<PAGE>
As filed with the Securities and Exchange Commission on May 1, 1996
Registration No. 333-02939
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
Amendment No. 1
to
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
----------------------
DANAHER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 59-1995548
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
----------------------
1250 24TH STREET, N.W.
WASHINGTON, D.C. 20037
(202) 828-0850
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
GEORGE M. SHERMAN
PRESIDENT AND CHIEF EXECUTIVE OFFICER
DANAHER CORPORATION
1250 24TH STREET, N.W.
WASHINGTON, D.C. 20037
(202) 828-0850
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
<TABLE>
<CAPTION>
<S> <C> <C>
COPIES TO:
GEORGE P. STAMAS MICHAEL J. SILVER STEPHEN T. GIOVE
WILMER, CUTLER & PICKERING HOGAN & HARTSON L.L.P. SHEARMAN & STERLING
100 LIGHT STREET 111 SOUTH CALVERT STREET 599 LEXINGTON AVENUE
BALTIMORE, MD 21202 BALTIMORE, MD 21202 NEW YORK, NY 10022
(410) 986-2800 (410) 659-2741 (212) 848-7325
</TABLE>
-------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
-------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than the securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ] _________________
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ] ________________________
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
-------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------
Amount Proposed Proposed
to be Maximum Maximum Amount of
Title of Securities to be Registered Offering Aggregate Registration Fee
Registered Price Offering
Per Share Price
- ------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value 2,000,000 $39.6875(1) $79,375,000(1) $27,370.69(2)
$.01 per share
- ------------------------------------------------------------------------------------------------------------------
</TABLE>
(1) Estimated pursuant to Rule 457(c) solely for the purpose of calculating
the amount of the registration fee, based upon the average of the high
and low prices per share of Danaher Corporation's Common Stock, par
value $.01 per share, on April 22, 1996, as reported on The New York
Stock Exchange.
(2) Previously paid in connection with the initial filing on April 29, 1996.
-------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
SUBJECT TO COMPLETION
DATED MAY 1, 1996
2,000,000 SHARES
DANAHER CORPORATION
COMMON STOCK
The 2,000,000 shares of Common Stock, $.01 par value per share (the
"Common Stock") of Danaher Corporation ("Danaher" or the "Company") offered
hereby are offered by certain selling stockholders named herein (the "Selling
Stockholders"). The Company will not receive any of the proceeds from the sale
of the Common Stock by the Selling Stockholders.
The Common Stock is listed and traded on the New York Stock Exchange and
Pacific Stock Exchange under the symbol "DHR". On April 30, 1996, the last sale
price of the Common Stock as reported on the New York Stock Exchange composite
tape was $39.375 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
<TABLE>
<CAPTION>
================================================================================
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC DISCOUNT (1) SELLING
STOCKHOLDERS (2)
- --------------------------------------------------------------------------------
<S> <C> <C> <C>
Per Share .............. $ $ $
- --------------------------------------------------------------------------------
Total .................. $ $ $
================================================================================
</TABLE>
(1) The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(2) Before deducting expenses payable by the Selling Stockholders estimated
to be $100,000.
-------------------
The shares of Common Stock are offered by the Underwriter, subject to prior
sale, when, as and if delivered to and accepted by the Underwriter, and
subject to certain other conditions. The Underwriter reserves the right to
withdraw, cancel or modify such offer and to reject orders in whole or in
part. It is expected that delivery of the shares of Common Stock will be
made against payment therefor in New York, New York on or about May __, 1996.
-------------------
MERRILL LYNCH & CO.
The date of this Prospectus is May __, 1996
- --------------------------------------------------------------------------------
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
- --------------------------------------------------------------------------------
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THIS PROSPECTUS, AND, IF GIVEN OR
MADE, SUCH INFORMATION AND REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING
BEEN AUTHORIZED BY THE COMPANY, ANY SELLING STOCKHOLDER, OR THE UNDERWRITER.
THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN
OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES TO WHICH IT RELATES OR ANY
OFFER TO SELL OR THE SOLICITATION OF ANY OFFER TO BUY SUCH SECURITIES IN ANY
CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS UNLAWFUL. NEITHER DELIVERY
OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES,
CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE
COMPANY SINCE THE DATE HEREOF OR THAT THE INFORMATION HEREIN IS CORRECT AS OF
ANY TIME SUBSEQUENT TO ITS DATE.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information may be inspected and copied, at prescribed
rates, at the public reference facilities of the Commission at Judiciary Plaza,
450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the regional
offices of the Commission at 7 World Trade Center, Suite 1300, New York, New
York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois 60661.
Copies of such material also can be obtained at prescribed rates by writing to
the Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549. Such reports, proxy statements and other information can
also be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005 and the Pacific Stock Exchange Incorporated,
115 Sansome Street, Suite 1104, San Francisco, California 94104.
The Company has filed with the Commission a registration statement on
Form S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act"),
with respect to the Common Stock offered hereby. This Prospectus, which
constitutes a part of the Registration Statement, does not contain all of the
information set forth in the Registration Statement and in the exhibits and
schedules thereto, certain portions of which have been omitted in accordance
with the rules and regulations of the Commission. For further information with
respect to the Company and such Common Stock, reference hereby is made to such
Registration Statement, exhibits and schedules. Statements contained in this
Prospectus as to the contents of any contract or other document are not
necessarily complete, and in each instance that a copy of such contract has been
filed as an exhibit to the Registration Statement, reference is made to such
copy with each such statement being qualified in all respects by such reference.
The Registration Statement may be inspected without charge at the principal
office of the Commission in Washington, D.C. and copies of all or any part
thereof may be obtained from the Commission at prescribed rates.
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITER MAY OVER-ALLOT OR
EFFECT TRANSACTIONS WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON
STOCK OFFERED HEREBY AT A LEVEL ABOVE THAT WHICH MIGHT OTHERWISE PREVAIL IN THE
OPEN MARKET. SUCH TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK STOCK EXCHANGE,
THE PACIFIC STOCK EXCHANGE, IN THE OVER-THE-COUNTER MARKET OR OTHERWISE. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
2
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission
pursuant to the Exchange Act are incorporated herein by reference and made a
part hereof: the Company's Annual Report on Form 10-K for the year ended
December 31, 1995, the description of the Company's Common Stock set forth in
the Company's Registration Statement on Form 8-B, dated November 3, 1986,
including all amendments and reports filed for the purpose of updating such
description, the Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1996 and the Company's Current Reports on Form 8-K filed April 23,
1996 and April 25, 1996.
All documents filed by the Company with the Commission pursuant to
Sections 13(a) and 13(c) of the Exchange Act, any definitive proxy statement
filed pursuant to Section 14 of the Exchange Act and any reports filed pursuant
to Section 15(d) of the Exchange Act after the date of this Prospectus and prior
to the termination of the offering of the Common Stock shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from the
date of filing of such documents. Any statement contained in a document
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is incorporated by reference
herein modifies or supersedes such earlier statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this Prospectus.
To the extent that any proxy statement is incorporated by reference
herein, such incorporation shall not include any information contained in such
proxy statement that is not, pursuant to the Commission's rules, deemed to be
"filed" with the Commission or subject to the liabilities of Section 18 of the
Exchange Act.
The Company will furnish without charge upon written or oral request
to each person to whom a copy of this Prospectus is delivered a copy of any or
all of the documents specifically incorporated herein by reference, other than
exhibits to such documents (unless such exhibits are specifically incorporated
by reference therein). Requests should be addressed to: Danaher Corporation,
1250 24th Street, N.W., Washington, D.C. 20037, Attention: Controller, telephone
(202) 828-0850.
