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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 23, 1999
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BECTON, DICKINSON AND COMPANY
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(Exact name of registrant as specified in its charter)
New Jersey 001-4802 22-0760120
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(State or other juris- (Commission (IRS Employer Iden-
diction of incorporation) File Number) tification Number)
1 Becton Drive, Franklin Lakes, New Jersey 07417-1880
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (201) 847-6800
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N/A
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(Former name or former addresses if changed since last report.)
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Item 7. Financial Statements and Exhibits
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The Registrant is filing herewith the exhibits referenced in the
Index of Exhibits annexed hereto and made a part hereof.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
BECTON, DICKINSON AND COMPANY
(Registrant)
By: /s/ Bridget M. Healy
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Bridget M. Healy
Vice President and Secretary
Date: September 30, 1999
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INDEX TO EXHIBITS
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Exhibit
Number Description of Exhibits
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1(a) Underwriting Agreement, dated September 23, 1999, among
the Registrant and Goldman, Sachs & Co., Salomon Smith
Barney Inc., Chase Securities Inc. and Banc One Capital
Markets, Inc.
1(b) Pricing Agreement, dated September 23, 1999, among the
Registrant and Goldman, Sachs & Co., Salomon Smith Barney
Inc., Chase Securities Inc. and Banc One Capital Markets,
Inc.
4(d) Form of Definitive Global 7.15% Note due October 1,
2009.
12 Calculation of Ratio of Earnings to Fixed Charges.
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Exhibit 1(a)
Becton, Dickinson and Company
Debt Securities and Warrants
to Purchase Debt Securities
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Underwriting Agreement
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September 23, 1999
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
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(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.
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 has 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 statement 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 statement became
effective, being hereinafter 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);
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(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 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 development 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;
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(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 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;
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(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 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:
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(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;
(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
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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 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
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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
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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 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;
<PAGE>
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 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
<PAGE>
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
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
<PAGE>
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 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
<PAGE>
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 any such action shall be brought
against any indemnified party and it shall notify the indem nifying 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
<PAGE>
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 obliga tions of the
Underwriters of Designated Securities in this subsection (d) to contribute are
several in proportion to their respective underwriting obligations with respect
to such Securities
<PAGE>
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 Represen tatives 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 sub section (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
<PAGE>
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.
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.
<PAGE>
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Under writers 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 Under writer at its
address set forth in its Underwriters' Questionnaire, or telex constituting such
Question naire, 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 Agree ment. 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.
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: /s/ Richard K. Berman
------------------------------
Name: Richard K. Berman
Title: Vice President and Treasurer
<PAGE>
ANNEX I
Pricing Agreement
-----------------
[Names of Co-Representative(s),]
As Representatives of the several
Underwriters named in Schedule I hereto,
...................., 19..
Dear Sirs:
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 .............., 1997 (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
<PAGE>
[ ] 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 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)]
<PAGE>
SCHEDULE I
Principal
Amount of
Designated
Securities
to be
Underwriter Purchased
----------- ---------
$
----------
Total $
==========
<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:
[$]
Price to Public:
% of the principal amount of the Designated Securities, plus accrued interest
to
[and accrued amortization, if any, from to ]
Purchase Price by Underwriters:
% of the principal amount of the Designated Securities, plus accrued interest
to
[and accrued amortization, if any, from to ]
Form of Designated Securities:
[Book-entry only form represented by one or more global securities deposited
with The Depository Trust Company ("DTC") or its designated custodian, to be
made available for checking by the Representatives at least twenty-four hours
prior to the Time of Delivery at the office of DTC.]
Specified funds for payment of purchase price:
Federal (same day) funds
Indenture:
Indenture dated , 19 , between the Company and The Chase
Manhattan Bank, as Trustee
Maturity:
Interest Rate:
[ %] [Zero Coupon] [See Floating Rate Provisions]
Interest Payment Dates:
[months and dates]
Redemption Provisions:
[No provisions for redemption]
<PAGE>
[The Designated Securities may be redeemed, otherwise than through the
sinking fund, in whole or in part at the option of the Company, in the amount
of [$] 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:
<PAGE>
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 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]
<PAGE>
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 changes in financial
position 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 changes in financial
position 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
<PAGE>
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;
(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
<PAGE>
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.
