<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON SEPTEMBER 17, 1998
REGISTRATION NO. 333-
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
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
(Address, including zip code, and telephone number, including area code, of
agent for service)
COPIES TO:
GEORGE P. STAMAS MARC D. BASSEWITZ
WILMER, CUTLER & PICKERING LATHAM & WATKINS
2445 M STREET, N.W. SEARS TOWER, SUITE 5800
WASHINGTON, D.C. 20037 233 SOUTH WACKER DRIVE
(202) 663-6000 CHICAGO, IL 60606
(312) 876-7700
---------------
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>
PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING AGGREGATE AMOUNT OF
TITLE OF SECURITIES TO BE REGISTERED REGISTERED PRICE PER SHARE* OFFERING PRICE REGISTRATION FEE
- ----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Ten-year Notes}
Thirty-year Notes.................... $300,000,000 100% $300,000,000 $88,500
- ----------------------------------------------------------------------------------------------------------
Total................................ $300,000,000 100% $300,000,000 $88,500
</TABLE>
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- -------------------------------------------------------------------------------
* Estimated solely for purposes of determining registration fee.
---------------
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
SEC, ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY +
+OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES+
+EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE +
+SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE +
+SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+UNLAWFUL PRIOR TO THE REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+OF ANY SUCH STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
SUBJECT TO COMPLETION, DATED SEPTEMBER 17, 1998
PROSPECTUS
$
DANAHER CORPORATION
$ % NOTES DUE 2008
$ % NOTES DUE 2028
--------
The % Notes due 2008 (the "Ten-year Notes") will mature on , 2008.
The % Notes due 2028 (the "Thirty-year Notes" and together with the Ten-
year Notes, the "Offered Securities") will mature on , 2028. Interest on
the Offered Securities will be payable semi-annually in arrears on and
of each year, commencing . See "Description of the Offered
Securities." The Offered Securities are being offered by Danaher Corporation
(the "Company").
The Offered Securities will be senior unsecured obligations of the Company
and will rank pari passu in right of payment with all other senior unsecured
obligations of the Company and will be senior in right of payment to all
existing and future subordinated indebtedness of the Company.
Each series of Offered Securities will be redeemable prior to maturity, as a
whole or in part, at the option of the Company at any time, at a redemption
price equal to the greater of (a) 100% of the principal amount of such series
to be redeemed and (b) the sum of the present values of the Remaining Scheduled
Payments (as hereinafter defined) thereon discounted to the redemption date on
a semi-annual basis at the Treasury Rate (as hereinafter defined) plus basis
points for the Ten-year Notes and basis points for the Thirty-year Notes,
together in all cases with accrued interest on the principal amount being
redeemed to the redemption date.
The Offered Securities will be represented by global securities ("Global
Securities") registered in the name of the nominee of The Depository Trust
Company ("DTC"). Beneficial interests in such certificates will be shown on,
and transfers thereof will be effected only through, records maintained by DTC
and its participants. Owners of beneficial interests in the certificates
representing the Offered Securities will be entitled to physical delivery of
Offered Securities in certificated form in the amount of their respective
beneficial interests only under the limited circumstances described herein. See
"Description of the Offered Securities."
--------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
--------
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- --------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PRICE TO UNDERWRITING PROCEEDS TO
PUBLIC(1) DISCOUNT(2) COMPANY(1)(3)
- ----------------------------------------------------------
<S> <C> <C> <C>
Per Ten-year Note % % %
- ----------------------------------------------------------
Total(3) $ $ $
- ----------------------------------------------------------
Per Thirty-year Note % % %
- ----------------------------------------------------------
Total(3) $ $ $
</TABLE>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) Plus accrued interest, if any, from to date of delivery.
(2) The Company has agreed to indemnify the Underwriters against certain
liabilities, including liabilities under the Securities Act of 1933, as
amended. See "Underwriting."
(3) Before deducting expenses estimated at $ payable by the Company.
--------
The Offered Securities are being offered by Salomon Smith Barney Inc., Chase
Securities Inc., First Chicago Capital Markets, Inc. and Lehman Brothers Inc.
(collectively, the "Underwriters"), subject to prior sale, when, as and if
delivered to and accepted by the Underwriters, subject to approval of certain
legal matters by counsel for the Underwriters and certain other conditions. The
Underwriters reserve the right to withdraw, cancel or modify such offer and
reject orders in whole or in part. It is expected that delivery of Global
Securities representing the Offered Securities will be made at the offices of
Salomon Smith Barney Inc. at Seven World Trade Center, New York, New York, or
through the facilities of DTC on or about , 1998 against payment therefor in
immediately available funds.
SALOMON SMITH BARNEY
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
LEHMAN BROTHERS
, 1998
<PAGE>
NO PERSON HAS BEEN AUTHORIZED TO GIVE ANY INFORMATION OR TO MAKE ANY
REPRESENTATION IN CONNECTION WITH THIS OFFERING OTHER THAN THOSE CONTAINED OR
INCORPORATED BY REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH
INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN
AUTHORIZED BY THE COMPANY OR ANY UNDERWRITER, DEALER OR AGENT. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR A SOLICITATION OF AN OFFER TO BUY ANY
SECURITIES OFFERED HEREBY IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS
UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION IN SUCH JURISDICTION. NEITHER THE
DELIVERY OF THIS PROSPECTUS NOR ANY SALE MADE HEREUNDER SHALL UNDER ANY
CIRCUMSTANCES CREATE ANY IMPLICATION THAT THERE HAS BEEN NO CHANGE IN THE
AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF OR THEREOF.
CERTAIN PERSONS PARTICIPATING IN THIS OFFERING MAY ENGAGE IN TRANSACTIONS THAT
STABILIZE, MAINTAIN, OR OTHERWISE AFFECT THE PRICE OF THE OFFERED SECURITIES,
INCLUDING BY ENTERING STABILIZING BIDS, PURCHASING OFFERED SECURITIES TO COVER
SYNDICATE SHORT POSITIONS AND IMPOSING PENALTY BIDS. FOR A DESCRIPTION OF
THESE ACTIVITIES, SEE "UNDERWRITING."
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 ("SEC"). Such reports, proxy statements and
other information filed by the Company may be inspected and copied at the
Public Reference Section of the SEC located at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549, and at regional public reference facilities
maintained by the SEC located at 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661, and at Seven World Trade Center, Suite 1300, New York, New
York 10048. Copies of such material can be obtained from the Public Reference
Section of the SEC by mail at prescribed rates. Requests should be directed to
the SEC's Public Reference Section, Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549. The SEC also maintains a World Wide Web
site that contains reports, proxy and information statements and other
information regarding registrants, such as the Company, subsequent to the date
when such registrants began filing documents electronically with the SEC. The
address of the SEC's site is http://www.sec.gov. The Company's common stock is
listed for trading on the New York Stock Exchange ("NYSE") and the Pacific
Exchange ("PCX"). Such reports, proxy statements and other information may
also be inspected at the offices of the NYSE, 20 Broad Street, New York, New
York 10005 and the PCX, 115 Sansone Street, Suite 1104, San Francisco,
California 94104.
This Prospectus forms a part of the Company's Registration Statement
("Registration Statement") filed with the SEC on Form S-3 (Registration
Statement No. 333- ) under the Securities Act of 1933, as amended (the
"Securities Act"), covering the securities offered hereby. This Prospectus
does not contain all of the information set forth in the Registration
Statement, certain portions of which have been omitted from this Prospectus in
accordance with the rules and regulations of the SEC. The Registration
Statement may be inspected and copied at the SEC's offices listed above.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the SEC (File No. 1-08089)
are hereby incorporated by reference into this Prospectus:
(i) The Company's Annual Report on Form 10-K for the fiscal year ended
December 31, 1997;
(ii)The Company's Quarterly Reports on Form 10-Q for the quarters ended
March 27, 1998 and June 26, 1998; and
(iii) The Company's Current Reports on Form 8-K dated March 9, 1998 and July
9, 1998.
All reports and other documents filed by the Company pursuant to Section 13,
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Offered Securities shall be deemed to
be incorporated by reference in this Prospectus and to be a part hereof from
the date of filing of such documents. Any statement contained herein or in a
document, all or a portion of which is incorporated or deemed to be
incorporated by reference herein, shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained
herein or in any other subsequently filed document which also is or is deemed
to be incorporated by reference herein modifies or supersedes such statement.
Any statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will furnish without charge to each person to whom a copy of
this Prospectus is delivered, upon written or oral request of such person, 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 number (202) 828-0850.
THE COMPANY
OVERVIEW
Danaher Corporation (the "Company" or "Danaher") designs, manufacturers and
markets industrial and consumer products with strong brand names, proprietary
technology and major market positions in two principal businesses:
Process/Environmental Controls and Tools and Components. The
Process/Environmental Controls segment is a leading producer of leak detection
systems for underground fuel storage tanks, compact professional electronic
test tools and motion, position, speed, temperature, pressure, level, flow,
particulate and power reliability and quality control and safety devices. In
its Tools and Components segment, Danaher is a leading producer and
distributor of 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.
With the recent acquisitions of Pacific Scientific Company ("Pacific
Scientific") and Fluke Corporation ("Fluke"), on a pro forma basis for the
year ended 1997, the Process/Environmental Controls segment comprises
approximately 57.4% of 1997 net sales. See "Recent Developments." Danaher's
objective is to maintain its market leadership positions, while continuing to
improve financial performance through organic growth, international expansion
and selective acquisitions. The Company's principal executive offices are
located at 1240 24th Street, N.W., Suite 800, Washington, D.C. 20037. Its
telephone number is (202) 828-0850.
2
<PAGE>
PROCESS/ENVIRONMENTAL CONTROLS
The Process/Environmental Controls segment includes the Veeder-Root Company,
Danaher Controls, Partlow, Anderson Instruments, West Instruments, QualiTROL
Corporation, A.L. Hyde Company, Hengstler, American Sigma, the controls
product line business units of Joslyn Corporation, Namco Controls, Dolan-
Jenner, M&M Precision Systems, TxPort, Inc., Communications Technology
Corporation, Current Technology, Inc., Dr. Bruno Lange GmbH and Gems Sensors,
Inc. In addition, on March 9, 1998, Pacific Scientific's, and on July 9, 1998,
Fluke's businesses were added to this segment. See "Recent Developments." The
companies in this segment produce and sell underground storage tank leak
detection systems, compact professional electronic test tools, temperature,
level, speed, motion and position sensing devices, power switches and
controls, communication line products, power protection products, liquid flow
measuring and particulate measuring devices, telecommunication products,
aviation safety products, quality assurance products and systems and
electronic and mechanical counting and controlling devices. These products are
distributed by the Company's sales personnel and independent representatives
to original equipment manufacturers, distributors and other end users.
Danaher's strategy in the Process/Environmental Controls segment is to
concentrate on the rapid expansion of its environmental controls product line,
including the Veeder-Root storage leak detection systems business. The Company
believes that Veeder-Root is the premier manufacturer of state-of-the-art tank
measuring and leak detection systems for underground fuel storage tanks, and,
accordingly, is uniquely positioned to respond to the demand for these
products fueled by environmental regulations.
The Company is also expanding its other offerings in the environmental
controls product line to encompass applications related to markets other than
petroleum storage and to address nonregulatory business requirements. This
expansion program includes both internally developed new product offerings as
well as selective product line acquisitions.
In its instruments and controls product line, Danaher's strategy is to
continue enhancing its global controls and instrument position by both new
product development and complimentary acquisitions. The companies within the
instrument group have significant synergies in both product offerings and
channels of distribution. Danaher's plan is to leverage these synergies in
product design, engineering and manufacturing and product marketing.
TOOLS AND COMPONENTS
The Tools and Components segment is comprised of the Danaher Hand Tool Group
(including Special Markets, Professional Tools and Asian Tools divisions),
Matco Tools, Jacobs Chuck Manufacturing Company, Delta Consolidated
Industries, Jacobs Vehicle System, Hennessy Industries and the hardware and
electrical apparatus lines of Joslyn Manufacturing Company. This segment is
one of the largest domestic producers and distributors of general purpose and
specialty mechanics' hand tools. Other products manufactured by these
companies include 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, high quality precision socket screws, fasteners and high quality
miniature precision parts.
In Tools and Components, the Company is the principal manufacturer of Sears,
Roebuck and Co.'s Craftsman(R) line, National Automotive Parts Association
(NAPA(R)) line, K-D(R) Automotive line and the Matco(R), Armstrong(R) and
Allen(TM) lines of mechanics' hand tools. The Company also manufactures
Allen(TM) wrenches, Jacobs(R) drill chucks and diesel engine retarders,
Delta(R) storage containers and Coats(R) and Ammco(R) wheel service equipment.
The Company's business strategy in the Tools and Components segment is
focused on increasing sales to existing customers, broadening channels of
distribution, development of new products, geographic expansion and achieving
production efficiencies and enhanced quality and customer service through
"Just-In-Time" and related manufacturing techniques.
3
<PAGE>
DANAHER BUSINESS SYSTEM
The Company manages its two principal business segments with a management
philosophy which it calls "Danaher Business System." The Danaher Business
System is based on the following principles: (1) continuous improvement (a
concept known by the Japanese word "Kaizen"), (2) management process based on
Policy Deployment, (3) total associate involvement, (4) performance measured
by customer satisfaction and (5) enhanced profitability. The Danaher Business
System approach looks to the customer's satisfaction as a guideline for
continuous improvements in quality, delivery, cost and growth within its
businesses. The management process of Policy Deployment entails developing a
one year operating plan that reflects the long-term strategic objectives of
the Company. The purpose of this process is to link major objectives with
specific support plans throughout the Company's organization. Danaher Business
System's focus on associate involvement includes the concepts of creating a
team working environment and encouraging personnel development and creativity.
The Company's performance is measured in terms of customer satisfaction by its
improvement of quality, on-time delivery, cost position and service. Finally,
the Danaher Business System focuses on enhancing the profitability of the
Company to allow for long term growth. The Company began employing the Danaher
Business Systems in its core businesses in 1988 and created an executive level
function to train associates of existing and acquired businesses in 1992.
RECENT DEVELOPMENTS
ACQUISITION OF PACIFIC SCIENTIFIC
On March 9, 1998, the Company acquired Pacific Scientific, an international
business that designs, manufacturers and markets motion control, process
control and safety equipment. The purchase price of this acquisition was
approximately $420 million in cash and approximately $60 million in assumed
debt. The Company has included Pacific Scientific's businesses in its
Process/Environmental Controls segment.
Nearly half of Pacific Scientific's sales consists of electric motors,
drives and controls. These electric motors and controls are sold primarily to
original equipment manufacturers who incorporate them into a wide variety of
products. Pacific Scientific motors are used in factory automation, medical,
printing, plastic extrusion and molding, paper converting, vending, textile,
aerospace, fitness and many other types of equipment. Pacific Scientific's
process control products include devices to measure particles in liquids,
vacuums and gases; and power quality devices used by electric utility
companies. Safety equipment includes mainly fire detection and suppression
equipment, crew restraints, flight control and pyrotechnic devices used in the
aviation and aerospace industry.
For further information about the Pacific Scientific acquisition, including
historical and pro forma financial statements, see Danaher's Current Report on
Form 8-K dated March 9, 1998 with the SEC, incorporated by reference in this
Prospectus.
ACQUISITION OF FLUKE CORPORATION
Effective as of July 9, 1998, the Company acquired Fluke in a merger
transaction in which Fluke became a wholly owned subsidiary of the Company.
The Company issued an aggregate of 17,748,572 shares of its common stock to
acquire Fluke (including cancellation of Fluke stock options). The Company has
included Fluke's business in its Process/Environmental Controls segment. The
Fluke merger was accounted for under the pooling-of-interest method of
accounting.
Fluke is engaged in the design, manufacture and marketing of compact
professional electronic test tools. Fluke's principal products are portable
instruments that measure voltage, current, power quality, frequency,
temperature, pressure and other key functional parameters of electronic
equipment. Fluke, a company with a net income for the year ended April 24,
1998 of $27,738,000, has approximately 2,500 employees worldwide and
distributes its products in over 100 countries.
4
<PAGE>
For additional information regarding the Fluke acquisition, including
historical, supplementary and pro forma financial statements, see Danaher's
Current Report on Form 8-K dated July 9, 1998 with the SEC, incorporated by
reference in this Prospectus.
USE OF PROCEEDS
The proceeds of this offering will be used to repay a substantial portion of
the borrowings incurred to fund the Pacific Scientific acquisition. These
borrowings were incurred under the Company's uncommitted lines of credit. That
financing bears interest at variable margins above the opening Federal Funds
Rate and is due upon the demand of the lender. The rate for these borrowings
at September 1, 1998 was 5.625%.
CAPITALIZATION
The following table sets forth the Company's consolidated capitalization
(including short-term debt) at June 26, 1998 and as adjusted to give effect to
(1) the Fluke Acquisition and (2) the issuance by the Company of the Offered
Securities offered hereby and the application of the net proceeds therefrom as
described under "Use of Proceeds."
<TABLE>
<CAPTION>
AT JUNE 26, 1998
-----------------------------------------------------
AS ADJUSTED FOR AS ADJUSTED
HISTORICAL FLUKE ACQUISITION FOR THE OFFERING
------------ --------------------- ----------------
(Dollars in Millions)
<S> <C> <C> <C>
Short-term debt......... $ 162.3 $ 162.3 $ 22.6
------------ --------------------- ----------------
Long-term debt
Offered Securities of-
fered hereby.......... -- -- 300.0
Other long-term debt... 323.4 323.4 163.1
------------ --------------------- ----------------
Total long-term debt.. 323.4 323.4 463.1
Shareholders' equity.... 1,000.9 1,232.3 1,232.3
------------ --------------------- ----------------
Total capitalization
(including short-term
debt)................ $ 1,486.7 $ 1,718.0 $ 1,718.0
============ ===================== ================
Total debt to total cap-
italization (including
short-term debt)....... 32.67% 28.27% 28.27%
</TABLE>
5
<PAGE>
SELECTED FINANCIAL DATA
The following financial information should be read in conjunction with the
Company's historical financial statements and notes thereto for each of the
five years for the period ended December 31, 1997.
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
-----------------------------------------------------
1997 1996 1995 1994 1993
--------- --------- --------- --------- ---------
(Dollars in Millions)
<S> <C> <C> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales:
Tools and Components.. $ 1,192.8 $ 1,103.4 $ 1,005.0 $ 810.0 $ 693.2
Process/Environmental
Controls............. 858.2 708.4 481.8 304.0 244.4
--------- --------- --------- --------- ---------
Total net sales..... 2,051.0 1,811.9 1,486.8 1,114.0 937.6
Operating income:
Tools and Components.... 144.4 128.1 113.0 81.5 56.4
Process/Environmental
Controls............... 137.0 112.2 80.8 56.6 42.8
Other................... (14.5) (14.2) (13.5) 13.7 (12.2)
--------- --------- --------- --------- ---------
Total operating in-
come............... 266.9 226.1 180.3 124.4 87.1
Income from continuing
operations
before discontinued
operations and cumula-
tive
effect of accounting
changes.............. 154.8 128.0 105.8 72.3 48.0
Net income.............. 154.8 207.8 108.3 81.7 17.7
BALANCE SHEET DATA (AT
END OF PERIOD):
Working capital (defi-
cit)................... $ 94.1 $ 72.2 $ 62.3 $ (18.0) $ 42.4
Total assets............ 1,879.7 1,765.1 1,486.0 1,105.6 872.5
Total debt.............. 198.2 236.3 283.6 185.3 133.6
Shareholders' equity.... 916.9 800.3 586.3 476.1 363.7
OTHER DATA:
Capital expenditures.... $ 62.8 $ 51.3 $ 59.2 $ 34.8 $ 33.4
Depreciation............ 52.3 48.2 44.0 32.8 29.0
Ratio of earnings to
fixed charges.......... 14.10 10.59 14.62 20.12 10.21
Total debt to total cap-
italization............ 17.77% 22.80% 32.60% 28.02% 26.87%
</TABLE>
6
<PAGE>
The following table sets forth the unaudited summary historical financial
information for Danaher for the six-month periods ended June 26, 1998 and June
27, 1997.
<TABLE>
<CAPTION>
SIX MONTHS ENDED JUNE
---------------------------
1998 1997
---------- ----------
<S> <C> <C>
(Dollars in Millions)
INCOME STATEMENT DATA:
Net sales......................................... $ 1,156.7 $ 969.2
Operating income.................................. 147.1 121.4
Income from continuing operations ................ 84.2 69.8
Net income........................................ 84.2 69.8
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital (deficit)......................... $ (51.7)/(1)/ $ 63.3
Total assets...................................... 2,371.3 1,819.2
Total debt........................................ 485.7 215.7
Shareholders' equity.............................. 1,000.9 835.3
OTHER DATA:
Capital expenditures.............................. $ 34.2 $ 26.0
Depreciation...................................... 29.0 26.7
Ratio of earnings to fixed charges................ 12.36 12.25
Total debt to total capitalization................ 32.67% 20.52%
</TABLE>
- --------
(1) Working capital deficit caused by the short-term nature of the borrowings
used to finance the Pacific Scientific acquisition.
7
<PAGE>
SUPPLEMENTAL COMBINED SELECTED FINANCIAL INFORMATION
The supplemental combined selected financial information of Danaher and
Fluke set forth below gives effect to the acquisition of Fluke under the
pooling-of-interests accounting method. The supplemental information is
presented in accordance with Danaher's fiscal year which ends December 31, and
Fluke's information for twelve month periods ending approximately one month
later than the Danaher periods. The supplemental combined selected financial
information presented below should be read in conjunction with the financial
statements, including the notes thereto, of Danaher and Fluke, which are
incorporated by reference in this Prospectus.
The following table sets forth the supplemental combined selected financial
information for Danaher and Fluke for the years ended December 31, 1997, 1996
and 1995.
<TABLE>
<CAPTION>
YEARS ENDED DECEMBER 31,
-----------------------------
1997 1996 1995
--------- -------- --------
(Dollars in Millions)
<S> <C> <C> <C>
INCOME STATEMENT DATA:
Net sales:
Tools and Components........................... $ 1,192.8 $1,103.4 $1,005.0
Process/Environmental Controls................. 1,299.2 1,129.8 894.5
--------- -------- --------
Total net sales.............................. 2,492.0 2,233.2 1,899.5
Operating income:
Tools and Components........................... 144.4 128.1 113.0
Process/Environmental Controls................. 171.1 153.5 116.5
Other.......................................... (14.5) (14.2) (13.5)
--------- -------- --------
Total operating income....................... 301.1 267.4 216.0
Income from continuing operations ............... 176.6 154.4 128.3
Net income....................................... 176.6 234.2 130.8
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital ................................. $ 251.8 $ 221.6 $ 195.0
Total assets..................................... 2,183.9 2,046.7 1,756.0
Total debt....................................... 199.0 239.9 294.5
Shareholders' equity............................. 1,139.2 1,005.7 772.4
OTHER DATA:
Capital expenditures............................. $ 86.9 $ 64.0 $ 72.1
Depreciation..................................... 67.9 62.0 61.4
Ratio of earnings to fixed charges............... 14.25 11.18 13.50
Total debt to total capitalization............... 14.87% 19.26% 27.61%
</TABLE>
8
<PAGE>
The following table sets forth the summary supplemental combined financial
information for Danaher and Fluke for the six-month periods ended June 1998
and 1997.
<TABLE>
<CAPTION>
SIX MONTHS ENDED
JUNE
------------------
1998 1997
-------- --------
(Dollars in
Millions)
<S> <C> <C>
INCOME STATEMENT DATA:
Net sales................................................... $1,382.7 $1,189.9
Operating income............................................ 165.9 132.2
Income from continuing operations .......................... 96.4 76.6
Net income.................................................. 96.4 76.6
BALANCE SHEET DATA (AT END OF PERIOD):
Working capital ............................................ $ 103.2 $ 205.6
Total assets................................................ 2,666.9 2,109.2
Total debt.................................................. 485.7 217.7
Shareholders' equity........................................ 1,232.3 1,044.0
OTHER DATA:
Capital expenditures........................................ $ 39.0 $ 38.4
Depreciation................................................ 36.9 34.6
Ratio of earnings to fixed charges.......................... 13.10 11.95
Total debt to total capitalization.......................... 28.30% 17.26%
</TABLE>
DESCRIPTION OF THE OFFERED SECURITIES
GENERAL
The Ten-year Notes and the Thirty-year Notes will be issued pursuant to an
Indenture, dated as of , 1998 (the "Indenture") between the Company
and The First National Bank of Chicago, as trustee (the "Trustee"). The terms
of the Ten-year Notes and the Thirty-year Notes include those stated in the
Indenture and those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). The Ten-year
Notes and the Thirty-year Notes are subject to all such terms, and holders of
such Offered Securities ("Holders") are referred to the Indenture and the
Trust Indenture Act for a statement thereof. The following summary of the
material provisions of the Indenture does not purport to be complete and is
qualified in its entirety by reference to the Indenture, including the
definitions therein of certain terms used below. Wherever particular Sections,
Articles or defined terms of the Indenture are referred to, it is intended
that such Sections, Articles or defined terms shall be incorporated herein by
reference. Capitalized terms not otherwise defined herein shall have the
meaning given in the Indenture. Copies of the proposed form of Indenture have
been filed as an exhibit to the Registration Statement of which this
Prospectus is a part and are available as set forth above under "Available
Information."
RANKING
The Offered Securities will be senior unsecured obligations of the Company
and will rank pari passu in right of payment with all other senior unsecured
obligations of the Company, including the Company's obligations under the
Credit Agreement and certain note agreements governing an aggregate of
approximately $130 million of senior notes due in 1999 and 2003, and will be
senior in right of payment to all existing and future subordinated
indebtedness of the Company.
