6% Senior Notes due 2015 7% Senior Notes due 2019

Exhibit 4.1

BECKMAN COULTER, INC., as Issuer

and

WELLS FARGO BANK, NATIONAL ASSOCIATION, as Trustee

 

6% Senior Notes due 2015

7% Senior Notes due 2019

 

Third Supplemental Indenture

Dated as of May 21, 2009

to

Senior Indenture dated as of April 25, 2001

TABLE OF CONTENTS

 

 

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THIRD SUPPLEMENTAL INDENTURE, dated as of May 21, 2009 (“ Supplemental Indenture ”), to the Indenture dated as of April 25, 2001 (as amended, modified or supplemented from time to time in accordance therewith, other than with respect to a particular series of debt securities, the “ Base Indenture ” and, as amended, modified and supplemented by this Supplemental Indenture, the “ Indenture ”), by and among BECKMAN COULTER, INC. (the “ Company ”), and WELLS FARGO BANK, NATIONAL ASSOCIATION, as successor trustee (the “ 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 Notes:

WHEREAS, the Company has duly authorized the execution and delivery of the Base Indenture to provide for the issuance from time to time of senior debt securities to be issued in one or more series as provided in the Base Indenture;

WHEREAS, the Trustee was appointed as successor trustee under the Base Indenture pursuant to that certain Instrument of Resignation, Appointment and Acceptance, dated as of December 1, 2006, among the Company, Citibank, N.A. and the Trustee;

WHEREAS, the Company has duly authorized the execution and delivery, and desires and has requested the Trustee to join it in the execution and delivery, of this Supplemental Indenture in order to establish and provide for the issuance by the Company of a series of Securities designated as its 6% Senior Notes due 2015 (the “ 2015 Notes ”) and a series of Securities designated as its 7% Senior Notes due 2019 (the “ 2019 Notes ” and, together with the 2015 Notes, the “ Notes ”), on the terms set forth herein;

WHEREAS, Article IX of the Base Indenture provides that a supplemental indenture may be entered into by the parties for such purpose provided certain conditions are met;

WHEREAS, the conditions set forth in the Base Indenture for the execution and delivery of this Supplemental Indenture have been met; and

WHEREAS, all things necessary to make this Supplemental Indenture a valid agreement of the parties, in accordance with its terms, and a valid amendment of, and supplement to, the Base Indenture with respect to the Notes have been done;

NOW, THEREFORE:

ARTICLE 1

D EFINITIONS AND O THER P ROVISIONS OF G ENERAL A PPLICATION

Section 1.01 . Definitions. Capitalized terms used herein and not otherwise defined herein have the meanings assigned to them in the Base Indenture. The words “herein”, “hereof” and “hereby” and other words of similar import used in this Supplemental Indenture refer to this Supplemental Indenture as a whole and not to any particular section hereof.

As used herein, the following terms have the specified meanings:

“ 2015 Notes ” has the meaning specified in the recitals of this Supplemental Indenture.

“ 2019 Notes ” has the meaning specified in the recitals of this Supplemental Indenture.

“ Additional Notes ” has the meaning specified in Section 3.05 of this Supplemental Indenture.

“ Attributable Value ,” when used with respect to any sale and leaseback transaction means, as of the time of determination, the total obligation (discounted to present value at the interest rate assumed in making calculations in accordance with GAAP) of the lessee for rental payments (other than amounts required to be paid on account of property taxes as well as maintenance, repairs, insurance, water rates and other items which do not constitute payments for property rights) during the remaining portion of the base term of the lease included in such sale and leaseback transaction.

“ Base Indenture ” has the meaning specified in the recitals of this Supplemental Indenture.

“ Business Day ” means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which banking institutions in The City of New York are authorized or obligated by law or executive order to close or a day on which the Corporate Trust Office is authorized or obligated by law or executive order to close.

“ Capital Lease Obligation ” of any Person means, at the time any determination thereof is to be made, the amount of the liability in respect of a capital lease for property leased by such Person that would at such time be required to be capitalized on the balance sheet of such Person in accordance with GAAP.

“ Capital Stock ” of any Person means (1) in the case of a corporation, corporate stock; (2) in the case of an association, limited liability company or business entity, any and all Equity Interests; (3) in the case of a partnership,

 

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partnership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person, including any Preferred Stock.

