forth herein and in the Underwriting
Agreement incorporated herein by reference, the Company agrees to issue and sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company, at the time and place and at the
purchase price to the Underwriters set forth in Schedule II hereto, the
principal amount of Designated Securities set forth opposite the name of such
Underwriter in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and
return to us [ ] counterparts hereof, and upon acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof,
including the provisions of the Underwriting Agreement incorporated herein by
reference, shall constitute a binding agreement between each of the Underwriters
and the Company. It is understood that your acceptance of this letter on behalf
of
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<PAGE>
each of the Underwriters is or will be pursuant to the authority set forth in a
form of Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on the part of
the Representatives as to the authority of the signers thereof.
Very truly yours,
Becton, Dickinson and Company
By:
..................................
Name:
Title:
Accepted as of the date hereof:
[NAME(S) OF CO-REPRESENTATIVE(S)]
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ANNEX II
Pursuant to Section 7(d) of the Underwriting Agreement, the accountants shall
furnish a letter to the Underwriters to the effect that:
(i) They are independent public accountants with respect to the Company
and its subsidiaries within the meaning of the Act and the applicable
published rules and regulations thereunder;
(ii) In their opinion, the financial statements and any supplementary
financial information and schedules examined by them and included or
incorporated by reference in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the published rules and regulations
thereunder and, if applicable, they have made a review in accordance with
standards established by the American Institute of Certified Public
Accountants of the consolidated interim financial statements, selected
financial data, pro forma financial information and/or condensed financial
statements derived from audited financial statements of the Company for the
periods specified in such letter, as indicated in their reports thereon,
copies of which have been furnished to the representatives of the
Underwriters (the "Representatives");
(iii) On the basis of limited procedures, not constituting an audit,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available interim
financial statements of the Company and its subsidiaries, inspection of the
minute books of the Company and certain of its subsidiaries since the date of
the latest audited financial statements included or incorporated by reference
in the Prospectus, inquiries of officials of the Company and certain of its
subsidiaries responsible for financial and accounting matters and such other
inquiries and procedures as may be specified in such letter, nothing came to
their attention that caused them to believe that:
(A) the unaudited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows
included or incorporated by reference in the Company's Quarterly
Reports on Form 10-Q incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Exchange Act and the published rules and regulations
thereunder or are not stated on a basis substantially consistent with the
basis for the audited consolidated statements of income, consolidated
balance sheets and consolidated statements of cash flows included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(B) any other unaudited income statement data and balance sheet items
included in the Prospectus do not agree with the corresponding amounts in
the unaudited consolidated financial statements from which such items were
derived, and any such unaudited data and items were not determined on a
basis substantially consistent with the basis for the corresponding
amounts in the audited consolidated financial statements included or
incorporated by reference in the Company's Annual Report on Form 10-K for
the most recent fiscal year;
(C) the unaudited financial statements which were not included in the
Prospectus but from which were derived any unaudited consolidated
financial data referred to in Clause (A) and any unaudited income
statement data and balance sheet items included in the Prospectus and
referred to in Clause (B) were not determined on a basis for the audited
consolidated financial statements included or incorporated by reference in
the Company's Annual Report on Form 10-K for the most recent fiscal year;
-1-
<PAGE>
(D) any unaudited pro forma consolidated condensed financial
statements included or incorporated by reference in the Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the Act and the published rules and regulations thereunder
or the pro forma adjustments have not been properly applied to the
historical amounts in the compilation of those statements;
(E) as of the date of the most recent financial statements prepared by
the Company, there have been any changes in the consolidated capital stock
(other than issuances of capital stock upon exercise of options and stock