----------------
3
<PAGE>
THE COMPANY
Danaher Corporation ("Danaher" or the "Company") conducts its
operations through two business segments: Tools and Components, and
Process/Environmental Controls. In its Tools and Components segment, Danaher
produces and distributes general purpose mechanics' hand tools and automotive
specialty tools, as well as tool boxes and storage devices, diesel engine
retarders, wheel service equipment, drill chucks, custom designed headed tools
and components, hardware and components for the power generation and
transmission industries, precision socket screws, fasteners and miniature
precision parts. This segment is comprised of the Danaher Hand Tool Group
(including Special Markets and Professional Tool Division, which includes
Armstrong Bros. Tool Co., a manufacturer and marketer of industrial hand tools),
Matco Tools, Jacobs Chuck Manufacturing Company, Iseli Company, Delta
Consolidated Industries, Jacobs Vehicle Equipment Company, Hennessy Industries
and the hardware and electrical apparatus lines of Joslyn Manufacturing Company
(which was acquired in September, 1995). The Company is the principal
manufacturer of Sears, Roebuck and Co.'s Craftsman line of tools and is a
primary supplier of specialized automotive service tools to the National
Automotive Parts Association.
In its Process/Environmental Controls segment, the Company produces
and sells underground storage tank leak detection systems and temperature, level
and position sensing devices, power switches and controls, communication line
products, power protection products, liquid flow measuring devices and
electronic and mechanical counting and controlling devices. This segment is
comprised of the Veeder-Root Company, Danaher Controls, Partlow/Anderson
Instruments, Gulton Industries-Graphic Instruments, West Instruments, Ltd.,
QualiTROL Corporation, A.L. Hyde Company, Hengstler and the controls product
line business units of Joslyn Corporation.
The Company's principal executive offices are located at 1250 24th
Street, N.W., Washington, D.C. 20037 and its telephone number is (202) 828-0850.
USE OF PROCEEDS
The Selling Stockholders will receive all of the net proceeds from
the sale of the Common Stock offered hereby, and the Company will not receive
any of such proceeds.
4
<PAGE>
SELLING STOCKHOLDERS
The securities offered hereby consist of an aggregate of 2,000,000
shares of Common Stock. Each of Mitchell P. Rales and Steven M. Rales (each a
"Selling Stockholder" and collectively the "Selling Stockholders") is offering
an aggregate of 1,000,000 shares of Common Stock hereby. Steven M.
Rales is the Chairman of the Board of the Company, a position he has held since
1984. Mitchell P. Rales is a director of the Company and is Chairman of the
Executive Committee. He has held these positions since 1984. Prior to this
offering, Steven M. Rales and Mitchell P. Rales, who are brothers, own
beneficially under certain beneficial ownership rules of the Securities and
Exchange Commission approximately 25.2 million shares of Common Stock
representing approximately 43.4% of the issued and outstanding Common Stock.
Following this offering, Steven M. Rales and Mitchell P. Rales will continue to
own beneficially under these rules, in the aggregate, approximately 23.2 million
shares of Common Stock, representing approximately 40% of the issued and
outstanding Common Stock. The Company will not receive any proceeds from the
sale of the Common Stock by the Selling Stockholders.
UNDERWRITING
Subject to the terms and conditions set forth in a purchase agreement
(the "Purchase Agreement") among the Company, the Selling Stockholders and
Merrill Lynch, Pierce, Fenner & Smith Incorporated (the "Underwriter"), the
Selling Stockholders have agreed to sell to the Underwriter, and the Underwriter
has agreed to purchase, 2,000,000 shares of Common Stock. Pursuant to the
Purchase Agreement, the Underwriter will be obligated to purchase all of such
Common Stock if any is purchased.
The Underwriter has advised the Selling Stockholders that it proposes
to offer the shares of Common Stock to the public initially at the public
offering price set forth on the cover page of this Prospectus and to certain
dealers at such price less a concession not in excess of $0.__ per share. The
Underwriter may allow, and such dealers may reallow, a discount not in excess of
$0.__ per share on sales to certain other dealers. After the initial public
offering, the public offering price, concession and discount may be changed.
The Company has agreed to indemnify the Underwriter against certain
liabilities, including liabilities under the Securities Act.
The Selling Stockholders have agreed with the Underwriter not to
offer, sell or otherwise dispose of shares of Common Stock of the Company held
by them or certain related parties, without the prior consent of the
Underwriter, for a period of 90 days after the date of this Prospectus, subject
to certain exceptions.
The Underwriter, from time to time, has performed and continues to
perform investment banking and other financial services for the Company for
which it receives and will continue to receive customary compensation.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock
offered hereby have been passed upon by Wilmer, Cutler & Pickering, Washington,
D.C., counsel to the Company, Hogan & Hartson L.L.P., Baltimore, Maryland,
counsel to the Selling Stockholders, and Shearman & Sterling, New York, New
York, counsel to the Underwriter. Walter G. Lohr, Jr., a director of the
Company, is a partner of Hogan & Hartson L.L.P., and certain partners in Hogan &
Hartson L.L.P. beneficially own approximately 80,000 shares of the Company's
Common Stock.
EXPERTS
The financial statements for the years ended December 31, 1995, 1994
and 1993, incorporated by reference in this Prospectus, have been audited by
Arthur Andersen LLP, independent public accountants, as indicated in their
reports with respect thereto, and are included herein in reliance upon the
authority of said firm as experts in giving said reports.
5
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the various expenses to be paid in
connection with the issuance and distribution of the securities being registered
hereby. All the amounts are estimates, except the Commission registration and
NASD filing fees. The Selling Stockholders will reimburse the Company for these
expenses and will bear the cost of all selling commissions and underwriting
discounts with respect to the sale of the Common Stock.
<TABLE>
<S> <C>
Securities and Exchange Commission registration fee.. $ 27,371
NASD filing fee...................................... 8,438
Legal fees and expenses.............................. 45,000
Blue Sky fees and expenses........................... 5,000
Accounting fees and expenses......................... 10,000
Miscellaneous expenses............................... 4,191
--------
Total................................................ $100,000
========
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Under Section 145 of the General Corporation Law of the State of
Delaware (the "DGCL"), a corporation may indemnify its directors, officers,
employees and agents and its former directors, officers, employees and agents
and those who serve, at the corporation's request, in such capacities with
another enterprise, against expenses (including attorney's fees), as well as
judgments, fines and settlements in nonderivative lawsuits, actually and
reasonably incurred in connection with the defense of any action, suit or
proceeding in which they or any of them were or are made parties or are
threatened to be made parties by reason of their serving or having served in
such capacity. The DGCL provides, however, that such person must have acted in
good faith and in a manner he or she reasonably believed to be in (or not
opposed to) the best interests of the corporation and, in the case of a criminal
action, such person must have had no reasonable cause to believe his or her
conduct was unlawful. In addition, the DGCL does not permit indemnification in
an action or suit by or in the right of the corporation, where such person has
been adjudged liable to the corporation, unless, and only to the extent that, a
court determines that such person fairly and reasonably is entitled to indemnity
for costs the court deems proper in light of liability adjudication. Indemnity
is mandatory to the extent a claim, issue or matter has been successfully
defended.
Article Ten of the Company's Certificate of Incorporation and Article
Eight of the Company's By-laws provides that the Company will indemnify its
directors and officers to the full extent permitted by law and that no director
shall be liable for monetary damages to the Registrant or its stockholders for
any breach of fiduciary duty, except to the extent provided by applicable law
(i) for any breach of the director's duty of loyalty to the Registrant or its
stockholders, (ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) pursuant to Section
174 of the DGCL, or (iv) for any transaction from which such director derived an
improper personal benefit. In addition, under indemnification agreements with
its directors, the Registrant is obligated, to the fullest extent permissible by
the DGCL, as it currently exists or may be amended, to indemnify and hold
harmless its directors, from and against all expense, liability and loss
reasonably incurred or suffered by such directors.
II-1
<PAGE>
ITEM 16. EXHIBITS
Exhibit
Number Exhibit Description
- ------ -------------------
1 Form of Purchase Agreement.
5 Opinion of Hogan & Hartson L.L.P. as to the validity of the Shares
being registered (previously filed).