“ 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” (as that term is used in Section 13(d)(3) of the Exchange Act) (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 a 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” (as that term is used in Section 13(d)(3) of the Exchange Act) (other than to the Company or one of its subsidiaries); (3) the Company consolidates with, or merges with or into, any “person” (as that term is used in Section 13(d) of the Exchange Act) or any such person consolidates with, or merges with or into, the Company, in either case, pursuant to a transaction in which any of the Company’s outstanding Voting Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities or other property, other than pursuant to a transaction in which shares of the Company’s Voting Stock outstanding immediately prior to the transaction constitute, or are converted into or exchanged for, a majority of the Voting Stock of the surviving person immediately after giving effect to such transaction; (4) the adoption of a plan relating to liquidation or dissolution of the Company; or (5) the first day on which a majority of the members of the Board of Directors are not Continuing Directors.

“ Change of Control Triggering Event ” means, with respect to a series of Notes, the occurrence of both (1) a Change of Control and (2) a Rating Event.

“ Company ” has the meaning specified in the recitals of this Supplemental Indenture.

“ Comparable Treasury Issue ” means the United States Treasury security or securities selected by a Quotation Agent as having an actual or interpolated maturity comparable to the remaining term 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 a comparable maturity to the remaining term of such Notes.

“ Comparable Treasury Price ” means, with respect to any Redemption Date pursuant to Section 4.01 hereof, (A) the arithmetic average of the Reference

 

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Treasury Dealer Quotations for such Redemption Date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Quotation Agent obtains fewer than four such Reference Treasury Dealer Quotations, the arithmetic average of all such quotations for such Redemption Date.

“ Consolidated Net Tangible Assets ” means the aggregate amount of assets (less applicable reserves and other properly deductible items) after deducting therefrom (1) all current liabilities (excluding any indebtedness for money borrowed having a maturity of less than 12 months from the date of the most recent consolidated balance sheet of the Company but which by its terms is renewable or extendable beyond 12 months from such date at the option of the borrower); and (2) all goodwill, trade names, patents, unamortized debt discount and expense and any other like intangibles, all as set forth on the most recent consolidated balance sheet of the Company and computed in accordance with GAAP.

“ Continuing Director ” means as of any date of determination, any member of the Board of Directors who (1) was a member of such Board of Directors on the date the Notes were initially issued, (2) was nominated for election to such Board of Directors with the approval of a committee of the Board of Directors consisting of a majority of independent Continuing Directors or (3) 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).

“ Depositary ” means The Depositary Trust Company.

“ Dollar ” means a dollar or other equivalent unit in such coin or currency of the United States as at the time shall be legal tender for the payment of public and private debt.

“ Equipment Held for Resale ” means any instrument systems and related accessories and components manufactured or assembled by or on behalf of the Company or any of its Subsidiaries that are owned by the Company or such Subsidiary and held for placement or placed (pursuant to leases, bailment arrangements or rental agreements) in facilities of the Company’s or such Subsidiary’s customers (including distributors, commission representatives, agents and their customers).

“ Equity Interest ” in any Person means any and all shares, interests, rights to purchase, warrants, options, participations or other equivalents of or interests in (however designated) corporate stock or other equity participations, including limited liability company interests, limited partnership interests, or other similar interest in such Person.

 

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“ Fair Market Value ” means, with respect to any asset or property, the sale value that would be obtained in an arm’s-length transaction between an informed and willing seller under no compulsion to sell and an informed and willing buyer under no compulsion to buy.

“ Fitch ” means Fitch Inc., a subsidiary of Fimalac, S.A., or any successor thereto.

“ GAAP ” means generally accepted accounting principles in the United States of America as in effect on the date of initial issuance of the Notes, including those set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as approved by a significant segment of the United States accounting profession.

“ Global Note ” means Notes that are Global Securities (as defined in the Base Indenture.

“ Guarantee ” means any obligation, contingent or otherwise, of any Person directly or indirectly guaranteeing any Indebtedness or other obligation of any other Person, and any obligation, direct or indirect, contingent or otherwise, of such Person (1) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation of such Person (whether arising by virtue of partnership arrangements, or by agreement to keep well, to purchase assets, goods, securities or services, to take-or-pay, or to maintain financial statement conditions or otherwise); or (2) entered into for purposes of assuring in any other manner the obligee of such Indebtedness or other obligation of the payment thereof or to protect such obligee against loss in respect thereof (in whole or in part), provided , however, that the term “Guarantee” shall not include endorsements for collection or deposit in the ordinary course of business. The term “Guarantee” used as a verb has a corresponding meaning.