appreciation rights, upon earn-outs of performance shares and upon
conversions of convertible securities, in each case which were outstanding
on the date of the latest balance sheet included or incorporated by
reference in the Prospectus) or any increase in the consolidated long-term
debt of the Company and its subsidiaries, or any decreases in consolidated
net current assets or net assets or other items specified by the
Representatives, or any increases in any items specified by the
Representatives, in each case as compared with amounts shown in the latest
balance sheet included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are described in
such letter; and
(F) for the period from the date of the latest financial statements
included or incorporated by reference in the Prospectus to the date of the
most recent financial statements prepared by the Company there were any
decreases in consolidated net sales or operating income or the total or
per share amounts of consolidated net income or other items specified by
the Representatives, or any increases in any items specified by the
Representatives, in each case as compared with the comparable period of
the preceding year and with any other period of corresponding length
specified by the Representatives, except in each case for increases or
decreases which the Prospectus discloses have occurred or may occur or
which are described in such letter; and
(iv) In addition to the examination referred to in their report(s)
included or incorporated by reference in the Prospectus and the limited
procedures, inspection of minute books, inquiries and other procedures
referred to in paragraphs (ii) and (iii) above, they have carried out certain
specified procedures, not constituting an examination in accordance with
generally accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Representatives which
are derived from the general accounting records of the Company and its
subsidiaries, which appear in the Prospectus (excluding documents
incorporated by reference), or in Part II of, or in exhibits and schedules
to, the Registration Statement specified by the Representatives or in
documents incorporated by reference in the Prospectus specified by the
Representatives, and have compared certain of such amounts, percentages and
financial information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
All references in this Annex II to the Prospectus shall be deemed to refer to
the Prospectus as amended or supplemented (including the documents incorporated
by reference therein) in relation to the applicable Designated Securities.
-2-
<PAGE>
SCHEDULE I
PRINCIPAL
AMOUNT OF
DESIGNATED
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ---------
$
------------
Total............... $
============
-1-
<PAGE>
SCHEDULE II
[to be completed if Designated Securities are Debt Securities]
TITLE OF DESIGNATED SECURITIES:
[ %] [Floating Rate] [Zero Coupon] [Notes]
[Debentures] due
AGGREGATE PRINCIPAL AMOUNT:
[$]
PRICE TO PUBLIC:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any,
from to ]
PURCHASE PRICE BY UNDERWRITERS:
% of the principal amount of the Designated Securities, plus accrued interest
from to [and accrued amortization, if any,
from to ]
FORM OF DESIGNATED SECURITIES:
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
SPECIFIED FUNDS FOR PAYMENT OF PURCHASE PRICE:
Federal (same day) funds
INDENTURE:
Indenture dated , 19 , between the Company and The Chase
Manhattan Bank, as Trustee
MATURITY:
INTEREST RATE:
[ %] [Zero Coupon] [See Floating Rate Provisions]
INTEREST PAYMENT DATES:
[months and dates]
REDEMPTION PROVISIONS:
[No provisions for redemption]
-1-
<PAGE>
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount
of [$] or an integral multiple thereof,
[on or after , at the following redemption prices (expressed in
percentages of principal amount). If [redeemed on or before ,
%, and if] redeemed during the 12-month period beginning ,
REDEMPTION
YEAR PRICE
---- ----------
and thereafter at 100% of their principal amount, together in each case with
accrued interest to the redemption date.]
[on any interest payment date falling in or after , at the
election of the Company, at a redemption price equal to the principal amount
thereof, plus accrued interest to the date of redemption.]
[Other possible redemption provisions, such as mandatory redemption upon
occurrence of certain events or redemption for changes in tax law]
[Restriction on refunding]
SINKING FUND PROVISIONS:
[No sinking fund provisions]
[The Designated Securities are entitled to the benefit of a sinking fund to
retire [$] principal amount of Designated Securities on
in each of the years through at 100% of their principal
amount plus accrued interest] [,together with [cumulative] [noncumulative]
redemptions at the option of the Company to retire an additional [$]
principal amount of Designated Securities in the years through
at 100% of their principal amount plus accrued interest].
[If Securities are extendable debt Securities, insert --
EXTENDABLE PROVISIONS:
Securities are repayable on , [insert date and years],
at the option of the holder, at their principal amount with accrued interest.