23.1 Consent of Arthur Andersen LLP (previously filed).
23.2 Consent of Hogan & Hartson L.L.P. (included in their opinion filed
as Exhibit 5).
24 Powers of Attorney (previously filed).
____________________
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed as part
of this registration statement in reliance upon Rule 430A and contained in a
form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
II-2
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the District of Columbia on May 1, 1996.
DANAHER CORPORATION
By: /s/ Patrick W. Allender
-------------------------------
Patrick W. Allender
Senior Vice President
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Date: May 1, 1996 *
-----------------------------------------
George M. Sherman
President and Chief Executive Officer
Date: May 1, 1996 *
-----------------------------------------
Mortimer M. Caplin
Director
Date: May 1, 1996 *
-----------------------------------------
Donald J. Ehrlich
Director
Date: May 1, 1996 *
-----------------------------------------
Walter G. Lohr, Jr.
Director
Date: May 1, 1996 *
-----------------------------------------
Mitchell P. Rales
Director
II-3
<PAGE>
Date: May 1, 1996 *
-----------------------------------------
Steven M. Rales
Director and Chairman of the Board
Date: May 1, 1996 *
-----------------------------------------
A. Emmet Stephenson, Jr.
Director
Date: May 1, 1996 /s/ Patrick W. Allender
----------------------------------------
Patrick W. Allender,
Senior Vice President, Chief
Financial Officer and Secretary
(Principal Financial Officer).
Date: May 1, 1996 *
-----------------------------------------
C. Scott Brannan,
Controller
(Principal Accounting Officer).
*By /s/ Patrick W. Allender
-----------------------------
Patrick W. Allender
Attorney-in-Fact
II-4
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
Exhibit
Number Exhibit Description
- -------- -------------------
<S> <C>
1 Form of Purchase Agreement.
5 Opinion of Hogan & Hartson L.L.P. (previously filed).
23.1 Consent of Arthur Andersen LLP (previously filed).
23.2 Consent of Hogan & Hartson L.L.P.
(included in their opinion filed
as Exhibit 5).
24 Powers of Attorney (previously filed).
</TABLE>
<PAGE>
===============================================================================
DANAHER CORPORATION
(a Delaware corporation)
2,000,000 Shares of Common Stock
PURCHASE AGREEMENT
------------------
Dated: May __, 1996
===============================================================================
<PAGE>
DANAHER CORPORATION
(a Delaware corporation)
2,000,000 Shares of Common Stock
(Par Value $0.01 Per Share)
PURCHASE AGREEMENT
------------------
May __, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Certain stockholders of Danaher Corporation, a Delaware corporation
(the "Company"), named in Schedule A hereto (the "Selling Stockholders") propose
to sell severally to Merrill Lynch, Pierce, Fenner & Smith Incorporated (the
"Underwriter"), an aggregate of 2,000,000 outstanding shares of Common Stock of
the Company, par value $ 0.01 per share (shares of which class of stock of the
Company are hereinafter referred to as "Common Stock"), as set forth in the
appropriate column on Schedule A. The aforesaid 2,000,000 shares of Common
Stock are herein called the "Shares". The Shares are more fully described in
the Prospectus referred to below. You have advised us that you desire to
purchase the Shares.
The price to the public per share and the purchase price per share for
the Shares shall be agreed upon as set forth in a separate written instrument
among the Company, the Selling Stockholders and you, substantially in the form
of Exhibit A hereto (the "Price Determination Agreement"). The Price
Determination Agreement may take the form of an exchange of any standard form of
written telecommunication between the Company, the Selling Stockholders and you
and shall specify such applicable information as is indicated in Exhibit A
hereto. The offering of the Shares will be governed by this Agreement, as
supplemented by the Price Determination Agreement. From and after the date of
the execution and delivery of the Price Determination Agreement, this Agreement
shall be deemed to incorporate, and all references herein to "this Agreement"
shall be deemed to include, the Price Determination Agreement.
<PAGE>
2
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (Registration
No. 333-02939) covering the registration of the Shares under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus, or prospectuses, and either (A) has prepared and proposes to file,
prior to the effective date of such registration statement, an amendment to such
registration statement, including a final prospectus or (B) if the Company has
elected to rely upon Rule 430A ("Rule 430A") of the rules and regulations of the
Commission under the 1933 Act (the "1933 Act Regulations"), will prepare and
file a prospectus, in accordance with the provisions of Rule 430A and Rule
424(b) ("Rule 424(b)") of the 1933 Act Regulations, promptly after execution and
delivery of the Price Determination Agreement. The information, if any,
included in such prospectus that was omitted from the prospectus included in
such registration statement at the time it becomes effective but that is deemed,
pursuant to paragraph (b) of Rule 430A, to be part of such registration
statement at the time it becomes effective is referred to herein as the "Rule
430A Information". Each prospectus used before the time such registration
statement becomes effective, and any prospectus that omits the Rule 430A
Information, if applicable, that is used after such effectiveness and prior to
the execution and delivery of the Price Determination Agreement, is herein
called a "preliminary prospectus". Such registration statement, including the
exhibits thereto and the documents incorporated by reference therein pursuant to
Item 12 ("Item 12") of Form S-3 under the 1933 Act, as amended, and Rule 412 of
the 1933 Act Regulations ("Rule 412") at the time it becomes effective and
including, if applicable, the Rule 430A Information, is herein called the
"Registration Statement." The prospectus, including the documents incorporated
by reference therein pursuant to Item 12 and Rule 412, included in the
Registration Statement at the time it becomes effective is herein called the
"Prospectus", except that, if the final prospectus first furnished to the
Underwriter after the execution of the Price Determination Agreement for use in
connection with the offering of the Shares differs from the prospectus included
in the Registration Statement at the time it becomes effective (whether or not
such prospectus is required to be filed pursuant to Rule 424(b)), the term
"Prospectus" shall refer to the final prospectus first furnished to the
Underwriter for such use.
The Company and the Selling Stockholders understand that you propose
to make a public offering of the Shares as soon as you deem advisable after the
Registration Statement becomes effective and the Price Determination Agreement
has been executed and delivered.
Section 1. Representations and Warranties. (a) The Company
------------------------------
represents and warrants to and agrees with the Underwriter that:
<PAGE>
3
(i) The Company meets the requirements for use of Form S-3 under the
1933 Act and when the Registration Statement on such form shall become
effective and at all times subsequent thereto up to the Closing Time
referred to below, (A) the Registration Statement and any amendments and
supplements thereto will comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations; (B) neither the
Registration Statement nor any amendment or supplement thereto will 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; and (C) neither the Prospectus nor any amendment or
supplement thereto will include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; except that this representation and warranty does not apply to
statements or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by you or on your behalf
expressly for use in the Registration Statement or the Prospectus.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 and Rule 412, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and the rules
and regulations of the Commission thereunder (the "1934 Act Regulations")
and, when read together and with the other information in the Prospectus,
at the time the Registration Statement becomes effective and at all times
subsequent thereto up to the Closing Time, will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein, or necessary in order to make the statements therein not
misleading.
(iii) Arthur Andersen LLP, who are reporting upon the audited
financial statements and schedules included or incorporated by reference in
the Registration Statement, are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iv) This Agreement has been duly authorized, executed and delivered
by the Company.
(v) The consolidated financial statements included or incorporated by
reference in the Registration Statement present fairly the consolidated
financial position of the Company and its subsidiaries as of the dates
indicated and the consolidated results of operations and the consolidated
cash flows of the Company and its subsidiaries for the periods specified.
Such financial statements have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved. The financial statement schedules included or
incorporated by reference in the Registration Statement present fairly the
information required to be stated therein. The selected financial data
included or incorporated by reference in the Prospectus present fairly the
information shown therein and have been compiled on a basis consistent with
that of the audited
<PAGE>
4
consolidated financial statements included or incorporated by reference in
the Registration Statement. The pro forma financial data included or
incorporated by reference in the Prospectus present fairly the information
shown therein, have been prepared in accordance with the Commission's rules
and guidelines with respect to pro forma financial information, have been
properly compiled on the pro forma bases described therein, and, in the
opinion of the Company, the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions or circumstances referred to therein.