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<PAGE>
Since the Company is a holding company, the right of the Company, and hence
the rights of creditors and shareholders of the Company, to participate in any
distribution of assets of any Subsidiary upon its liquidation or
reorganization or otherwise is accordingly subject to prior claims of
creditors of the Subsidiary, except to the extent that claims of the Company
as a creditor of the Subsidiary may be recognized.
PRINCIPAL, MATURITY AND INTEREST
The Offered Securities will be limited in aggregate principal amount to
$ million, of which $ million will mature on , 2008
(the "Ten-year Notes") and $ million will mature on , 2028 (the
"Thirty-year Notes" and together with the Ten-year Notes, the "Offered
Securities"). Interest on the Offered Securities will accrue at the rate of
% per annum on the Ten-year Notes and % per annum on the Thirty-year
Notes and will be payable semi-annually in arrears on and
, commencing on , 1999, to Holders of record on the
immediately preceding and . Interest on the Offered
Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from the date of original issuance.
Interest will be computed on the basis of a 360-day year comprised of twelve
30-day months. Principal, premium, if any, and interest on the Offered
Securities will be payable at the office or agency of the Company maintained
for such purpose within the City and the State of New York or, at the option
of the Company, payment of interest may be made by check mailed to the Holders
of the Offered Securities at their respective addresses set forth in the
register of Holders of Offered Securities; provided that all payments of
principal, premium, if any, and interest with respect to Offered Securities,
the Holders of which have given wire transfer instructions to the Company,
will be required to be made by wire transfer of immediately available funds to
the accounts specified by the Holders thereof. Until otherwise designated by
the Company, the Company's office or agency in New York will be the office of
the Trustee maintained for such purpose. The Offered Securities will be issued
in denominations of $1,000 and integral multiples thereof.
OPTIONAL REDEMPTION
The Ten-year Notes and the Thirty-year Notes will be redeemable, as a whole
or in part, at the option of the Company at any time, at a redemption price
equal to the greater of (a) 100% of the principal amount of such series to be
redeemed and (b) the sum of the present values of the Remaining Scheduled
Payments (as hereinafter defined) thereon discounted to the redemption date on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate (as hereinafter defined) plus basis points for
the Ten-year Notes and basis points for the Thirty-year Notes, together in
all cases with accrued interest on the principal amount being redeemed to the
redemption date.
The term "Comparable Treasury Issue" means the United States Treasury
security selected by an Independent Investment Banker that would be utilized,
at the time of selection and in accordance with customary financial practice,
in pricing new issues of corporate debt securities of comparable maturity to
the remaining term of such Ten-year Notes and Thirty-year Notes. "Independent
Investment Banker" means one of the Reference Treasury Dealers appointed by
the Trustee after consultation with the Company.
The term "Comparable Treasury Price" means, with respect to any redemption
date, (a) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on the
third business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal
Reserve Bank of New York and designated "Composite 3:30 p.m. Quotations for
U.S. Government Securities" or (b) if such release (or any successor release)
is not published or does not contain such prices on such business day, (i) the
average of the Reference Treasury Dealer Quotations for such redemption date,
after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such Quotations. "Reference
Treasury Dealer Quotations" means, with respect to each Reference
10
<PAGE>
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m. New York
time on the third business day preceding such redemption date.
The term "Reference Treasury Dealer" means each of Salomon Smith Barney
Inc., Chase Securities Inc., First Chicago Capital Markets, Inc. and Lehman
Brothers Inc., and their respective successors; provided, however, that if any
of the foregoing shall cease to be a primary U.S. Government securities dealer
in New York City (a "Primary Treasury Dealer"), the Company shall substitute
therefor another Primary Treasury Dealer.
The term "Remaining Scheduled Payments" means the remaining scheduled
payments of the principal of the Ten-year Notes or the Thirty-year Notes to be
redeemed and interest thereon that would be due after the related redemption
date but for such redemption; provided, however, that if such redemption date
is not an interest payment date with respect to such Ten-year Notes or Thirty-
year Notes, the amount of the next succeeding scheduled interest payment
thereon will be reduced by the amount of interest accrued thereon to such
redemption date.
The term "Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity (computed
as of the second business day immediately preceding such redemption date) of
the Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
Notice of any redemption will be mailed at least 30 days but no more than 60
days before the redemption date to each Holder of Ten-year Notes or Thirty-
year Notes to be redeemed.
Unless the Company defaults in payment of the redemption price, on and after
the applicable redemption date, interest will cease to accrue on the Ten-year
Notes or the Thirty-year Notes, as applicable, or portions thereof called for
redemption.
There will be no mandatory sinking fund payments for either series of
Offered Securities.
CERTAIN COVENANTS
LIMITATION ON SECURED DEBT
The Company will not, and will not permit any Subsidiary to, create, assume,
or guarantee any Secured Debt without making effective provision for securing
the Offered Securities equally and ratably with such Secured Debt. This
covenant does not apply to debt secured by (i) purchase money mortgages
created to secure payment for the acquisition or construction of any property
including, but not limited to, any indebtedness incurred by the Company or a
Subsidiary prior to, at the time of, or within 180 days after the later of the
acquisition, the completion of construction (including any improvements on an
existing property) or the commencement of commercial operation of such
property, which indebtedness is incurred for the purpose of financing all or
any part of the purchase price of such property or construction or
improvements on such property, (ii) mortgages, pledges, liens, security
interest or encumbrances (collectively referred to herein as "security
interests") on property, or any conditional sales agreement or any title
retention with respect to property, existing at the time of acquisition
thereof, whether or not assumed by the Company or a Subsidiary, (iii) security
interests on property or shares of capital stock or indebtedness of any
corporation or firm existing at the time such corporation or firm becomes a
Subsidiary, (iv) security interests in property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is merged
into or consolidated with the Company or a Subsidiary or at the time of a
sale, lease, or other disposition of the properties of a corporation or firm
as an entirety or substantially as an entirety to the Company or a Subsidiary,
provided that no such security interests shall extend to any other Principal
Property of the Company or such Subsidiary prior to such acquisition
11
<PAGE>
or to other Principal Property thereafter acquired other than additions or
improvements to the acquired property, (v) security interests on property of
the Company or a Subsidiary in favor of the United States of America or any
state thereof, or in favor of any other country, or any department, agency,
instrumentality or political subdivision thereof (including, without
limitation, security interests to secure indebtedness of the pollution control
or industrial revenue type) in order to permit the Company or any Subsidiary
to perform a contract or to secure indebtedness incurred for the purpose of
financing all or any part of the purchase price for the cost of constructing
or improving the property subject to such security interests or which is
required by law or regulation as a condition to the transaction of any
business or the exercise of any privilege, franchise or license, (vi) security
interests on any property or assets of any Subsidiary to secure indebtedness
owing by it to the Company or to another Subsidiary, (vii) any mechanics',
materialmen's, carriers' or other similar lien arising in the ordinary course
of business (including construction of facilities) in respect of obligations
which are not yet due or which are being contested in good faith, (viii) any
security interest for taxes, assessments or government charges or levies not
yet delinquent, or already delinquent, but the validity of which is being
contested in good faith, (ix) any security interest arising in connection with
legal proceedings being contested in good faith, including any judgment lien
so long as execution thereof is being stayed, (x) landlords' liens on fixtures
located on premises leased by the Company or a Subsidiary in the ordinary
course of business, or (xi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
security interest referred to in the foregoing clauses (i) to (x) inclusive.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS
The Indenture provides that the Company will not, and will not permit any
Subsidiary to, enter any lease longer than three years (excluding leases of
newly acquired, improved or constructed property) covering any Principal
Property of the Company or any Subsidiary that is sold to any other person in
connection with such lease (a "Sale and Leaseback Transaction"), unless either
(a) the Company or such Subsidiary would be entitled, without equally and
ratably securing the Offered Securities, to incur indebtedness secured by a
mortgage on the Principal Property leased pursuant to clauses (i) through (xi)
under "Limitation on Secured Debt" or (b) an amount equal to the value of the
Principal Property so leased is applied to the retirement, within 120 days of
the effective date of such arrangement, of indebtedness for borrowed money
incurred or assumed by the Company or a Subsidiary which is recorded as Funded
Debt (defined to include the Offered Securities and other long-term
indebtedness of the Company or any Subsidiary) as shown on the most recent
consolidated balance sheet of the Company and which in the case of such
indebtedness of the Company, is not subordinate and junior in right of payment
to the prior payment of the Offered Securities.
EXEMPTED INDEBTEDNESS
Notwithstanding the limitations on Secured Debt and Sale and Leaseback
Transactions described above, the Company and any one or more Subsidiaries
may, without securing the Offered Securities, issue, assume, or guarantee
Secured Debt or enter into any Sale and Leaseback Transaction which would
otherwise be subject to the foregoing restrictions, provided that, after
giving effect thereto, the aggregate amount of such Secured Debt then
outstanding (not including Secured Debt permitted under the foregoing
exceptions) and the Attributable Debt of Sale and Leaseback Transactions
(other than Sale and Leaseback Transactions in connection with clauses (a) or
(b) of the preceding paragraph) at such time does not exceed 15% of
Consolidated Net Assets.
CERTAIN DEFINITIONS
Set forth below are certain defined terms used in the Indenture. Reference
is made to the Indenture for a full disclosure of all such terms, as well as
any other capitalized terms used herein for which no definition is provided.
The term "Attributable Debt", in respect of a Sale and Leaseback
Transaction, means, as of any particular time, the present value (discounted
at the rate of interest implicit in the lease involved in such Sale and
Leaseback
12
<PAGE>
Transaction, as determined in good faith by the Company) of the obligation of
the lessee thereunder for rental payments (excluding, however, any amounts
required to be paid by such lessee, whether or not designated as rent or
additional rent, on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required to be paid
by such lessee thereunder contingent upon the amount of sales, maintenance and
repairs, insurance, taxes, assessments, water rates or similar charges) during
the remaining term of such lease (including any period for which such lease
has been extended or may, at the option of the lessor, be extended).
The term "Consolidated Assets" means the aggregate of all assets of the
Company and its Subsidiaries (including the value of all existing Sale and
Leaseback Transactions and any assets resulting from the capitalization of
other long-term lease obligations in accordance with GAAP), appearing on the
most recent available consolidated balance sheet of the Company and its
Subsidiaries at their net book values, after deducting related depreciation,
amortization and other valuation reserves, all prepared in accordance with
GAAP.
The term "Consolidated Current Liabilities" means the aggregate of the
current liabilities of the Company and its Subsidiaries appearing on the most
recent available consolidated balance sheet of the Company and its
Subsidiaries, all in accordance with GAAP. In no event shall Consolidated
Current Liabilities include any obligation of the Company and its Subsidiaries
issued under a revolving credit or similar agreement if the obligation issued
under such agreement matures by its terms within 12 months from the date
thereof but by the terms of such agreement such obligation may be renewed or
extended or the amount thereof reborrowed or refunded at the option of the
Company or any Subsidiary for a term in excess of 12 months from the date of
determination.
The term "Consolidated Net Assets" means Consolidated Assets after deduction
of Consolidated Current Liabilities.
The term "Credit Agreement" means that certain Credit Agreement, dated as of
September 7, 1990 by and among Danaher Corporation, the Financial Institutions
listed on the signature pages thereof and Bankers Trust Company as Agent,
providing for up to $250,000,000 of revolving credit borrowings, including any
related notes, guarantees, collateral documents, instruments and agreements
executed in connection therewith, and in each case as amended, modified,
renewed, refunded, replaced or refinanced from time to time.
The term "Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of the Company and its Subsidiaries or renewable
and extendable beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under GAAP would be shown on the
consolidated balance sheet of the Company as a liability item other than a
current liability; provided, however, that Funded Debt shall not include any
of the foregoing to the extent that such indebtedness or obligations are not
required by GAAP to be shown on the balance sheet of the Company.
The term "Principal Property" means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but excluding
leases and other contract rights which might otherwise be deemed real
property) owned by the Company or any Subsidiary, whether owned on the date of
the Indenture or thereafter, provided each such plant, warehouse, office
building or parcel of real property has a gross book value (without deduction
for any depreciation reserves) at the date as of which the determination is
being made of in excess of two percent of the Consolidated Net Assets of the
Company and the Subsidiaries, other than any such plant, warehouse, office
building or parcel of real property or portion thereof which, in the opinion
of the Board of Directors of the Company (evidenced by a certified Board
Resolution delivered to the Trustee), is not of material importance to the
business conducted by the Company and its Subsidiaries taken as a whole.
The term "Secured Debt" means Indebtedness for borrowed money and any Funded
Debt which is secured by a security interest in (a) any Principal Property or
(b) any shares of capital stock or Indebtedness of any Subsidiary.
13
<PAGE>
The term "Subsidiary" means any corporation with more than 50% of the
outstanding voting stock of which is at the time owned, directly or
indirectly, by the Company and/or one or more of its other Subsidiaries.
MERGER
The Indenture provides that the Company may, without the consent of the
Holders, consolidate with, or sell, lease or convey all or substantially all
of its assets to, or merge into any other corporation, provided that, among
other things, in any such case, (i) the successor entity shall be a
corporation, partnership or trust organized and existing under the laws of the
United States, any State thereof or the District of Columbia and such entity
shall expressly assume the due and punctual payment of the principal of (and
premium, if any) and interest on all the applicable Offered Securities,
according to their tenor, and the due and punctual performance and observance
of all the covenants and conditions of the Indenture to be performed by the
Company by supplemental indenture satisfactory to the Trustee, executed and
delivered to the Trustee by such entity; and (ii) immediately after giving
effect to such transaction, no Default shall have occurred and be continuing.
Other than the covenants described above, the Indenture does not contain any
covenants or other provisions designed to afford Holders of the Offered
Securities protection in the event of a takeover, recapitalization or a highly
leveraged transaction involving the Company.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
The Company may, at its option and at any time, elect to have all of its
obligations discharged with respect to the outstanding Offered Securities of
any series ("Legal Defeasance") except for (i) the rights of Holders of
outstanding Offered Securities of such series to receive payments in respect
of the principal of, premium, if any, and interest on such Offered Securities
when such payments are due from the trust referred to below, (ii) the
Company's obligations with respect to the Offered Securities of such series
concerning issuing temporary Offered Securities, registration of Offered
Securities, mutilated, destroyed, lost or stolen Offered Securities and the
maintenance of an office or agency for payment and money for security payments
held in trust, (iii) the rights, powers, trusts, duties and immunities of the
Trustee, and the Company's obligations in connection therewith and (iv) the
Legal Defeasance provisions of the Indenture. In addition, the Company may, at
its option and at any time, elect to have the obligations of the Company
released with respect to certain covenants that are described in the Indenture
("Covenant Defeasance") and thereafter any omission to comply with such
obligations shall not constitute a Default or Event of Default with respect to
the Offered Securities of such series. In the event Covenant Defeasance
occurs, certain events (not including non-payment, bankruptcy, receivership,
rehabilitation and insolvency events) described under "Events of Default" will
no longer constitute an Event of Default with respect to the Offered
Securities of such series.
In order to exercise either Legal Defeasance or Covenant Defeasance, (i) the
Company must irrevocably deposit with the Trustee, in trust, for the benefit
of the Holders of the Offered Securities of such series, cash in U.S. dollars,
non-callable Government Securities, or a combination thereof, in such amounts
as will be sufficient, in the opinion of a nationally recognized firm of
independent public accountants, to pay the principal of, premium, if any, and
interest on the outstanding Offered Securities of such series on the stated
maturity or on the applicable redemption date, as the case may be, and the
Company must specify whether the Offered Securities of such series are being
defeased to maturity or to a particular redemption date; (ii) in the case of
Legal Defeasance, the Company shall have delivered to the Trustee an opinion
of counsel in the United States reasonably acceptable to the Trustee
confirming that (A) the Company has received from, or there has been published
by, the Internal Revenue Service a ruling or (B) since the date of the
Indenture, there has been a change in the applicable federal income tax law,
in either case to the effect that, and based thereon such opinion of counsel
shall confirm that, the Holders of the outstanding Offered Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such Legal Defeasance and will be subject to federal income tax
on the same amounts, in the same manner and at the same times as would have
been the case if such Legal Defeasance had not occurred; (iii) in the case of
Covenant Defeasance, the Company shall have delivered to the Trustee an
opinion of counsel in the United States reasonably acceptable to the Trustee
14
<PAGE>
confirming that the Holders of the outstanding Offered Securities of such
series will not recognize income, gain or loss for federal income tax purposes
as a result of such Covenant Defeasance and will be subject to federal income
tax on the same amounts, in the same manner and at the same times as would
have been the case if such Covenant Defeasance had not occurred; (iv) no
Default or Event of Default shall have occurred and be continuing on the date
of such deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default from bankruptcy or insolvency events are concerned, at any time in the
period ending on the 91st day after the date of deposit; (v) such Legal
Defeasance or Covenant Defeasance will not result in a breach or violation of,
or constitute a default under any material agreement or instrument (other than
the Indenture) to which the Company or any of its Subsidiaries is a party or
by which the Company or any of its Subsidiaries is bound; (vi) the Company
must have delivered to the Trustee an opinion of counsel to the effect that
after the 91st day following the deposit, the trust funds will not be subject
to the effect of any applicable bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally; (vii) the Company must
deliver to the Trustee an Officer's Certificate stating that the deposit was
not made by the Company with the intent of preferring the Holders of Offered
Securities of such series over the other creditors of the Company with the
intent of defeating, hindering, delaying or defrauding creditors of the
Company or others; and (viii) the Company must deliver to the Trustee an
Officer's Certificate and an opinion of counsel, each stating that all
conditions precedent provided for relating to the Legal Defeasance or the
Covenant Defeasance have been complied with.
TRANSFER AND EXCHANGE
A Holder may transfer or exchange Offered Securities of each series in
accordance with the Indenture. The Registrar and the Trustee may require a
Holder, among other things, to furnish appropriate endorsements and transfer
documents and the Company may require a Holder to pay any taxes and fees
required by law or permitted by the Indenture. The Company is not required to
transfer or exchange any Offered Security of any series selected for
redemption. Also, the Company is not required to transfer or exchange any
Offered Security of any series for a period of 15 days before a selection of
Offered Securities of that series to be redeemed.
The registered Holder of any series of Offered Securities will be treated as
the owner of it for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the Indenture or
the Offered Securities of any series may be amended or supplemented with the
consent of the Holders of such series of at least a majority in principal
amount of the Offered Securities of such series then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, Offered Securities of such series), and
any existing default or compliance with any provision of the Indenture or the
Offered Securities of any series may be waived with the consent of the Holders
of a majority in principal amount of the then outstanding Offered Securities
of such series (including, without limitation, consents obtained in connection
with a purchase of, or tender offer or exchange offer for, Offered Securities
of such series).
Without the consent of each Holder of such series affected, an amendment or
waiver may not (with respect to any Offered Securities of such series held by
a non-consenting Holder): (i) reduce the principal amount of Offered
Securities of such series whose Holders must consent to an amendment,
supplement or waiver, (ii) reduce the principal of or change the fixed
maturity of any Offered Security of such series or alter the provisions with
respect to the redemption of the Offered Securities of such series, (iii)
reduce the rate of or extend the time for payment of interest on any Offered
Security of such series, (iv) waive a Default or Event of Default in the
payment of principal of or premium, if any, or interest on the Offered
Securities of such series (except a rescission of acceleration of the Offered
Securities by the Holders of such series of at least a majority in aggregate
principal amount of the Offered Securities of such series and a waiver of the
payment default that resulted from such acceleration), (v) make any Offered
Security of such series payable in money other than that stated in the Offered
Securities of such series, (vi) make any change in the provisions of the
Indenture relating to waivers of past Defaults or the rights of Holders of
Offered Securities of such series to receive payments of
15
<PAGE>
principal of or premium, if any, or interest on the Offered Securities of such
series, (vii) waive a redemption payment with respect to any Offered Security
of such series or (viii) make any change in the foregoing amendment and waiver
provisions.
Notwithstanding the foregoing, without the consent of any Holder of Offered
Securities of any series, the Company and the Trustee may amend or supplement
the Indenture or the Offered Securities of any series to, among other things,
cure any ambiguity, defect or inconsistency, to provide for uncertificated
Offered Securities of any series in addition to or in place of certificated
Offered Securities, to provide for the assumption of the Company's obligations
to Holders of Offered Securities of any series in the case of a merger or
consolidation or sale of all or substantially all of the Company's assets, to
make any change that would provide any additional rights or benefits to the
Holders of Offered Securities of any series or that does not adversely affect
the legal rights under the Indenture of any such Holder, or to comply with
requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the Trust Indenture Act.
CONCERNING THE TRUSTEE
The Indenture contains certain limitations on the rights of the Trustee,
should it be a creditor of the Company, to obtain payment of claims in certain
cases, or to realize on certain property received in respect of any such claim
as security or otherwise. The Trustee will be permitted to engage in other
transactions; however, if it acquires any conflicting interest (as defined in
the Trust Indenture Act) it must eliminate such conflict within 90 days, apply
to the SEC for permission to continue or resign.
EVENTS OF DEFAULT
As to any series of Offered Securities, an Event of Default is defined in
the Indenture as being: (a) default for 30 days in payment of any interest on
the Offered Securities of such series; (b) failure to pay principal or premium
with respect to the Offered Securities of such series, if any, when due; (c)
failure to observe or perform any other covenant in the Indenture or Offered
Securities of any series (other than a covenant or warranty, a default in
whose performance or whose breach is specifically dealt with in the section of
the Indenture governing Events of Default), if such failure continues for 90
days after written notice by the Trustee or the Holders of at least 25% in
aggregate principal amount of the Offered Securities of such series then
outstanding; (d) certain events of bankruptcy, insolvency, receivership or
reorganization; or (e) any other Event of Default provided with respect to
Offered Securities of that series. The Trustee or the Holders of 25% in
aggregate principal amount of the outstanding Offered Securities of any series
may declare the Offered Securities of such series immediately due and payable
upon the occurrence of any Event of Default (after expiration of any
applicable grace period); in certain cases, the Holders of a majority in
principal amount of the Offered Securities of any series then outstanding may
waive any past default and its consequences, except a default in the payment
of principal, premium, if any, or interest.
The Indenture provides that the Trustee shall, within 90 days after the
occurrence of a default with respect to any such series for which there are
Offered Securities outstanding which is continuing, give to the Holders of
such Offered Securities notice of all uncured defaults known to it (the term
default to include the events specified above without grace periods); provided
that, except in the case of default in the payment of principal (or premium,
if any) or interest on any of the Offered Securities of any series, the
Trustee shall be protected in withholding such notice if it in good faith
determines that the withholding notice is in the interest of the Offered
Security Holders.
Subject to the provisions of the Indenture relating to the duties of the
Trustee in case an Event of Default with respect to any series of such Offered
Securities shall occur and be continuing, the Indenture provides that the
Trustee shall be under no obligation to exercise any of its rights or powers
under the Indenture at the request, order or direction of any of the Holders
of Offered Securities outstanding of any series unless such Holders shall have
offered to the Trustee reasonable indemnity. The right of a Holder to
institute a proceeding with respect to the Indenture is subject to certain
conditions precedent including notice and indemnity to the Trustee, but the
16
<PAGE>
Holder has a right to receipt of principal, premium, if any, and interest
(subject to certain limitations with respect to defaulted interest) on their
due dates or to institute suit for the enforcement thereof.
So long as the Offered Securities of any series remain outstanding the
Company will be required to furnish annually to the Trustee an Officer's
Certificate stating whether, to the best of the knowledge of the signers, the
Company is in default under any of the provisions of the Indenture, and
specifying all such defaults, and the nature thereof, of which they have
knowledge. The Company will also be required to furnish to the Trustee copies
of certain reports filed by the Company with the SEC.
The Holders of a majority in principal amount of the Offered Securities
outstanding of such series will have the right to direct the time, method and
place for conducting any proceeding for any remedy available to the Trustee,
or exercising any power or trust conferred on the Trustee, provided that such
direction shall be in accordance with law and the provisions of the Indenture,
and, provided, further, that the Trustee may decline to follow any such
direction if the Trustee in good faith shall, by a responsible officer of the
Trustee, determine that the proceeding would involve the Trustee in personal
liability. The Trustee will be under no obligation to act in accordance with
such direction unless such Holders shall have offered the Trustee reasonable
security or indemnity against costs, expenses and liabilities which may be
incurred thereby.
DEPOSITORY PROCEDURES
Except as set forth in the next paragraph, the Offered Securities of any
series to be resold as set forth herein will initially be issued in the form
of one or more Global Securities (the "Global Securities"). The Global
Securities will be deposited on the date of the closing of the sale of the
Offered Securities offered hereby (the "Closing Date") with, or on behalf of,
The Depository Trust Company ("DTC") and registered in the name of Cede & Co.,
as nominee of DTC (such nominee being referred to herein as the "Global
Securities Holder").
DTC is a limited-purpose trust company that was created to hold securities
for its participating organizations (collectively, the "Participants") and to
facilitate the clearance and settlement of transactions in those securities
between Participants through electronic book-entry changes in accounts of its
Participants. The Participants include securities brokers and dealers
(including the Underwriters), banks, trust companies, clearing corporations
and certain other organizations. Access to DTC's system is also available to
other entities such as banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either
directly or indirectly (collectively, the "Indirect Participants"). Persons
who are not Participants may beneficially own securities held by or on behalf
of DTC only through the Participants or the Indirect Participants. The
ownership interests in, and transfers of ownership interests in, each security
held by or on behalf of DTC are recorded on the records of the Participants
and Indirect Participants.