Initial annual interest rate will be %, and thereafter annual interest
rate will be adjusted on , and to a rate not less than
% of the effective annual interest rate on U.S. Treasury obligations with
-year maturities as of the [insert date 15 days prior to maturity date] prior
to such [insert maturity date].]
[If Securities are Floating Rate debt Securities, insert --
FLOATING RATE PROVISIONS:
Initial annual interest rate will be % through [and thereafter
will be adjusted [monthly] [on each , , and
] [to an annual rate of % above the average rate for -year
[month] [securities] [certificates of deposit] issued by
-2-
<PAGE>
and [insert names of banks].] [and the annual interest rate
[thereafter] [from through ] will be the interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills plus % of Interest Differential (the excess, if any,
of (i) then current weekly average per annum secondary market yield for
-month certificates of deposit over (ii) then current interest yield
equivalent of the weekly average per annum market discount rate for
-month Treasury bills); [from and thereafter the rate will be
the then current interest yield equivalent plus % of Interest
Differential].]
DEFEASANCE PROVISIONS:
TIME OF DELIVERY:
CLOSING LOCATION:
NAMES AND ADDRESSES OF REPRESENTATIVES:
Designated Representatives:
Address for Notices, etc.:
[OTHER TERMS]:
[TERMS OF ANY WARRANTS]
-3-
<PAGE>
EXHIBIT 5
---------
October 17, 1997
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey 07417-1880
Ladies and Gentlemen:
In connection with the proposed shelf registration under the Securities
Act of 1933, as amended (the "Securities Act"), by Becton, Dickinson and
Company, a New Jersey corporation (the "Company"), of $400,000,000 principal
amount of the Company's debentures, notes or other debt securities (the "Debt
Securities") (the prospectus contained therein also relates to an additional
$100,000,000 aggregate principal amount of Debt Securities carried forward from
the Company's Registration Statement No. 333-23559 (on Form S-3) pursuant to
Rule 429 under the Securities Act) proposed to be issued under an Indenture,
dated as of March 1, 1997 (the "Indenture"), between the Company and The Chase
Manhattan Bank, as Trustee (the "Trustee"), and/or warrants to purchase Debt
Securities (the "Warrants" and, together with the Debt Securities, the
"Securities") proposed to be issued pursuant to a Warrant Agreement (the
"Warrant Agreement") to be entered into between the Company and a Warrant Agent
(the "Warrant Agent"), I have examined such corporate records and other
documents, including the Registration Statement on Form S-3 proposed to be filed
with the Securities and Exchange Commission (the "Registration Statement"), and
have reviewed such matters of law as I have deemed necessary for this opinion,
and I advise you that in my opinion:
1. The Company is a corporation duly organized and existing under
the laws of the State of New Jersey.
2. When the terms of the Debt Securities and of their issuance and
sale have been duly established in conformity with the Indenture,
the Debt Securities of a particular series (the "Offered Debt
Securities") or Warrants of a particular series (the "Offered
Warrants" and, together with the Offered Debt Securities, the
"Offered Securities") have been duly authorized by the Board of
Directors of the Company or of a duly authorized committee
thereof and when, with respect to any Offered Warrants, the
Warrant Agreement has been duly executed and delivered, and the
Offered Securities have been duly executed and issued in
accordance with the provisions of the applicable Indenture and/or
Warrant Agreement and the Offered Debt Securities have been duly
authenticated, the Offered Securities have been issued and sold
as contemplated in the Registration Statement, and the
Registration Statement has become effective under the Securities
Act, the Offered Securities will be legally issued, valid and
binding obligations of the Company.
<PAGE>
I consent to the filing of this opinion as an exhibit to the
Registration Statement and to the references made to me in the Prospectus
contained as a part of the Registration Statement.