(vi) The Company is a corporation duly organized and is validly
existing in good standing under the laws of the State of Delaware with
corporate power and corporate authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise.
(vii) The Company's most significant subsidiaries are listed in
Schedule B attached hereto (each such corporation is referred to herein as
a "Subsidiary" and, collectively, the "Subsidiaries"). Each Subsidiary is a
corporation duly organized and validly existing in good standing under the
laws of the jurisdiction of its incorporation with corporate power and
corporate authority under such laws to own, lease and operate its
properties and conduct its business; and each Subsidiary is duly qualified
to transact business as a foreign corporation and is in good standing in
each other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise. All of the outstanding shares
of capital stock of each Subsidiary have been duly authorized and validly
issued and are fully paid and non-assessable and are owned by the Company,
directly or through one or more Subsidiaries, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind.
(viii) The Company had at March 31, 1996, a duly authorized, issued
and outstanding capital stock as set forth in the Form 10-Q for the first
quarter of 1996 (the "10-Q"); the Shares conform in all material respects
to the description thereof contained or incorporated by reference in the
Prospectus and such description conforms in all material respects to the
rights set forth in the instruments defining the same.
<PAGE>
5
(ix) The Shares to be sold by the Selling Stockholders have been duly
authorized and validly issued and are fully paid and non-assessable; no
holder thereof is or will be subject to personal liability by reason of
being such a holder.
(x) All of the other outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
non-assessable; no holder thereof is or will be subject to personal
liability by reason of being such a holder; and none of the outstanding
shares of capital stock of the Company have been issued in violation of the
preemptive rights of any stockholder of the Company.
(xi) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise stated
therein or in documents incorporated by reference therein or contemplated
thereby, there has not been (A) any material adverse change in the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (B)
any transaction entered into by the Company or any Subsidiary, other than
in the ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock, other than regular quarterly dividends declared or paid on
its Common Stock.
(xii) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its subsidiaries, considered as one
enterprise. The execution and delivery of this Agreement by the Company,
the consummation by the Company of the transactions contemplated in this
Agreement to be performed by it and compliance by the Company with the
terms of this Agreement have been duly authorized by all necessary
corporate action on the part of the Company and do not and will not result
in any violation of the charter or by-laws of the Company or any
Subsidiary, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary under (A) any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument to which the Company or any Subsidiary is a party or by which it
may be bound or to which any of its properties may be subject or (B) any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court,
<PAGE>
6
domestic or foreign, having jurisdiction over the Company or any Subsidiary
or any of their respective properties (except, in each case, for such
violations, conflicts, breaches, defaults, liens, charges or encumbrances
that would not have a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its subsidiaries, considered as one enterprise).
(xiii) No authorization, approval, consent or license of any
government, governmental instrumentality or court, domestic or foreign
(other than under the 1933 Act and the securities or Blue Sky laws of the
various states), is required for the valid sale and delivery of the Shares.
(xiv) Except as disclosed in the Prospectus, there is no action, suit
or proceeding before or by any government, governmental instrumentality or
court, domestic or foreign, now pending or, to the knowledge of the
Company, threatened against or affecting the Company or any subsidiary that
is required to be disclosed in the Prospectus, or that could adversely
affect the consummation of the transactions contemplated in this Agreement;
the aggregate of all pending legal or governmental proceedings that are not
described in the Prospectus to which the Company or any subsidiary is a
party or which affect any of their respective properties, including
ordinary routine litigation incidental to the business of the Company or
any subsidiary, if adversely determined, would not reasonably be expected
to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise.
(xv) There are no contracts or documents of a character required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described and filed as
required.
(xvi) Each of the Company and the Subsidiaries has good and
marketable title to all properties and assets described in the Prospectus
as owned by it, free and clear of all liens, charges, encumbrances or
restrictions, except such as (A) are described in the Prospectus or (B) are
neither material in amount nor materially significant in relation to the
business of the Company and its subsidiaries, considered as one enterprise;
all of the leases and subleases material to the business of the Company and
its subsidiaries, considered as one enterprise, and under which the Company
or any Subsidiary holds properties described in the Prospectus, are in full
force and effect, and neither the Company nor any Subsidiary has any notice
of any material claim of any sort that has been asserted by anyone adverse
to the rights of the Company or any Subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of such
corporation to the continued possession of the leased or subleased premises
under any such lease or sublease.
<PAGE>
7
(xvii) Each of the Company and the Subsidiaries owns, possesses or has
obtained all governmental licenses, permits, certificates, consents,
orders, approvals and other authorizations necessary to own or lease, as
the case may be, and to operate its properties and to carry on its business
as presently conducted, except for those licenses, permits, certificates,
consents, orders, approvals or authorizations which, if not obtained, would
not have a material adverse effect on the Company and its Subsidiaries,
considered as one enterprise, and neither the Company nor any Subsidiary
has received any notice of proceedings relating to revocation or
modification of any such licenses, permits, certificates, consents, orders,
approvals or authorizations.
(xviii) Each of the Company and the Subsidiaries owns or possesses,
or can acquire on reasonable terms, adequate patents, patent licenses,
trademarks, service marks and trade names necessary to carry on its
business as presently conducted, except for those patents, patent licenses,
trademarks, service marks and trade names which, the failure by the Company
or its Subsidiary to so own or possess would not have a material adverse
effect on the Company and its Subsidiaries, considered as one enterprise,
and neither the Company nor any Subsidiary has received any notice of
infringement of or conflict with asserted rights of others with respect to
any patents, patent licenses, trademarks, service marks or trade names that
in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to materially adversely affect the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its subsidiaries, considered as one
enterprise.
(xix) To the best knowledge of the Company, no labor problem exists
with its employees or with employees of the Subsidiaries or is imminent
that would reasonably be expected to adversely affect the Company and its
subsidiaries, considered as one enterprise, and the Company is not aware of
any existing or imminent labor disturbance by the employees of any of its
or the Subsidiaries' principal suppliers, contractors or customers that
would reasonably be expected to materially adversely affect the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one enterprise.
<PAGE>
8
(xx) The Company has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably expected
to, cause or result in stabilization or manipulation of the price of the
Common Stock.
(xxi) Except as disclosed in the Registration Statement or except as
would not reasonably be expected, in the aggregate, to have a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, (A) the Company and the Subsidiaries are each
in compliance with all applicable Environmental Laws, (B) the Company and
the Subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are each in compliance with
their requirements, (C) there are no pending or threatened Environmental
Claims against the Company or any of its subsidiaries.
For purposes of this Agreement, the following terms shall have the
following meanings: "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute, law,
rule, regulation, ordinance, code, policy or rule of common law and any
judicial or administrative interpretation thereof including any judicial or
administrative order, consent decree or judgment, relating to the
environment, health, safety or any chemical, material or substance,
exposure to which is prohibited, limited or regulated by any governmental
authority. "Environmental Claims" means any and all administrative,
regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings
relating in any way to any Environmental Law.
(xxii) All United States federal income tax returns of the Company
and the Subsidiaries required by law to be filed have been filed and all
taxes shown on such returns or otherwise assessed which are due and payable
have been paid, except tax assessments against which appeals have been or
will be promptly taken and as to which adequate reserves have been
provided. All other tax returns of the Company and the Subsidiaries
required to be filed pursuant to applicable foreign, state, local or other
law have been filed, and all taxes shown on such returns that have been
filed or otherwise assessed which are due and payable have been paid,
except for such taxes, if any, as are being contested, in good faith and as
to which adequate reserves have been provided in accordance with generally
accepted accounting principles. The charges, accruals and reserves on the
books of the Company and the Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally determined or
with respect to which the applicable statute of limitations has not expired
are believed to be adequate to meet any assessments or re-assessments for
additional income or corporate franchise tax for any years not finally
determined.