The Company expects that pursuant to procedures established by DTC, (i) upon
deposit of the Global Securities, DTC will credit the accounts of Participants
designated by the Underwriters with portions of the principal amount of the
Global Securities and (ii) ownership of such interests in the Global
Securities will be shown on, and the transfer of ownership thereof will be
effected only through, records maintained by DTC (with respect to the
interests of the Participants) or by the Participants and the Indirect
Participants (with respect to other owners of beneficial interest in the
Global Securities). Prospective purchasers are advised that the laws of some
states require that certain persons take physical delivery in definitive form
of securities that they own. Consequently, the ability to transfer Offered
Securities of any series evidenced by the Global Securities will be limited to
such extent.
So long as the Global Securities Holder is the registered owner of any
Offered Securities, the Global Securities Holder will be considered the sole
Holder under the Indenture of any Offered Securities evidenced by the Global
Securities. Beneficial owners of Offered Securities evidenced by the Global
Securities will not be considered the owners or Holders thereof under the
Indenture for any purpose, including with respect to the giving of any
directions, instructions or approvals to the Trustee thereunder. Neither the
Company nor the Trustee will have any responsibility or liability for any
aspect of the records of DTC or for maintaining, supervising or reviewing any
records of DTC relating to the Offered Securities of any series.
17
<PAGE>
Payments in respect of the principal of, premium, if any, and interest, if
any, on any Offered Securities registered in the name of the Global Securities
Holder on the applicable record date will be payable by the Trustee to or at
the direction of the Global Securities Holder in its capacity as the
registered Holder under the Indenture. Under the terms of the Indenture, the
Company and the Trustee may treat the persons in whose names Offered
Securities, including Global Securities, are registered as the owners thereof
for the purpose of receiving such payments. Consequently, neither the Company
nor the Trustee has or will have any responsibility or liability for the
payment of such amounts to beneficial owners of Offered Securities. The
Company believes, however, that it is currently the policy of DTC to
immediately credit the accounts of the relevant Participants with such
payments, in amounts proportionate to their respective holdings of beneficial
interests in the relevant security as shown on the records of DTC. Payments by
Participants and Indirect Participants to the beneficial owners of Offered
Securities will be governed by standing instructions and customary practice
and will be the responsibility of the Participants or the Indirect
Participants.
CERTIFICATED SECURITIES
Subject to certain conditions, any person having a beneficial interest in a
Global Security may, upon the request to the Trustee, exchange such beneficial
interest for Offered Securities in the form of certificated securities. Upon
any such issuance, the Trustee is required to register such certificated
securities in the name of, and cause the same to be delivered to, such person
or persons (or the nominee of any thereof). In addition, if (i) the Company
notifies the Trustee in writing that DTC is no longer willing or able to act
as a depository and the Company is unable to locate a qualified successor
within 90 days or (ii) the Company, at its option, notifies the Trustee in
writing that it elects to cause the issuance of Offered Securities of any
series in the form of certificated securities under the Indenture, then, upon
surrender by the Global Securities Holder of its Global Securities, Offered
Securities in such form will be issued to each person that the Global
Securities Holder and DTC identify as being the beneficial owner of the
related Offered Securities.
Neither the Company nor the Trustee will be liable for any delay by the
Global Securities Holder or DTC in identifying the beneficial owners of
Offered Securities and the Company and the Trustee may conclusively rely on,
and will be protected in relying on, instructions from the Global Securities
Holder or DTC for all purposes.
SAME DAY SETTLEMENT AND PAYMENT
The Indenture requires that payments in respect of the Offered Securities
represented by the Global Security (including principal, premium, if any, and
interest) be made by wire transfer of immediately available next day funds to
the accounts specified by the Global Securities Holder. With respect to
certificated securities, the Company will make all payments of principal,
premium, if any, and interest, by wire transfer of immediately available funds
to the accounts specified by the Holders thereof or, if no such account is
specified, by mailing a check to each such Holder's registered address. The
Company expects that secondary trading in the certificated securities will
also be settled in immediately available funds.
18
<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting Agreement
dated as of , 1998, the Company has agreed to sell to each of the
Underwriters named below, and each of the Underwriters has severally agreed to
purchase, the principal amount of Offered Securities set forth opposite its
name below:
<TABLE>
<CAPTION>
PRINCIPAL AMOUNT OF PRINCIPAL AMOUNT OF
UNDERWRITER TEN-YEAR NOTES THIRTY-YEAR NOTES
----------- ------------------- -------------------
<S> <C> <C>
Salomon Smith Barney Inc............... $ $
Chase Securities Inc. .................
First Chicago Capital Markets, Inc. ...
Lehman Brothers Inc....................
---------- ----------
Total................................ $ $
========== ==========
</TABLE>
The Company has been advised by the Underwriters that they propose initially
to offer the Ten-year Notes and the Thirty-year Notes to the public 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 % of the
principal amount of the Ten-year Notes and % of the principal amount of
the Thirty-year Notes. The Underwriters may allow, and such dealers may
reallow, a concession not in excess of % of the principal amount of the
Ten-year Notes and % of the principal amount of the Thirty-year Notes to
certain other dealers.
In connection with this offering, certain Underwriters and their affiliates
may engage in transactions that stabilize, maintain or otherwise affect the
market price of the Offered Securities. Such transactions may include
stabilization transactions effected in accordance with Rule 104 of Regulation
M, pursuant to which such persons may bid for or purchase the Offered
Securities for the purpose of stabilizing their market price. The Underwriters
may also create a short position for the account of the Underwriters by
selling more of the Offered Securities in connection with the offering than
they are committed to purchase from the Company, and in such case may purchase
the Offered Securities in the open market following completion of the offering
to cover such short position. Any of the transactions described in this
paragraph may result in the maintenance of the price of the Offered Securities
at a level above that which might otherwise prevail in the open market. None
of the transactions described in this paragraph is required, and, if they are
undertaken, they may be discontinued at any time.
The Company does not presently intend to list the Offered Securities on any
exchange. The Company has been advised by the Underwriters that they intend to
make a market in the Offered Securities but that they are not obligated to do
so and may discontinue market making at any time without notice. No assurance
can be given as to the liquidity of the trading market for the Offered
Securities.
The Underwriting Agreement provides that the Company will indemnify the
several Underwriters against certain liabilities, including liabilities under
the Securities Act of 1933, as amended, or contribute to payments the
Underwriters may be required to make in respect thereof.
In the ordinary course of their respective business, the Underwriters and
their respective affiliates have engaged and may in the future engage in
commercial banking and investment banking transactions with the Company. In
addition, the Trustee under the Indenture is an affiliate of First Chicago
Capital Markets, Inc., one of the Underwriters.
19
<PAGE>
FORWARD-LOOKING STATEMENTS
This Prospectus contains forward-looking statements, including statements
concerning possible or assumed future results of operations of Danaher,
including without limitation, statements preceded by, followed by or that
include the words "believes," "expects," "anticipates" or similar expressions.
For those statements, the Company claims the protection of the Safe Harbor for
Forward-Looking Statements contained in the Private Securities Litigation
Reform Act of 1995. Investors should understand that the following important
factors, in addition to those discussed elsewhere in this document and in the
documents incorporated by reference, could affect the future results of
Danaher, and could cause those results to differ materially from those
expressed in such forward-looking statements: changes in Danaher's
longstanding relationship with major customers; the extent to which acquired
businesses are able to meet Danaher's expectations and operate profitably;
changes in regulations which could affect demand for products and
unanticipated developments that could occur with respect to contingencies such
as environmental matters and litigation; materially adverse changes in
economic conditions in the markets served by Danaher or in the economy in
general; greater than expected costs or difficulties related to the
integration of the businesses acquired by Danaher; and other risks and
uncertainties as may be detailed from time to time in Danaher's public
announcements and SEC filings.
LEGAL MATTERS
The validity of the Offered Securities will be passed upon on behalf of the
Company by Wilmer, Cutler & Pickering, Washington, D.C. Certain legal matters
will be passed upon for the Underwriters by Latham & Watkins, Chicago,
Illinois.
EXPERTS
The audited financial statements and schedule incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of the Company for
the year ended December 31, 1997 (which financial statements have not been
restated to give effect to the acquisitions of Pacific Scientific or Fluke)
and the supplemental financial statements of Danaher Corporation incorporated
by reference to the Current Report on Form 8-K dated July 9, 1998 (filed
September 14, 1998) to the extent and for the periods indicated in their
reports have been audited by Arthur Andersen LLP, independent public
accountants, and have been incorporated in reliance upon the authority of said
firm as experts in auditing and accounting in giving said reports. The
financial statements of Pacific Scientific, incorporated in this Prospectus by
reference from the Company's Current Report on Form 8-K, dated March 9, 1998,
have been so audited by Deloitte & Touche LLP, independent auditors as stated
in their report, which is incorporated herein by reference, and have been so
incorporated in reliance upon the report of such firm given upon their
authority as experts in accounting and auditing. The consolidated financial
statements of Fluke incorporated by reference to the Current Report on Form 8-
K of the Company dated July 9, 1998, have been audited by Ernst & Young, LLP,
independent auditors, as set forth in their report thereon included therein
and incorporated herein by reference in reliance upon such report given upon
the authority of such firm as experts in accounting and auditing.
20
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON, OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS AND, IF GIVEN OR MADE, SUCH INFORMATION OR
REPRESENTATIONS MUST NOT BE RELIED UPON AS HAVING BEEN AUTHORIZED BY THE
COMPANY OR THE UNDERWRITERS. THIS PROSPECTUS DOES NOT CONSTITUTE AN OFFER TO
SELL OR A SOLICITATION OF AN OFFER TO BUY ANY OF THE SECURITIES OFFERED HEREBY
IN ANY JURISDICTION TO ANY PERSON TO WHOM IT IS UNLAWFUL TO MAKE SUCH OFFER IN
SUCH JURISDICTION. NEITHER THE DELIVERY OF THIS PROSPECTUS SUPPLEMENT NOR ANY
SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE ANY IMPLICATION
THAT THE INFORMATION CONTAINED HEREIN IS CORRECT AS OF ANY TIME SUBSEQUENT TO
THE DATE HEREOF OR THAT THERE HAS BEEN NO CHANGE IN THE AFFAIRS OF THE COMPANY
SINCE SUCH DATE.
-----------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 1
Incorporation of Certain
Documents by Reference.................................................... 2
The Company................................................................ 2
Recent Developments........................................................ 4
Use of Proceeds............................................................ 5
Capitalization............................................................. 5
Selected Financial Data.................................................... 6
Supplemental Combined
Selected Financial Information............................................ 8
Description of the Offered
Securities................................................................ 9
Underwriting............................................................... 19
Forward-Looking Statements................................................. 20
Legal Matters.............................................................. 20
Experts.................................................................... 20
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
$
DANAHER CORPORATION
$ % NOTES DUE 2008
$ % NOTES DUE 2028
-------
P R O S P E C T U S
, 1998
-------
SALOMON SMITH BARNEY
CHASE SECURITIES INC.
FIRST CHICAGO CAPITAL MARKETS, INC.
LEHMAN BROTHERS
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following is an estimate of the Registrant's expenses in connection with
the issuance of the Offered Securities that are the subject of this
Registration Statement:
Securities and
Exchange
Commission
registration
fee............ $88,500
Trustee fees
and expenses... *
Fees of rating
agencies....... *
Legal fees and
expenses....... *
Printing
costs.......... *
Blue Sky
expenses
(including
counsel fees).. *
Accounting fees
and expenses... *
Miscellaneous.. *
-------
Total ......... $ *
=======
* To be provided by amendment
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 provides that the
Company will indemnify its directors and officer 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. Article Eight
of the Company's Bylaws provides that the Company will indemnify directors,
officers, employees or agents of the Company in non-derivative claims if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the Company, and, with respect
to any criminal action or proceeding, had no reasonable cause to believe his
conduct was unlawful. For non-derivative claims, termination of any action,
suit or proceeding by judgment, order, settlement, conviction or upon a plea
of nolo contendere or its equivalent, shall not, in itself, create a
presumption that the person did not act in good faith and in a manner which
such person believed to be in or not opposed to the best interests of the
Company, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conducts was unlawful. For
derivative claims, Article Eight of the Company Bylaws provides that the
<PAGE>
Company will indemnify directors, officers, employees or agents of the Company
if such person acted in good faith and in a manner such person reasonably
believed to be in or not opposed to the best interests of the Company; except
that no indemnification shall be made in respect of any claim, issue or matter
as to which such person shall have been adjudged to be liable to the Company
unless and only to the extent that the Court of Chancery or the court in which
such action or suit was brought shall determine upon application that, despite
the adjudication of liability but in view of all the circumstances of the
case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<S> <C>
1 Form of Underwriting Agreement
4 Form of Indenture dated as of between the Company and The First National Bank of
Chicago, as Trustee, relating to the Offered Securities
5 Opinion of Wilmer, Cutler & Pickering as to the validity of the Offered Securities
12 Statement of Computation of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Wilmer, Cutler & Pickering (included in Exhibit 5)
24 Power of Attorney
25 Statement of Eligibility of The First National Bank of Chicago under the Trust Indenture Act of
1939 on Form T-1 relating to the Indenture
</TABLE>
UNDERTAKINGS
The Registrant hereby undertakes:
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
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) 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
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 SEC such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the Registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
<PAGE>
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, 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,
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.
<PAGE>
SIGNATURE OF REGISTRANT
Pursuant to the requirements of the Securities Act, 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 September 17, 1998.
DANAHER CORPORATION
By: /s/ Patrick W. Allender
---------------------
Patrick W. Allender
Senior Vice President
Chief Financial Officer
POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act, this registration
statement has been signed by the following persons in the capacities and on
the dates indicated.
PRINCIPAL EXECUTIVE OFFICER:
*
---------------------------------------
George M. Sherman
President and Chief Executive
Officer
PRINCIPAL FINANCIAL OFFICER:
/s/ Patrick W. Allender
---------------------------------------
Patrick W. Allender
Senior Vice President and Chief
Financial Officer
PRINCIPAL ACCOUNTING OFFICER:
/s/ C. Scott Brannan
---------------------------------------
C. Scott Brannan
Controller
A MAJORITY OF THE BOARD OF DIRECTORS:
Mortimer M. Caplin*
Donald J. Ehrlich*
Walter G. Lohr, Jr.*
Mitchell P. Rales*
Steven M. Rales*
George M. Sherman*
A. Emmet Stephenson, Jr.*
*By /s/ Patrick Allender
-------------------------
Patrick W. Allender
Attorney-in-Fact
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
- ------- -------------------
<S> <C>
1 Form of Underwriting Agreement
4 Form of Indenture dated as of between the Company and The First National Bank of
Chicago, as Trustee, relating to the Offered Securities
5 Opinion of Wilmer, Cutler & Pickering as to the validity of the Offered Securities
12 Statement of Computation of Earnings to Fixed Charges
23.1 Consent of Arthur Andersen LLP
23.2 Consent of Deloitte & Touche LLP
23.3 Consent of Ernst & Young LLP
23.4 Consent of Wilmer, Cutler & Pickering (included in Exhibit 5)
24 Power of Attorney
25 Statement of Eligibility of The First National Bank of Chicago under the Trust Indenture Act of
1939 on Form T-1 relating to the Indenture
</TABLE>
<PAGE>
EXHIBIT 1
Danaher Corporation
$______________ ___% Senior Notes Due 2008
$______________ ___% Senior Notes Due 2028
Underwriting Agreement
New York, New York
____________, 1998
Salomon Smith Barney Inc.
Chase Securities Inc.
First Chicago Capital Markets, Inc.
Lehman Brothers Inc.
As Representatives of the several Underwriters
c/o Salomon Smith Barney Inc.
Seven World Trade Center
30th Floor
New York, New York 10048
Ladies and Gentlemen:
Danaher Corporation, a Delaware corporation (the "Company"), proposes
to sell to the underwriters named in Schedule I hereto (the "Underwriters"), for
whom you (the "Representatives") are acting as representatives, $___________
principal amount of its ___% Senior Notes Due 2008 (the "Ten-year Notes") and
$___________ principal amount of its ___% Senior Notes Due 2028 (the "Thirty-
year Notes," the Ten-year Notes and the Thirty-year Notes are collectively
referred to as the "Securities"), to be issued under an indenture (the
"Indenture") to be dated as of _______________, 1998, between the Company and
___________________, as trustee (the "Trustee"). To the extent there are no
additional Underwriters listed on Schedule I other than you, the term
Representatives as used herein shall mean you, as Underwriters, and the terms
Representatives and Underwriters shall mean either the singular or plural as the
context requires. Any reference herein to the "Registration Statement," a
"Preliminary Prospectus" or the "Prospectus" shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 which were filed under the Exchange Act on or before the Effective Date
of the Registration Statement or the issue date of such Preliminary Prospectus
or the Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or
<PAGE>
"supplement" with respect to the Registration Statement, any Preliminary
Prospectus or the Prospectus shall be deemed to refer to and include the filing
of any document under the Exchange Act after the Effective Date of the
Registration Statement, or the issue date of any Preliminary Prospectus or the
Prospectus, as the case may be, deemed to be incorporated therein by reference.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.
(a) The Company meets the requirements for use of Form S-3 under the
Act and has prepared and filed with the Commission a registration statement
(file number 333-_________) on Form S-3, including the prospectus for the
registration under the Act of the offering and sale of the Securities and
the preliminary prospectus for the offer and sale of the Securities, each
of which has previously been furnished to you. The Registration Statement
was declared effective by the Commission on _________, 1998. The Company
will file with the Commission a final Prospectus in accordance with Rule
424(b). As filed, the Prospectus shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification, shall
be in all substantive respects in the form furnished to you prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein.
(b) On the Effective Date, the Registration Statement did, and when
the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date, the Prospectus (and any supplements thereto) will,
comply in all material respects with the applicable requirements of the
Act, the Exchange Act and the Trust Indenture Act and the respective rules
thereunder; on the Effective Date and at the Execution Time, the
Registration Statement did not or will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not
misleading; at the Execution Time the Preliminary Prospectus did not
contain and at the Execution Time the Prospectus will not contain any
untrue statement of material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading; on the Closing Date, the Indenture will comply in all material
respects with the requirements of the Trust Indenture Act and the rules
thereunder; and, on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Prospectus (together with any supplement thereto)
will not include any 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;
provided, however, that the Company makes no representations or warranties
-------- -------
as to (i) that part of the Registration Statement which shall constitute
the Statement of Eligibility and Qualification (Form T-1)
2
<PAGE>
under the Trust Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or the Prospectus
(or any supplement thereto) in reliance upon and in conformity with
information furnished herein or in writing to the Company by or on behalf
of any Underwriter through the Representatives specifically for inclusion
in the Registration Statement or the Prospectus (or any supplement
thereto).
(c) Each of the Company and its subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or organized
with all requisite corporate power and authority to own or lease, as the
case may be, and to operate its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except in each case as
would not, singly or in the aggregate, have a material adverse effect on
the condition (financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole, whether
or not arising from transactions in the ordinary course of business (a
"Material Adverse Effect").
(d) All the outstanding shares of capital stock of each of the
Company's subsidiaries have been duly and validly authorized and issued and
are fully paid and nonassessable, and, except as may be otherwise set forth
in the Prospectus, all outstanding shares of capital stock of such
subsidiaries are owned by the Company either directly or through wholly
owned subsidiaries, free and clear of any security interests, claims, liens
or encumbrances, except as would not reasonably be expected to have a
Material Adverse Effect.
(e) The Company's authorized equity capitalization is as set forth in
the Prospectus; the capital stock of the Company conforms in all material
respects to the description thereof contained in the Prospectus; the
outstanding shares of common stock of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable; and,
except as may be set forth in the Prospectus, no options, warrants or other
rights to purchase, agreements or other obligations to issue, or rights to
convert any obligations into or exchange any securities for, shares of
capital stock of or ownership interests in the Company are outstanding.
(f) There is no franchise, contract or other document of a character
required to be described in the Registration Statement or Prospectus, or to
be filed as an exhibit thereto, which is not described or filed as
required; and the statements in the Prospectus under the headings
"Description of Offered Securities," fairly summarize the matters therein
described.
(g) This Agreement has been duly authorized, executed and delivered by
the Company and (assuming the due execution and delivery thereof by Salomon
Smith Barney Inc. as representative for the Underwriters) constitutes a
valid and binding obligation of the Company enforceable in accordance with
its terms, except as enforcement thereof may be
3
<PAGE>
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting enforcement of creditors' rights generally or by
general equity principles.
(h) The Securities have been duly and validly authorized by the
Company and, when issued and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by you in
accordance with the terms hereof and the Indenture, will conform to the
description thereof in the Prospectus in all material respects, and will be
the valid and binding obligations of the Company, enforceable against the
Company in accordance with their terms, except as enforcement thereof may
be limited by bankruptcy, insolvency, reorganization, moratorium or other
laws relating to or affecting enforcement of creditors' rights generally or
by general equity principles, and entitled to the benefits of the
Indenture.
(i) The Indenture has been duly authorized by the Company, and when
duly executed and delivered by the Company (assuming the due execution and
delivery thereof by the Trustee), will be a valid and binding obligation of
the Company enforceable against it in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles.
(j) The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940, as amended.
(k) No consent, approval, authorization, filing with or order of any
court or governmental agency or body is required in connection with the
transactions contemplated herein, except (i) such as have been obtained
under the Act, and (ii) such as may be required under the blue sky laws of
any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated herein and in the
Prospectus.
(l) Neither the issue and sale of the Securities nor the consummation
of any other of the transactions herein contemplated nor the fulfillment of
the terms hereof will conflict with, result in a breach or violation of, or
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any of its subsidiaries pursuant to (i) the charter or
by-laws of the Company or any of its subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which the Company or any of its subsidiaries is a party or bound or to
which its or their property is subject; or (iii) any statute, law, rule,
regulation, judgment, order or decree applicable to the Company or any of
its subsidiaries of any court, regulatory body, administrative agency,
governmental body, arbitrator or other authority having jurisdiction over
the Company or any of its subsidiaries or any of its or their
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<PAGE>
properties, other than, in the case of clauses (ii) and (iii), any breach,
violation, lien, charge or encumbrance that could reasonably be expected to
have a Material Adverse Effect.
(m) No holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
(n) The historical consolidated financial statements and schedules of
the Company and its consolidated subsidiaries included in the Prospectus
and the Registration Statement present fairly in all material respects the
financial condition, results of operations and cash flows of the Company as
of the dates and for the periods indicated thereon, comply as to form with
the applicable accounting requirements of the Act and the rules and
regulations thereunder and have been prepared in conformity with generally
accepted accounting principles applied on a consistent basis throughout the
periods involved (except as otherwise noted therein). The summary
consolidated financial data and pro forma combined selected financial data
set forth under the captions "Selected Financial Data," "Capitalization"
and "Supplemental Combined Selected Financial Information" in the
Prospectus fairly present, on the basis stated in the Prospectus, the
information included therein.
(o) No action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property is pending or,
to the best knowledge of the Company, threatened that (i) could reasonably
be expected to have a material adverse effect on the performance of this
Agreement or the consummation of any of the transactions contemplated
hereby or (ii) could reasonably be expected to have a Material Adverse
Effect, except, in the case of this clause (ii), as may be set forth in the
Prospectus (exclusive of any supplement thereto); and no labor disturbance
by or dispute with the employees of the Company or any of its subsidiaries
exists or is, to the best knowledge of the Company, threatened or is
imminent that could reasonably be expected to have a Material Adverse
Effect, except as may be set forth in the Prospectus (exclusive of any
supplement thereto).
(p) Each of the Company and each of its subsidiaries owns or leases
all such properties as are necessary to the conduct of its operations as
presently conducted; neither the Company nor any subsidiary is in violation
of any law, rule or regulation of any Federal, state or local governmental
or regulatory authority applicable to it or is not in non-compliance with
any term or condition of, or has failed to obtain and maintain in effect,
any license, certificate, permit or other governmental authorization
required for the ownership or lease of its property or the conduct of its
business, which violation, non-compliance or failure would individually or
in the aggregate have a Material Adverse Effect, except as may be set forth
in the Prospectus (exclusive of any supplement thereto); and the Company
has not received notice of any proceedings relating to the revocation or
material modification of any such license, certificate, permit or other
authorization, which revocation or material modification could reasonably
be expected to have a Material Adverse Effect.
5
<PAGE>
(q) Neither the Company nor any subsidiary is in violation or default
of (i) any provision of its charter or bylaws, (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement, loan
agreement or other agreement, obligation, condition, covenant or instrument
to which it is a party or bound or to which its property is subject, or
(iii) any statute, law, rule, regulation, judgment, order or decree of any
court, regulatory body, administrative agency, governmental body,
arbitrator or other authority having jurisdiction over the Company or such
subsidiary or any of its properties, as applicable, which violation or
default, in the case of clauses (ii) and (iii), would have a Material
Adverse Effect.
(r) Arthur Andersen LLP, who have certified certain financial
statements of the Company and its consolidated subsidiaries and delivered
their report with respect to such audited consolidated financial statements
and schedules included in the Prospectus, are independent public
accountants with respect to the Company within the meaning of the Act and
the applicable published rules and regulations thereunder for the periods
so reported. Deloitte & Touche LLP, who have certified certain financial
statements of Pacific Scientific Corporation and delivered their report
with respect to such audited consolidated financial statements and
schedules included in the Prospectus, are independent public accountants
with respect to Pacific Scientific Corporation within the meaning of the
Act and the applicable published rules and regulations thereunder for the
periods so reported. Ernst & Young LLP, who have certified certain
financial statements of Fluke Corporation and delivered their report with
respect to such audited consolidated financial statements and schedules
included in the Prospectus, are independent public accountants with respect
to Fluke Corporation within the meaning of the Act and the applicable
published rules and regulations thereunder for the periods so reported.