“ Hedging Obligations ” means, with respect to any Person, the obligations of such Person under (1) interest rate swap agreements (whether from fixed to floating or from floating to fixed), interest rate cap agreements and interest rate collar agreements; (2) other agreements or arrangements designed to manage interest rates or interest rate risk; (3) other agreements or arrangements designed to protect such Person against fluctuations in currency exchange rates or commodity prices; and (4) other agreements or arrangements designed to protect such Person against fluctuations in equity prices.

 

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“ Indebtedness ” means, with respect to any Person, without duplication, and whether or not contingent (1) all indebtedness of such Person for borrowed money or which is evidenced by a note, bond, debenture or similar instrument; (2) all obligations of such Person to pay the deferred or unpaid purchase price of property or services, which purchase price is due more than one year after the date of placing such property in service or taking delivery and title thereto or the completion of such service; (3) all Capital Lease Obligations of such Person; (4) all obligations of such Person in respect of letters of credit or bankers’ acceptances issued or created for the account of such Person; (5) to the extent not otherwise included in this definition, all net obligations of such Person under all Hedging Obligations of such Person; (6) all liabilities of others of the kind described in the preceding clause (1), (2) or (3) secured by any Lien on any property owned by such Person even if such Person has not assumed or otherwise become liable for the payment thereof, to the extent of the value of the property subject to such Lien; and (7) to the extent not otherwise included, any Guarantee by such Person of any other Person’s indebtedness or other obligations described in clauses (1) through (6) above. “Indebtedness” of the Company and its Subsidiaries shall not include (1) current trade payables incurred in the ordinary course of business and payable in accordance with customary practices; and (2) non-interest bearing installment obligations and accrued liabilities incurred in the ordinary course of business which are not more than 90 days past due.

“ Initial 2015 Notes ” has the meaning set forth in Section 3.01(b).

“ Initial 2019 Notes ” has the meaning set forth in Section 3.01(b).

“ Initial Notes ” has the meaning set forth in Section 3.01(b).

“ Interest Payment Date ” has the meaning set forth in Section 3.01(d).

“ Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s, BBB- (or the equivalent) by S&P or BBB- (or the equivalent) by Fitch, or, if applicable, the equivalent investment grade credit rating from any Substitute Rating Agency selected by the Company.

“ Lien ” means, with respect to any property or assets, any mortgage or deed of trust, pledge, hypothecation, assignment, security interest, lien, encumbrance, 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).

“ Master Purchase Agreement ” means the master purchase agreement dated as of February 27, 2009, between Olympus Corporation, as the seller, and the Company, as the purchaser, as amended from time to time.

 

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“ Moody’s ” means Moody’s Investors Service, Inc., or any successor thereto.

“ Notes ” has the meaning specified in the recitals of this Supplemental Indenture.

“ Preferred Stock ” as applied to the Capital Stock of any Person, means Capital Stock of any class or classes (however designated) which is preferred as to the payment of dividends or distributions, or as to the distribution of assets upon any voluntary or involuntary liquidation or dissolution of such Person, over Capital Stock of any other class of such Person.

“ Primary Treasury Dealer ” means a primary U.S. Government securities dealer in The City of New York.

“ Property ” means any property or asset, whether real, personal or mixed, or tangible or intangible, including shares of Capital Stock.

“ Quotation Agent ” means one of the Reference Treasury Dealers appointed by the Company; provided , however, that if such Reference Treasury Dealer ceases to be a Primary Treasury Dealer, the Company will substitute another Primary Treasury Dealer.

“ Rating Agencies ” means (1) each of Moody’s, S&P and Fitch and (2) if any of Moody’s, S&P or Fitch 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 Substitute Rating Agency in lieu thereof.

“ Rating Event ” means, with respect to a series of Notes, the rating on such Notes is lowered independently by at least two of the three Rating Agencies and the Notes are rated below an Investment Grade Rating by at least two of the three Rating Agencies on any day during the period commencing 60 days prior to the first public notice of the occurrence of a Change of Control or the Company’s intention to effect a Change of Control and ending 60 days following consummation of such Change of Control (which 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).

“ Redemption Date ,” when used with respect to any Note, means the date specified for redemption by the Company.

“ Redemption Price ” means, when used with respect to any Note to be redeemed, the price at which it is to be redeemed pursuant to this Supplemental Indenture.

