Exhibit 4.1
Execution Copy
DANAHER
CORPORATION
AND
THE BANK OF NEW YORK MELLON TRUST
COMPANY, N.A.,
as Trustee
SUPPLEMENTAL
INDENTURE
Dated as of March 5,
2009
THIS SUPPLEMENTAL INDENTURE (this
“ Supplemental Indenture “), dated as of
March 5, 2009, 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 5.40% Senior Notes due 2019 (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 3.02.
“ 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.
“ 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 immediately preceding 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) Banc of America Securities LLC,
Deutsche Bank Securities Inc. and Goldman, Sachs & Co. (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
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a primary U.S. 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 (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 5.40% Senior Notes due 2019, limited
in aggregate principal amount to U.S. $750,000,000 (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 March 1, 2019 (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
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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).
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
March 5, 2009, if no interest has 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
5.40% per year from the original issue date thereof through
and including the Maturity Date. Interest on the Notes shall be
payable semi-annually in arrears on March 1 and
September 1 of each year (each, an “ Interest Payment
Date ”), commencing September 1, 2009, 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). Interest
due on the Maturity Date or a
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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.
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 40 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 mail notice of such
redemption 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 and certain other
conditions are satisfied, 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
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,
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