<PAGE>
Exhibit 1(b)
Pricing Agreement
-----------------
Goldman, Sachs & Co.
Salomon Smith Barney, Inc.
Chase Securities Inc.
Banc One Capital Markets, Inc.
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
September 23, 1999
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 September 23, 1999 (the "Underwriting Agreement"),
to issue and sell to the Underwriters named in Schedule I hereto (the
"Underwriters") the Securities 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 eight 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
<PAGE>
Underwriters and the Company. It is understood that your acceptance of this
letter on behalf of 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: /s/ Richard K. Berman
------------------------------
Name: Richard K. Berman
Title: Vice President and Tresurer
Accepted as of the date hereof:
GOLDMAN, SACHS & CO.
SALOMON SMITH BARNEY, INC.
CHASE SECURITIES INC.
BANC ONE CAPITAL MARKETS, INC.
By: GOLDMAN, SACHS & CO.
/s/ Goldman, Sachs & Co.
(Goldman, Sachs & Co.)
-2-
<PAGE>
SCHEDULE I
Underwriter Principal
----------- Amount of
Designated
Securities
to be
Purchased
---------
Goldman, Sachs & Co. $156,000,000
Salomon Smith Barney, Inc. 24,000,000
Chase Securities Inc. 14,000,000
Banc One Capital Markets, Inc. 6,000,000
------------
Total.................................................... $200,000,000
============
I-3
<PAGE>
SCHEDULE II
Title of Designated Securities:
7.15% Notes due October 1, 2009
Aggregate principal amount:
$200,000,000
Price to Public:
99.90% of the principal amount of the Designated Securities, plus accrued
interest, if any, from September 28
Purchase Price by Underwriters:
99.25% of the principal amount of the Designated Securities, plus accrued
interest, if any, from September 28
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 March 1, 1997, between the Company and The Chase Manhattan
Bank, as Trustee
Maturity:
October 1, 2009
Interest Rate:
7.15%
Interest Payment Dates:
April 1 and October 1, commencing April 1, 2000
Redemption Provisions:
The Notes are redeemable as a whole or in part, at the option of the Company
at any time, at a redemption price equal to the greater of (1) 100% of the
principal amount of the Notes to be redeemed and (2) the sum of the present
values of the Remaining Scheduled Payments on the Notes, discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, plus in each
case, accrued interest to the date of redemption on the principal balance of the
Notes being redeemed.
"Treasury Rate" means, for any redemption date, the annual rate equal to the
semiannual equivalent yield to maturity of the Comparable Treasury Issue,
assuming a price for the Comparable Treasury Issue equal to he Comparable
Treasury Price, expressed as a percentage of its principal amount, for such
redemption date. The yield of the Comparable Treasury Issue shall be computed
as of the second business day immediately preceding the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker that would be used, at the time of
selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the applicable
remaining term of the Notes. "Independent Investment Banker" means
II-4
<PAGE>
one of the Reference Treasury Dealers appointed by the Trustee after
consultation with the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co., Salomon Smith
Barney Inc., Chase Securities Inc. and Banc One Capital Markets, Inc., each of
their successors, and any two other nationally recognized investment banking
firms selected by the Company from time to time that are primary dealers of U.S.
government securities in New York City; provided, however, that if any of the
foregoing ceases to be a primary dealer of U.S. government securities in New
York City, the Company shall substitute therefor another nationally recognized
investment banking.
"Comparable Treasury Price" means, with respect to any redemption date, (1)
the average of the Reference Treasury Dealer Quotations obtained by the Trustee
for that redemption date after excluding the highest and lowest of those
Reference Treasury Dealer Quotations; or (2) if the Trustee obtains fewer than
four Reference Treasury Dealer Quotations, the average of all those quotations.