(s) There are no transfer taxes or other similar fees or charges under
Federal law or the laws of any state, or any political subdivision thereof,
required to be paid in connection with the execution and delivery of this
Agreement or the issuance by the Company or sale by the Company of the
Securities.
(t) The Company has filed all foreign, federal, state and local tax
returns that are required to be filed or has requested extensions thereof
(except in any case in which the failure so to file would not have a
Material Adverse Effect) and has paid all taxes required to be paid by it
and any other assessment, fine or penalty levied against it, to the extent
that any of the foregoing is due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith
or as would not have a Material Adverse Effect.
(u) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; neither the Company nor any such subsidiary has been refused
any insurance coverage sought or applied for; and neither the Company nor
any such subsidiary has any reason to believe that it will not be able to
6
<PAGE>
renew its existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to
continue its business at a cost that would not have a Material Adverse
Effect.
(v) No subsidiary of the Company is currently prohibited, directly or
indirectly, from paying any dividends to the Company, from making any other
distribution on such subsidiary's capital stock, from repaying to the
Company any loans or advances to such subsidiary from the Company or from
transferring any of such subsidiary's property or assets to the Company or
any other subsidiary of the Company, except as may be described in or
contemplated by the Prospectus.
(w) The Company and its subsidiaries possess all certificates,
authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective
businesses, except for such certificates, authorizations and permits as to
which the failure to so own, hold or possess would not have a Material
Adverse Effect, and neither the Company nor any such subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such certificate, authorization or permit which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(x) Neither the Company nor any of its subsidiaries is in violation of
any federal or state law or regulation relating to occupational safety and
health or to the storage, handling or transportation of hazardous or toxic
materials, the Company and its subsidiaries have received all permits,
licenses or other approvals required of them under applicable federal and
state occupational safety and health and environmental laws and regulations
to conduct their respective businesses, and the Company and each such
subsidiary is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or
regulation, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions of such
permits, licenses or approvals which would not, singly or in the aggregate,
result in a Material Adverse Effect.
(y) The Company and each of its subsidiaries owns, possesses, licenses
or has other rights to use all material patents, patent applications, trade
and service marks, trade and service mark registrations, trade names,
copyrights, licenses, inventions, trade secrets, technology, know-how and
other intellectual property (collectively, the "Intellectual Property")
necessary for the conduct their respective business as now conducted or as
proposed in the Prospectus to be conducted, subject to such limitations on
the use of, or the rights to use such Intellectual Property that,
individually or in the aggregate, would not have a Material Adverse Effect.
(z) Neither the Company nor any of its subsidiaries has taken,
directly or indirectly, any action designed to or which has constituted or
which might reasonably be expected to cause or result, under the Exchange
7
<PAGE>
Act or otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Securities.
(aa) The Company and each of its subsidiaries has fulfilled its
obligations, if any, under the minimum funding standards of Section 302 of
the United States Employee Retirement Income Security Act of 1974 ("ERISA")
and the regulations and published interpretations thereunder with respect
to each "plan" (as defined in Section 3(3) of ERISA and such regulations
and published interpretations) in which employees of the Company or its
subsidiaries 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,
other than such non-compliance that would not have a Material Adverse
Effect. The Company and its subsidiaries have 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.
(bb) The documents incorporated by reference in the Prospectus, at the
time they were filed with the Commission, complied in all material respects
with the requirements of the Exchange Act and the rules and regulations of
the Commission under the Exchange Act.
(cc) Except as described in the Prospectus, the Company and its
subsidiaries are in compliance with the Commission's staff legal bulletin
No. 5 dated October 8, 1997 related to Year 2000 compliance.
(dd) Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered thereby,
to each Underwriter.
(ee) The proceeds from this offering will be used by the Company to
repay borrowings from certain lenders who are neither Underwriters nor
affiliates of any of the Underwriters.
2. Purchase and Sale; Underwriting Compensation. The Company agrees
--------------------------------------------
to sell to each Underwriter, and each Underwriter agrees, subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, severally and not jointly, to purchase from the Company the Ten-year
Notes, at a purchase price (the "Ten-Year Note Purchase Price") of _____% of the
principal amount thereof, the principal amount of the Ten-year Notes as set
forth opposite such Underwriter's name in Schedule I hereto, and to purchase
from the Company the Thirty-year Notes, at a purchase price (the "Thirty-Year
Note Purchase Price," the Ten-year Note Purchase Price and the Thirty-year Note
Purchase Price are collectively referred to as the "Purchase Price") of _____%
of the principal amount thereof, the principal amount of the Thirty-year Notes
as set forth opposite such Underwriter's name in Schedule I hereto. The Company
agrees to pay to each Underwriter underwriting discounts and commissions equal
to ____% of the principal amount
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<PAGE>
of the Ten-year Notes and ____% of the principal amount of the Thirty-year Notes
as set forth opposite such Underwriter's name in Schedule I hereto (the
"Underwriting Compensation").
3. Delivery and Payment. Delivery of and payment for the Securities
--------------------
and payment of the Underwriting Compensation shall be made at 10:00 AM, New York
City time, on _______________, 1998, or at such time on such later date not more
than three Business Days after the foregoing date as the Representatives shall
designate, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 9 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Securities and payment of the Underwriting
Compensation shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof by wire transfer in same-day
funds. Delivery of the Securities shall be made through the facilities of The
Depository Trust Company unless the Representatives shall otherwise instruct.
4. Offering by Underwriters. It is understood that the several
------------------------
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
----------
that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement to the Prospectus or any Rule 462(b) Registration Statement
unless the Company has furnished you a copy for your review prior to filing
and will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if the filing of the
Prospectus is required under Rule 424(b), the Company will cause the
Prospectus, properly completed, and any supplement thereto to be filed with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. The Company will promptly advise
the Represen tatives (1) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been filed
with the Commission, (2) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statement shall have been
filed or become effective, (3) of any request by the Commission or its
staff for any amendment of the Registration Statement, or any Rule 462(b)
Registration Statement, or for any supplement to the Prospectus or for any
additional information, (4) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or the
institution or threatening of any proceeding for that purpose and (5) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will use its best efforts to prevent the issuance of
any such stop order or the suspension of any such qualification and, if
issued, to obtain as soon as possible the withdrawal thereof.
9
<PAGE>
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Prospectus as then supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein in the light of the circumstances under
which they were made not misleading, or if it shall be necessary to amend
the Registration Statement or supplement the Prospectus to comply with the
Act or the Exchange Act or the respective rules thereunder, the Company
promptly will (1) notify the Representatives of such event; (2) prepare and
file with the Commission, subject to the second sentence of paragraph (a)
of this Section 5, an amendment or supplement which will correct such
statement or omission or effect such compliance and (3) supply any
supplemented Prospectus to you in such quantities as you may reasonably
request.
(c) As soon as practicable, the Company will make generally available
to its security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to each of the Representatives and
counsel for the Underwriters, without charge, a signed copy of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits thereto)
and, so long as delivery of a prospectus by an Underwriter or dealer may be
required by the Act, as many copies of each Preliminary Prospectus and the
Prospectus and any supplement thereto as the Representatives may reasonably
request. The Company will pay the expenses of printing or other production
of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the qualification of
the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain such qualifications in effect
so long as required for the distribution of the Securities and will pay any
fee of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction where it
is not now so qualified or to take any action that would subject it to
service of process in suits, other than those arising out of the offering
or sale of the Securities in any jurisdiction where it is not now so
subject.
(f) The Company will not, for the period from the Execution Time to
and including the Closing Date, offer, sell or contract to sell, or
otherwise dispose of (or enter into any transaction which is designed to,
or might reasonably be expected to, result in the disposition (whether by
actual disposition or effective economic disposition due to cash settlement
or otherwise) by the Company or any affiliate of the Company or any person
in privity with the Company or any affiliate of the Company) directly or
indirectly, or announce the offering of any debt securities issued or
guaranteed by the Company (other than the Securities).
10
<PAGE>
(g) The Company will not take, directly or indirectly, any action
designed to or which has constituted or which might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
(h) The Company will use the proceeds of the Securities as described
in the section entitled "Use of Proceeds" in the Prospectus.
6. Conditions to the Obligations of the Underwriters. The
-------------------------------------------------
obligations of the Underwriters to purchase the Securities shall be subject to
the accuracy of the representations and warranties on the part of the Company
contained herein as of the Execution Time and the Closing Date, to the accuracy
of the statements of the Company made in any certificates pursuant to the
provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such supplement,
will have been filed in the manner and within the time period required by
Rule 424(b); and no stop order suspending the effectiveness of the
Registration Statement shall have been issued; and no proceedings for that
purpose shall have been instituted or threatened.
(b) The Company shall have furnished to the Representatives the
opinion of Wilmer, Cutler & Pickering, counsel for the Company, dated the
Closing Date and addressed to the Representatives, to the effect that:
(i) the Company and each subsidiary that would constitute a
significant subsidiary (as such term is defined in Rule 1-02 of
Regulation S-X) as of the date of this Agreement (individually a
"Subsidiary" and collectively the "Subsidiaries") has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is chartered or
organized, with full corporate power and authority to own or lease, as
the case may be, its properties and conduct its business as described
in the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each
jurisdiction which requires such qualification, except, in each such
case, that could not reasonably be expected to have a Material Adverse
Effect.
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as may be otherwise set
forth in the Prospectus, all outstanding shares of capital stock of
the Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any
other security interest, claim, lien or encumbrance;
11
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(iii) the Company's authorized equity capitalization is as set
forth in the Prospectus; the Securities conform in all material
respects to the description thereof contained in the Prospectus;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming the due execution and delivery
thereof by the Trustee) is a valid and binding instrument enforceable
against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity
principles; the Indenture has been duly qualified under the Trust
Indenture Act, and the Securities have been duly authorized by the
Company and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement and the Indenture, will
constitute legal, valid and binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting enforcement of
creditors' rights generally or by general equity principles, and
entitled to the benefits of the Indenture;
(v) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries or its or their property of a
character required to be disclosed in the Registration Statement which
is not adequately disclosed in the Prospectus, and to the knowledge of
such counsel, there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit thereto, which is not
described or filed as required; and the statements included in the
Prospectus under the headings "Description of Offered Securities"
fairly summarize the matters therein described;
(vi) the Registration Statement has become effective under the
Act; any required filing of the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); to the knowledge of
such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements,
related schedules and other financial information contained therein,
as to which such counsel need express no opinion) comply as to form in
all material respects with the applicable requirements of the Act, the
Exchange Act and the Trust Indenture Act and the respective rules
thereunder; and such counsel has no reason to believe that on the
Effective Date or at the Execution Time the Registration Statement
contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or
12
<PAGE>
necessary to make the statements therein not misleading, or that the
Prospectus, as of its date and on the Closing Date, included or
includes any untrue statement of a material fact or omitted or omits
to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading (in each case, other than the financial statements, related
schedules and other financial information contained therein, as to
which such counsel need express no view);
(vii) this Agreement has been duly authorized, executed and
delivered by the Company;
(viii) the Company is not and, after giving effect to the
offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940,
as amended;
(ix) no consent, approval, authorization, filing with or order of
any court or governmental agency or body is required in connection
with the transactions contemplated herein, except such as have been
obtained under the Act and such as may be required under the blue sky
laws of any jurisdiction in connection with the purchase and
distribution of the Securities by the Underwriters in the manner
contemplated in the Agreement and in the Prospectus;
(x) neither the execution and delivery of the Indenture, the
issue and sale of the Securities, nor the consummation of any other of
the transactions herein contemplated nor the fulfillment of the terms
hereof will conflict with, result in a breach or violation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or its subsidiaries pursuant to (i) the charter
or by-laws of the Company or its Subsidiaries; (ii) the terms of any
indenture, contract, lease, mortgage, deed of trust, note agreement,
loan agreement or other agreement, obligation, condition, covenant or
instrument to which the Company or its subsidiaries is a party or
bound or to which its or their property is subject; or (iii) any
statute, law, rule, regulation, judgment, order or decree applicable
to the Company or its subsidiaries of any court, regulatory body,
administrative agency, governmental body, arbitrator or other
authority having jurisdiction over the Company or its subsidiaries or
any of its or their properties, other than, in the case of clauses
(ii) and (iii), any breach, violation, lien, charge or encumbrance
that could reasonably be expected to have a Material Adverse Effect;
and
(xi) no holders of securities of the Company have rights to the
registration of such securities under the Registration Statement.
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In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, the State of New York or the Federal laws of the United
States, to the extent they deem proper and specified in such opinion, upon
the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to
the Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from Latham & Watkins,
counsel for the Underwriters, such opinion or opinions, dated the Closing
Date and addressed to the Representatives, with respect to the issuance and
sale of the Securities, the Indenture, the Registration Statement, the
Prospectus (together with any supplement thereto) and other related matters
as the Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the Chairman of the Board or the
President and the principal financial or accounting officer of the Company,
dated the Closing Date, to the effect that the signers of such certificate
have carefully examined the Registration Statement, the Prospectus, any
supplements to the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Date with the same effect as if made on the Closing Date,
and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus (exclusive of
any supplement thereto), there has been no material adverse change in
the condition (financial or otherwise), prospects, earnings, business
or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(e) The Company shall have caused Arthur Andersen LLP to have
furnished to the Representatives at the Execution Time and at the Closing
Date, letters, dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to
14
<PAGE>
the Representatives, confirming that they are independent accountants
within the meaning of the Act and the Exchange Act and the respective
applicable published rules and regulations thereunder and that they have
performed a review of the unaudited interim financial information of the
Company for the six-month period ended June 26, 1998, in accordance with
Statement on Accounting Standards No. 71 and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules and pro forma financial data included or
incorporated by reference in the Registration Statement and the
Prospectus and reported on by them comply as to form in all material
respects with the applicable accounting requirements of the Act and
the Exchange Act and the related published rules and regulations;
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the
comments set forth in such letter; a reading of the minutes of the
meetings of the stockholders, directors and any committees of the
directors of the Company and the Subsidiaries; and inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters of the Company and its subsidiaries as to
transactions and events subsequent to December 31, 1997, nothing came
to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the Registration Statement and the Prospectus do
not comply as to form in all material respects with applicable
accounting requirements and with the published rules and
regulations of the Commission with respect to financial
statements included or incorporated by reference in quarterly
reports on Form 10-Q under the Exchange Act; and said unaudited
financial statements are not in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements included
or incorporated in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to June 26, 1998,
there were any changes, at a specified date not more than five
days prior to the date of the letter, in the long-term debt of
the Company and its subsidiaries or capital stock of the Company
or decreases in the stockholders' equity of the Company as
compared with the amounts shown on the June 26, 1998 consolidated
balance sheet included or incorporated by reference in the
Registration Statement and the Prospectus, or for the period from
June 26, 1998 to such specified date there were any decreases, as
compared with the corresponding period in the preceding year in
15
<PAGE>
net sales or income before income taxes or in total or per share
amounts of net income of the Company and its subsidiaries, except
in all instances for changes or decreases set forth in such
letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless
said explanation is not deemed necessary by the Representatives;
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of the Company and its subsidiaries) set
forth in the Registration Statement and the Prospectus and in Exhibit
12 to the Registration Statement, including the information included
or incorporated in Items 1, 6, 7 and 11 of the Company's Annual Report
on Form 10-K, incorporated by reference in the Registration Statement
and the Prospectus, and the information included in the "Management's
Discussion and Analysis of Financial Condition and Results of
Operations" included or incorporated in the Company's Quarterly
Reports on Form 10-Q, incorporated by reference in the Registration
Statement and the Prospectus, and the Current Reports of the Company
on Form 8-K dated March 9, 1998 and dated July 9, 1998, incorporated
by reference in the Registration Statement and the Prospectus, agrees
with the accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) on the basis of a reading of the unaudited pro forma
financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (the "pro forma financial
statements"); carrying out certain specified procedures; inquiries of
certain officials of the Company who have responsibility for financial
and accounting matters; and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention
which caused them to believe that the pro forma financial statements
do not comply in form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Prospectus in this paragraph (e) include any
supplement thereto at the date of the letter.
(f) Subsequent to the Execution Time, there shall not have been (i)
any change or decrease specified in the letter or letters referred to in
paragraph (e) of this Section 6 or (ii) any change, or any development
involving a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from transactions in
the ordinary course of business, except as set forth in or contemplated in
16
<PAGE>
the Prospectus (exclusive of any supplement thereto) the effect of which,
in any case referred to in clause (i) or (ii) above, is, in the sole
judgment of the Representatives, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Securities as contemplated by the Registration Statement (exclusive of any
amendment thereof) and the Prospectus (exclusive of any supplement
thereto).
(g) The Company shall have caused Ernst & Young LLP, with respect to
Fluke Corporation, and Deloitte & Touche LLP, with respect to Pacific
Scientific Corporation, to have furnished to the Representatives at the
Execution Time, letters, dated as of the Execution Time, in form and
substance reasonably satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder.
(h) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(i) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Representatives. Notice of
such cancellation shall be given to the Company in writing or by telephone or
facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of Latham & Watkins, counsel for the Underwriters, at
233 South Wacker Drive, Chicago, Illinois 60606, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
---------------------------------------
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Salomon Smith Barney Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
17
<PAGE>
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each
Underwriter and each person who controls any Underwriter within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the registration statement for
the registration of the Securities as originally filed or in any amendment
thereof, or in any Preliminary Prospectus or the Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the
case of the Preliminary Prospectus and the Prospectus, or in any amendment
thereof or supplement thereto, in light of the circumstances in which they
were made, not misleading, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably incurred by
them in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the Company will not
-------- -------
be liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through the Representatives
specifically for inclusion therein. This indemnity agreement will be in
addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to indemnify and
hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Company to each Underwriter, but
only with reference to written information relating to such Underwriter
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
the foregoing indemnity; and agrees to reimburse the Company, as incurred,
for any legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such loss, claim, damage,
liability or action. This indemnity agreement will be in addition to any
liability which any Underwriter may otherwise have. The Company
acknowledges that the statements set forth in the last paragraph of the
cover page regarding delivery of the Securities, the legend in block
capital letters on page 1 related to stabilization, syndicate covering
transactions and penalty bids and, under the heading "Underwriting" (i) the
sentences related to concessions and reallowances and (ii) the paragraph
related to stabilization, syndicate covering
18
<PAGE>
transactions and penalty bids in any Preliminary Prospectus and the
Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary
Prospectus or the Prospectus.
(c) Promptly after receipt by an indemnified party under this Section
8 of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action in a
timely manner and such failure results in the forfeiture by the
indemnifying party of substantial rights and defenses and (ii) will not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled to
appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be reasonably satisfactory to
-------- -------
the indemnified party. Notwithstanding the indemnifying party's election
to appoint counsel to represent the indemnified party in an action, the
indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the
reasonable fees, costs and expenses of such separate counsel if (i) the use
of counsel chosen by the indemnifying party to represent the indemnified
party would present such counsel with a conflict of interest, (ii) the
actual or potential defendants in, or targets of, any such action include
both the indemnified party and the indemnifying party and the indemnified
party shall have reasonably concluded that there may be legal defenses
available to it and/or other indemnified parties which are different from
or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel reasonably satisfactory
to the indemnified party to represent the indemnified party within a
reasonable time after notice of the institution of such action or (iv) the
indemnifying party shall authorize the indemnified party to employ separate
counsel at the expense of the indemnifying party. An indemnifying party
will not, without the prior written consent of the indemnified parties,
settle or compromise or consent to the entry of any judgment with respect
to any pending or threatened claim, action, suit or proceeding in respect
of which indemnification or contribution may be sought hereunder (whether
or not the indemnified parties are actual or potential parties to such
claim or action) unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising
out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters agree to
contribute to the aggregate losses, claims, damages and liabilities
19
<PAGE>
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the
Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and by the Underwriters on the other from the
offering of the Securities; provided, however, that in no case shall any
-------- -------
Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount
in excess of the underwriting discount or commission applicable to the
Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any
reason, the Company and the Underwriters severally shall contribute in such
proportion as is appropriate to reflect not only such relative benefits but
also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions
which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be
equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall
be deemed to be equal to the total underwriting discounts and commissions,
in each case as set forth on the cover page of the Prospectus. Relative
fault shall be determined by reference to, among other things, whether any
untrue or any alleged untrue statement of a material fact or the omission
or alleged omission to state a material fact relates to information
provided by the Company on the one hand or the Underwriters on the other,
the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The Company and the Underwriters agree that it would not be just
and equitable if contribution were determined by pro rata allocation or any
other method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
paragraph (d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within
the meaning of either the Act or the Exchange Act and each director,
officer, employee and agent of an Underwriter shall have the same rights to
contribution as such Underwriter, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights to contribution as the
Company, subject in each case to the applicable terms and conditions of
this paragraph (d).
9. Default by an Underwriter. If any one or more Underwriters shall
-------------------------
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder, and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of
Securities set forth opposite their names in Schedule I hereto bears to the
aggregate principal amount of Securities set forth opposite the names of all the
remaining Underwriters) the Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
-------- -------
20
<PAGE>
that the aggregate principal amount of Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in Schedule I hereto, the
remaining Underwriters shall have the right to purchase all, but shall not be
under any obligation to purchase any, of the Securities, and if such
nondefaulting Underwriters do not purchase all the Securities, this Agreement
will terminate without liability to any nondefaulting Underwriter or the
Company. In the event of a default by any Underwriter as set forth in this
Section 9, the Closing Date shall be postponed for such period, not exceeding
five Business Days, as the Representatives shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
Agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
10. Termination. This Agreement shall be subject to termination in
-----------
the absolute discretion of the Representatives, by notice given to the Company
prior to delivery of and payment for the Securities, if at any time prior to
such time (i) trading in the Company's Common Stock shall have been suspended by
the Commission, the Pacific Stock Exchange or the New York Stock Exchange or
trading in securities generally on the Pacific Stock Exchange or the New York
Stock Exchange shall have been suspended or limited or minimum prices shall have
been established on such Exchange, (ii) a banking moratorium shall have been
declared either by Federal or New York State authorities or (iii) there shall
have occurred any outbreak or escalation of hostilities, declaration by the
United States of a national emergency or war or other calamity or crisis the
effect of which on financial markets is such as to make it, in the sole judgment
of the Representatives, impractical or inadvisable to proceed with the offering
or delivery of the Securities as contemplated by the Prospectus (exclusive of
any supplement thereto).
11. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors or controlling persons referred to in Section 8 hereof,
and will survive delivery of and payment for the Securities. The provisions of
Sections 7 and 8 hereof shall survive the termination or cancellation of this
Agreement.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telefaxed to the Salomon Smith Barney Inc. General Counsel (fax
no.: (212) 816-7071) and confirmed to the General Counsel, care of Salomon
Smith Barney Inc., at Seven World Trade Center, 32th Floor, New York, New York
10048, Attention: Counsel; or, if sent to the Company, will be mailed, delivered
or telefaxed to (202) 828-0860 and confirmed to it at 1250 24th Street, NW,
Suite 800, Washington, D.C. 20037, attention of Patrick W. Allender.
21
<PAGE>
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 8 hereof, and no
other person will have any right or obligation hereunder.
14. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
------------
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
--------
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
-----------
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or becomes effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
"Preliminary Prospectus" shall mean the preliminary prospectus dated
_________, 1998, as filed with the Commission pursuant to Rule 424(b) on
__________, 1998.
"Prospectus" shall mean the prospectus (including any related
prospectus supplement) relating to the Securities that is first filed
pursuant to Rule 424(b) after the Execution Time.
22
<PAGE>
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time, and, in the event any post-
effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such
registration statement as so amended or such Rule 462(b) Registration
Statement, as the case may be. Such term shall include any Rule 430A
Information deemed to be included therein at the Effective Date as provided
by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Securities and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b) relating
to the offering covered by the initial registration statement referred to
in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of 1939, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
23
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Danaher Corporation
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
Salomon Smith Barney Inc.
Chase Securities Inc.
First Chicago Capital Markets, Inc.
Lehman Brothers Inc.
By: Salomon Smith Barney Inc.
By:
-----------------------------
Name:
Title:
24
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Principal Amount Principal Amount
of ______% Senior of ___% Senior
Notes Due 2008 Notes Due 2028
Underwriters to be Purchased to be Purchased
------------ ----------------- ----------------
<S> <C> <C>
Salomon Smith Barney Inc............. $ $
Chase Securities Inc.................
First Chicago Capital Markets, Inc...
Lehman Brothers Inc..................