Very truly yours,
/s/ John W. Galiardo
-------------------------------
John W. Galiardo
<PAGE>
EXHIBIT 12
----------
BECTON, DICKINSON AND COMPANY
CALCULATION OF RATIO OF EARNINGS TO FIXED CHARGES
(All Amounts in Millions Except for Ratio of Earnings to Fixed Charges)
<TABLE>
<CAPTION>
Year Ended September 30,
---------------------------------------------------
Nine Months
Ended June
30, 1997 1996 1995 1994 1993 1992
-------- ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C>
Income Before Income Taxes and $297.1 $393.7 $349.6 $296.2 $222.9 $269.5
Cumulative Effect of Accounting
Changes
Undistributed (Earnings)/Losses of
Less than 50%-Owned Companies - - - - 0.2 (1.2)
Carried at Equity
Net Capitalized Interest 1.9 4.5 7.2 5.7 3.3 (10.9)
Fixed Charges 53.4 75.8 80.5 84.0 90.9 96.0
------ ------ ------ ------ ------ ------
Earnings as Adjusted $352.4 $474.0 $437.3 $385.9 $317.3 $353.4
====== ====== ====== ====== ====== ======
Fixed Charges:
Interest Cost/1/ $ 41.6 $ 59.5 $ 64.7 $ 68.4 $ 74.9 $ 81.8
Interest Allocable to Rents/2/ 11.3 15.0 15.3 15.0 15.5 13.7
Amortization of Debt Expense 0.5 1.3 0.5 0.6 0.5 0.5
------ ------ ------ ------ ------ ------
Fixed Charges $ 53.4 $ 75.8 $ 80.5 $ 84.0 $ 90.9 $ 96.0
====== ====== ====== ====== ====== ======
Ratio of Earnings to Fixed Charges 6.60 6.25 5.43 4.59 3.49 3.68
====== ====== ====== ====== ====== ======
</TABLE>
- ----------
/1/Includes interest expense and interest capitalized in accordance with
FASB Statement No. 34.
/2/Represents an appropriate portion of rental expense.
<PAGE>
EXHIBIT 23(a)
-------------
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in
the Registration Statement (Form S-3) of Becton, Dickinson and Company (the
"Company") for the registration of $400,000,000 of its debt securities and the
related Prospectus contained therein, which relates to an additional
$100,000,000 of debt securities registered under the Company's Registration
Statement No. 333-23559 (Form S-3) pursuant to Rule 429 under the Securities Act
of 1933, and to the incorporation by reference therein of our report dated
November 7, 1996, with respect to the consolidated financial statements and
schedule of the Company included in its Annual Report (Form 10-K) for the year
ended September 30, 1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------
Ernst & Young LLP
Hackensack, New Jersey
October 16, 1997
<PAGE>
EXHIBIT 24
----------
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Clateo Castellini
---------------------------------
Clateo Castellini
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Officer of
Becton, Dickinson and Company, a New Jersey corporation (the "Corporation"),
hereby constitutes and appoints each of Geoffrey D. Cheatham, Bridget M. Healy,
and Raymond P. Ohlmuller, severally, his true and lawful attorney-in-fact and
agent, in the name and on behalf of the undersigned to do any and all acts and
things and execute any and all instruments which the said attorney-in-fact and
agent may deem necessary or advisable to enable the Corporation to comply with
the Securities Act of 1933, as amended (the "Act"), and any rules and
regulations and requirements of the Securities and Exchange Commission (the
"Commission") in respect thereof, in connection with the registration under the
Act of debentures, notes and/or other evidences of indebtedness, including debt
securities which may be convertible into shares of Common Stock of the
Corporation, par value $1.00 per share, and warrants or other rights to purchase
such debt securities (collectively, the "Debt Securities") proposed to be sold
from time to time by the Corporation, including specifically, but without
limiting the generality of the foregoing, the power and authority to sign the
name of the undersigned in his capacity as a Director and/or Officer of the
Corporation to a Registration Statement on Form S-3 or such other form as may be
appropriate to be filed with the Commission in respect of said Debt Securities,
to any and all amendments, including post-effective amendments, to the said
Registration Statement and to any and all instruments and documents filed as a
part of or in connection with the said Registration Statement or amendments
thereto; HEREBY RATIFYING AND CONFIRMING all that the said attorneys-in-fact and
agents, or any of them, shall do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Edward J. Ludwig
---------------------------------
Edward J. Ludwig
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Harry N. Beaty, M.D.
