Exhibit 4.3
EXECUTION COPY
DANAHER
CORPORATION
AND
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
SUPPLEMENTAL
INDENTURE
2.300% Senior Notes Due
2016
Dated as of June 23,
2011
THIS SUPPLEMENTAL INDENTURE (this
“ Supplemental Indenture ”), dated as of
June 23, 2011, is between DANAHER CORPORATION, a Delaware
corporation (the “ Company ”), and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking
association, as Trustee (the “ Trustee
”).
RECITALS
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an Indenture dated as of
December 11, 2007, between the Company and the Trustee (the
“ Base Indenture ” and together with this
Supplemental Indenture, the “ Indenture ”),
providing for the issuance from time to time of series of the
Company’s Securities;
WHEREAS, Section 901
(7) of the Base Indenture provides for the Company and the
Trustee to enter into an indenture supplemental to the Base
Indenture to establish the forms or terms of Securities of any
series as permitted by Section 201 or Section 301 of the
Base Indenture;
WHEREAS, pursuant to
Section 301 of the Base Indenture, the Company wishes to
provide for the issuance of a new series of Securities to be known
as its 2.300% Senior Notes due 2016 (the “ Notes
”), the form and terms of such Notes and the terms,
provisions and conditions thereof to be set forth as provided in
this Supplemental Indenture; and
WHEREAS, the Company has requested
that the Trustee execute and deliver this Supplemental Indenture
and all requirements necessary to make this Supplemental Indenture
a valid, binding and enforceable instrument in accordance with its
terms, and to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid, binding and
enforceable obligations of the Company, have been done and
performed, and the execution and delivery of this Supplemental
Indenture has been duly authorized in all respects;
NOW, THEREFORE, in consideration of
the covenants and agreements set forth herein and for other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01
Relation to Base Indenture.
This Supplemental Indenture constitutes an integral part of the
Base Indenture.
Section 1.02
Definition Of Terms. For all
purposes of this Supplemental Indenture:
(a) Capitalized terms used herein without definition
shall have the meanings set forth in the Base Indenture;
(b) a term defined anywhere in this Supplemental
Indenture has the same meaning throughout;
(c) the singular includes the plural and vice
versa;
(d) headings are for convenience of reference only
and do not affect interpretation;
(e) the following terms have the meanings given to
them in this Section 1.02(e):
“ Business Day ”
shall mean any calendar day that is not a Saturday, Sunday or legal
holiday in New York, New York and on which commercial banks are
open for business in New York, New York.
“ Change of Control
” means the occurrence of any of the following: (1) the
consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any Person
(other than the Company or one of its subsidiaries) becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the
Company’s Voting Stock or other Voting Stock into which the
Company’s Voting Stock is reclassified, consolidated,
exchanged or changed, measured by voting power rather than number
of shares; (2) the direct or indirect sale, transfer,
conveyance or other disposition (other than by way of merger or
consolidation), in one or more series of related transactions, of
all or substantially all of the Company’s assets and the
assets of its subsidiaries, taken as a whole, to one or more
Persons (other than the Company or one of its subsidiaries); or
(3) the first day on which a majority of the members of our
Board of Directors are not Continuing Directors. Notwithstanding
the foregoing, a transaction will not be deemed to involve a Change
of Control if (1) the Company becomes a direct or indirect
wholly-owned subsidiary of a holding company and (2)(A) the
direct or indirect holders of the Voting Stock of such holding
company immediately following that transaction are substantially
the same as the holders of the Company’s Voting Stock
immediately prior to that transaction or (B) immediately
following that transaction no Person (other than a holding company
satisfying the requirements of this sentence) is the beneficial
owner, directly of indirectly, of more than 50% of the Voting Stock
of such holding company.
“Change of Control
Offer” shall have
the meaning set forth in Section 3.03.
“ Change of Control
Payment ” shall have the meaning set forth in
Section 3.03.
“ Change of Control Payment
Date ” shall have the meaning set forth in
Section 3.03.
“ Change of Control
Triggering Event ” shall mean the occurrence of both a
Change of Control and a Rating Event.
“ Comparable Treasury
Issue ” shall mean the United States Treasury security
selected by the Quotation Agent as having an actual or interpolated
maturity comparable to the remaining term (“ Remaining
Life ”) of the Notes to be redeemed 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 Life of such
Notes.
“ Comparable Treasury
Price ” shall mean, with respect to any Redemption Date,
(A) the average of four Reference Treasury Dealer Quotations
for such Redemption Date, after excluding the highest and lowest
such Reference Treasury Dealer Quotations, or (B) if the
Company obtains fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer
Quotations or, (C) if only one such Reference Treasury Dealer
Quotation is received, such Reference Treasury Dealer
Quotation.