Total.............................. $ $
</TABLE>
25
<PAGE>
EXHIBIT 4
- --------------------------------------------------------------------------------
DANAHER CORPORATION
--------------------------------
INDENTURE
Dated as of September __, 1998
--------------------------------
THE FIRST NATIONAL BANK OF
CHICAGO
Trustee
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
ARTICLE I. DEFINITIONS AND INCORPORATION BY REFERENCE........................... 1
SECTION 1.1. DEFINITIONS....................................................... 1
SECTION 1.2. OTHER DEFINITIONS................................................. 6
SECTION 1.3. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT................. 6
SECTION 1.4. RULES OF CONSTRUCTION............................................. 7
ARTICLE II. THE SECURITIES...................................................... 7
SECTION 2.1. FORM AND DATING................................................... 7
SECTION 2.2. EXECUTION AND AUTHENTICATION...................................... 8
SECTION 2.3. REGISTRAR AND PAYING AGENT........................................ 9
SECTION 2.4. PAYING AGENT TO HOLD MONEY IN TRUST............................... 9
SECTION 2.5. HOLDER LISTS...................................................... 9
SECTION 2.6. TRANSFER AND EXCHANGE............................................. 10
SECTION 2.7. REPLACEMENT SECURITIES............................................ 14
SECTION 2.8. OUTSTANDING SECURITIES............................................ 14
SECTION 2.9. TREASURY SECURITIES............................................... 15
SECTION 2.10. TEMPORARY SECURITIES............................................. 15
SECTION 2.11. CANCELLATION..................................................... 15
SECTION 2.12. DEFAULTED INTEREST............................................... 15
ARTICLE III. REDEMPTION......................................................... 16
SECTION 3.1. NOTICE TO TRUSTEE................................................. 16
SECTION 3.2. SELECTION OF SECURITIES TO BE REDEEMED............................ 16
SECTION 3.3. NOTICE OF REDEMPTION.............................................. 16
SECTION 3.4. EFFECT OF NOTICE OF REDEMPTION.................................... 17
SECTION 3.5. DEPOSIT OF REDEMPTION PRICE....................................... 17
SECTION 3.6. SECURITIES REDEEMED IN PART....................................... 17
SECTION 3.7. OPTIONAL REDEMPTION............................................... 18
ARTICLE IV. COVENANTS........................................................... 18
SECTION 4.1. PAYMENT OF PRINCIPAL AND INTEREST................................. 18
SECTION 4.2. SEC REPORTS....................................................... 18
SECTION 4.3. COMPLIANCE CERTIFICATE............................................ 18
SECTION 4.4. STAY, EXTENSION AND USURY LAWS.................................... 19
SECTION 4.5. CORPORATE EXISTENCE............................................... 19
SECTION 4.6. TAXES............................................................. 19
SECTION 4.7. LIMITATION ON SECURED DEBT........................................ 19
SECTION 4.8. LIMITATION ON SALE AND LEASEBACK TRANSACTIONS..................... 20
SECTION 4.9. EXEMPTED INDEBTEDNESS............................................. 21
ARTICLE V. SUCCESSORS........................................................... 21
SECTION 5.1. LIMITATION ON CONSOLIDATION, MERGER AND SALE OF ASSETS............ 21
SECTION 5.2. SUCCESSOR CORPORATION SUBSTITUTED................................. 21
ARTICLE VI. DEFAULTS AND REMEDIES............................................... 22
</TABLE>
i
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 6.1. EVENTS OF DEFAULT................................................. 22
SECTION 6.2. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT................ 23
SECTION 6.3. COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE... 24
SECTION 6.4. TRUSTEE MAY FILE PROOFS OF CLAIM.................................. 25
SECTION 6.5. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES....... 25
SECTION 6.6. APPLICATION OF MONEY COLLECTED.................................... 25
SECTION 6.7. LIMITATION ON SUITS............................................... 26
SECTION 6.8. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST.. 26
SECTION 6.9. RESTORATION OF RIGHTS AND REMEDIES................................ 27
SECTION 6.10. RIGHTS AND REMEDIES CUMULATIVE................................... 27
SECTION 6.11. DELAY OR OMISSION NOT WAIVER..................................... 27
SECTION 6.12. CONTROL BY HOLDERS............................................... 27
SECTION 6.13. WAIVER OF PAST DEFAULTS.......................................... 28
SECTION 6.14. UNDERTAKING FOR COSTS............................................ 28
ARTICLE VII. TRUSTEE............................................................ 29
SECTION 7.1. DUTIES OF TRUSTEE................................................. 29
SECTION 7.2. RIGHTS OF TRUSTEE................................................. 30
SECTION 7.3. INDIVIDUAL RIGHTS OF TRUSTEE...................................... 31
SECTION 7.4. TRUSTEE'S DISCLAIMER.............................................. 31
SECTION 7.5. NOTICE OF DEFAULTS................................................ 31
SECTION 7.6. REPORTS BY TRUSTEE TO HOLDERS..................................... 31
SECTION 7.7. COMPENSATION AND INDEMNITY........................................ 32
SECTION 7.8. REPLACEMENT OF TRUSTEE............................................ 32
SECTION 7.9. SUCCESSOR TRUSTEE BY MERGER, ETC.................................. 34
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION.................................... 34
SECTION 7.11. PREFERENTIAL COLLECTION OF CLAIMS AGAINST COMPANY................ 34
ARTICLE VIII. SATISFACTION AND DISCHARGE; DEFEASANCE............................ 34
SECTION 8.1. SATISFACTION AND DISCHARGE OF INDENTURE........................... 34
SECTION 8.2. APPLICATION OF TRUST FUNDS; INDEMNIFICATION....................... 35
SECTION 8.3. LEGAL DEFEASANCE OF SECURITIES OF EITHER SERIES................... 36
SECTION 8.4. COVENANT DEFEASANCE............................................... 37
SECTION 8.5. REPAYMENT TO COMPANY.............................................. 38
ARTICLE IX. AMENDMENTS AND WAIVERS.............................................. 39
SECTION 9.1. WITHOUT CONSENT OF HOLDERS........................................ 39
SECTION 9.2. WITH CONSENT OF HOLDERS........................................... 39
SECTION 9.3. LIMITATIONS....................................................... 40
SECTION 9.4. COMPLIANCE WITH TRUST INDENTURE ACT............................... 40
SECTION 9.5. REVOCATION AND EFFECT OF CONSENTS................................. 40
SECTION 9.6. NOTATION ON OR EXCHANGE OF SECURITIES............................. 41
SECTION 9.7. TRUSTEE PROTECTED................................................. 41
ARTICLE X. MISCELLANEOUS........................................................ 41
</TABLE>
ii
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
<S> <C>
SECTION 10.1. TRUST INDENTURE ACT CONTROLS..................................... 41
SECTION 10.2. NOTICES.......................................................... 41
SECTION 10.3. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS...................... 42
SECTION 10.4. CERTIFICATE AND OPINION AS TO CONDITIONS PRECEDENT............... 42
SECTION 10.5. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.................... 42
SECTION 10.6. RULES BY TRUSTEE AND AGENTS...................................... 43
SECTION 10.7. LEGAL HOLIDAYS................................................... 43
SECTION 10.8. NO RECOURSE AGAINST OTHERS....................................... 43
SECTION 10.9. COUNTERPARTS..................................................... 43
SECTION 10.10. GOVERNING LAWS.................................................. 43
SECTION 10.11. NO ADVERSE INTERPRETATION OF OTHER AGREEMENTS................... 44
SECTION 10.12. SUCCESSORS...................................................... 44
SECTION 10.13. SEVERABILITY.................................................... 44
SECTION 10.14. TABLE OF CONTENTS, HEADINGS, ETC................................ 44
</TABLE>
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<PAGE>
DANAHER CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939 and
Indenture, dated as of September __, 1998
<TABLE>
<CAPTION>
<S> <C>
(S) 310(a)(1)................................................................. 7.10
(a)(2)................................................................. 7.10
(a)(3)................................................................. Not Applicable
(a)(4)................................................................. Not Applicable
(a)(5)................................................................. 7.10
(b).................................................................... 7.10
(S) 311(a).................................................................... 7.11
(b).................................................................... 7.11
(c).................................................................... Not Applicable
(S) 312(a).................................................................... 2.5
(b).................................................................... 10.3
(c).................................................................... 10.3
(S) 313(a).................................................................... 7.6
(b)(1)................................................................. 7.6
(b)(2)................................................................. 7.6
(c)(1)................................................................. 7.6
(d).................................................................... 7.6
(S) 314(a).................................................................... 4.2, 10.5
(b).................................................................... Not Applicable
(c)(1)................................................................. 10.4
(c)(2)................................................................. 10.4
(c)(3)................................................................. Not Applicable
(d).................................................................... Not Applicable
(e).................................................................... 10.5
(f).................................................................... Not Applicable
(S) 315(a).................................................................... 7.1
(b).................................................................... 7.5
(c).................................................................... 7.1
(d).................................................................... 7.1
(e).................................................................... 6.14
(S) 316(a).................................................................... 2.9
(a)(1)(A).............................................................. 6.12
(a)(1)(B).............................................................. 6.13
(b).................................................................... 6.8
(S) 317(a)(1)................................................................. 6.3
(a)(2)................................................................. 6.4
(b).................................................................... 2.4
(S) 318(a).................................................................... 10.1
</TABLE>
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
part of the Indenture.
i
<PAGE>
Indenture dated as of September __, 1998 between Danaher Corporation,
a Delaware corporation ("Company"), and The First National Bank of Chicago, a
national banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and
for the equal and ratable benefit of the Holders of the Securities issued under
this Indenture.
ARTICLE I.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For the purposes of this definition,
"control" (including, with correlative meanings, the terms "controlled by" and
"under common control with"), as used with respect to any person, shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of such person, whether through the
ownership of voting securities or by agreement or otherwise.
"Agent" means any Registrar or Paying Agent.
"Applicable Procedures" means, with respect to any transfer or
exchange of or for beneficial interests in any Global Security, the rules and
procedures of the Depositary that apply to such transfer or exchange.
"Attributable Debt", in respect of a Sale and Leaseback Transaction,
means, as of any particular time, the present value (discounted at the rate of
interest implicit in the lease involved in such Sale and Leaseback Transaction,
as determined in good faith by the Company) of the obligation of the lessee
thereunder for rental payments (excluding, however, any amounts required to be
paid by such lessee, whether or not designated as rent or additional rent, on
account of maintenance and repairs, insurance, taxes, assessments, water rates
or similar charges or any amounts required to be paid by such lessee thereunder
contingent upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges) during the remaining term of such
lease (including any period for which such lease has been extended or may, at
the option of the lessor, be extended).
"Board of Directors" means the Board of Directors of the Company or
any duly authorized committee thereof.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been adopted by the
Board of Directors or pursuant to authorization by the Board of Directors and to
be in full force and effect on the date of the certificate of the Secretary or
Assistant Secretary, as the case may be, and delivered to the Trustee.
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"Business Day" means any day except a Saturday, Sunday or a legal
holiday in The City of New York on which banking institutions are authorized or
required by law, regulation or executive order to close.
"Company" means the party named as such above until a successor
replaces it and thereafter means the successor.
"Company Order" means a written order signed in the name of the
Company by two Officers, one of whom must be the Company's principal executive
officer, principal financial officer or principal accounting officer.
"Company Request" means a written request signed in the name of the
Company by its Chairman of the Board of Directors, its President or a Vice
President, and by its Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Consolidated Assets" means the aggregate of all assets of the Company
and its Subsidiaries (including the value of all existing Sale and Leaseback
Transactions and any assets resulting from the capitalization of other long-term
lease obligations in accordance with GAAP), appearing on the most recent
available consolidated balance sheet of the Company and its Subsidiaries at
their net book values, after deducting related depreciation, amortization and
other valuation reserves, all prepared in accordance with GAAP.
"Consolidated Current Liabilities" means the aggregate of the current
liabilities of the Company and its Subsidiaries appearing on the most recent
available consolidated balance sheet of the Company and its Subsidiaries, all in
accordance with GAAP. In no event shall Consolidated Current Liabilities include
any obligation of the Company and its Subsidiaries issued under a revolving
credit or similar agreement if the obligation issued under such agreement
matures by its terms within twelve months from the date thereof but by the terms
of such agreement such obligation may be renewed or extended or the amount
thereof reborrowed or refunded at the option of the Company or any Subsidiary
for a term in excess of 12 months from the date of determination.
"Consolidated Net Assets" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Definitive Security" means a certificated Security registered in the
name of the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of the applicable Form of Security attached hereto
except that such Security shall not bear the Global Security Legend and shall
not have the "Schedule of Exchanges of Interests in the Global Security"
2
<PAGE>
attached to each Form of Security.
"Depository" means, with respect to the Securities of any Series
issuable or issued in whole or in part in the form of one or more Global
Securities, the person designated as Depository for such Series by the Company,
which Depository shall be a clearing agency which (i) credits beneficial
interests in such Global Securities to its participating organizations through a
computerized book-entry system and (ii) if located in the United States, is
registered under the Exchange Act; and if at any time there is more than one
such person, "Depository" as used with respect to the Securities of any Series
shall mean the Depository with respect to the Securities of such Series.
"Dollars" means the currency of The United States of America.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of the Company and its Subsidiaries or renewable and
extendable beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under GAAP would be shown on the
consolidated balance sheet of the Company as a liability item other than a
current liability; provided, however, that Funded Debt shall not include any of
the foregoing to the extent that such indebtedness or obligations are not
required by GAAP to be shown on the balance sheet of the Company.
"Global Security" or "Global Securities" means a Security or
Securities, as the case may be, in the form established pursuant to Section 2.2
evidencing all or part of a Securities, issued to the Depository for such Series
or its nominee, and registered in the name of such Depository or nominee.
"Holder" or "Securityholder" means a person in whose name a Security
is registered.
"Indebtedness" means, with respect to a Person, (i) all liabilities
representing borrowed money or purchase money obligations as shown on the
liability side of a balance sheet, (ii) all indebtedness secured by any Lien
existing on property owned subject to such Lien, whether or not such secured
indebtedness has been assumed and (iii) contingent obligations in respect of, or
to purchase or otherwise acquire, any such indebtedness of others described in
the foregoing clauses (i) or (ii) above, including guarantees and endorsements
(other than for purposes of collection in the ordinary course of business of any
such indebtedness).
"Indenture" means this Indenture as amended or supplemented from time
to time and shall include the form and terms of particular Securities
established as contemplated hereunder.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Security through a Participant.
3
<PAGE>
"Lien" means, with respect to any property or assets, any mortgage or
deed of trust, pledge, hypothecation, assignment, security interest, lien or
other security arrangement of any kind or nature whatsoever on or with respect
to such property or assets (including any conditional sale or other title
retention agreement having substantially the same economic effect as any of the
foregoing).
"Maturity" when used with respect to any Security or installment of
principal thereof or interest thereon, means the date on which the principal of
such Security or such installment of principal or interest becomes due and
payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, call for redemption, notice of option to elect
repayment or otherwise.
"Officer" means the Chairman of the Board of Directors, any President,
any Vice President, the Treasurer, the Secretary, any Assistant Treasurer or any
Assistant Secretary of the Company.
"Officers' Certificate" means a certificate signed by two Officers,
one of whom must be the Company's principal executive officer, principal
financial officer or principal accounting officer.
"Opinion of Counsel" means a written opinion of legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of or
counsel to the Company.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Person" means any individual, corporation, partnership, joint
venture, association, limited liability company, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"principal" of a Security means the principal of the Security plus,
when appropriate, the premium, if any, on the Security.
"Principal Property" means any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding leases and
other contract rights which might otherwise be deemed real property) owned by
the Company or any Subsidiary, whether owned on the date of the Indenture or
thereafter, provided each such plant, warehouse, office building or parcel of
real property has a gross book value (without deduction for any depreciation
reserves) at the date as of which the determination is being made of in excess
of two percent of the Consolidated Net Assets of the Company and the
Subsidiaries, other than any such plant, warehouse, office building or parcel of
real property or portion thereof which, in the opinion of the Board of Directors
(evidenced by a Board Resolution delivered to the Trustee), is not of material
importance to the business conducted by the Company and its Subsidiaries taken
as a whole.
4
<PAGE>
"Responsible Officer" means any officer of the Trustee in its
Corporate Trust Office and also means, with respect to a particular corporate
trust matter, any other officer to whom any corporate trust matter is referred
because of his or her knowledge of and familiarity with a particular subject.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means Indebtedness for borrowed money and any Funded
Debt which, in each case, is secured by a security interest in (a) any Principal
Property or (b) any shares of capital stock or Indebtedness of any Subsidiary.
"Securities Act" means the Securities Act of 1933, as amended.
"Series" means each of the Series 1 Securities and the Series 2
Securities.
"Significant Subsidiary" means any direct or indirect Subsidiary of
the Company that would be a "significant subsidiary" as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act of 1933,
as amended, as such regulation is in effect on the date hereof.
"Stated Maturity" when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security or
such installment of principal or interest is due and payable.
"Subsidiary" of any specified Person means any corporation or other
entity (including, without limitation, partnerships, joint ventures and
associations) of which at least a majority of the outstanding stock having by
the terms thereof ordinary voting power for the election of directors of such
corporation or other entity (irrespective of whether or not at the time stock of
any other class or classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at the time directly or
indirectly owned by such Person, or by one or more Subsidiaries, or by such
Person and one or more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 (15 U.S. Code (S)(S)
77aaa-77bbbb) as in effect on the date of this Indenture; provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"TIA" means, to the extent required by any such amendment, the Trust Indenture
Act as so amended.
"Trustee" means the person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each person who is then a Trustee hereunder, and
if at any time there is more than one such person, "Trustee" as used with
respect to the Securities of either Series shall mean the Trustee with respect
to Securities of that Series.
"U.S. Government Obligations" means securities which are (i) direct
obligations of The United States of America for the payment of which its full
faith and credit is pledged or (ii)
5
<PAGE>
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of The United States of America the payment of which is
unconditionally guaranteed as a full faith and credit obligation by The United
States of America, and which in the case of (i) and (ii) are not callable or
redeemable at the option of the issuer thereof, and shall also include a
depository receipt issued by a bank or trust company as custodian with respect
to any such U.S. Government Obligation or a specific payment of interest on or
principal of any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the U.S. Government Obligation evidenced by such
depository receipt.
Section 1.2. Other Definitions.
<TABLE>
<CAPTION>
DEFINED IN
TERM SECTION
<S> <C>
"Authentication Order" 2.2
"Bankruptcy Law" 6.1
"Custodian" 6.1
"DTC" 2.3
"Event of Default" 6.1
"Form of Security" 2.1.1
"GAAP" 1.4(c)
"Legal Holiday" 10.7
"Paying Agent" 2.3
"Registrar" 2.3
"Sale and Leaseback Transaction" 4.8
"Series 1 Securities" 2.1.1
"Series 2 Securities" 2.1.1
"Securities" 2.1.1
</TABLE>
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this Indenture.
The following TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company
and any
6
<PAGE>
successor obligor upon the Securities.
All other terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
and not otherwise defined herein are used herein as so defined.
Section 1.4. Rules of Construction.
Unless the context otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with United States generally accepted accounting
principles;
(c) references to "GAAP" or "generally accepted accounting principles"
shall mean United States generally accepted accounting principles in effect
as of the time when and for the period as to which such accounting
principles are to be applied;
(d) "or" is not exclusive;
(e) words in the singular include the plural, and in the plural
include the singular; and
(f) provisions apply to successive events and transactions.
ARTICLE II.
THE SECURITIES
Section 2.1. Form and Dating.
2.1.1. General
. Attached hereto as Annex A-1 and Annex A-2, respectively, are true
and correct copies of specimen securities (each a "Form of Security")
representing the Company's _____% Senior Notes due 2008 (the "Series 1
Securities") and the Company's _____% Senior Notes due 2028 (the "Series 2
Securities," and collectively with the Series 1 Securities, the "Securities").
The Securities may have notations, legends or endorsements required by law,
stock exchange rule or usage. Each Security shall be dated the date of its
authentication. The Securities shall be in denominations of $1,000 and integral
multiples thereof.
The terms and provisions contained in the Securities shall constitute,
and are hereby expressly made, a part of this Indenture, and the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby. However, to the extent any
provision of any Security conflicts with the express
7
<PAGE>
provisions of this Indenture, the provisions of this Indenture shall govern and
be controlling.
2.1.2. Global Securities
. Securities issued in global form shall be substantially in the form
of the applicable Form of Security attached hereto (including the Global
Security Legend thereon and the "Schedule of Exchanges of Interests in the
Global Security" attached thereto). Securities issued in definitive form shall
be substantially in the form of the applicable Form of Security attached hereto
(but without the Global Security Legend thereon and without the "Schedule of
Exchanges of Interests in the Global Security" attached thereto). Each Global
Security shall represent such of the outstanding Securities as shall be
specified therein and each shall provide that it shall represent the aggregate
principal amount of outstanding Securities from time to time endorsed thereon
and that the aggregate principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges and redemptions. Any endorsement of a Global Security to
reflect the amount of any increase or decrease in the aggregate principal amount
of outstanding Securities represented thereby shall be made by the Trustee or
the Custodian, at the direction of the Trustee, in accordance with instructions
given by the Holder thereof as required by Section 2.6 hereof.
Section 2.2. Execution and Authentication.
Two Officers shall sign the Securities for the Company by manual or
facsimile signature. The Company's seal shall be reproduced on the Securities
and may be in facsimile form.
If an Officer whose signature is on a Security no longer holds that
office at the time a Security is authenticated, the Security shall nevertheless
be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The signature shall be conclusive evidence that the
Security has been authenticated under this Indenture.
The Trustee shall, upon a written order of the Company signed by two
Officers (an "Authentication Order"), authenticate Series 1 Securities and
Series 2 Securities for original issue up to the aggregate principal amount
stated in paragraph 1 of the applicable Form of Security. The aggregate
principal amount of Series 1 Securities and Series 2 Securities outstanding at
any time may not exceed such amount except as provided in Section 2.7 hereof.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so. Each reference in this Indenture to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with the Company or
an Affiliate of the Company.
8
<PAGE>
Section 2.3. Registrar and Paying Agent.
The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Securities may be presented for payment ("Paying Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and
the term "Paying Agent" includes any additional paying agent. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
shall notify the Trustee in writing of the name and address of any Agent not a
party to this Indenture. If the Company fails to appoint or maintain another
entity as Registrar or Paying Agent, the Trustee shall act as such. The Company
or any of its Subsidiaries may act as Paying Agent or Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Custodian with respect to the Global Securities.
Section 2.4. Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, if any, or interest on the Securities, and will notify the
Trustee of any default by the Company in making any such payment. While any
such default continues, the Trustee may require a Paying Agent to pay all money
held by it to the Trustee. The Company at any time may require a Paying Agent
to pay all money held by it to the Trustee. Upon payment over to the Trustee,
the Paying Agent (if other than the Company or a Subsidiary) shall have no
further liability for the money. If the Company or a Subsidiary acts as Paying
Agent, it shall segregate and hold in a separate trust fund for the benefit of
the Holders all money held by it as Paying Agent. Upon any bankruptcy or
reorganization proceedings relating to the Company, the Trustee shall serve as
Paying Agent for the Securities.
Section 2.5. Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA (S) 312(a). If the Trustee is
not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders, and
the Company shall otherwise comply with TIA (S) 312(a).
9
<PAGE>
Section 2.6. Transfer and Exchange.
2.6.1. Transfer and Exchange of Global Securities
. A Global Security may not be transferred as a whole except by the
Depositary to a nominee of the Depositary, by a nominee of the Depositary to the
Depositary or to another nominee of the Depositary, or by the Depositary or any
such nominee to a successor Depositary or a nominee of such successor
Depositary. All Global Securities will be exchanged by the Company for
Definitive Securities if (i) the Company delivers to the Trustee notice from the
Depositary that it is unwilling or unable to continue to act as Depositary or
that it is no longer a clearing agency registered under the Exchange Act and, in
either case, a successor Depositary is not appointed by the Company within 120
days after the date of such notice from the Depositary or (ii) the Company in
its sole discretion determines that the Global Securities (in whole but not in
part) should be exchanged for Definitive Securities and delivers a written
notice to such effect to the Trustee. Upon the occurrence of either of the
preceding events in (i) or (ii) above, Definitive Securities shall be issued in
such names as the Depositary shall instruct the Trustee. Global Securities also
may be exchanged or replaced, in whole or in part, as provided in Sections 2.7
and 2.10 hereof. Every Security authenticated and delivered in exchange for, or
in lieu of, a Global Security or any portion thereof, pursuant to this Section
2.6 or Section 2.7 or 2.10 hereof, shall be authenticated and delivered in the
form of, and shall be, a Global Security. A Global Security may not be
exchanged for another Security other than as provided in this Section 2.6.1,
however, beneficial interests in a Global Security may be transferred and
exchanged as provided in Section 2.6.2, 2.6.3 or 2.6.7 hereof.
2.6.2. Transfer and Exchange of Beneficial Interests in the Global
Securities
. The transfer and exchange of beneficial interests in the Global
Securities shall be effected through the Depositary, in accordance with the
provisions of this Indenture and the applicable procedures. Transfers of
beneficial interests in the Global Securities also shall require compliance with
either subparagraph (a) or (b) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(a) Transfer of Beneficial Interests in the Same Global Security
. Beneficial interests in any Global Security may be transferred to
Persons who take delivery thereof in the form of a beneficial interest in a
Global Security. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this Section
2.6.2(a).
(b) All Other Transfers and Exchanges of Beneficial Interests in
Global Securities
. In connection with all transfers and exchanges of beneficial
interests that are not subject to Section 2.6.2(a) above, the transferor of such
beneficial interest must deliver to the Registrar either (A) (1) a written order
from a Participant or an Indirect Participant given to the
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Depositary in accordance with the Applicable Procedures directing the Depositary
to credit or cause to be credited a beneficial interest in another Global
Security in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to be
credited with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the Applicable
Procedures directing the Depositary to cause to be issued a Definitive Security
in an amount equal to the beneficial interest to be transferred or exchanged and
(2) instructions given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Security shall be registered
to effect the transfer or exchange referred to in (1) above. Upon satisfaction
of all of the requirements for transfer or exchange of beneficial interests in
Global Securities contained in this Indenture and the Securities or otherwise
applicable under the Securities Act, the Trustee shall adjust the principal
amount of the relevant Global Security(s) pursuant to Section 2.6.7 hereof.