--------------------------------
Harry N. Beaty, M.D.
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Henry P. Becton, Jr.
------------------------------------
Henry P. Becton, Jr.
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Albert J. Costello
------------------------------------
Albert J. Costello
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Gerald M. Edelman, M.D.
------------------------------------
Gerald M. Edelman, M.D.
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ John W. Galiardo
------------------------------------
John W. Galiardo
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 on
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Richard W. Hanselman
------------------------------------
Richard W. Hanselman
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Frank A. Olson
------------------------------------
Frank A. Olson
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ James E. Perrella
------------------------------------
James E. Perrella
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, her true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
26th day of September, 1997.
/s/ Gloria M. Shatto
------------------------------------
Gloria M. Shatto
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, his true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Raymond S. Troubh
------------------------------------
Raymond S. Troubh
<PAGE>
BECTON, DICKINSON AND COMPANY
POWER OF ATTORNEY
-----------------
KNOW ALL PERSONS BY THESE PRESENTS that the undersigned Director and/or
Officer of Becton, Dickinson and Company, a New Jersey corporation (the
"Corporation"), hereby constitutes and appoints each of Geoffrey D. Cheatham,
Bridget M. Healy, and Raymond P. Ohlmuller, severally, her true and lawful
attorney-in-fact and agent, in the name and on behalf of the undersigned to do
any and all acts and things and execute any and all instruments which the said
attorney-in-fact and agent may deem necessary or advisable to enable the
Corporation to comply with the Securities Act of 1933, as amended (the "Act"),
and any rules and regulations and requirements of the Securities and Exchange
Commission (the "Commission") in respect thereof, in connection with the
registration under the Act of debentures, notes and/or other evidences of
indebtedness, including debt securities which may be convertible into shares of
Common Stock of the Corporation, par value $1.00 per share, and warrants or
other rights to purchase such debt securities (collectively, the "Debt
Securities") proposed to be sold from time to time by the Corporation, including
specifically, but without limiting the generality of the foregoing, the power
and authority to sign the name of the undersigned in his capacity as a Director
and/or Officer of the Corporation to a Registration Statement on Form S-3 or
such other form as may be appropriate to be filed with the Commission in respect
of said Debt Securities, to any and all amendments, including post-effective
amendments, to the said Registration Statement and to any and all instruments
and documents filed as a part of or in connection with the said Registration
Statement or amendments thereto; HEREBY RATIFYING AND CONFIRMING all that the
said attorneys-in-fact and agents, or any of them, shall do or cause to be done
by virtue hereof.
IN WITNESS WHEREOF, the undersigned has subscribed these presents this
23rd day of September, 1997.
/s/ Margaretha af Ugglas
------------------------------------
Margaretha af Ugglas
<PAGE>
EXHIBIT 25
------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D. C. 20549
-------------------
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF
A CORPORATION DESIGNATED TO ACT AS TRUSTEE
-------------------
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF
A TRUSTEE PURSUANT TO SECTION 305(b)(2) ________
-------------------
THE CHASE MANHATTAN BANK
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
-------------------
BECTON, DICKINSON AND COMPANY
(Exact name of obligor as specified in its charter)
NEW JERSEY 22-0760120
(State or other jurisdiction of (I.R.S. employer)
incorporation or organization) identification No.)
1 BECTON DRIVE
FRANKLIN LAKES, N.J.
(Address of principal executive offices) 07417-1880
(Zip Code)
---------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
----------------------------------
GENERAL
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to
which it is subject.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington,
D.C., 20551.
Federal Reserve Bank of New York, District No. 2, 33 Liberty
Street, New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None.