"Reference Treasury Dealer Quotation" means, with respect to any redemption
date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue, expressed in each case as a percentage of its
principal amount, quoted in writing to the Trustee by a Reference Treasury
Dealer as of 3:30 p.m., New York time, on the third business day preceding that
redemption date. The Trustee shall seek Reference Treasury Dealer Quotations in
respect of any redemption date from each of the then-existing Reference Treasury
Dealers.
"Remaining Scheduled Payments" means, with respect to each Note being
redeemed, the remaining scheduled payments of principal and interest on that
Note that would be due after the related redemption date but for the redemption;
provided, however, that if the redemption date is not an interest payment date
with respect to that Note, the amount of the next succeeding scheduled interest
payment on that Note that would have been due shall be deemed reduced by the
amount of interest accrued on the Note to the redemption date.
Notice of any redemption shall be mailed at least 30 days but not more than
60 days before the redemption date to each holder of the Notes or portions
thereof called for redemption.
Sinking Fund Provisions:
No sinking fund provisions
Defeasance provisions:
The defeasance provisions of the Indenture are applicable to the Designated
Securities.
Time of Delivery:
10:00 a.m. (New York City time), September 28, 1999
Closing Location:
Sullivan & Cromwell
125 Broad Street
New York, New York 10004
Names and addresses of Representatives:
Goldman, Sachs & Co.
Salomon Smith Barney, Inc.
Chase Securities Inc.
Banc One Capital Markets, Inc.
II-5
<PAGE>
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
II-6
<PAGE>
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to Issuer or its agent
for registration of transfer, exchange, or payment, and any certificate issued
is registered in the name of Cede & Co. or in such other name as is requested by
an authorized representative of DTC (and any payment is made to Cede & Co. or to
such other entity as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.
BECTON, DICKINSON AND COMPANY
7.15% Notes due October 1, 2009
CUSIP No. 075887AR0
No. 1 $200,000,000
BECTON, DICKINSON AND COMPANY, a New Jersey corporation (such
corporation, and its successors and assigns under the Indenture hereinafter
referred to, being herein called the "Company"), for value received, hereby
promises to pay to Cede & Co., or registered assigns, the principal sum of
$200,000,000 on October 1, 2009 and to pay interest, on April 1 and October 1 of
each year, commencing April 1, 2000, on said principal sum at the rate of 7.15%
per annum, from September 28, 1999 or from the most recent interest payment date
to which interest has been paid or provided for, as the case may be, until
payment of said principal sum has been made or duly provided for; provided,
however, that payment of interest may be made at the option of the Company (i)
by check mailed to the address of the person entitled thereto as such address
shall appear on the register of Notes or (ii) by transfer in immediately
available funds to an account maintained by the person entitled thereto as
specified in the register of Notes. The interest so payable on any April 1 or
October 1 will, subject to certain exceptions provided in the Indenture referred
to on the reverse hereof, be paid to the person in whose name this Note is
registered at the close of business on the fifteenth day of the calendar month
preceding such April 1 or October 1.
Reference is made to the further provisions of this Note set forth on
the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
<PAGE>
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been signed by the
Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS HEREOF, Becton, Dickinson and Company has caused this Note
to be executed in its name and on its behalf by the signatures of two of its
officers authorized to execute Securities pursuant to the Indenture and has
caused its corporate seal to be affixed hereunto or imprinted hereon.
Dated: , 1999
BECTON, DICKINSON AND COMPANY
By: /s/ Richard K. Berman
-----------------------------------------
Richard K. Berman
Vice President and Treasurer
By: /s/ Bridget M. Healy
------------------------------------------
Bridget M. Healy
Vice President, Corporate Secretary and
Associate General Counsel
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued
pursuant to the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: /s/ L. O'Brien
---------------------------------------------
Authorized Officer
<PAGE>
BECTON, DICKINSON AND COMPANY
7.15% Notes due October 1, 2009
This Note is one of a duly authorized issue of debentures, notes or
other evidences of indebtedness of the Company (herein called the "Securities")
of the series hereinafter specified, all issued or to be issued under and
pursuant to an Indenture, dated as of March 1, 1997 (as amended or supplemented,
herein called the "Indenture"), duly executed and delivered by the Company and
The Chase Manhattan Bank, as Trustee (herein called the "Trustee"), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties, obligations
and immunities thereunder of the Company, the Trustee and the holders of the
Securities. The Securities may be issued in one or more series, which different
series may be issued in various aggregate principal amounts, may mature at
different times, may bear interest (if any) at different rates, may be subject
to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any) and may otherwise vary as in the
Indenture provided. This Note is one of a series designated as the 7.15% Notes
due October 1, 2009 (the "Notes") limited in aggregate principal amount to
$200,000,000 (except as in the Indenture provided). Terms defined in the
Indenture have the same definitions herein unless otherwise specified.