<PAGE>
9
(xxiii) Each of the Company and the Subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
and the regulations and published interpretations thereunder with respect
to each "pension plan" (as defined in ERISA and such regulations and
published interpretations) in which employees of the Company or such
Subsidiary are eligible to participate and each such plan is in compliance
in all material respects with the presently applicable provisions of ERISA
and such regulations and published interpretations and has not incurred any
unpaid liability to the Pension Benefit Guaranty Corporation (other than
for the payment of premiums in the ordinary course) or to any such plan
under Title IV of ERISA.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, the Underwriter as follows:
(i) Such Selling Stockholder has no actual knowledge that the
representations and warranties of the Company contained in Section 1(a) are
not true and correct in all material respects; such Selling Stockholder has
reviewed the Registration Statement as originally filed with the Commission
and the preliminary prospectus contained therein and has no actual
knowledge that such preliminary prospectus includes an untrue statement of
a material fact or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and such Selling Stockholder is not
prompted to sell the Shares to be sold by such Selling Stockholder by any
information concerning the Company or any subsidiary that is not set forth
in the Prospectus.
(ii) When the Registration Statement shall become effective and at all
times subsequent thereto up to the Closing Time, (A) such parts of the
Registration Statement and any amendments and supplements thereto as were
provided specifically by such Selling Stockholder specifically for use in
the Registration Statement and that refer to such Selling Stockholder 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 and (B) such parts of the Prospectus as
were provided by such Selling Stockholder specifically for use in the
Registration Statement and that refer to such Selling Stockholder will not
include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) This Agreement has been duly executed and delivered by such
Selling Stockholder.
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10
(iv) No authorization, approval, consent or license of any government,
governmental instrumentality or court, domestic or foreign (other than
under the 1933 Act and the securities or Blue Sky laws of the various
states), is required for the sale and delivery of the Shares, except such
as have been obtained.
(v) The execution and delivery of this Agreement and the sale by such
Selling Stockholder of the Shares to be delivered by him pursuant to this
Agreement will not result in a breach by such Selling Stockholder of, or
constitute a default by such Selling Stockholder under, any agreement,
instrument, decree, judgment or order to which such Selling Stockholder is
a party, to which the properties of such Selling Stockholder may be subject
or by which such Selling Stockholder may be bound, except for breaches or
defaults that would not be material to the Selling Stockholder or the
transactions contemplated hereby.
(vi) Capital Yield Corporation, a Delaware corporation (the "Lending
Party"), which has entered into a securities lending agreement (the "Loan
Agreement") with each of the Selling Stockholders pursuant to which each
such Selling Stockholder has borrowed or will borrow the Shares to be sold
by him, will, at the Closing Time, have good and marketable title to the
Shares to be sold by such Selling Stockholder pursuant to this Agreement,
free and clear of any pledge, lien, security interest, charge, claim,
equity or encumbrance of any kind, other than pursuant to this Agreement
and the Loan Agreement; such Selling Stockholder has full right, power and
authority to sell, transfer and deliver such Shares pursuant to this
Agreement; and, upon delivery of such Shares and payment of the purchase
price therefor as contemplated in this Agreement, good and marketable title
to the Shares will be transferred to the Underwriter by such Selling
Stockholder, free and clear of any pledge, lien, security interest, charge,
claim, equity or encumbrance of any kind.
(vii) For a period of 90 days from the date hereof, such Selling
Stockholder will not, and the Selling Stockholders will cause Capital Yield
Corporation, Equity Group Holdings LLC and Equity Group Holdings II LLC not
to, without your prior written consent, directly or indirectly, sell, offer
to sell, grant any option for the sale of, or otherwise dispose of, any
shares of Common Stock or securities convertible into Common Stock, other
than to the Underwriter pursuant to this Agreement; provided that during
such period such Selling Stockholder, Capital Yield Corporation, Equity
Group Holdings LLC and Equity Group Holdings II LLC may make gifts of
shares of Common Stock or securities convertible into Common Stock or may
transfer to its affiliates shares of Common Stock or securities convertible
into Common Stock upon the condition that such donees or transferees agree
to be bound by the foregoing restriction in the same manner as it applied
to such Selling Stockholder, Capital Yield Corporation, Equity Group
Holdings LLC and Equity Group Holdings II LLC.
<PAGE>
11
(viii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock; and such Selling Stockholder has not distributed and
will not distribute any prospectus or other offering material in connection
with the offering and sale of the Shares other than any preliminary
prospectus filed with the Commission or the Prospectus or other material
permitted by the 1933 Act or the 1933 Act Regulations.
(c) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to you or your counsel shall be deemed a representation
and warranty by the Company to you as to the matters covered thereby; and any
certificate signed by the Selling Stockholders as such and delivered to you or
your counsel shall be deemed a representation and warranty by the Selling
Stockholders to you as to the matters covered thereby.
Section 2. Sale and Delivery to the Underwriter; Closing. (a) On
---------------------------------------------
the basis of the representations and warranties herein contained, and subject to
the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to you, and you agree, to purchase from each
Selling Stockholder, at the purchase price per share for the Shares to be agreed
upon in accordance with Section 2(b) or 2(c), and as set forth in the Price
Determination Agreement, the number of Shares proposed to be sold by such
Selling Stockholder and set forth opposite such Selling Stockholder's name in
the appropriate column on Schedule A. If the Company elects to rely on Rule
430A, Schedule A may be attached to the Price Determination Agreement.
(b) If the Company has elected not to rely upon Rule 430A, the price
to the public per share for the Shares and the purchase price per share for the
Shares to be paid by you shall be agreed upon and set forth in the Price
Determination Agreement, dated the date hereof, and an amendment to the
Registration Statement containing such per share price information will be filed
before the Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A, the price to
the public per share for the Shares and the purchase price per share for the
Shares to be paid by you shall be agreed upon and set forth in the Price
Determination Agreement. In the event that the Price Determination Agreement
has not been executed by the close of business on the fourth business day
following the date on which the Registration Statement becomes effective, this
Agreement shall terminate forthwith, without liability of any party to any other
party except that Sections 6, 7 and 8 shall remain in effect.
(d) Payment of the purchase price for, and delivery of certificates
for, the Shares shall be made at the offices of Shearman & Sterling, 599
<PAGE>
12
Lexington Avenue, New York, New York 10022, or at such other place as shall be
agreed upon by the Company, the Selling Stockholders and you, at 10:00 A.M.
either (i) on the third full business day after the later of the effective date
of the Registration Statement or (ii) if the Company has elected to rely upon
Rule 430A, on the third full business day after execution of the Price
Determination Agreement (unless, in either case, postponed pursuant to Section
11 or 12), or at such other time not more than ten full business days thereafter
as you, the Company and the Selling Stockholders shall determine (such date and
time of payment and delivery being herein called the "Closing Time"). Payment
shall be made to each of the Selling Stockholders against delivery to you of
certificates for the Shares to be purchased, by wire transfer in immediately
available funds according to written transfer instructions provided by the
Selling Stockholders.
(e) Certificates for the Shares to be purchased by you shall be in
such denominations and registered in such names as you may request in writing at
least one full business day before the Closing Time. The certificates for the
Shares will be made available in New York City for examination and packaging by
you not later than 10:00 A.M. on the business day prior to the Closing Time.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with the Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule
430A and subject to Section 3(b) hereof, will comply with the requirements
of Rule 430A and will notify you immediately, and confirm the notice in
writing, (i) when the Registration Statement, or any post-effective
amendment to the Registration Statement, shall have become effective, or
any supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission to amend the Registration Statement or amend
or supplement the Prospectus or for additional information and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or of any order preventing or suspending the
use of any preliminary prospectus, or of the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or of
the institution or threatening of any proceedings for any of such purposes.