2.6.3. Transfer or Exchange of Beneficial Interests for Definitive
Securities
. If any holder of a beneficial interest in a Global Security
proposes to exchange such beneficial interest for a Definitive Security or to
transfer such beneficial interest to a Person who takes delivery thereof in the
form of a Definitive Security, then, upon satisfaction of the conditions set
forth in Section 2.6.2(b) hereof, the Trustee shall cause the aggregate
principal amount of the applicable Global Security to be reduced accordingly
pursuant to Section 2.6.8 hereof, and the Company shall execute and the Trustee
shall authenticate and deliver to the Person designated in the instructions a
Definitive Security in the appropriate principal amount. Any Definitive Security
issued in exchange for a beneficial interest pursuant to this Section 2.6.3
shall be registered in such name or names and in such authorized denomination or
denominations as the holder of such beneficial interest shall instruct the
Registrar through instructions from the Depositary and the Participant or
Indirect Participant. The Trustee shall deliver such Definitive Securities to
the Persons in whose names such Securities are so registered.
2.6.4. Transfer and Exchange of Definitive Securities for Beneficial
Interests
. A Holder of a Definitive Security may exchange such Security for a
beneficial interest in a Global Security or transfer such Definitive Securities
to a Person who takes delivery thereof in the form of a beneficial interest in a
Global Security at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Definitive Security and
increase or cause to be increased the aggregate principal amount of one of the
Global Securities.
2.6.5. Transfer and Exchange of Definitive Securities for Definitive
Securities
. Upon request by a Holder of Definitive Securities and such Holder's
compliance with the provisions of this Section 2.6.5, the Registrar shall
register the transfer or exchange of Definitive Securities. Prior to such
registration of transfer or exchange, the requesting Holder shall present or
surrender to the Registrar the Definitive Securities duly endorsed or
accompanied by a written instruction of transfer in form satisfactory to the
Registrar duly executed by such
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Holder or by its attorney, duly authorized in writing. In addition, the
requesting Holder shall provide any additional certifications, documents and
information, as applicable. A Holder of Definitive Securities may transfer such
Securities to a Person who takes delivery thereof in the form of a Definitive
Security.
2.6.6. Legends
. The following legends shall appear on the face of all Global
Securities issued under this Indenture unless specifically stated otherwise in
the applicable provisions of this Indenture. Each Global Security shall bear a
legend in substantially the following form:
"THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN."
2.6.7. Cancellation and/or Adjustment of Global Securities
. At such time as all beneficial interests in a particular Global
Security have been exchanged for Definitive Securities or a particular Global
Security has been redeemed, repurchased or canceled in whole and not in part,
each such Global Security shall be returned to or retained and canceled by the
Trustee in accordance with Section 2.11 hereof. At any time prior to such
cancellation, if any beneficial interest in a Global Security is exchanged for
or transferred to a Person who will take delivery thereof in the form of a
beneficial interest in another Global Security or for Definitive Securities, the
principal amount of Securities represented by such Global Security shall be
reduced accordingly and an endorsement shall be
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made on such Global Security by the Trustee or by the Depositary at the
direction of the Trustee to reflect such reduction; and if the beneficial
interest is being exchanged for or transferred to a Person who will take
delivery thereof in the form of a beneficial interest in another Global
Security, such other Global Security shall be increased accordingly and an
endorsement shall be made on such Global Security by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
2.6.8. General Provisions Relating to Transfers and Exchanges.
(a) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate Global Securities and
Definitive Securities upon the Company's order or at the Registrar's
request.
(b) No service charge shall be made to a holder of a beneficial
interest in a Global Security or to a Holder of a Definitive Security for
any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any transfer tax or similar
governmental charge payable in connection therewith (other than any such
transfer taxes or similar governmental charge payable upon exchange or
transfer pursuant to Sections 2.10, 3.6, 5.1 and 9.6 hereof).
(c) The Registrar shall not be required to register the transfer or
exchange of any Security selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
(d) All Global Securities and Definitive Securities issued upon any
registration of transfer or exchange of Global Securities or Definitive
Securities shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Indenture, as the
Global Securities or Definitive Securities surrendered upon such
registration of transfer or exchange.
(e) The Company shall not be required (A) to issue, to register the
transfer of or to exchange any Securities during a period beginning at the
opening of business 15 days before the day of any selection of Securities
for redemption under Section 3.2 hereof and ending at the close of business
on the day of selection, (B) to register the transfer of or to exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part or (C) to
register the transfer of or to exchange a Security between a record date
and the next succeeding interest payment date.
(f) Prior to due presentment for the registration of a transfer of any
Security, the Trustee, any Agent and the Company may deem and treat the
Person in whose name any Security is registered as the absolute owner of
such Security for the purpose of receiving payment of principal of and
interest on such Securities and for all other purposes, and none of the
Trustee, any Agent or the Company shall be affected by notice to the
contrary.
(g) The Trustee shall authenticate Global Securities and Definitive
Securities in
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accordance with the provisions of Section 2.2 hereof.
(h) All certifications, certificates and Opinions of Counsel required
to be submitted to the Registrar pursuant to this Section 2.6 to effect a
registration of transfer or exchange may be submitted by facsimile.
Section 2.7. Replacement Securities.
If any mutilated Security is surrendered to the Trustee or the Company
and the Trustee receives evidence to its satisfaction of the destruction, loss
or theft of any Security, the Company shall issue and the Trustee, upon receipt
of an Authentication Order, shall authenticate a replacement Security if the
Trustee's requirements are met. If required by the Trustee or the Company, an
indemnity bond must be supplied by the Holder that is sufficient in the judgment
of the Trustee and the Company to protect the Company, the Trustee, any Agent
and any authenticating agent from any loss that any of them may suffer if a
Security is replaced. The Company may charge the Holder for its expenses in
replacing a Security.
Every replacement Security is a valid obligation of the Company and
shall evidence the same debt as the Security for which it is a replacement.
Section 2.8. Outstanding Securities.
The Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those canceled by it, those delivered to
it for cancellation, those reductions in the interest in a Global Security
effected by the Trustee in accordance with the provisions hereof, and those
described in this Section as not outstanding. Except as set forth in Section
2.9 hereof, a Security does not cease to be outstanding because the Company or
an Affiliate of the Company holds the Security.
If a Security is replaced pursuant to Section 2.7 hereof, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the principal amount of any Security is considered paid under
Section 4.1 hereof, it ceases to be outstanding and interest on it ceases to
accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Securities payable on that date, then on and after that date
such Securities shall be deemed to be no longer outstanding and shall cease to
accrue interest.
Section 2.9. Treasury Securities.
In determining whether the Holders of the required principal amount of
Securities of either Series have concurred in any direction, waiver or consent,
Securities owned by the Company,
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or by any Affiliate of the Company, shall be considered as though not
outstanding, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities of such Series that the Trustee knows are so owned shall be so
disregarded.
Section 2.10. Temporary Securities.
Until certificates representing Securities are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Securities. Temporary Securities shall be
substantially in the form of certificated Securities but may have variations
that the Company considers appropriate for temporary Securities and as shall be
reasonably acceptable to the Trustee. Without unreasonable delay, the Company
shall prepare and the Trustee shall authenticate definitive Securities in
exchange for temporary Securities.
Holders of temporary Securities shall be entitled to all of the
benefits of this Indenture.
Section 2.11. Cancellation.
The Company at any time may deliver Securities to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Securities surrendered to them for registration of transfer, exchange or
payment. The Trustee and no one else shall cancel all Securities surrendered
for registration of transfer, exchange, payment, replacement or cancellation and
shall destroy canceled Securities (subject to the record retention requirement
of the Exchange Act). Certification of the destruction of all canceled
Securities shall be delivered to the Company. The Company may not issue new
Securities to replace Securities that it has paid or that have been delivered to
the Trustee for cancellation.
Section 2.12. Defaulted Interest.
If the Company defaults in a payment of interest on the Securities of
either Series, it shall pay the defaulted interest in any lawful manner plus, to
the extent lawful, interest payable on the defaulted interest, to the Persons
who are Holders on a subsequent special record date, in each case at the rate
provided in such Securities and in Section 4.1 hereof. The Company shall notify
the Trustee in writing of the amount of defaulted interest proposed to be paid
on each Security and the date of the proposed payment. The Company shall fix
or cause to be fixed each such special record date and payment date, provided
that no such special record date shall be less than 10 days prior to the related
payment date for such defaulted interest. At least 15 days before the special
record date, the Company (or, upon the written request of the Company, the
Trustee in the name and at the expense of the Company) shall mail or cause to be
mailed to Holders a notice that states the special record date, the related
payment date and the amount of such interest to be paid.
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ARTICLE III.
REDEMPTION
Section 3.1. Notice to Trustee.
The Company may, with respect to either Series of Securities, reserve
the right to redeem and pay the Series of Securities or may covenant to redeem
and pay the Series of Securities or any part thereof prior to the Stated
Maturity thereof at such time and on such terms as provided for in such
Securities. If a Series of Securities is redeemable and the Company wants to
redeem prior to the Stated Maturity thereof all or part of the Series of
Securities pursuant to the terms of such Securities, it shall notify the Trustee
of the redemption date and the principal amount of the Series of Securities to
be redeemed. The Company shall give the notice at least 45 days before the
redemption date (or such shorter notice as may be acceptable to the Trustee).
Section 3.2. Selection of Securities to be Redeemed.
If less than all the Securities of a Series are to be redeemed at any
time, the Trustee shall select the Securities of the Series to be redeemed in
any manner that the Trustee deems fair and appropriate. The Trustee shall make
the selection from Securities of the Series outstanding not previously called
for redemption. The Trustee may select for redemption portions of the principal
of Securities of the Series that have denominations larger than $1,000.
Securities of the Series and portions of them it selects shall be in amounts of
$1,000 or whole multiples of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption.
Section 3.3. Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail a notice of redemption by first-class mail to each Holder
whose Securities are to be redeemed.
The notice shall identify the Securities of the Series to be redeemed
(including CUSIP numbers) and shall state:
(a) the redemption date;
(b) the redemption price;
(c) the name and address of the Paying Agent;
(d) that Securities called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(e) that interest on Securities called for redemption ceases to accrue
on and after the redemption date; and
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(f) any other information as may be required by the terms of the
particular Series or the Securities being redeemed.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense.
Section 3.4. Effect of Notice of Redemption.
Once notice of redemption is mailed or published as provided in
Section 3.3, Securities called for redemption become due and payable on the
redemption date and at the redemption price. A notice of redemption may not be
conditional. Upon surrender to the Paying Agent, such Securities shall be paid
in accordance with the provisions provided for in the Securities.
Section 3.5. Deposit of Redemption Price.
On or before 10:00 a.m., New York City time, on the redemption date,
the Company shall deposit with the Paying Agent money sufficient to pay the
redemption price of and accrued interest, if any, on all Securities to be
redeemed on that date. The Trustee or the Paying Agent shall promptly return to
the Company any money deposited with the Trustee or the Paying Agent by the
Company in excess of the amounts necessary to pay the redemption price of, and
accrued interest on, all Securities to be redeemed.
If the Company complies with the provisions of the preceding
paragraph, on and after the redemption date, interest shall cease to accrue on
the Securities or the portions of Securities called for redemption. If a
Security is redeemed on or after an interest record date but on or prior to the
related interest payment date, then any accrued and unpaid interest shall be
paid to the Person in whose name such Security was registered at the close of
business on such record date. If any Security called for redemption shall not
be so paid upon surrender for redemption because of the failure of the Company
to comply with the preceding paragraph, interest shall be paid on the unpaid
principal, from the redemption date until such principal is paid, and to the
extent lawful on any interest not paid on such unpaid principal, in each case at
the rate provided in the Securities.
Section 3.6. Securities Redeemed in Part.
Upon surrender of a Security that is redeemed in part, the Trustee
shall authenticate for the Holder a new Security of the same Series and the same
maturity equal in principal amount to the unredeemed portion of the Security
surrendered.
Section 3.7. Optional Redemption.
The Securities of either Series will be redeemable, as a whole or in
part, at the option of the Company, pursuant to the terms contained in such
Securities.
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ARTICLE IV.
COVENANTS
Section 4.1. Payment of Principal and Interest.
The Company covenants and agrees for the benefit of the Holders of
each Series of Securities that it will duly and punctually pay the principal of
and interest, if any, on the Securities of such Series in accordance with the
terms of such Securities and this Indenture.
Section 4.2. SEC Reports.
The Company shall deliver to the Trustee, within 15 days after it
files them with the SEC, copies of the annual reports and of the information,
documents, and other reports (or copies of such portions of any of the foregoing
as the SEC may by rules and regulations prescribe) which the Company is required
to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act. The
Company also shall comply with the other provisions of TIA (S) 314(a).
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
Section 4.3. Compliance Certificate.
The Company shall deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the signing
Officers with a view to determining whether the Company has kept, observed,
performed and fulfilled its obligations under this Indenture, and further
stating, as to each such Officer signing such certificate, that to the best of
his knowledge the Company has kept, observed, performed and fulfilled each and
every covenant (without regard to periods of grace or notice requirements)
contained in this Indenture and is not in default in the performance or
observance of any of the terms, provisions and conditions hereof (or, if a
Default or Event of Default shall have occurred, describing all such Defaults or
Events of Default of which he may have knowledge).
The Company will, so long as any of the Securities are outstanding,
deliver to the Trustee, forthwith upon becoming aware of any Default or Event of
Default, an Officers' Certificate specifying such Default or Event of Default
and what action the Company is taking or proposes to take with respect thereto.
Section 4.4. Stay, Extension and Usury Laws.
The Company covenants (to the extent that it may lawfully do so) that
it will not at
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any time insist upon, plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay, extension or usury law wherever enacted, now
or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture or the Securities; and the Company (to the extent
it may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not, by resort to any such law, hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
has been enacted.
Section 4.5. Corporate Existence.
Subject to Article V, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and the corporate, partnership or other existence of each Significant
Subsidiary in accordance with the respective organizational documents of each
Significant Subsidiary and the rights (charter and statutory), licenses and
franchises of the Company and its Significant Subsidiaries; provided, however,
that the Company shall not be required to preserve any such right, license or
franchise, or the corporate, partnership or other existence of any Significant
Subsidiary, if the Board of Directors shall determine that the preservation
thereof is no longer desirable in the conduct of the business of the Company and
its Subsidiaries taken as a whole and that the loss thereof is not adverse in
any material respect to the Holders.
Section 4.6. Taxes.
The Company shall, and shall cause each of its Significant
Subsidiaries to, pay prior to delinquency all taxes, assessments and
governmental levies, except as contested in good faith and by appropriate
proceedings.
Section 4.7. Limitation on Secured Debt.
The Company will not, and will not permit any Subsidiary to, create,
assume, or guarantee any Secured Debt without making effective provision for
securing the Securities equally and ratably with such Secured Debt. The
foregoing restrictions shall not apply, however, to debt secured by (i) purchase
money mortgages created to secure payment for the acquisition or construction of
any property including, but not limited to, any indebtedness incurred by the
Company or a Subsidiary prior to, at the time of, or within 180 days after the
later of the acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of commercial
operation of such property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price of such property or construction
or improvements on such property, (ii) mortgages, pledges, liens, security
interest or encumbrances (collectively referred to herein as "security
interests") on property, or any conditional sales agreement or any title
retention with respect to property, existing at the time of acquisition thereof,
whether or not assumed by the Company or a Subsidiary, (iii) security interests
on property or shares of capital stock or indebtedness of any corporation or
firm existing at the time such corporation or firm becomes a Subsidiary, (iv)
security interests in property or shares of capital stock or indebtedness of a
corporation existing at the time such corporation is
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merged into or consolidated with the Company or a Subsidiary or at the time of a
sale, lease, or other disposition of the properties of a corporation or firm as
an entirety or substantially as an entirety to the Company or a Subsidiary,
provided that no such security interests shall extend to any other Principal
Property of the Company or such Subsidiary prior to such acquisition or to other
Principal Property thereafter acquired other than additions or improvements to
the acquired property, (v) security interests on property of the Company or a
Subsidiary in favor of the United States of America or any state thereof, or in
favor of any other country, or any department, agency, instrumentality or
political subdivision thereof (including, without limitation, security interests
to secure indebtedness of the pollution control or industrial revenue type) in
order to permit the Company or any Subsidiary to perform a contract or to secure
indebtedness incurred for the purpose of financing all or any part of the
purchase price for the cost of constructing or improving the property subject to
such security interests or which is required by law or regulation as a condition
to the transaction of any business or the exercise of any privilege, franchise
or license, (vi) security interests on any property or assets of any Subsidiary
to secure indebtedness owing by it to the Company or to another Subsidiary,
(vii) any mechanics', materialmen's, carriers' or other similar lien arising in
the ordinary course of business (including construction of facilities) in
respect of obligations which are not yet due or which are being contested in
good faith, (viii) any security interest for taxes, assessments or government
charges or levies not yet delinquent, or already delinquent, but the validity of
which is being contested in good faith, (ix) any security interest arising in
connection with legal proceedings being contested in good faith, including any
judgment lien so long as execution thereof is being stayed, (x) landlords' liens
on fixtures located on premises leased by the Company or a Subsidiary in the
ordinary course of business, or (xi) any extension, renewal or replacement (or
successive extensions, renewals or replacements), in whole or in part, of any
security interest referred to in the foregoing clauses (i) to (x) inclusive.
Section 4.8. Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Subsidiary to, enter any
lease for a term longer than three years (excluding leases of newly acquired,
improved or constructed property) covering any Principal Property of the Company
or any Subsidiary that is sold to any other person in connection with such lease
(a "Sale and Leaseback Transaction"), unless either (a) the Company or such
Subsidiary would be entitled, without equally and ratably securing the
Securities, to incur Indebtedness secured by a mortgage on the Principal
Property leased pursuant to clauses (i) through (xi) of Section 4.7 hereof, or
(b) an amount equal to the value of the Principal Property so leased is applied
to the retirement, within 120 days of the effective date of such arrangement, of
indebtedness for borrowed money incurred or assumed by the Company or a
Subsidiary which is recorded as Funded Debt as shown on the most recent
consolidated balance sheet of the Company and which in the case of such
Indebtedness of the Company, is not subordinate and junior in right of payment
to the prior payment of the Securities.
Section 4.9. Exempted Indebtedness.
Notwithstanding Section 4.7 and Section 4.8, the Company and any one
or more
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Subsidiaries may, without securing the Securities, issue, assume, or guarantee
Secured Debt or enter into any Sale and Leaseback Transaction which would
otherwise be subject to the restrictions of Section 4.7 and Section 4.8,
provided that, after giving effect thereto, the aggregate amount of such Secured
Debt then outstanding (not including Secured Debt permitted under the exceptions
set forth in Section 4.7) and the Attributable Debt of Sale and Leaseback
Transactions (other than Sale and Leaseback Transactions in accordance with
clause (a) or (b) of Section 4.8) at such time does not exceed 15% of
Consolidated Net Assets.
ARTICLE V.
SUCCESSORS
Section 5.1. Limitation on Consolidation, Merger and Sale of Assets
The Company may not consolidate with or merge with or into, or convey,
transfer or lease all or substantially all of its assets to, another Person
unless (a) the successor or transferee is a corporation, partnership or trust
organized and validly existing under the laws of the United States of America,
any State or the District of Columbia, and such successor or transferee
expressly assumes the Company's obligations on outstanding Securities under a
supplemental indenture, (b) immediately after giving effect to the transaction,
no Default or Event of Default shall have occurred and be continuing, and (c)
the Company has delivered to the trustee an Officers' Certificate and an Opinion
of Counsel stating compliance with these provisions.
Section 5.2. Successor Corporation Substituted.
Upon any consolidation or merger, or any sale, lease, conveyance or
other disposition of all or substantially all of the assets of the Company in
accordance with Section 5.1, the successor corporation formed by such
consolidation or into or with which the Company is merged or to which such sale,
lease, conveyance or other disposition is made shall succeed to, and be
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor person has been named
as the Company herein; provided, however, that the predecessor Company in the
case of a sale, lease, conveyance or other disposition shall not be released
from the obligation to pay the principal of and interest, if any, on the
Securities.
ARTICLE VI.
DEFAULTS AND REMEDIES
Section 6.1. Events of Default.
"Event of Default," wherever used herein with respect to Securities of
either Series, means any one of the following events:
(a) default in the payment of any interest on any Security of such
Series when it becomes due and payable, and continuance of such default for
a period of 30 days (unless
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the entire amount of such payment is deposited by the Company with the
Trustee or with a Paying Agent prior to the expiration of such period of 30
days); or
(b) default in the payment of the principal of, or premium, if any,
on, any Security of such Series at its Maturity; or
(c) default in the performance or breach of any covenant or warranty
of the Company in this Indenture, which default continues uncured for a
period of 90 days after there has been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of not less than 25% in principal amount of the outstanding
Securities of such Series a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(d) the Company or any of its Significant Subsidiaries pursuant to or
within the meaning of any Bankruptcy Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) generally is unable to pay its debts as the same become
due; or
(e) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company or any of its Significant
Subsidiaries in an involuntary case,
(ii) appoints a Custodian of the Company or any of its
Significant Subsidiaries or for all or substantially all of its
property, or
(iii) orders the liquidation of the Company or any of its
Significant Subsidiaries,
and the order or decree remains unstayed and in effect for 90 days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
Federal or State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
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Section 6.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default with respect to Securities of either Series at
the time outstanding occurs and is continuing (other than an Event of Default
referred to in Section 6.1(d) or (e)), then in every such case the Trustee or
the Holders of not less than 25% in principal amount of the outstanding
Securities of that Series may declare the principal amount of and accrued and
unpaid interest, if any, on all of the Securities of that Series to be due and
payable immediately, by a notice in writing to the Company (and to the Trustee
if given by Holders), and upon any such declaration such principal amount (or
specified amount) and accrued and unpaid interest, if any, shall become
immediately due and payable. If an Event of Default specified in Section 6.1(d)
or (e) shall occur, the principal amount (or specified amount) of and accrued
and unpaid interest, if any, on all outstanding Securities shall ipso facto
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Holder.
At any time after such a declaration of acceleration with respect to
either Series has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in principal amount of the outstanding
Securities of that Series, by written notice to the Company and the Trustee, may
rescind and annul such declaration and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(i) all overdue interest, if any, on all Securities of that
Series,
(ii) the principal of any Securities of that Series which have
become due otherwise than by such declaration of acceleration and
interest thereon at the rate or rates prescribed therefor in such
Securities,
(iii) to the extent that payment of such interest is lawful,
interest upon any overdue principal and overdue interest at the rate
or rates prescribed therefor in such Securities, and
(iv) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(b) all Events of Default with respect to Securities of that Series,
other than the non-payment of the principal of Securities of that Series
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 6.13.
No such rescission shall affect any subsequent Default or impair any
right consequent thereon.
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Section 6.3. Collection of Indebtedness and Suits for Enforcement by
Trustee.
The Company covenants that if
(a) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues for a
period of 30 days, or
(b) default is made in the payment of principal of any Security at the
Maturity thereof,
then, the Company will, upon demand of the Trustee, pay to it, for the benefit
of the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal or any
overdue interest, at the rate or rates prescribed therefor in such Securities,
and, in addition thereto, such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjudged or deemed to be payable in the manner provided by law out of the
property of the Company or any other obligor upon such Securities, wherever
situated.
If an Event of Default with respect to any Securities of either Series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
Series by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the
exercise of any power granted herein, or to enforce any other proper remedy.
Section 6.4. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of principal and
interest owing and unpaid in respect of the Securities and to file such
other papers or documents as may be
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necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same,
and any Custodian in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay to
the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 6.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee under Section
7.7; and
Second: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for the
benefit of which such money has been collected, ratably, without preference or
priority of any kind (subject to any subordination provisions applicable to the
Securities of either Series), according to the amounts due and payable on such
Securities for principal and interest, respectively; and
Third: To the Company.
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Section 6.7. Limitation on Suits.
No Holder of any Security of either Series shall have any right to
institute any proceeding, judicial or otherwise, with respect to this Indenture,
or for the appointment of a receiver or trustee, or for any other remedy
hereunder, unless
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that
Series;
(b) the Holders of not less than 25% in principal amount of the
outstanding Securities of that Series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the outstanding Securities of that Series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 6.8. Unconditional Right of Holders to Receive Principal and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and interest, if any, on,
such Security on the Stated Maturity or Stated Maturities expressed in such
Security (or, in the case of redemption, on the redemption date) and to
institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
Section 6.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders shall
be restored severally and respectively to their former positions hereunder and
thereafter all
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rights and remedies of the Trustee and the Holders shall continue as though no
such proceeding had been instituted.
Section 6.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities in Section 2.7, no
right or remedy herein conferred upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section 6.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall impair
any such right or remedy or constitute a waiver of any such Event of Default or
an acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders, as the case
may be.
Section 6.12. Control by Holders.
Subject to Section 7.1(e), the Holders of a majority in principal
amount of the outstanding Securities of either Series shall have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee, with respect to the Securities of such Series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(c) subject to the provisions of Section 6.1, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall, by a Responsible Officer of the Trustee, determine that the
proceeding so directed would involve the Trustee in personal liability.
Section 6.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
outstanding Securities of either Series may on behalf of the Holders of all the
Securities of such Series waive any past Default hereunder with respect to such
Series and its consequences, except a Default in the payment of the principal
of, premium, if any, or interest, if any, on any Security of such Series or,
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if applicable, in respect of a covenant or provision which cannot be modified or
amended without the consent of the Holder of each outstanding Security of such
Series affected (provided, however, that the Holders of a majority in principal
amount of the outstanding Securities of either Series may rescind an
acceleration and its consequences, including any related payment default that
resulted from such acceleration). Upon any such waiver, such Default shall cease
to exist, and any Event of Default arising therefrom shall be deemed to have
been cured, for every purpose of this Indenture; but no such waiver shall extend
to any subsequent or other Default or impair any right consequent thereon.