In case an Event of Default, as defined in the Indenture, with respect
to the Notes shall have occurred and be continuing, the principal hereof and
interest hereon may be declared, and upon such declaration shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the holders of the Securities of any series at any
time by the Company and the Trustee with the consent of the holders of a
majority in aggregate principal amount of the outstanding Securities of such
series, each affected series voting separately. The Indenture also contains
provisions permitting the holders of a majority in aggregate principal amount of
the outstanding Securities of any series, on behalf of the holders of all the
Securities of such series, to waive certain past defaults under the Indenture
and their consequences. Any such consent or waiver by or on behalf of the
holder of this Note shall be conclusive and binding upon such holder and upon
all future holders of this Note and of any Note issued upon the registration of
transfer hereof or in exchange hereof or in lieu hereof whether or not notation
of such consent or waiver is made upon this Note or such other Note.
<PAGE>
Subject to the terms of the Indenture, the Company may elect either
(i) to defease and be discharged from any and all obligations with respect to
the Notes or (ii) to be released from its obligations with respect to certain
covenants applicable to the Notes, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the place, at the respective times, at the rate and in the coin or currency
prescribed herein.
The Notes are redeemable as a whole or in part, at the option of the
Company at any time, at a redemption price equal to the greater of (1) 100% of
the principal amount of the Notes to be redeemed and (2) the sum of the present
values of the Remaining Scheduled Payments on the Notes, discounted to the
redemption date on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate plus 15 basis points, plus in each
case, accrued interest to the date of redemption on the principal balance of the
Notes being redeemed. For the purposes hereof:
"Treasury Rate" means, for any redemption date, the annual rate equal
to the semiannual equivalent yield to maturity of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue equal to the
Comparable Treasury Price, expressed as a percentage of its principal
amount, for such redemption date. The yield of the Comparable Treasury
Issue shall be computed as of the second business day immediately preceding
the redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by an Independent Investment Banker that would be used, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to
the applicable remaining term of the Notes.
"Independent Investment Banker" means one of the Reference Treasury
Dealers appointed by the Trustee after consultation with the Company.
"Reference Treasury Dealer" means each of Goldman, Sachs & Co.,
Salomon Smith Barney Inc., Chase Securities Inc. and Banc One Capital
Markets, Inc., each of their successors, and any two other nationally
recognized investment banking firms selected by the Company from time to
time that are primary dealers of U.S. government securities in New York
City; provided, however, that if any of the foregoing ceases to be a
primary dealer of U.S. government securities in New York City, the Company
shall substitute therefor another nationally recognized investment banking
firm.
"Comparable Treasury Price" means, with respect to any redemption
date, (1)
<PAGE>
the average of the Reference Treasury Dealer Quotations obtained by the
Trustee for that redemption date after excluding the highest and lowest of
those Reference Treasury Dealer Quotations; or (2) if the Trustee obtains
fewer than four Reference Treasury Dealer Quotations, the average of all
those quotations.
"Reference Treasury Dealer Quotation" means, with respect to any
redemption date, the average, as determined by the Trustee, of the bid and
asked prices for the Comparable Treasury Issue, expressed in each case as a
percentage of its principal amount, quoted in writing to the Trustee by a
Reference Treasury Dealer as of 3:30 p.m., New York time, on the third
business day preceding that redemption date. The Trustee shall seek
Reference Treasury Dealer Quotations in respect of any redemption date from
each of the then-existing Reference Treasury Dealers.
