Exhibit 4.1
EXECUTION COPY
DANAHER
CORPORATION
AND
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
SUPPLEMENTAL
INDENTURE
Floating Rate Senior Notes Due
2013
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 Floating Rate Senior Notes due 2013 (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; provided , that
with respect to any Interest Payment Date, any Interest
Determination Date and any Interest Reset Date, that day is also a
London Business Day.
“ Calculation Agent
” shall mean The Bank of New York Mellon Trust Company, N.A.,
or its successor appointed as such by the Company.
“ 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 3.02.
“ Change of Control
Payment ” shall have the meaning set forth in
Section 3.02.
“ Change of Control Payment
Date ” shall have the meaning set forth in
Section 3.02.
“ Change of Control
Triggering Event ” shall mean the occurrence of both a
Change of Control and a Rating Event.
“ 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).
“ Exchange Act ”
shall mean the Securities Exchange Act of 1934, as
amended.
“ Global Note ”
shall have the meaning set forth in Section 2.04.
“ Index Maturity
” shall mean three months.
“ Initial Interest
Period ” shall have the meaning set forth in
Section 2.05(c).
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“ Interest Determination
Date ” shall mean the second Business Day immediately
preceding either (i) the original issue date of the Notes, in
the case of the Initial Interest Period, or thereafter
(ii) the applicable Interest Reset Date.
“ Interest Payment Date
” shall have the meaning set forth in
Section 2.05(b).
“ Interest Reset Date
” shall have the meaning set forth in
Section 2.05(c).
“ Interest Reset Period
” shall have the meaning set forth in
Section 2.05(c).
“ 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.
“ LIBOR Currency
” shall mean U.S. dollars.
“ London Business Day
” shall mean any calendar day on which commercial banks are
open for business (transacting dealings in U.S. dollars) in
London.
“ Maturity Date ”
shall have the meaning set forth in Section 2.02.
“ Moody’s ”
shall mean Moody’s Investors Service Inc.
“ 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.
“ 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.
“ Reuters Page LIBOR01
” shall have the meaning set forth in
Section 2.05(c).
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“ S&P ” means
Standard & Poor’s Rating Services, a division of The
McGraw-Hill Companies, Inc.
“ 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 Floating Rate Senior Notes due 2013,
limited in aggregate principal amount to U.S. $300,000,000 (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 21, 2013 (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 Special Mandatory Redemption Date or the Maturity
Date).
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
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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
Special Mandatory 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, Special Mandatory Redemption Date, as the case
may be (each, an “ Interest Period
”).
(b) Interest on the Notes shall be payable quarterly
in arrears on
March 21, June 21, September 21 and
December 21 of each year (each, an “ Interest Payment
Date ”), commencing September 21, 2011, through the
Maturity Date, 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 or
partial Interest Period will be computed on the basis of the actual
number of days elapsed during such Interest Period divided by 360.
In the event that any scheduled Interest Payment Date (other than
the Maturity Date) for the Notes falls on a day that is not a
Business Day, such Interest Payment Date will be postponed to the
next succeeding day which is a Business Day except that if such
Business Day is in the next succeeding calendar month, the Interest
Payment Date shall be the immediately preceding Business
Day.
(i) The interest rate on the Notes shall be reset
quarterly on
March 21, June 21, September 21 and
December 21 of each year, commencing September 21, 2011
(each, an “ Interest Reset Date ”). The interest
rate on the Notes for the period from and including the original
issue date of the Notes to, but excluding, the initial Interest
Reset Date (the “ Initial Interest Period ”)
will be three-month LIBOR (as computed below), determined as of the
Interest Determination Date prior to such original issue date, plus
0.25% per year. Thereafter, the Notes will bear interest at an
annual rate equal to three-month LIBOR (as computed below) for the
period from and including an Interest Reset Date to, but excluding,
the immediately succeeding Interest Reset Date (each an
“Interest Reset Period”), plus 0.25% per year. The
final Interest Reset Period for the Notes will be the period from
and including the Interest Reset Date immediately preceding the
Maturity Date of the Notes to, but excluding, such Maturity
Date.