“ Continuing Directors
” means, as of any date of determination, any member of our
Board of Directors who (1) was a member of such Board of
Directors on the date the Notes were issued or (2) was
nominated for election, elected or appointed to such Board of
Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time
of such nomination, election or appointment (either by a specific
vote or by approval of the Company’s proxy statement in which
such member was named as a nominee for election as a director,
without objection to such nomination).
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“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
“ Global Note ”
shall have the meaning set forth in Section 2.04.
“ Interest Payment Date
” shall have the meaning set forth in
Section 2.05(b).
“ Investment Grade
Rating ” means a rating equal to or higher than Baa3 (or
the equivalent) by Moody’s and BBB- (or the equivalent) by
S&P; and, the equivalent investment grade credit rating from
any additional rating agency or rating agencies selected by the
Company.
“ Maturity Date ”
shall have the meaning set forth in Section 2.02.
“ Moody’s ”
shall mean Moody’s Investors Service Inc.
“ Optional Redemption
Price ” shall have the meaning set forth in
Section 3.01.
“ Person ” has
the meaning set forth in the Base Indenture and includes a
“person” or “group” as these terms are used
in Section 13(d)(3) of the Exchange Act.
“ Quotation Agent
” means the Reference Treasury Dealer appointed by the
Company.
“ Rating Agency ”
shall mean (1) each of Moody’s and S&P; and
(2) if either of Moody’s or S&P ceases to rate the
Notes or fails to make a rating of the Notes publicly available for
reasons outside of the Company’s control, a “nationally
recognized statistical rating organization” within the
meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected
by the Company (as certified by a resolution of our Board of
Directors) as a replacement agency for Moody’s or S&P, or
both of them, as the case may be.
“ Rating Event ”
means the rating on the Notes is lowered by each of the Rating
Agencies and the Notes are rated below an Investment Grade Rating
by each of the Rating Agencies on any day within the 60-day period
(which 60-day period will be extended so long as the rating of the
Notes is under publicly announced consideration for a possible
downgrade by any of the Rating Agencies) after the earlier of
(1) the occurrence of a Change of Control and (2) public
notice of the occurrence of a Change of Control or the
Company’s intention to effect a Change of Control;
provided, however , that a Rating Event otherwise arising by
virtue of a particular reduction in rating will not be deemed to
have occurred in respect of a particular Change of Control (and
thus will not be deemed a Rating Event for purposes of the
definition of Change of Control Triggering Event) if the Rating
Agencies making the reduction in rating to which this definition
would otherwise apply do not announce or publicly confirm or inform
the Trustee in writing at the Company’s or its request that
the reduction was the result, in whole or in part, of any event or
circumstance comprised of or arising as a result of, or in respect
of, the applicable Change of Control (whether or not the applicable
Change of Control has occurred at the time of the Rating
Event).
“ Record Date ”
shall mean, with respect to any Interest Payment Date for the
Notes, the fifteenth calendar day, whether or not a Business Day,
of the month in which the Interest Payment Date falls.
“ Redemption Date
” shall mean, with respect to any redemption of Notes, the
date fixed for such redemption pursuant to the Indenture and such
Notes.
“ Reference Treasury
Dealer ” means (i) Deutsche Bank Securities Inc.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, BNP
Paribas Securities Corp., HSBC Securities (USA) Inc. and Wells
Fargo Securities, LLC (or their respective affiliates that are
Primary Treasury Dealers) and their respective successors;
provided , however , that if any of the foregoing
shall cease to be a primary U.S.
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Government securities dealer in the United
States of America (a “ Primary Treasury Dealer
”), the Company will substitute therefor another Primary
Treasury Dealer, and (ii) any other Primary Treasury Dealer
selected by the Company.
“ Reference Treasury Dealer
Quotations ” means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined
by the Company, 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 Company by the Reference
Treasury Dealer at 3:30 p.m., New York City time, on the third
Business Day preceding such Redemption Date.
“ S&P ” means
Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc.
“ Treasury Rate ”
means, with respect to any Redemption Date, the rate per annum
equal to the semiannual equivalent yield to maturity (or
interpolated yield to maturity on a day count basis) 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 of such Redemption
Date.
“ Voting Stock ”
means, with respect to any specified Person as of any date, the
capital stock of such Person that is at the time entitled to vote
generally in the election of the Board of Directors or similar
governing body of such Person.
The terms “ Company
,” “ Trustee ,” “ Indenture
,” “ Base Indenture ,” and “
Notes ” shall have the respective meanings set forth
in the recitals to this Supplemental Indenture and the paragraph
preceding such recitals.