The Company will use every reasonable effort to prevent the issuance of any
such stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
(b) The Company will not at any time file or make any amendment to the
Registration Statement (or make any amendment or supplement (i) if the
Company has not elected to rely upon Rule 430A, to the Prospectus
(including amendments of the documents incorporated by reference into the
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13
Prospectus) or (ii) if the Company has elected to rely upon Rule 430A, to
either the prospectus included in the Registration Statement at the time it
becomes effective or to the Prospectus (including documents incorporated by
reference into such prospectus or to the Prospectus pursuant to Item 12 and
Rule 412), of which you shall not have previously been advised and
furnished a copy, or to which you or your counsel shall reasonably object.
(c) The Company has furnished or will furnish to you as many signed
copies of the Registration Statement as originally filed and of all
amendments thereto, whether filed before or after the Registration
Statement becomes effective, copies of all exhibits and documents filed
therewith (including documents incorporated by reference into the
Prospectus pursuant to Item 12 and Rule 412) and signed copies of all
consents and certificates of experts, as you may reasonably request and has
furnished or will furnish to you one conformed copy of the Registration
Statement as originally filed and of each amendment thereto (including
documents incorporated by reference into the Prospectus but without
exhibits).
(d) The Company will deliver to you, without charge, from time to time
until the effective date of the Registration Statement (or, if the Company
has elected to rely upon Rule 430A, until the date of the Price
Determination Agreement), as many copies of each preliminary prospectus as
you may reasonably request, and the Company hereby consents to the use of
such copies for purposes permitted by the 1933 Act. The Company will
deliver to you, without charge, as soon as the Registration Statement shall
have become effective (or, if the Company has elected to rely upon Rule
430A, as soon as practicable on or after the date of the Price
Determination Agreement) and thereafter from time to time as requested
during the period when the Prospectus is required to be delivered under the
1933 Act, such number of copies of the Prospectus (as supplemented or
amended) as you may reasonably request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the
Shares as contemplated in this Agreement and in the Prospectus. If at any
time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Shares any event shall occur or condition
exist as a result of which it is necessary, in the opinion of your counsel
or counsel for the Company, to amend the Registration Statement or amend or
supplement the Prospectus in order that the Prospectus will not include an
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the
light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the opinion of either such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the
1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b) hereof, such amendment or
supplement as may be necessary to correct such untrue statement or omission
or to make the Registration Statement or the Prospectus comply with such
requirements.
<PAGE>
14
(f) The Company will use its best efforts, in cooperation with you, to
qualify the Shares for offering and sale under the applicable securities
laws of such states and other jurisdictions as you may designate and to
maintain such qualifications in effect for a period of not less than one
year from the effective date of the Registration Statement; provided,
--------
however, that the Company shall not be obligated to file any general
-------
consent to service of process or to qualify as a foreign corporation or as
a dealer in securities in any jurisdiction in which it is not so qualified
or to subject itself to taxation in respect of doing business in any
jurisdiction in which it is not otherwise so subject. The Company will
file such statements and reports as may be required by the laws of each
jurisdiction in which the Shares have been qualified as above provided.
(g) The Company will make generally available to its security holders
as soon as practicable, but not later than 45 days after the close of the
period covered thereby, an earnings statement of the Company (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations),
covering a period of 12 months beginning after the effective date of the
Registration Statement and covering a period of 12 months beginning after
the effective date of any post-effective amendment to the Registration
Statement but not later than the first day of the Company's fiscal quarter
next following such respective effective dates.
(h) The Company, during the period when the Prospectus is required to
be delivered under the 1933 Act, will timely file all documents required to
be filed with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the time the Registration Statement becomes effective.
(i) For a period of five years after the Closing Time, the Company
will furnish to you copies of all annual reports, quarterly reports and
current reports filed with the Commission on Forms 10-K, 10-Q and 8-K, or
such other similar forms as may be designated by the Commission, and such
other documents, reports and information as shall be furnished by the
Company to its stockholders or security holders generally.
(j) If the Company has elected to rely upon Rule 430A, it will take
such steps as it deems necessary to ascertain promptly whether the form of
prospectus transmitted for filing under Rule 424(b) was received for filing
<PAGE>
15
by the Commission and, in the event that it was not, it will promptly file
such prospectus.
(k) The Company has complied and will comply with all the
provisions of that certain Florida act relating to disclosure of doing
business with Cuba, codified as Section 517.075 of the Florida statutes,
and all regulations promulgated thereunder relating to issuers doing
business in Cuba.
Section 4. Payment of Expenses. The Company and the Selling
-------------------
Stockholders will pay and bear all costs and expenses incident to the
performance of their obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriter, (b) the
printing and distribution of this Agreement (including the Price Determination
Agreement), the Shares and the Blue Sky Survey, (c) the delivery of the Shares
to the Underwriter, including any stock transfer taxes payable upon the sale of
the Shares to the Underwriter, (d) the fees and disbursements of the Company's
counsel and accountants and (e) the qualification of the Shares under the
applicable securities laws in accordance with Section 3(f) and any filing for
review of the offering with the National Association of Securities Dealers, Inc.
("NASD"), including filing fees and fees and disbursements of counsel for the
Underwriter in connection therewith and in connection with the Blue Sky Survey.
If this Agreement is terminated by you in accordance with the
provisions of Sections 5 or 9, the Company and the Selling Stockholders shall
reimburse you for all your reasonable out-of-pocket expenses, including the
reasonable fees and disbursements of your counsel.
The provisions of this Section shall not affect any agreement that the
Company and the Selling Stockholders may make for the sharing of such costs and
expenses.
Section 5. Conditions of Underwriter's Obligations. In addition to
---------------------------------------
the execution and delivery of the Price Determination Agreement, your obligation
to purchase and pay for the Shares that you have agreed to purchase pursuant to
this Agreement is subject to the accuracy of the representations and warranties
of the Company and the Selling Stockholders contained herein (including those
contained in the Price Determination Agreement) or in certificates of any
officer of the Company or any Subsidiary or certificates by or on behalf of the
Selling Stockholders delivered pursuant to the provisions hereof, to the
performance by the Company and the Selling Stockholders of their obligations
hereunder, and to the following further conditions:
<PAGE>
16
(a) The Registration Statement shall have become effective not later
than 5:30 P.M. on the date of this Agreement or, with your consent, at a
later time and date not later, however, than 5:30 P.M. on the first
business day following the date hereof, or at such later time or on such
later date as you may agree to in writing; and at the Closing Time no stop
order suspending the effectiveness of the Registration Statement shall have
been issued under the 1933 Act and no proceedings for that purpose shall
have been instituted or shall be pending or, to your knowledge or the
knowledge of the Company, shall be contemplated by the Commission, and any
request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of your counsel. If the
Company has elected to rely upon Rule 430A, prospectuses containing the
Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with
the requirements of Rule 430A).
(b) At the Closing Time, you shall have received the favorable opinion
of Wilmer, Cutler & Pickering, counsel for the Company, dated as of the
Closing Time, in form and substance satisfactory to your counsel, to the
effect set forth in Exhibit B hereto and to such further effect as counsel
to the Underwriters may reasonably request.
(c) At the Closing Time, you shall have received the favorable opinion
of Hogan & Hartson LLP, counsel for the Selling Stockholders, dated as of
the Closing Time, in form and substance satisfactory to your counsel, to
the effect set forth in Exhibit C hereto and to such further effect as
counsel to the Underwriters may reasonably request.
(d) At the Closing Time, you shall have received the favorable opinion
of Shearman & Sterling, counsel for the Underwriter, dated as of the
Closing Time, to the effect that the opinions delivered pursuant to
Sections 5(b) and 5(c) appear on their face to be appropriately responsive
to the requirements of this Agreement except, specifying the same, to the
extent waived by you, and with respect to the incorporation and legal
existence of the Company, the Shares, this Agreement, the Registration
Statement, the Prospectus, the documents incorporated by reference and such
other related matters as you may require. In giving such opinion such
counsel may rely, as to all matters governed by the laws of a jurisdictions
other than the law of the State of New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to you. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials; provided that such
certificates have been delivered to you.