"Remaining Scheduled Payments" means, with respect to each Note being
redeemed, the remaining scheduled payments of principal and interest on
that Note that would be due after the related redemption date but for the
redemption; provided, however, that if the redemption date is not an
interest payment date with respect to that Note, the amount of the next
succeeding scheduled interest payment on that Note that would have been due
shall be deemed reduced by the amount of interest accrued on the Note to
the redemption date.
Notice of any redemption shall be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the Notes or portions
thereof called for redemption. On and after any redemption date, the Notes or
any portion of the Notes called for redemption will stop accruing interest. If
less than all of the Notes are redeemed, the Trustee will choose the Notes to be
redeemed by any method that it deems fair and appropriate.
Upon the presentment for registration of transfer of this Note at the
office or agency of the Company designated for such purpose pursuant to the
Indenture, a new Note or Notes of authorized denominations for an equal
aggregate principal amount will be issued to the transferee in exchange
therefor, subject to the limitations provided in the Indenture, without charge
except for any tax or other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Note,
the Company, the Trustee or any Note registrar, co-registrar, paying agent or
authenticating agent, may deem and treat the registered holder hereof as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment hereof, or on account hereof, and for all other
purposes, and the Company, the Trustee and any Note registrar, co-registrar,
paying agent and authenticating agent shall not be affected by any notice to the
contrary.
<PAGE>
EXHIBIT 12
Becton, Dickinson and Company
Calculation of Ratio of Earnings to Fixed Charges
(All Amounts in Millions except for the Ratio of Earnings to Fixed Charges)
<TABLE>
<CAPTION>
(Unaudited)
-------------------
Nine Months
Ended June 30, Year Ended September 30,
------------------- -------------------------------------------
1999 1998 1997 1996
------------------- ------------- ------------- -------------
<S> <C> <C> <C> <C>
Earnings:
Income Before Income Taxes and Cumulative
Effect of Accounting Changes $ 256.5 $ 340.9 $ 422.6 $ 393.7
Undistributed (Earnings)/Losses of Less Than
50%-Owned Companies Carried at Equity - - - -
Net Capitalized Interest 4.4 2.0 3.5 4.5
Fixed Charges 73.6 84.3 72.1 75.8
------------------- ------------- ------------- -------------
Earnings as Adjusted $ 334.5 $ 427.2 $ 498.2 $ 474.0
=================== ============= ============= =============
Fixed Charges:
Interest Cost (1) $ 67.2 $ 75.6 $ 57.6 $ 59.5
Interest Allocable to Rents (2) 6.0 8.1 14.0 15.0
Amortization of Debt Expense 0.4 0.6 0.5 1.3
------------------- ------------- ------------- -------------
Fixed Charges $ 73.6 $ 84.3 $ 72.1 $ 75.8
=================== ============= ============= =============
Ratio of Earnings to Fixed Charges 4.54 5.07 6.91 6.25
=================== ============= ============= =============
</TABLE>
<TABLE>
<CAPTION>
Year Ended September 30,
----------------------------
1995 1994
------------- -------------
<S> <C> <C>
Earnings:
Income Before Income Taxes and Cumulative
Effect of Accounting Changes $ 349.6 $ 296.2
Undistributed (Earnings)/Losses of Less Than
50%-Owned Companies Carried at Equity - -
Net Capitalized Interest 7.2 5.7
Fixed Charges 80.5 84.0
------------- -------------
Earnings as Adjusted $ 437.3 $ 385.9
============= =============
Fixed Charges:
Interest Cost (1) $ 64.7 $ 68.4
Interest Allocable to Rents (2) 15.3 15.0
Amortization of Debt Expense 0.5 0.6
------------- -------------
Fixed Charges $ 80.5 $ 84.0
============= =============
Ratio of Earnings to Fixed Charges 5.43 4.59
============= =============
</TABLE>
(1) Includes interest expense and interest capitalized in accordance with FASB
Statement No. 34.
(2) Represents an appropriate portion of rental expense.