ARTICLE 2
GENERAL TERMS AND CONDITIONS OF THE
NOTES
Section 2.01
Designation and Principal
Amount . The Notes may be issued from time to time upon written
order of the Company for the authentication and delivery of Notes
pursuant to Section 303 of the Base Indenture. There is hereby
authorized a series of Securities designated as the 2.300% Senior
Notes due 2016, limited in aggregate principal amount to U.S.
$500,000,000 (except upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 304,
305, 306, 906 or 1107 of the Base Indenture).
Section 2.02
Maturity. The date upon which
the Notes shall become due and payable at final maturity, together
with any accrued and unpaid interest, is June 23, 2016 (the
“ Maturity Date ”).
Section 2.03
Form, Payment and
Appointment. Except as provided in Section 2.04, the Notes
shall be issued in fully registered, certificated form. Principal
of and interest on the Notes will be payable, the transfer of such
Notes will be registrable, and such Notes will be exchangeable for
Notes of a like aggregate principal amount, at the office or agency
of the Company maintained for such purpose in Chicago, Illinois,
which shall initially be the principal office of the Trustee;
provided, however, that payment of interest may be made at the
option of the Company by check mailed to the Person entitled
thereto at such address as shall appear in the Security register or
by wire transfer to an account appropriately designated by the
Person entitled to payment; provided, that the Paying Agent shall
have received written notice of such account designation at least
five Business Days prior to the date of such payment (subject to
surrender of the relevant Note in the case of a payment of interest
on a Redemption Date or the Maturity Date).
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No service charge shall be made for
any registration of transfer or exchange of the Notes, but the
Company may require payment from the holder of a sum sufficient to
cover any tax or other governmental charge that may be imposed in
connection therewith.
The Security Registrar and Paying
Agent for the Notes shall initially be the Trustee.
The Notes shall be issuable in
denominations of U.S. $2,000 and integral multiples of U.S. $1,000
in excess thereof.
The specified currency of the Notes
shall be U.S. Dollars.
Section 2.04
Global Notes. The Notes shall
be issued initially in the form of a permanent Global Security in
registered form (a “ Global Note ”), deposited
with The Depository Trust Company or such other Depositary as any
officer of the Company may from time to time designate. Unless and
until such Global Note is exchanged for Notes in certificated form,
such Global Note may be transferred, in whole but not in part, and
any payments on the Notes shall be made only to the Depositary or a
nominee of the Depositary, or to a successor Depositary selected or
approved by the Company or to a nominee of such successor
Depositary.
Section 2.05
Interest. (a)
Interest payable on any Interest Payment Date, the Maturity Date
or, if applicable, the Redemption Date, with respect to the Notes
shall be the amount of interest accrued from, and including, the
immediately preceding Interest Payment Date in respect of which
interest has been paid or duly provided for (or from and including
the original issue date of June 23, 2011, if no interest has
previously been paid or duly provided for with respect to the
Notes) to, but excluding, such Interest Payment Date, Maturity Date
or, if applicable, Redemption Date, as the case may be (each, an
“ Interest Period ”).
(b) The Notes will bear interest at the rate of
2.300% per year from the original issue date thereof through
the Maturity Date. Interest on the Notes shall be payable
semi-annually in arrears on June 23 and December 23 of
each year (each, an “ Interest Payment Date ”),
commencing December 23, 2011, to the Persons in whose names
the relevant Notes are registered at the close of business on the
Record Date for such Interest Payment Date, except as provided in
Section 2.05(d).
(c) The amount of interest payable for any full
semi-annual Interest Period will be computed on the basis of a
360-day year consisting of twelve 30-day months. The amount of
interest payable for any period shorter than a full semi-annual
Interest Period for which interest is computed will be computed on
the basis of a 30-day month and, for any period less than a month,
on the basis of the actual number of days elapsed per 30-day month.
In the event that any scheduled Interest Payment Date for the Notes
falls on a day that is not a Business Day, then payment of interest
payable on such Interest Payment Date will be postponed to the next
succeeding day which is a Business Day (and no interest on such
payment will accrue for the period from and after such scheduled
Interest Payment Date).
(d) In the event that the Maturity Date or a
Redemption Date for any Note falls on a day that is not a Business
Day, then the related payments of principal, premium, if any, and
interest may be made on the next succeeding day that is a Business
Day (and no additional interest will accumulate on the amount
payable for the period from and after the Maturity Date or
Redemption Date, as applicable). Interest due on the Maturity Date
or a Redemption Date (in each case, whether or not an Interest
Payment Date) of any Notes will be paid to the Person to whom
principal of such Notes is payable.
Section 2.06
No Sinking Fund. The Notes
are not entitled to the benefit of any sinking fund.