<PAGE>
17
(e) At the Closing Time, (i) the Registration Statement and the
Prospectus, as they may then be amended or supplemented, shall contain all
material statements that are required to be stated therein under the 1933
Act and the 1933 Act Regulations and in all material respects shall conform
to the requirements of the 1933 Act and the 1933 Act Regulations, the
Company shall have complied in all material respects with Rule 430A (if it
shall have elected to rely thereon) and neither the Registration Statement
nor the Prospectus, as they may then be amended or supplemented, shall
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, (ii) there shall not have been, since the
respective dates as of which information is given in the Registration
Statement, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its subsidiaries, considered as one enterprise, whether or not arising
in the ordinary course of business, (iii) no action, suit or proceeding
shall be pending or, to the knowledge of the Company, threatened against
the Company or any subsidiary that would be required to be set forth in the
Prospectus other than as set forth therein and no proceedings shall be
pending or, to the knowledge of the Company, threatened against the Company
or any subsidiary before or by any government, governmental instrumentality
or court, domestic or foreign, that could result in a material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise, other than as set forth in the Prospectus,
(iv) the Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Time and (v) the other representations and warranties of the
Company set forth in Section 1(a) shall be accurate as though expressly
made at and as of the Closing Time. At the Closing Time, you shall have
received a certificate of the President or a Vice President, and the
Treasurer or Controller, of the Company (each in their capacity as an
officer of the Company and not as an individual), dated as of the Closing
Time, to such effect.
(f) At the Closing Time, the representations and warranties of each
Selling Stockholder set forth in Section 1(b) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you
shall have received a certificate of or on behalf of each Selling
Stockholder, dated as of the Closing Time, to such effect with respect to
such Selling Stockholder.
(g) At the time that this Agreement is executed, you shall have
received from Arthur Andersen LLP a letter, dated such date, in form and
substance reasonably satisfactory to you, confirming that they are
independent public accountants with respect to the Company within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations,
and stating in effect that:
<PAGE>
18
(i) in their opinion, the audited financial statements and the
related financial statement schedules included or incorporated by
reference in the Registration Statement and the Prospectus comply as
to form in all material respects with the applicable accounting
requirements of the 1933 Act and the published rules and regulations
thereunder;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the unaudited interim consolidated financial statements of
the Company for the three month periods ended March 29, 1996 and March
31, 1995 included or incorporated by reference in the Registration
Statement and the Prospectus (the "10-Q Financials"), a reading of the
minutes of all meetings of the stockholders and directors of the
Company and the Subsidiaries and each Committee of the Company's Board
of Directors and of each Subsidiary's Board of Directors since January
1, 1996, inquiries of certain officials of the Company and the
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 10-Q Financials incorporated by reference in the
Registration Statement and the Prospectus do not comply as to
form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations
applicable to unaudited financial statements included in Form 10-
Q or any material modifications should be made to the 10-Q
Financials incorporated by reference in the Registration
Statement and the Prospectus for them to be in conformity with
generally accepted accounting principles;
(B) at March 29, 1996 and at a specified date not more than
five days prior to the date of this Agreement, there was any
change in the capital stock of the Company and its subsidiaries
or any decrease in the consolidated net current assets,
consolidated total assets, or consolidated stockholders' equity
of the Company and its subsidiaries or any increase in the long-
term debt of the Company and its subsidiaries, in each case as
compared with amounts shown in the latest consolidated balance
sheet included in the Registration Statement, except in each case
for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
<PAGE>
19
(C) for the period from December 31, 1995 to March 29, 1996
and for the period from December 31, 1995 to a specified date not
more than five days prior to the date of this Agreement, there
was any decrease in consolidated net sales, consolidated earnings
from continuing operations, consolidated net earnings, per share
earnings from continuing operations or per share net earnings, in
each case as compared with the comparable period in the preceding
year, except in each case for any decreases that the Registration
Statement discloses have occurred or may occur;
(iii) based upon the procedures set forth in clause (ii) above
and a reading of the Selected Financial Data included in the
Registration Statement, nothing has come to their attention that gives
them reason to believe that the Selected Financial Data included in
the Registration Statement do not comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
and the 1933 Act Regulations, or that the information set forth
therein is not fairly stated in relation to the financial statements
from which it was derived;
(iv) they are unable to and do not express any opinion on the Pro
Forma Financial Data (the "Pro Forma Information") included in the
Registration Statement or on the pro forma adjustments applied to the
historical amounts included in the Pro Forma Information; however, for
purposes of such letter they have:
(A) read the Pro Forma Information;
(B) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about
the basis for their determination of the pro forma adjustments
and whether the Pro Forma Information above complies in form in
all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X; and
(C) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Information; and
<PAGE>
20
on the basis of such procedures, and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that the Pro Forma Information
included in the Registration Statement does not comply as to form in
all material respects with the applicable requirements of Rule 11-02
of Regulation S-X and that the pro forma adjustments have not been
properly applied to the historical amounts in the compilation of that
statement; and
(v) in addition to the procedures referred to in clause (ii)
above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement, which have previously been specified by you and which shall
be specified in such letter, and have compared certain of such items
with, and have found such items to be in agreement with, the
accounting and financial records of the Company.
(h) At the Closing Time, you shall have received from Arthur Andersen
LLP a letter, in form and substance reasonably satisfactory to you and
dated as of the Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 5(g), except
that the specified date referred to shall be a date not more than five
days prior to the Closing Time.
(i) At the Closing Time, your counsel shall have been furnished with
all such documents, certificates and opinions as they may request for the
purpose of enabling them to pass upon the issuance and sale of the Shares
as contemplated in this Agreement and the matters referred to in Section
5(d) and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company and the Selling
Stockholders, the performance of any of the covenants of the Company, or
the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company and the Selling Stockholders at or prior
to the Closing Time in connection with the authorization, issuance and sale
of the Shares as contemplated in this Agreement shall be satisfactory in
form and substance to you and your counsel.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement, this Agreement may be
terminated by you on notice to the Company and the Selling Stockholders at any
time at or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7 and 8
hereof shall remain in effect.
<PAGE>
21
Section 6. Indemnification. (a) The Company agrees to indemnify you
---------------
and hold you harmless and each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of an untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, if
applicable, and all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of an untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all reasonable expense whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by you),
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity agreement does not apply to any loss,
- -------- -------
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by you
expressly for use in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)[; provided
--------
further that the foregoing indemnification with respect to any preliminary
- -------
prospectus shall not inure to your benefit (or to the benefit of any person that
controls you) if a copy of the Prospectus (as then amended or supplemented, if
the Company shall furnish any amendments or supplements thereto) was not sent or
given by you or on your behalf to the person asserting any such losses, claims,
<PAGE>
22
damages or liabilities, if such is required by law, at or prior to the written
confirmation of the sale of such Shares to such person, and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to such
loss, claim, damage or liability].
(b) You agree to indemnify and hold harmless the Company, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act, against any and all loss, liability, claim, damage and expense
described in the indemnity agreement in Section 6(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by you expressly for use in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, if applicable, or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of such action; provided, however, that counsel
to the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
Section 7. Contribution. In order to provide for just and equitable
------------
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and you shall contribute to
the aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity incurred by the Company and you, as incurred, in
such proportions that (a) you are responsible for that portion represented by
the percentage that the underwriting discount appearing on the cover page of the
Prospectus, bears to the offering price appearing thereon and (b) the Company is
responsible for the balance; provided, however, that no person guilty of
-------- -------
fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933
Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. For purposes of this Section, each person,
<PAGE>
23
if any, who controls you within the meaning of Section 15 of the 1933 Act shall
have the same rights to contribution as you, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act shall have the same rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. The representations, warranties, indemnities, agreements and other
- --------
statements of the Selling Stockholders and the Company or its officers set forth
in or made pursuant to this Agreement will remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Selling
Stockholders, the Company, you or any person who controls a Selling Stockholder,
the Company or you within the meaning of Section 15 of the 1933 Act and will
survive delivery of and payment for the Shares.