(ii) If any Interest Reset Date for the Notes would
otherwise be a day that is not a Business Day, the Interest Reset
Date will be postponed to the next succeeding day that is a
Business Day, except that if that Business Day is in the next
succeeding calendar month, the Interest Reset Date shall be the
immediately preceding Business Day.
(iii) Three-month LIBOR will be determined by the
Calculation Agent as of the applicable Interest Determination Date
in accordance with the following provisions:
(i) LIBOR will be determined on the basis of the
offered rates for deposits in the LIBOR Currency having the Index
Maturity, commencing on the original issue date of the Notes or the
related Interest Reset Date, as applicable, immediately following
such Interest Determination Date, which appears on Reuters page
LIBOR01 (or any other page as may replace such page on such service
for the purpose of displaying the London interbank rates of major
banks for the designated LIBOR Currency) (“ Reuters
Page LIBOR01 ”) as of approximately 11:00 a.m.,
London time, on such Interest Determination Date; and
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(ii) If LIBOR cannot be determined in accordance with
the provisions of paragraph (i) above, the Calculation Agent
shall request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the
Calculation Agent to provide the Calculation Agent with its offered
quotation for deposits in the designated LIBOR Currency for the
period of the Index Maturity, commencing on the related Interest
Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount that is representative
for a single transaction in the designated LIBOR Currency in such
market at such time. If at least two such quotations are so
provided, then LIBOR on such Interest Determination Date will be
the arithmetic mean calculated by the Calculation Agent of such
quotations. If fewer than two such quotations are so provided, then
LIBOR on such Interest Determination Date will be the arithmetic
mean calculated by the Calculation Agent of the rates quoted at
approximately 11:00 A.M., in New York City, on such Interest
Determination Date by three major banks in New York City selected
by the Calculation Agent for loans in the designated LIBOR Currency
to leading European banks, having the Index Maturity and in a
principal amount that is representative for a single transaction in
the designated LIBOR Currency in such market at such time;
provided, however, that if the banks so selected by the Calculation
Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such Interest Determination Date shall be LIBOR in
effect on such Interest Determination Date.
(iv) All percentages resulting from any calculation
of any interest rate for the Notes will be rounded, if necessary,
to the nearest one hundred thousandth of a percentage point, with
five one-millionths of a percentage point rounded upward and all
dollar amounts will be rounded to the nearest cent, with one-half
cent being rounded upward.
(v) Promptly upon such determination, the
Calculation Agent will notify the Company and the Trustee (if the
Calculation Agent is not the Trustee) of the interest rate for the
new Interest Reset Period. Upon request of a holder of the Notes,
the Calculation Agent will provide to such holder the interest rate
in effect on the date of such request and, if determined, the
interest rate for the next Interest Reset Period.
(vi) All calculations made by the Calculation Agent
for the purposes of calculating interest on the Notes shall be
conclusive and binding on the holders of the Notes, the Trustee and
the Company, absent manifest error.
(d) In the event that the Maturity Date or a Special
Mandatory 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
Special Mandatory Redemption Date, as applicable). Interest due on
the Maturity Date or a Special Mandatory 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
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.
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 3.02
Change of Control Triggering
Event. If a Change of
Control Triggering Event occurs, unless the Company has redeemed
the Notes as described in Section 3.01, 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 Control Offer, the Company
will be required to offer payment in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and
unpaid interest, if any, on the Notes repurchased to the date of
purchase (the “ Change of Control Payment ”).
Within 30 days following any Change of Control Triggering Event,
or, at the Company’s option, prior to the date of the
consummation of any Change of Control, but after public
announcement of the transaction that constitutes or may constitute
the Change of Control, the Company will be required to mail a
notice to holders of Notes, with a copy to the Trustee, describing
the transaction or transactions that constitute or may constitute
the Change of Control Triggering Event and offering to repurchase
the Notes on the date specified in the notice, which date will be
no earlier than 30 days and no later than 60 days from the date
such notice is mailed (the “ Change of Control Payment
Date ”), pursuant to the proce