Section 6.14. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security
by his acceptance thereof shall be deemed to have agreed, that any court may in
its discretion require, in any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the outstanding Securities of either Series, or to any suit instituted
by any Holder for the enforcement of the payment of the principal of or interest
on any Security on or after the Stated Maturity or Stated Maturities expressed
in such Security (or, in the case of redemption, on the redemption date).
ARTICLE VII.
TRUSTEE
Section 7.1. Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person
would exercise or use under the circumstances in the conduct of his or her
own affairs.
(b) Except during the continuance of an Event of Default:
(i) The Trustee need perform only those duties that are
specifically set forth in this Indenture and no others.
(ii) In the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon Officers'
Certificates or Opinions of Counsel furnished to the Trustee and
conforming to the requirements of this Indenture; however, in the case
of any
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such Officers' Certificates or Opinions of Counsel which by any
provisions hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine such Officers' Certificates and
Opinions of Counsel to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(i) This paragraph does not limit the effect of paragraph (b)
of this Section.
(ii) The Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts.
(iii) The Trustee shall not be liable with respect to any action
taken, suffered or omitted to be taken by it with respect to
Securities of either Series in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
outstanding Securities of such Series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such Series.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraph (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right
or power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money
held in trust by the Trustee need not be segregated from other funds except
to the extent required by law.
(g) No provision of this Indenture shall require the Trustee to risk
its own funds or otherwise incur any financial liability in the performance
of any of its duties, or in the exercise of any of its rights or powers, if
it shall have reasonable grounds for believing that repayment of such funds
or adequate indemnity against such risk is not reasonably assured to it.
(h) The Paying Agent, the Registrar and any authenticating agent shall
be entitled to the protections, immunities and standard of care as are set
forth in paragraphs (a), (b) and (c) of this Section with respect to the
Trustee.
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Section 7.2. Rights of Trustee.
(a) The Trustee may conclusively rely on and shall be protected in
acting or refraining from acting upon any document believed by it to be
genuine and to have been signed or presented by the proper person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care. No
Depository shall be deemed an agent of the Trustee, and the Trustee shall
not be responsible for any act or omission by any Depository.
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers.
(e) The Trustee may consult with counsel of its selection and the
advice of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction
of any of the Holders of Securities unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of
the Trustee, and such notice references the Securities and this Indenture.
Section 7.3. Individual Rights of Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Securities and may otherwise deal with the Company or an
Affiliate with the same rights it would have if it were not Trustee. Any Agent
may do the same with like rights. The Trustee is also subject to Sections 7.10
and 7.11.
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Section 7.4. Trustee's Disclaimer.
The Trustee makes no representation as to the validity or adequacy of
this Indenture or the Securities, it shall not be accountable for the Company's
use of the proceeds from the Securities, and it shall not be responsible for any
statement in the Securities other than its authentication.
Section 7.5. Notice of Defaults.
If a Default or Event of Default occurs and is continuing with respect
to the Securities of either Series and if it is known to a Responsible Officer
of the Trustee, the Trustee shall mail to each Securityholder of the Securities
of that Series, notice of a Default or Event of Default within 90 days after it
occurs or, if later, after a Responsible Officer of the Trustee has knowledge of
such Default or Event of Default. Except in the case of a Default or Event of
Default in payment of principal of or interest on any Security of either Series,
the Trustee may withhold the notice if and so long as its corporate trust
committee or a committee of its Responsible Officers in good faith determines
that withholding the notice is in the interests of Securityholders of that
Series.
Section 7.6. Reports by Trustee to Holders.
The Trustee shall transmit to Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to the
TIA at the times and in the manner provided pursuant thereto. If required by
Section 313(a) of the TIA, the Trustee shall, within sixty days after each April
1 following the date of this Indenture deliver to Holders a brief report, dated
as of April 1, which complies with the provisions of such Section 313(a).
A copy of each report at the time of its mailing to Securityholders of
either Series shall be filed with the SEC and each stock exchange on which the
Securities of that Series are listed. The Company shall promptly notify the
Trustee when Securities of either Series are listed on any stock exchange or of
any delisting thereof.
Section 7.7. Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its services as shall be agreed in writing between the Company
and the Trustee. The Trustee's compensation shall not be limited by any law on
compensation of a trustee of an express trust. The Company shall reimburse the
Trustee upon request for all reasonable out-of-pocket expenses incurred by it.
Such expenses shall include the reasonable compensation and expenses of the
Trustee's agents and counsel.
Except as set forth in the next paragraph, the Company shall indemnify
each of the Trustee and any predecessor Trustee against any and all loss,
damage, claim, liability or expense (including the cost of defending itself)
incurred by it in the acceptance or performance of its duties under this
Indenture as Trustee or Agent. The Trustee shall notify the Company promptly of
any claim for which it may seek indemnity. The Company shall defend the claim
and the Trustee shall
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cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which consent shall not be
unreasonably withheld. This indemnification shall apply to officers, directors,
employees, shareholders and agents of the Trustee.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee or by any officer, director, employee,
shareholder or agent of the Trustee through negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal and
interest on particular Securities of that Series.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 6.1(d) or (e) occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
The provisions of this Section shall survive the termination of this
Indenture.
Section 7.8. Replacement of Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section.
The Trustee may resign with respect to the Securities of either or
both Series by so notifying the Company. The Holders of a majority in principal
amount of the Securities of either Series may remove the Trustee with respect to
that Series by so notifying the Trustee and the Company. The Company may remove
the Trustee with respect to Securities of either or both Series if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the then outstanding Securities of the
applicable Series may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
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If a successor Trustee with respect to the Securities of either or
both Series does not take office within 60 days after the retiring Trustee
resigns or is removed, the retiring Trustee, the Company or the Holders of at
least 10% in principal amount of the Securities of the applicable Series may
petition, at the expense of the Company, any court of competent jurisdiction for
the appointment of a successor Trustee.
If the Trustee with respect to the Securities of either or both Series
fails to comply with Section 7.10, any Securityholder of the applicable Series
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Immediately after that,
the retiring Trustee shall transfer all property held by it as Trustee to the
successor Trustee subject to the lien provided for in Section 7.7, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
with respect to each Series of Securities for which it is acting as Trustee
under this Indenture. A successor Trustee shall mail a notice of its succession
to each Securityholder of each such Series. Notwithstanding replacement of the
Trustee pursuant to this Section 7.8, the Company's obligations under Section
7.7 hereof shall continue for the benefit of the retiring trustee with respect
to expenses and liabilities incurred by it prior to such replacement.
Section 7.9. Successor Trustee by Merger, etc.
If the Trustee consolidates with, merges or converts into, or
transfers all or substantially all of its corporate trust business to, another
corporation, the successor corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification.
This Indenture shall always have a Trustee who satisfies the
requirements of TIA (S) 310(a)(1), (2) and (5). The Trustee shall always have a
combined capital and surplus of at least $25,000,000 as set forth in its most
recent published annual report of condition. The Trustee shall comply with TIA
(S) 310(b).
Section 7.11. Preferential Collection of Claims Against Company.
The Trustee is subject to TIA (S) 311(a), excluding any creditor
relationship listed in TIA (S) 311(b). A Trustee who has resigned or been
removed shall be subject to TIA (S) 311(a) to the extent indicated.
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ARTICLE VIII.
SATISFACTION AND DISCHARGE; DEFEASANCE
Section 8.1. Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Order cease to be of further effect
(except as hereinafter provided in this Section 8.1), and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(a) either
(i) all Securities theretofore authenticated and delivered (other
than Securities that have been destroyed, lost or stolen and that have
been replaced or paid) have been delivered to the Trustee for
cancellation; or
(ii) all such Securities not theretofore delivered to the Trustee
for cancellation
(1) have become due and payable, or
(2) will become due and payable at their Stated Maturity within one
year, or
(3) are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
or
(4) are deemed paid and discharged pursuant to Section 8.3, as
applicable;
and the Company, in the case of (1), (2) or (3) above, has deposited or caused
to be deposited with the Trustee as trust funds in trust an amount sufficient
for the purpose of paying and discharging the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation, for
principal and interest to the date of such deposit (in the case of Securities
which have become due and payable on or prior to the date of such deposit) or to
the Stated Maturity or redemption date, as the case may be;
(b) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent
herein provided for relating to the satisfaction and discharge of this
Indenture have been complied with.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7, and, if money shall
have been deposited with the Trustee pursuant to clause (a) of this Section, the
provisions of Sections 2.3, 2.6, 2.7, 8.1, 8.2 and 8.5 shall survive.
Section 8.2. Application of Trust Funds; Indemnification.
(a) Subject to the provisions of Section 8.5, all money deposited with
the Trustee pursuant to Section 8.1, all money and U.S. Government
Obligations deposited with the Trustee pursuant to Section 8.3 or 8.4 and
all money received by the Trustee in respect of U.S. Government Obligations
deposited with the Trustee pursuant to Section 8.3 or 8.4, shall be held in
trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through
any Paying Agent (including the Company acting as its own Paying Agent) as
the Trustee may determine, to the persons entitled thereto, of the
principal and interest for whose payment such money has been deposited with
or received by the Trustee.
(b) The Company shall pay and shall indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against U.S. Government
Obligations deposited pursuant to Sections 8.3 or 8.4 or the interest and
principal received in respect of such obligations other than any payable by
or on behalf of Holders.
(c) The Trustee shall deliver or pay to the Company from time to time
upon Company Request any U.S. Government Obligations or money held by it as
provided in Sections 8.3 or 8.4 which, in the opinion of a nationally
recognized firm of independent certified public accountants expressed in a
written certification thereof delivered to the Trustee, are then in excess
of the amount thereof which then would have been required to be deposited
for the purpose for which such U.S. Government Obligations or money were
deposited or received. This provision shall not authorize the sale by the
Trustee of any U.S. Government Obligations held under this Indenture.
Section 8.3. Legal Defeasance of Securities of Either Series.
The Company shall be deemed to have paid and discharged the entire
indebtedness on all the outstanding Securities of either Series on the 91st day
after the date of the deposit referred to in subparagraph (d) hereof, and the
provisions of this Indenture, as it relates to such outstanding Securities of
such Series, shall no longer be in effect (and the Trustee, at the expense of
the Company, shall, at Company Request, execute proper instruments acknowledging
the same), except as to:
(a) the rights of Holders of Securities of such Series to receive,
from the trust funds described in subparagraph (d) hereof, payment of the
principal of and each installment of principal of and interest on the
outstanding Securities of such Series on the Stated Maturity of such
principal or installment of principal or interest on the day on which such
payments are due and payable in accordance with the terms of this Indenture
and the
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Securities of such Series;
(b) the provisions of Sections 2.3, 2.6, 2.7, 2.10, 8.2, 8.3 and 8.5;
and
(c) the rights, powers, trust and immunities of the Trustee and the
Company's obligations in connection therewith;
provided that, the following conditions shall have been satisfied:
(d) the Company shall have deposited or caused to be deposited
irrevocably with the Trustee as trust funds in trust for the purpose of
making the following payments, specifically pledged as security for and
dedicated solely to the benefit of the Holders of such Securities cash in
Dollars (or such other money or currencies as shall then be legal tender in
the United States) and/or U.S. Government Obligations, which through the
payment of interest and principal in respect thereof, in accordance with
their terms, will provide (and without reinvestment and assuming no tax
liability will be imposed on such Trustee), not later than one day before
the due date of any payment of money, an amount in cash, sufficient, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, to
pay and discharge each installment of principal of and interest, if any, on
all the Securities of such Series on the dates such installments of
interest or principal are due;
(e) such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it is bound;
(f) no Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default pursuant to Section 6.1(d) or Section 6.1(e) are concerned, during
the period ending on the 91st day after such date;
(g) the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect (i) that (A) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (B) since
the date of execution of this Indenture, there has been a change in the
applicable Federal income tax law, in either case to the effect that, and
based thereon such Opinion of Counsel shall confirm that, the Holders of
the Securities of such Series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount and
in the same manner and at the same times as would have been the case if
such deposit, defeasance and discharge had not occurred and (ii) after the
91st day following the date of the deposit, the trust funds will not be
subject to the effect of any applicable Bankruptcy Laws;
(h) the Company shall have delivered to the Trustee an Officers'
Certificate
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stating that the deposit was not made by the Company with the intent of
preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company;
(i) such deposit shall not result in the trust arising from such
deposit constituting an investment company (as defined in the Investment
Company Act of 1940, as amended), or such trust shall be qualified under
such Act or exempt from regulation thereunder; and
(j) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to the defeasance contemplated by this
Section have been complied with.
Section 8.4. Covenant Defeasance.
On and after the 91st day after the date of the deposit referred to in
subparagraph (a) hereof, the Company may omit to comply with any term, provision
or condition set forth under Sections 4.2, 4.3, 4.4, 4.5, 4.6, 4.7, 4.8, and 5.1
(and the failure to comply with any such covenants shall not constitute a
Default or Event of Default under Section 6.1) with respect to the Securities
of such Series, provided that the following conditions shall have been
satisfied:
(a) With reference to this Section 8.4, the Company has deposited or
caused to be irrevocably deposited (except as provided in Section 8.2(c))
with the Trustee as trust funds in trust, specifically pledged as security
for, and dedicated solely to, the benefit of the Holders of such Securities
cash in Dollars (or such other money or currencies as shall then be legal
tender in the United States) and/or U.S. Government Obligations, which
through the payment of interest and principal in respect thereof, in
accordance with their terms, will provide (and without reinvestment and
assuming no tax liability will be imposed on such Trustee), not later than
one day before the due date of any payment of money, an amount in cash,
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay principal, premium, if any, and interest,
if any, on the dates such installments of interest or principal are due;
(b) Such deposit will not result in a breach or violation of, or
constitute a default under, this Indenture or any other material agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it is bound;
(c) No Default or Event of Default with respect to the Securities of
such Series shall have occurred and be continuing on the date of such
deposit (other than a Default or Event of Default resulting from the
borrowing of funds to be applied to such deposit) or insofar as Events of
Default pursuant to Section 6.1(d) or Section 6.1(e) are concerned, during
the period ending on the 91st day after such date;
(d) The Company shall have delivered to the Trustee an Opinion of
Counsel confirming that (i) Holders of the Securities of such Series will
not recognize income, gain
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or loss for federal income tax purposes as a result of such deposit and
defeasance and will be subject to federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if
such deposit and defeasance had not occurred and (ii) after the 91st day
following the date of the deposit, the trust funds will not be subject to
the effect of any applicable Bankruptcy Laws;
(e) The Company shall have delivered to the Trustee an Officers'
Certificate stating the deposit was not made by the Company with the intent
of preferring the Holders of the Securities of such Series over any other
creditors of the Company or with the intent of defeating, hindering,
delaying or defrauding any other creditors of the Company; and
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the defeasance contemplated by
this Section have been complied with.
Section 8.5. Repayment to Company.
The Trustee and the Paying Agent shall pay to the Company upon written
request any money held by them for the payment of principal and interest that
remains unclaimed for two years. After that, Securityholders entitled to the
money must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
ARTICLE IX.
AMENDMENTS AND WAIVERS
Section 9.1. Without Consent of Holders.
The Company and the Trustee may amend or supplement this Indenture or
the Securities of either or both Series without the consent of any
Securityholder:
(a) to cure any ambiguity, defect or inconsistency;
(b) to comply with Article V;
(c) to make any change that would provide any additional rights or
benefits to the Securityholders or does not adversely affect the rights of
any Securityholder;
(d) to provide for the issuance of and establish the form and terms
and conditions of Securities of either or both Series as permitted by this
Indenture;
(e) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of either
or both Series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
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(f) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Indenture under the TIA.
Section 9.2. With Consent of Holders.
The Company and the Trustee may enter into a supplemental indenture
with the written consent of the Holders of at least a majority in principal
amount of the outstanding Securities of each Series affected by such
supplemental indenture (including consents obtained in connection with a tender
offer or exchange offer for the Securities of such Series), for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in
any manner the rights of the Securityholders of each such Series. Except as
provided in Section 6.13, the Holders of at least a majority in principal amount
of the outstanding Securities of each Series affected by such waiver by notice
to the Trustee (including consents obtained in connection with a tender offer or
exchange offer for the Securities of such Series) may waive compliance by the
Company with any provision of this Indenture or the Securities with respect to
such Series.
It shall not be necessary for the consent of the Holders of Securities
under this Section 9.2 to approve the particular form of any proposed
supplemental indenture or waiver, but it shall be sufficient if such consent
approves the substance thereof. After a supplemental indenture or waiver under
this section becomes effective, the Company shall mail to the Holders of
Securities affected thereby a notice briefly describing the supplemental
indenture or waiver. Any failure by the Company to mail or publish such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such supplemental indenture or waiver.
Section 9.3. Limitations.
Without the consent of each Securityholder affected, an amendment or
waiver may not:
(a) reduce the principal amount of Securities of such series whose
Holders must consent to an amendment, supplement or waiver;
(b) reduce the rate of or extend the time for payment of interest
(including default interest) on any Security of such series;
(c) reduce the principal on, or change the Stated Maturity of, any
Security of such series ;
(d) waive a Default or Event of Default in the payment of the
principal of, or interest, if any, on, any Security of such series (except
a rescission of acceleration of the Securities of either Series by the
Holders of at least a majority in principal amount of the outstanding
Securities of such Series and a waiver of the payment default that resulted
from such acceleration);
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(e) make the principal of, or interest, if any, on, any Security
payable in any currency other than that stated in the Security;
(f) make any change in Sections 6.8, 6.13 or 9.3; or
(g) waive a redemption payment with respect to any Security or change
any of the provisions with respect to the redemption of any Securities.
Section 9.4. Compliance with Trust Indenture Act.
Every amendment to this Indenture or the Securities of either or both
Series shall be set forth in a supplemental indenture hereto that complies with
the TIA as then in effect.
Section 9.5. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to it by a
Holder of a Security is a continuing consent by the Holder and every subsequent
Holder of a Security or portion of a Security that evidences the same debt as
the consenting Holder's Security, even if notation of the consent is not made on
any Security. However, any such Holder or subsequent Holder may revoke the
consent as to his Security or portion of a Security if the Trustee receives the
notice of revocation before the date the amendment or waiver becomes effective.
Any amendment or waiver once effective shall bind every Securityholder
of each Series affected by such amendment or waiver unless it is of the type
described in any of clauses (a) through (g) of Section 9.3. In that case, the
amendment or waiver shall bind each Holder of a Security who has consented to it
and every subsequent Holder of a Security or portion of a Security that
evidences the same debt as the consenting Holder's Security.
Section 9.6. Notation on or Exchange of Securities.
The Trustee may place an appropriate notation about an amendment or
waiver on any Security of either Series thereafter authenticated. The Company
in exchange for Securities of that Series may issue, and the Trustee shall
authenticate upon request, new Securities of that Series that reflect the
amendment or waiver.
Section 9.7. Trustee Protected.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 7.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee shall sign all
supplemental indentures, except that the Trustee need not sign any supplemental
indenture that adversely affects its rights.
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ARTICLE X.
MISCELLANEOUS
Section 10.1. Trust Indenture Act Controls.
If any provision of this Indenture limits, qualifies, or conflicts
with another provision which is required or deemed to be included in this
Indenture by the TIA, such required or deemed provision shall control.
Section 10.2. Notices.
Any notice or communication by the Company or the Trustee to the other
is duly given if in writing and delivered in person or mailed by first-class
mail:
if to the Company:
Danaher Corporation
1250 24th Street N.W.
Washington, D.C. 20037
(202) 828-0850
Attention: Patrick W. Allender
if to the Trustee:
The First National Bank of Chicago
One First National Plaza
Chicago, IL 60670
Attention: Corporate Trust Services Division
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address shown on the register kept by the Registrar.
Failure to mail a notice or communication to a Securityholder of either Series
or any defect in it shall not affect its sufficiency with respect to other
Securityholders of that or the other Series.
If a notice or communication is mailed or published in the manner
provided above, within the time prescribed, it is duly given, whether or not the
Securityholder receives it.
If the Company mails a notice or communication to Securityholders, it
shall mail a copy to the Trustee and each Agent at the same time.
Section 10.3. Communication by Holders with Other Holders.
Securityholders of either Series may communicate pursuant to TIA
(S) 312(b) with
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other Securityholders of that Series or the other Series with respect to their
rights under this Indenture or the Securities of that Series or the other
Series. The Company, the Trustee, the Registrar and anyone else shall have the
protection of TIA (S) 312(c).
Section 10.4. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
Section 10.5. Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than a certificate
provided pursuant to TIA (S) 314(a)(4)) shall comply with the provisions of TIA
(S) 314(e) and shall include:
(a) a statement that the person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, he has made such
examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(d) a statement as to whether or not, in the opinion of such person,
such condition or covenant has been complied with.
Section 10.6. Rules by Trustee and Agents.
The Trustee may make reasonable rules for action by or a meeting of
Securityholders of either or both Series. Any Agent may make reasonable rules
and set reasonable requirements for its functions.
Section 10.7. Legal Holidays.
A "Legal Holiday" is any day that is not a Business Day. If a payment
date is a Legal Holiday at a place of payment, payment may be made at that place
on the next succeeding day that
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is not a Legal Holiday, and no interest shall accrue for the intervening period.
Section 10.8. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
Section 10.9. Counterparts.
This Indenture may be executed in any number of counterparts and by
the parties hereto in separate counterparts, each of which when so executed
shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement.
Section 10.10. Governing Laws.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH
STATE, WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS THEREOF (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS OF THE STATE OF NEW YORK).
Section 10.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture, loan or
debt agreement of the Company or a Subsidiary. Any such indenture, loan or debt
agreement may not be used to interpret this Indenture.
Section 10.12. Successors.
All agreements of the Company in this Indenture and the Securities
shall bind its successor. All agreements of the Trustee in this Indenture shall
bind its successor.
Section 10.13. Severability.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
Section 10.14. Table of Contents, Headings, Etc.
The Table of Contents, Cross-Reference Table, and headings of the
Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the day and year first above written.
Danaher Corporation
By: ____________________________________
Name: ______________________________
Title: _____________________________
The First National Bank of Chicago, as Trustee
By: ____________________________________
Name: ______________________________
Title: _____________________________
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DANAHER CORPORATION
ANNEX A-1
---------
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DANAHER CORPORATION
____% Senior Note
Due 2008
No. R-1 $_____________
CUSIP No. _______________
Danaher Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received promises to pay to
CEDE & CO. , or registered assigns,
the principal sum of _________________ MILLION DOLLARS
on _______________, 2008 and to pay interest thereon from _______________, 1998,
or the most recent interest payment date to which interest has been paid or
provided for, as the case may be,
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payable on __________ and __________ of each year, commencing _______________,
1999, at the rate of ____% per annum, until the principal hereof is paid or made
available for payment, and (to the extent that the payment of such interest is
permitted by law) to pay interest at the rate per annum borne by this Security
on any overdue principal and on any overdue installment of interest until paid.
The interest so payable, and punctually paid or duly provided for, on any
interest payment date will be paid to the person in whose name this Security (or
one or more predecessor Securities) is registered at the close of business on
the regular record date for such interest, which shall be the __________ or
__________ (whether or not a Business Day), as the case may be, next preceding
such interest payment date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such regular
record date and may either be paid to the person in whose name this Security (or
one or more predecessor Securities) is registered at the close of business on a
special record date for the payment of such defaulted interest to be fixed by
the Company, notice thereof shall be given to Trustee and the Holders not less
than 15 days prior to such special record date, or be paid at any time in any
other lawful manner. Interest on the Securities shall be computed on the basis
of a 360-day year of twelve 30-day months.
Principal of and interest on the Securities will be payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, the transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the ______________________________,
Attention: Corporate Trust Services); provided that, unless all of the
outstanding Securities are Global Securities, the Company will at all times
maintain an office or agency for such purposes in the Borough of Manhattan, The
City of New York; and provided, further, that, except as provided in the next
sentence, payment of interest may, at the option of the Company, be made by
check mailed to the address of the person entitled thereto. If this Security is
a Global Security, the interest payable on this Security will be paid to Cede &
Co., the nominee of the Depositary, or its registered assigns as the registered
owner of this Security, by wire transfer of immediately available funds on each
of the applicable interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date: _______________, ____
DANAHER CORPORATION
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the ____% Senior Notes Due
2008 described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By:
Authorized Signatory
4
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DANAHER CORPORATION
____% Senior Note Due 2008
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of _______________,
1998, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $____________ (herein called the "Securities").
All terms used but not defined in this Security shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture. The
Securities are subject to all such terms, and the Securityholders are referred
to the Indenture and the TIA for a statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund, and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
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4. Optional Redemption.
The Securities will be redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days prior notice mailed to the registered address of each holder of
Securities, at a redemption price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted to the
redemption date, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus ______ basis
points, plus, in the case of each of clause (i) and (ii) above, accrued interest
to the date of redemption.