Section 9. Termination of Agreement. (a) You may terminate this
------------------------
Agreement, by notice to the Company and each of the Selling Stockholders, at any
time at or prior to the Closing Time (i) if there has been, since the respective
dates as of which information is given in the Registration Statement, any
material adverse change in the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and the Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the
financial markets in the United States or any outbreak of hostilities or
escalation thereof or other calamity or crisis the effect of which on the
financial markets of the United States is such as to make it, in your judgment,
impracticable to market the Shares or enforce contracts for the sale of the
Shares or (iii) if trading in any securities of the Company has been suspended
by the Commission, the NASD, the New York Stock Exchange or the Pacific Stock
Exchange, or if trading generally on either the New York Stock Exchange, the
Pacific Stock Exchange or in the over-the-counter market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities have been required, by such exchanges or by order of the
Commission, the NASD or any other governmental authority or (iv) if a banking
moratorium has been declared by either federal, District of Columbia or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 6, 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 2, with the effect stated in such Section.
<PAGE>
24
Section 10. Default by a Selling Stockholder. If any Selling
---------------------------------
Stockholder shall fail at the Closing Time to sell and deliver the number of
Shares that such Selling Stockholder is obligated to sell, then this Agreement
shall terminate without any liability on the part of any non-defaulting party
except to the extent provided in Section 4 and except that the provisions of
Sections 6, 7 and 8 shall remain in effect.
In the event of a default under this Section that does not result in
the termination of this Agreement, either you or the Company shall have the
right to postpone the Closing Time for a period not exceeding seven days in
order to effect any required changes in the Registration Statement or Prospectus
or in any other documents or arrangements.
No action taken pursuant to this Section shall relieve the Company or
any Selling Stockholder so defaulting from liability, if any, in respect of such
default.
Section 11. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to you shall be directed to you, c/o ___________________, Vice
President, Merrill Lynch, Pierce, Fenner & Smith Incorporated at Merrill Lynch
World Headquarters, North Tower, World Financial Center, New York, New York
10281, with copies to Shearman & Sterling, 599 Lexington Avenue, New York, New
York 10022, Attention: Stephen T. Giove, Esq; notices to the Company shall be
directed to it at 1250 24th Street, N.W., Washington, D.C. 20037, Attention: C.
Scott Brannan, Vice President, with copies to Wilmer, Cutler & Pickering, 2445 M
Street, N.W., Washington, D.C. 20037, Attention: George P. Stamas, Esq.;
notices to the Selling Stockholders shall be directed to Mitchell P. Rales and
Steven M. Rales, c/o Equity Group Holdings, 1250 24th Street, N.W., Washington,
D.C. 20037, with copies to Hogan & Hartson LLP, 111 South Calvert Street, 16th
Floor, Baltimore, Maryland 21202, Attention: Michael J. Silver, Esq.
Section 12. Parties. This Agreement is made solely for your benefit
-------
and for the benefit of the Company and the Selling Stockholders and, to the
extent expressed, any person who controls the Company, any Selling Stockholder
or you within the meaning of Section 15 of the 1933 Act, and the directors of
the Company, its officers who have signed the Registration Statement, and their
respective executors, administrators, successors and assigns and, subject to the
provisions of Section 10, no other person shall acquire or have any right under
or by virtue of this Agreement. The term "successors and assigns" shall not
include any purchaser, as such purchaser, from you of the Shares.
Section 13. Governing Law and Time. This Agreement shall be governed
----------------------
by the laws of the State of New York. Specified times of the day refer to New
York City time.
<PAGE>
25
Section 14. Counterparts. This Agreement may be executed in one or
------------
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
----------------------------------------
<PAGE>
26
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among the Company, the Selling
Stockholders and you in accordance with its terms.
Very truly yours,
DANAHER CORPORATION
By /s/ C. Scott Brannan
---------------------------
Name: C. Scott Brannan
------------------------
Title: Vice President
-----------------------
SELLING STOCKHOLDERS
By /s/ Mitchell P. Rales
-----------------------------
Name: Mitchell P. Rales
By /s/ Steven M. Rales
-----------------------------
Name: Steven M. Rales
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
-----------------------------
Name:
------------------------
Title: Vice President
-----------------------
<PAGE>
27
SCHEDULE A
=============================================
NUMBER OF
SELLING STOCKHOLDER SHARES
--------------------- ---------
Mitchell P. Rales 1,000,000
---------------------------------------------
Steven M. Rales 1,000,000
---------------------------------------------
---------
---------------------------------------------
TOTAL 2,000,000
=========
=============================================
<PAGE>
28
SCHEDULE B
State of
Danaher Corporation Most Significant Subsidiaries Incorporation
- ------------------------------------------------- -------------
DH Holdings Corp. Delaware
Easco Hand Tools, Inc. Delaware
<PAGE>
EXHIBIT A
DANAHER CORPORATION
(a Delaware corporation)
2,000,000 Shares of Common Stock
PRICE DETERMINATION AGREEMENT
-----------------------------
May __, 1996
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Reference is made to the Purchase Agreement dated April __, 1996 (the
"Purchase Agreement") among Danaher Corporation (the "Company"), the Selling
Stockholders named therein (the "Selling Stockholders") and Merrill Lynch,
Pierce, Fenner & Smith Incorporated (the "Underwriter"). The Purchase Agreement
provides for the purchase by the Underwriter from the Selling Stockholders,
subject to the terms and conditions set forth therein, of an aggregate of
2,000,000 shares (the "Shares") of the Company's common stock, par value $0.01
per share. This Agreement is the Price Determination Agreement referred to in
the Purchase Agreement. Terms not defined herein are used herein as defined in
the Purchase Agreement.
Pursuant to Section 2 of the Purchase Agreement, the undersigned agree
with the Underwriter as follows:
1. The price to public per share for the Shares shall be $________.
2. The purchase price per share for the Shares to be paid by the
Underwriter shall be $________, representing an amount equal to the price set
forth above, less $________ per share.
<PAGE>
The Company represents and warrants to the Underwriter that the
representations and warranties of the Company set forth in Section 1(a) of the
Purchase Agreement are accurate as though expressly made at and as of the date
hereof.
Each Selling Stockholder represents and warrants to the Underwriter
that the representations and warranties of such Selling Stockholder set forth in
Section 1(b) of the Purchase Agreement are accurate as though expressly made at
and as of the date hereof.
As contemplated by Section 2 of the Purchase Agreement, attached as
Schedule A is a list of the Selling Stockholders and the number of Shares to be
sold by such Selling Stockholder, which shall be a part of this Agreement and
the Purchase Agreement.
This Agreement shall be governed by the laws of the State of New
York.
------------------------------------------
<PAGE>
If the foregoing is in accordance with the understanding of the
Underwriter of the agreement among the Underwriter, the Company and the Selling
Stockholders, please sign and return to the Company and the Selling Stockholders
a counterpart hereof, whereupon this instrument along with all counterparts and
together with the Purchase Agreement shall be a binding agreement among the
Underwriter, the Company and the Selling Stockholders in accordance with its
terms and the terms of the Purchase Agreement.
Very truly yours,
DANAHER CORPORATION
By /s/ C. Scott Brannan
--------------------------------
Name: C. Scott Brannan
--------------------------
Title: Vice President
-------------------------
SELLING STOCKHOLDERS
By /s/ Mitchell P. Rales
--------------------------------
Name: Mitchell P. Rales
--------------------------
By /s/ Steven M. Rales
--------------------------------
Name: Steven M. Rales
--------------------------
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH & CO.
By: Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By
------------------------------
Name:
--------------------------
Title: Vice President
-------------------------