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ARTICLE 3
REDEMPTION OF THE NOTES
Section 3.01
Optional Redemption by
Company. Except as otherwise may be specified in this
Supplemental Indenture, the Company shall have the right to redeem
the Notes, in whole or in part, at any time or from time to time,
at its option, at a redemption price (the “ Optional
Redemption Price ”) equal to the greater of:
(i) 100% of the principal amount of the Notes to be
redeemed; or
(ii) the sum of the present values of the remaining
scheduled payments of principal and interest thereon (not including
any portion of such payments of interest accrued as of the
Redemption Date), discounted to the Redemption Date on a semiannual
basis (assuming a 360-day year consisting of twelve 30-day months)
at the Treasury Rate, plus 15 basis points,
plus in each case accrued interest
thereon to, but excluding, the Redemption Date. Notwithstanding the
foregoing, installments of interest on Notes that are due and
payable on Interest Payment Dates falling on or prior to a
Redemption Date will be payable on the Interest Payment Date to the
registered holders as of the close of business on the relevant
Record Date.
The Company will cause the notice of
such redemption to be mailed to the registered holders of the Notes
to be redeemed not less than 30 nor more than 60 days prior to the
Redemption Date. If the Notes are only partially redeemed pursuant
to this Section 3.01, the Notes to be redeemed will be
selected by the Trustee in such manner as in its sole discretion it
shall deem appropriate and fair; provided , that if at the
time of redemption the Notes to be redeemed are registered as a
Global Note, the Depositary shall determine, in accordance with its
procedures, the principal amount of the Notes to be redeemed held
by each of its participants that holds a position in such Notes.
The Optional Redemption Price shall be paid prior to 12:00 noon,
New York City time, on the Redemption Date or at such later time as
is then permitted by the rules of the Depositary for the Notes (if
then registered as a Global Note); provided , that the
Company shall deposit with the Trustee an amount sufficient to pay
the Optional Redemption Price by 10:00 a.m., New York City time, on
the date such Optional Redemption Price is to be paid.
If money sufficient to pay the
redemption price of all of the Notes (or portions thereof) to be
redeemed on the Redemption Date is deposited with the Trustee or
Paying Agent on or before the Redemption Date as provided herein,
then on and after such Redemption Date, interest will cease to
accrue on such Notes (or such portion thereof) called for
redemption.
Section 3.02
Special Mandatory Redemption
. In the event that the Company does not consummate the Merger (as
defined in the Agreement and Plan of Merger, dated as of
February 6, 2011 (the “ Merger Agreement
”), among the Company, Djanet Acquisition Corp., a Delaware
corporation and an indirect wholly-owned subsidiary of the Company,
and Beckman Coulter, Inc.), on or prior to December 31, 2011,
or the Merger Agreement is terminated at any time prior thereto,
then the Company must redeem all of the Notes on the Special
Mandatory Redemption Date (as defined below) at a redemption price
(the “ Special Mandatory Redemption Price ”)
equal to 101% of the aggregate principal amount of the Notes
outstanding, plus accrued and unpaid interest from the most recent
Interest Payment Date to which interest has been paid or duly
provided for or, if no interest has been paid, from June 23,
2011 to, but excluding, the Special Mandatory Redemption
Date.
The “ Special Mandatory
Redemption Date ” means the earlier to occur of
(1) January 31, 2012, if the Merger has not been
completed on or prior to December 31, 2011, or (2) the
30th day (or if such day is not a Business Day, the first Business
Day thereafter) following the termination of the Merger
Agreement.
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The Company will cause the notice of
such Special Mandatory Redemption to be mailed, with a copy to the
Trustee, within five Business Days after the occurrence of the
event triggering such Special Mandatory Redemption to each holder
of Notes at its registered address. The Special Mandatory
Redemption Price shall be paid prior to 12:00 noon, New York City
time, on the Special Mandatory Redemption Date or at such later
time as is then permitted by the rules of the Depositary for the
Notes (if then registered as a Global Note); provided , that
the Company shall deposit with the Trustee an amount sufficient to
pay the Special Mandatory Redemption Price by 10:00 a.m., New York
City time, on the date such Special Mandatory Redemption Price is
to be paid.
If money sufficient to pay the
Special Mandatory Redemption Price of all of the Notes to be
redeemed on the Special Mandatory Redemption Date is deposited with
the Trustee or Paying Agent on or before the Special Mandatory
Redemption Date as provided herein, then on and after such Special
Mandatory Redemption Date, interest will cease to accrue on such
Notes (or such portion thereof) called for redemption.
Section 3.03
Change of Control Triggering
Event. If a Change of Control Triggering Event occurs, unless
the Company has exercised its right to redeem the Notes as
described in Section 3.01 or Section 3.02, holders of
Notes will have the right to require the Company to repurchase all
or any part (equal to $2,000 or an integral multiple of $1,000 in
excess thereof) of their Notes pursuant to the offer described
below (the “ Change of Control Offer ”) on the
terms set forth in the Notes. In the Change of Cont