"Comparable Treasury Issue" means the fixed rate United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest or lowest of such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time on
the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Salomon Smith Barney, Chase
Securities Inc., First Chicago Capital Markets, Inc. and Lehman Brothers, and
their respective successors; provided, however, that if any of the foregoing
shall cease to be a primary U.S. Government securities dealer in New York City
(a "Primary Treasury Dealer"), the Company shall substitute therefor another
Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that if such redemption date
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is not an interest payment date with respect to such Security, then for purposes
of computing Remaining Scheduled Payments, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before the
redemption date, the Company shall deposit with a paying agent (or the Trustee)
money sufficient to pay the redemption price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
7
<PAGE>
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Securityholders. Subject to certain limitations described in
the Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on certain of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
8
<PAGE>
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding, judicial
or otherwise, with respect to the Indenture or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities and unless also the Holders of at least
25% in principal amount of the Securities at the time outstanding shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceedings as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute such proceeding, within 60 days. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the principal hereof or any interest hereon on or after the
respective due dates expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities.
9
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:
10
<PAGE>
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the
face of this Security in every particular, without
alteration or enlargement or any change
whatsoever.
11
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
<TABLE>
<CAPTION>
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
- ---------- ---------------- ---------------- ----------------- ------------
<S> <C> <C> <C> <C>
</TABLE>
12
<PAGE>
DANAHER CORPORATION
ANNEX A-2
---------
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
COMPANY, A NEW YORK CORPORATION (THE "DEPOSITARY"), OR A NOMINEE THEREOF. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE, AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY, BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY
OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO
A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION, TO THE COMPANY OR ITS AGENT
FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT IS MADE TO CEDE &
CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DANAHER CORPORATION
____% Senior Note
Due 2028
No. R-1 $_____________
CUSIP No. _______________
Danaher Corporation, a Delaware corporation (the "Company," which
term includes any successor corporation under the Indenture hereinafter referred
to), for value received promises to pay to
CEDE & CO. , or registered assigns,
13
<PAGE>
the principal sum of __________________________ MILLION DOLLARS
on _______________, 2008 and to pay interest thereon from _______________, 1998,
or the most recent interest payment date to which interest has been paid or
provided for, as the case may be, payable on __________ and __________ of each
year, commencing _______________, 1999, at the rate of ____% per annum, until
the principal hereof is paid or made available for payment, and (to the extent
that the payment of such interest is permitted by law) to pay interest at the
rate per annum borne by this Security on any overdue principal and on any
overdue installment of interest until paid. The interest so payable, and
punctually paid or duly provided for, on any interest payment date will be paid
to the person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on the regular record date
for such interest, which shall be the __________ or __________ (whether or not a
Business Day), as the case may be, next preceding such interest payment date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such regular record date and may either be
paid to the person in whose name this Security (or one or more predecessor
Securities) is registered at the close of business on a special record date for
the payment of such defaulted interest to be fixed by the Company, notice
thereof shall be given to Trustee and the Holders not less than 15 days prior to
such special record date, or be paid at any time in any other lawful manner.
Interest on the Securities shall be computed on the basis of a 360-day year of
twelve 30-day months.
Principal of and interest on the Securities will be payable in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts, the transfer of the
Securities will be registrable, the Securities may be presented for exchange,
and notices and demands to or upon the Company in respect of this Security and
the Indenture may be served, at the office or agency of the Company maintained
for such purpose (which initially will be the ______________________________,
Attention: Corporate Trust Services); provided that, unless all of the
outstanding Securities are Global Securities, the Company will at all times
maintain an office or agency for such purposes in the Borough of Manhattan, The
City of New York; and provided, further, that, except as provided in the next
sentence, payment of interest may, at the option of the Company, be made by
check mailed to the address of the person entitled thereto. If this Security is
a Global Security, the interest payable on this Security will be paid to Cede &
Co., the nominee of the Depositary, or its registered assigns as the registered
owner of this Security, by wire transfer of immediately available funds on each
of the applicable interest payment dates.
Reference is hereby made to the further provisions of this Security
which further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
14
<PAGE>
IN WITNESS WHEREOF, the Company has caused this Security to be signed
manually or by facsimile by its duly authorized officers.
Date: _______________, ____
DANAHER CORPORATION
By: __________________________________ By: __________________________________
Name: Name:
Title: Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the ____% Senior Notes Due
2008 described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
By:
Authorized Signatory
15
<PAGE>
DANAHER CORPORATION
____% Senior Note Due 2028
1. General.
This Security is one of a duly authorized series of securities of the
Company issued and to be issued under an Indenture, dated as of _______________,
1998, as amended, modified or supplemented from time to time (the "Indenture"),
between the Company and The First National Bank of Chicago, as trustee (the
"Trustee", which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, limited (except as otherwise provided in the Indenture) in
aggregate principal amount to $____________ (herein called the "Securities").
All terms used but not defined in this Security shall have the meanings assigned
to them in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on this Security at
the times, places and rate, and in the coin or currency, herein prescribed.
2. Indenture.
The terms of the Securities include those stated in the Indenture. The
Securities are subject to all such terms, and the Securityholders are referred
to the Indenture and the TIA for a statement of them.
3. Sinking Fund.
The Securities are not subject to any sinking fund, and the Securities are
not subject to redemption or repurchase by the Company at the option of the
Holders.
16
<PAGE>
4. Optional Redemption.
The Securities will be redeemable, as a whole or in part, at the option of
the Company, at any time or from time to time, on at least 30 days, but not more
than 60 days prior notice mailed to the registered address of each holder of
Securities, at a redemption price equal to the greater of (i) 100% of the
principal amount of the Securities to be redeemed or (ii) the sum of the present
values of the Remaining Scheduled Payments (as defined below) discounted to the
redemption date, on a semiannual basis (assuming a 360-day year consisting of
twelve 30-day months) at the Treasury Rate (as defined below) plus ______ basis
points, plus, in the case of each of clause (i) and (ii) above, accrued interest
to the date of redemption.
"Comparable Treasury Issue" means the fixed rate United States Treasury
security selected by an Independent Investment Banker that would be utilized, at
the time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities. "Independent Investment Banker" means one of
the Reference Treasury Dealers appointed by the Trustee after consultation with
the Company.
"Comparable Treasury Price" means, with respect to any redemption date, (i)
the average of the bid and ask prices for the Comparable Treasury Issue
(expressed in each case as percentage of its principal amount) on the third
business day preceding such redemption date, as set forth in the daily
statistical release (or any successor release) published by the Federal Reserve
Bank of New York and designated "Composite 3:30 p.m. Quotations for U.S.
Government Securities" or (ii) if such release (or any successor release) is not
published or does not contain such prices on such business day, (A) the average
of the Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest or lowest of such Reference Treasury Dealer Quotations, or
(B) if the Trustee obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such quotations. "Reference Treasury Dealer
Quotations" means, with respect to each Reference Treasury Dealer and any
redemption date, the average, as determined by the Trustee, of the bid and ask
prices for the Comparable Treasury Issue (expressed in each case as a percentage
of its principal asked prices for the Comparable Treasury Issue (expressed in
each case as a percentage of its principal amount) quoted in writing to the
Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time on
the third business day preceding such redemption date.
"Reference Treasury Dealer" means each of Salomon Smith Barney Inc.,
Chase Securities Inc., First Chicago Capital Markets, Inc., and Lehman Brothers,
Inc., and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New
York City (a "Primary Treasury Dealer"), the Company shall substitute therefor
another Primary Treasury Dealer.
"Remaining Scheduled Payments" means, with respect to each Security to be
redeemed, the remaining scheduled payments of the principal thereof and interest
thereon that would be due after the related redemption date but for such
redemption; provided, however, that if such redemption date
17
<PAGE>
is not an interest payment date with respect to such Security, then for purposes
of computing Remaining Scheduled Payments, the amount of the next succeeding
scheduled interest payment thereon will be reduced by the amount of interest
accrued thereon to such redemption date.
"Treasury Rate" means, with respect to any redemption date, the rate per
annum equal to the semiannual equivalent yield to maturity (computed as of the
second business day immediately preceding such redemption date) of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
On and after the redemption date, interest will cease to accrue on the
Securities or any portion thereof called for redemption. On or before the
redemption date, the Company shall deposit with a paying agent (or the Trustee)
money sufficient to pay the redemption price of and accrued interest on the
Securities to be redeemed on such date. If less than all of the Securities are
to be redeemed, the Securities to be redeemed shall be selected by the Trustee
by such method as the Trustee shall deem fair and appropriate.
5. Denominations; Transfer; Exchange.
This Security is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
As provided in the Indenture and subject to certain limitations therein and
herein set forth, the transfer, or the exchange for an equal principal amount,
of this Security is registrable with the Registrar upon surrender of this
Security for registration of transfer at the office or agency of the Registrar.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may, subject to certain exceptions, require payment of
a sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
6. Persons Deemed Owners.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Holder in whose name this Security is registered as the owner thereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
7. Unclaimed Money.
The Trustee and any Paying Agent shall pay to the Company upon request any
money held by them for the payment of principal and interest that remains
unclaimed for two years. After that, Securityholders entitled to the money must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
18
<PAGE>
8. Defeasance Prior to Maturity.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Securities or (ii) certain covenants and Events of Default
with respect to the Securities, in each case upon compliance with certain
conditions set forth therein.
9. Amendment; Supplement; Waiver.
Subject to certain limitations described in the Indenture, the Indenture
permits the Company and the Trustee to enter into a supplemental indenture with
the written consent of the Holders of at least a majority in principal amount of
the outstanding Securities (including consents obtained in connection with a
tender offer or exchange offer for the Securities), for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Securityholders. Subject to certain limitations described in
the Indenture, the Holders of at least a majority in principal amount of the
outstanding Securities by notice to the Trustee (including consents obtained in
connection with a tender offer or exchange offer for the Securities) may waive
compliance by the Company with any provision of the Indenture or the Securities.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
10. Restrictive Covenants.
The Indenture imposes certain limitations on the Company's and its
Subsidiaries' ability to create or incur certain Liens on certain of their
respective properties or assets and to enter into certain sale and lease-back
transactions and on the Company's ability to engage in mergers or consolidations
or the conveyance, transfer or lease of all or substantially all of its
properties and assets. These limitations are subject to a number of important
qualifications and exceptions and reference is made to the Indenture for a
description thereof.
11. Defaults and Remedies.
If an Event of Default shall occur and be continuing, the principal of the
Securities may be declared (or, in certain cases, shall ipso facto become) due
and payable in the manner and with the effect provided in the Indenture.
19
<PAGE>
12. Proceedings.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding, judicial
or otherwise, with respect to the Indenture or for the appointment of a receiver
or trustee, or for any other remedy under the Indenture, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities and unless also the Holders of at least
25% in principal amount of the Securities at the time outstanding shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceedings as trustee, and the Trustee shall not have received
from the Holders of a majority in principal amount of Securities at the time
outstanding a direction inconsistent with such request, and shall have failed to
institute such proceeding, within 60 days. The foregoing shall not apply to any
suit instituted by the Holder of this Security for the enforcement of any
payment of the principal hereof or any interest hereon on or after the
respective due dates expressed herein.
13. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other capacity,
may deal with the Company or an Affiliate of the Company with the same rights it
would have if it were not Trustee.
14. No Recourse Against Others.
A past, present or future director, officer, employee, shareholder or
incorporator, as such, of the Company or any successor corporation shall not
have any liability for any obligations of the Company under this Security or the
Indenture or for any claim based on, in respect of, or by reason of such
obligations or their creation. Each Securityholder by accepting a Security
waives and releases all such liability. The waiver and release are part of the
consideration of issuance of the Securities.
15. Governing Law.
The internal laws of the State of New York shall govern the Indenture and
the Securities.
20
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
<TABLE>
<S> <C>
TEN COM - as tenants in common UNIF GIFT MIN ACT - ________ Custodian _________
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act _____________________
in common (State)
</TABLE>
Additional abbreviations may also be used though not in the above list.
__________________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
------------------------------
(Please print or typewrite name and address including postal zip code
of assignee)
this Security and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________, Attorney,
to transfer this Security on the books of the Trustee, with full power of
substitution in the premises.
Dated:
21
<PAGE>
Notice: The signature(s) on this Assignment must
correspond with the name(s) as written upon the
face of this Security in every particular, without
alteration or enlargement or any change
whatsoever.
22
<PAGE>
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL SECURITY
The following exchanges of a part of this Global Security for an
interest in another Global Security or for a Definitive Security, or exchanges
of a part of another Global Security or Definitive Security for an interest in
this Global Security, have been made:
<TABLE>
<CAPTION>
Principal Amount Signature of
Amount of Amount of of this Global authorized
decrease in increase in Security officer of
Principal Amount Principal Amount following such Trustee or
Date of of this Global of this Global decrease Security
Exchange Security Security (or increase) Custodian
- ---------- ---------------- ---------------- ----------------- ------------
<S> <C> <C> <C> <C>
</TABLE>
23
<PAGE>
EXHIBIT 5
Letterhead of Wilmer, Cutler & Pickering
September 17, 1998
Danaher Corporation
1250 24th Street, N.W.
Washington, DC 20037
Ladies and Gentlemen:
We have acted as counsel for Danaher Corporation, a Delaware corporation
(the "Issuer"), in connection with the Registration Statement on Form S-3 (the
"Registration Statement") being filed by the Issuer with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the debt securities of the
Issuer (the "Offered Securities"). The Offered Securities will be issued under
the indenture (the "Indenture"), between the Issuer and The First National Bank
of Chicago (the "Trustee"), as Trustee, filed as Exhibit 4 to the Registration
Statement. The Offered Securities are to be sold pursuant to an underwriting
agreement (the "Underwriting Agreement") by and among the Issuer, Salomon Smith
Barney Inc., Chase Securities Inc., First Chicago Capital Markets, Inc. and
Lehman Brothers Inc., filed as Exhibit 1 to the Registration Statement.
In connection with the foregoing, we have examined originals, or copies
certified or otherwise identified to our satisfaction, of such documents,
corporate records and other instruments as we have deemed necessary or
appropriate for the purposes of this opinion, including (a) the Certificate of
Incorporation, as amended, of the Issuer, (b) the By-laws, as amended, of the
Issuer, (c) the Indenture, (d) the Underwriting Agreement, (e) the form of the
Offered Securities and (f) the resolutions of the Board of Directors of the
Issuer authorizing the registration of the Offered Securities.
In our examination of documents and records, we have assumed, without
investigation, the genuineness of all signatures, the legal capacity of natural
persons, the authenticity of all documents submitted to us as originals, the
conformity with originals of all documents submitted to us as telecopied,
certified, photostatic or reproduced copies and the authenticity of all such
documents. We have also assumed, but not independently verified, that all
documents executed by a party other than the Company or any respective
subsidiaries thereof were duly and validly authorized, executed and delivered by
such party, that such party has the requisite power and authority to execute,
deliver and perform such agreements and other documents, and that such
agreements and other documents are legal, valid and binding obligations of such
party and enforceable against such party in accordance with their respective
terms.
<PAGE>
Based upon the foregoing and subject to the qualifications hereinafter set
forth, we are of opinion that:
1. The Offered Securities have been lawfully and duly authorized, and
such Offered Securities, upon execution and delivery of the Indenture by the
Issuer and the Trustee and upon issuance, execution and delivery of the Offered
Securities in accordance with the terms of the Indenture and the Underwriting
Agreement, and assuming due authentication by the Trustee, will be legal and
binding obligations of the Issuer enforceable against the Issuer in accordance
with their terms.
This opinion set forth above in paragraph 1 is qualified to the extent we
have assumed the due execution and delivery of the Indenture by the Trustee
pursuant to appropriate corporate authority.
Our opinion set forth above in paragraph 1 is subject to applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer and
other similar laws affecting creditors' rights generally from time to time in
effect. The enforceability of the Issuer's obligations is also subject to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
such enforceability is considered in a proceeding in equity or at law.
This opinion is limited to the general corporate law of the State of
Delaware, and we express no opinion with respect to the applicability thereto,
or the effect thereon, of any other laws or as to any matters of municipal law
or the laws of any other local agencies within the state. We express no opinion
whatsoever as to any other laws or regulations or as to laws relating to choice
of law or conflicts of law principles.
The information set forth herein is as of the date hereof. We assume no
obligation to advise you of changes which may thereafter be brought to our
attention. Our opinions are based on statutory and judicial decisions in effect
at the date hereof, and we do not opine with respect to any law, regulation,
rule or governmental policy or decision which may be enacted determined or
adopted after the date hereof, nor assume any responsibility to advise you of
future changes in our opinions.
We are aware that we are referred to under the heading "Legal Matters" in
the prospectus forming a part of the Registration Statement, and we hereby
consent to such use of our name therein and the filing of this opinion as
Exhibit 5 to the Registration Statement. In giving this consent, we do not
thereby admit that we are within the category of persons whose consent is
required under Section 7 of the Securities Act or the Rules and Regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Meredith B. Cross
-----------------------------
Meredith B. Cross, a partner
<PAGE>
EXHIBIT 12
STATEMENT OF COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(amounts in thousands)
<TABLE>
<CAPTION>
Year Ended December 31, Six Months Ended
----------------------------------------------------------------- --------------------------
1997 1996 1995 1994 1993 June 1998 June 1997
<S> <C> <C> <C> <C> <C> <C> <C>
Interest $ 13,104 $ 16,376 $ 7,198 $ 3,201 $ 5,361 $ 10,156 $ 7,100
Interest portion
of leases 6,267 5,500 5,508 3,140 3,507 1,901 3,057
Total fixed
charges 19,371 21,876 12,706 6,341 8,868 12,057 10,157
Earnings
before taxes 253,781 209,760 173,059 121,226 81,697 136,953 114,299
Ratio 14.10 10.59 14.62 20.12 10.21 12.36 12.25
</TABLE>
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our report dated January 29, 1998,
incorporated by reference in Danaher Corporation's Form 10-K for the year ended
December 31, 1997, and our report dated July 9, 1998, incorporated by reference
in Danaher Corporation's Form 8-K dated July 9, 1998 (filed September 14,
1998), and to all references to our Firm included in this registration
statement.
/s/ Arthur Andersen LLP
------------------------------
Arthur Andersen LLP
Washington, D.C.
September 17, 1998
<PAGE>
EXHIBIT 23.2
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Danaher Corporation on Form S-3 of our report related to Pacific Scientific
Company dated February 27, 1998 (March 9, 1998, as to Notes 14 and 15),
appearing in the Current Report on Form 8-K of Danaher Corporation filed April
14, 1998 and to the reference to us under the heading "Experts" in the
Prospectus, which is part of this Registration Statement.
/s/ Deloitte & Touche LLP
--------------------------------
Deloitte & Touche LLP
Costa Mesa, California
September 15, 1998
<PAGE>
EXHIBIT 23.3
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and related Prospectus of Danaher Corporation
for the registration of Notes Due 2008 and Notes Due 2028 and to the
incorporation by reference therein of our report dated May 27, 1998, except for
Note 2, as to which the date is July 7, 1998, with respect to the consolidated
financial statements of Fluke Corporation included in the Current Report on Form
8-K of Danaher Corporation dated July 9, 1998 (filed September 14, 1998), filed
with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------
Ernst & Young LLP
Seattle, Washington
September 17, 1998
<PAGE>
EXHIBIT 24
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints
Patrick W. Allender and C. Scott Brannan, and each of them, with full power of
substitution and resubstitution and each with full power to act without the
other, his true and lawful attorney-in-fact and agent, for him and in his name,
place and stead, in any and all capacities, to sign this Registration Statement
on Form S-3 relating to the issuance of debt securities of Danaher Corporation
and any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities Exchange Commission
or any state, granting unto said attorneys-in-fact and agents, and each of the
them, full power and authority to do and perform each and every act and thing
requisite and necessary to be done in and about the premises, as fully to all
intents and purposes as he might or could do in person, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, or their,
or his substitutes or substitute, may lawfully do or cause to be done by virtue
hereof.
Date: September 17, 1998
/s/ Mortimer M. Caplin
- -----------------------------------
Mortimer M. Caplin
/s/ Donald J. Ehrich
- ---------------------------------------
Donald J. Ehrich
/s/ Walter G. Lohr, Jr.
- --------------------------------------
Walter G. Lohr, Jr.
/s/ Mitchell P. Rales
- ---------------------------------------
Mitchell P. Rales
/s/ Steven M. Rales
- ---------------------------------------
Steven M. Rales
/s/ George M. Sherman
- -----------------------------------
George M. Sherman
/s/ A. Emmet Stephenson, Jr.
- ----------------------------------
A. Emmet Stephenson, Jr.
<PAGE>
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
--------
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(B)(2)_____
---------------------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------------------
DANAHER CORPORATION
(EXACT NAME OF OBLIGOR 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
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
TEN-YEAR NOTES AND THIRTY-YEAR NOTES
(TITLE OF INDENTURE SECURITIES)
1
<PAGE>
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
--------------------
INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.;
Federal Deposit Insurance Corporation,
Washington, D.C.; and The Board of Governors of
the Federal Reserve System, Washington D.C..
(B) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate
trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
------------------------------
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A
-----------------
PART OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the
trustee to commence business.*
3. A copy of the authorization of the trustee to
exercise corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by
Section 321(b) of the Act.
2
<PAGE>
7. A copy of the latest report of condition of the
trustee published pursuant to law or the
requirements of its supervising or examining
authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the United
States of America, has duly caused this Statement of Eligibility to be
signed on its behalf by the undersigned, thereunto duly authorized, all in
the City of Chicago and State of Illinois, on the 3rd day of September,
1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ SANDRA L. CARUBA
----------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2,
1996 (REGISTRATION NO. 333-14201).
3
<PAGE>
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
September 3, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the indenture between Danaher
Corporation and The First National Bank of Chicago, as Trustee, the undersigned,
in accordance with Section 321(b) of the Trust Indenture Act of 1939, as
amended, hereby consents that the reports of examinations of the undersigned,
made by Federal or State authorities authorized to make such examinations, may
be furnished by such authorities to the Securities and Exchange Commission upon
its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ SANDRA L. CARUBA
------------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
4
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR JUNE 30, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN THOUSANDS C400
RCFD BIL MIL THOU ----
---- ------------
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
a. Noninterest-bearing balances and currency and coin(1)................... 0081 4,490,272 1.a
b. Interest-bearing balances(2)............................................ 0071 5,586,990 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A)............... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D)............ 1773 8,974,952 2.b
3. Federal funds sold and securities purchased under agreements to resell..... 1350 5,558,583 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
RC-C).................................................................... 2122 28,257,868 4.a
b. LESS: Allowance for loan and lease losses................................ 3123 413,742 4.b
c. LESS: Allocated transfer risk reserve.................................... 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
reserve (item 4.a minus 4.b and 4.c)..................................... 2125 27,844,126 4.d
5. Trading assets (from Schedule RD-D)......................................... 3545 6,073,169 5.
6. Premises and fixed assets (including capitalized leases).................... 2145 721,430 6.
7. Other real estate owned (from Schedule RC-M)................................ 2150 6,827 7.
8. Investments in unconsolidated subsidiaries and associated companies
(from Schedule RC-M)........................................................ 2130 184,515 8.
9. Customers' liability to this bank on acceptances outstanding................ 2155 310,026 9.
10. Intangible assets (from Schedule RC-M)...................................... 2143 302,859 10.
11. Other assets (from Schedule RC-F)........................................... 2160 2,137,491 11.
12. Total assets (sum of items 1 through 11).................................... 2170 62,191,240 12.
</TABLE>
- ------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Legal Title of Bank: The First National Bank of Chicago Call Date: 06/30/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
---------
</TABLE>
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
LIABILITIES -----------------
<S> <C> <C> <C>
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
from Schedule RC-E, part 1).............................................. 2200 21,810,607 13.a
(1) Noninterest-bearing (1).............................................. 6631 9,864,956 13.a1
(2) Interest-bearing..................................................... 6636 11,945,651 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
IBFs (from Schedule RC-E, part II)....................................... 2200 15,794,963 13.b
(1) Noninterest bearing.................................................. 6631 482,528 13.b1
(2) Interest-bearing..................................................... 6636 15,312,435 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase: RCFD 2800 3.858,711 14
15. a. Demand notes issued to the U.S. Treasury................................. RCON 2840 1,444,748 15.a
b. Trading Liabilities (from Sechedule RC-D)................................ RCFD 3548 5,661,633 15.b
16. Other borrowed money: RCFD
a. With original maturity of one year or less............................... 2332 4,356,061 16.a
b. With original maturity of more than one year............................ A547 385,550 16.b
c. With original maturity of more than three years ......................... A548 320,386 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding..................... 2920 310,026 18.
19. Subordinated notes and debentures........................................... 3200 2,200,000 19.
20. Other liabilities (from Schedule RC-G)...................................... 2930 1,176,564 20.
21. Total liabilities (sum of items 13 through 20).............................. 2948 57,319,249 21.
22. Not applicable
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus............................... 3838 0 23.
24. Common stock................................................................ 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).................... 3839 3,188,187 25.
26. a. Undivided profits and capital reserves................................... 3632 1,467,324 26.a
b. Net unrealized holding gains (losses) on available-for-sale securities... 8434 18,040 26.b
27. Cumulative foreign currency translation adjustments......................... 3284 (2,418) 27.
28. Total equity capital (sum of items 23 through 27)........................... 3210 4,871,991 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)....................................... 3300 62,191,240 29.
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the
statement below that best describes the most
comprehensive level of auditing work performed for
the bank by independent external auditors as of Number
any date during 1996 ............................... RCFD 6724 [N/A] M.1.
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in
accordance with generally accepted auditing standards
by a certified public accounting firm (may be required by
state chartering authority)
4 = Directors' examination of the bank performed by other authority)
5 = Review of the bank's financial statements by external auditors
6 = Compilation of the bank's financial statements by external auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ---------------
(1) Includes total demand deposits and noninterest-bearing time and savings
external auditors (may be required by state chartering deposits.
6