<PAGE>
- 3 -
ITEM 16. List of Exhibits
List below all exhibits filed as a part of this Statement of
Eligibility.
1. A copy of the Articles of Association of the Trustee as now in
effect, including the Organization Certificate and the Certificates of Amendment
dated February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being
contained in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement No.
33-50010, which is incorporated by reference. On July 14, 1996, in connection
with the merger of Chemical Bank and The Chase Manhattan Bank (National
Association), Chemical Bank, the surviving corporation, was renamed The Chase
Manhattan Bank).
7. A copy of the latest report of condition of the Trustee, published
pursuant to law or the requirements of its supervising or examining authority.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, a corporation organized and existing under
the laws of the State of New York, has duly caused this statement of eligibility
to be signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of New York and State of New York, on the 2nd day of October, 1997.
THE CHASE MANHATTAN BANK
By /s/ Glenn G. McKeever
----------------------------------
Glenn G. McKeever
Senior Trust Officer
- 3 -
<PAGE>
EXHIBIT 7 TO FORM T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business June 30, 1997,
in accordance with a call made by the Federal Reserve Bank of this
District pursuant to the provisions of the Federal Reserve Act
<TABLE>
<CAPTION>
ASSETS DOLLAR AMOUNTS
IN MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.... $ 13,892
Interest-bearing balances............................. 4,282
Securities:
Held to maturity securities.............................. 2,857
Available for sale securities............................ 34,091
Federal Funds sold and securities purchased under
agreements to resell.................................. 29,970
Loans and lease financing receivables:
Loans and leases, net of unearned income.............. $124,827
Less: Allowance for loan and lease losses............. 2,753
Less: Allocated transfer risk reserve................. 13
------------
Loans and leases, net of unearned income, allowance,
and reserve........................................... 122,061
Trading Assets........................................... 56,042
Premises and fixed assets (including capitalized leases). 2,904
Other real estate owned.................................. 306
Investments in unconsolidated subsidiaries and
associated companies.................................. 232
Customers' liability to this bank of acceptances
outstanding........................................... 2,092
Intangible assets........................................ 1,532
Other assets............................................. 10,448
----------
TOTAL ASSETS............................................. $ 280,709
==========
</TABLE>
-4-
<PAGE>
<TABLE>
<CAPTION>
LIABILITIES
<S> <C> <C>
Deposits
In domestic offices..................................... $ 91,249
Noninterest-bearing..............................$38,157
Interest-bearing..................................53,092
------
In foreign offices, Edge and Agreement subsidiaries,
and IBF's............................................... 70,192
Noninterest-bearing..............................$ 3,712
Interest-bearing..................................66,480
Federal funds purchased and securities sold under
agreements to repurchase................................ 35,185
Demand notes issued to the U.S. Treasury.................. 1,000
Trading liabilities....................................... 42,307
Other Borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less........... 4,593
With a remaining maturity of more than one year
through three years.................................. 260
With a remaining maturity of more than three years...... 146
Bank's liability on acceptances executed and outstanding.. 2,092
Subordinated notes and debentures......................... 5,715
Other liabilities......................................... 11,373
TOTAL LIABILITIES......................................... 264,112
--------
EQUITY CAPITAL
Perpetual Preferred stock and related surplus 0
Common stock.............................................. 1,211
Surplus (exclude all surplus related to preferred stock).. 10,283
Undivided profits and capital reserves.................... 5,280
Net unrealized holding gains (Losses)
on available-for-sale securities.......................... (193)
Cumulative foreign currency translation adjustments....... 16
TOTAL EQUITY CAPITAL...................................... 16,597
--------
TOTAL LIABILITIES AND EQUITY CAPITAL...................... $280,709
========
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named bank, do hereby
declare that this Report of Condition has been prepared in conformance with the
instructions issued by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
We, the undersigned directors, attest to the correctness of this Report of
Condition and declare that it has been examined by us, and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the appropriate Federal regulatory authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE ) DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