“ Reference Treasury Dealer ” means any of Citigroup Global Markets Inc., J.P. Morgan Securities Inc., Morgan Stanley & Co. Incorporated or their

 

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respective affiliates, which are primary U.S. Government securities dealers in The City of New York, and their respective successors plus one other primary U.S. Government securities dealer in The City of New York selected by the Company; provided , however, that if any of the foregoing or their affiliates shall cease to be a Primary Treasury Dealer, the Company will substitute therefor another Primary Treasury Dealer.

“ Reference Treasury Dealer Quotations ” means, with respect to each Reference Treasury Dealer and any Redemption Date, the arithmetic average, as determined by the Quotation Agent, 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 Quotation Agent by such Reference Treasury Dealer at 3:30 p.m. New York City time on the third Business Day preceding such Redemption Date.

“ Regular Record Date ” has the meaning set forth in Section 3.01(d).

“ S&P ” means Standard & Poor’s Rating Services, a division of The McGraw-Hill Companies, Inc. or any successor thereto.

“ Significant Subsidiary ” means each Subsidiary of the Company that is a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X under the Securities Act.

“ Special Mandatory Redemption Date ” means the earlier to occur of (1) January 30, 2010 if the proposed acquisition of the diagnostic systems portion of Olympus Corporation’s life sciences business has not been completed on or prior to January 30, 2010 or (2) the 30th day (or if such day is not a Business Day, the first Business Day thereafter) following the termination of the Master Purchase Agreement.

“ Special Mandatory Redemption Price ” means 101% of the aggregate principal amount of the Notes together with accrued and unpaid interest, if any, from the date of initial issuance to, but not including, the Special Mandatory Redemption Date.

“ Stated Maturity ” means, when used with respect to any security, the date specified in such security as the fixed date on which the payment of principal of such security is due and payable, including pursuant to any mandatory redemption provision.

“ Subsidiary ” of a Person means a Person more than 50% of the outstanding Voting Stock or other Equity Interests of which is owned, directly or indirectly, by the Company or by one or more other Subsidiaries, or by the Company and one or more other Subsidiaries.

 

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“ Substitute Rating Agency ” means a “nationally recognized statistical rating organization” within the meaning of Rule l5c3-l(c)(2)(vi)(F) under the Exchange Act selected by the Company (as certified by a resolution of the Board of Directors) and that is reasonably acceptable to the Trustee as a replacement agency for one or more of Moody’s, S&P, or Fitch, as the case may be.

“ Supplemental Indenture ” has the meaning specified in the recitals of this Supplemental Indenture.

“ Treasury Rate ” means, with respect to any Redemption Date pursuant to Section 4.01 hereof, 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 for such Redemption Date.

“ Voting Stock ” means, with respect to any specified “person” (as that term is used in Section 13(d) of the Exchange Act) 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 of such person.

Section 1.02 . Conflicts with Base Indenture. In the event that any provision of this Supplemental Indenture limits, qualifies or conflicts with a provision of the Base Indenture, such provision of this Supplemental Indenture shall control.

ARTICLE 2

F ORM OF N OTES

Section 2.01 . Form of Notes. The Notes shall be substantially in the forms of Exhibit A-1 and Exhibit A-2 hereto which are hereby incorporated in and expressly made a part of this Indenture.

ARTICLE 3

T HE N OTES

Section 3.01 . Amount; Series; Terms. (a)   There is hereby created and designated two series of Securities under the Base Indenture: the title of the 2015 Notes shall be “6% Senior Notes Due 2015” and the title of the 2019 Notes shall be “7% Senior Notes Due 2019.” The changes, modifications and supplements to the Base Indenture effected by this Supplemental Indenture shall be applicable only with respect to, and govern the terms of, the Notes and shall not apply to any other series of Securities that may be issued under the Base Indenture unless a supplemental indenture with respect to such other series of Securities specifically incorporates such changes, modifications and supplements.

 

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(b) The aggregate principal amount of 2015 Notes that initially may be authenticated and delivered under this Supplemental Indenture (the “Initial 2015 Notes” ) shall be limited to $250,000,000, and the aggregate principal amount of 2019 Notes that initially may be authenticated and delivered under this Supplemental Indenture (the “ Initial 2019 Notes ” and together with the Initial 2015 Notes, the “ Initial Notes ”) shall be limited to $250,000,000 subject, in each case, to increase as set forth in Section 3.05.

(c) The Stated Maturity of the 2015 Notes shall be June 1, 2015, and the Stated Maturity of the 2019 Notes shall be June 1, 2019. The Notes shall be payable and may be presented for payment, purchase, redemption, registration of transfer and exchange, without service charge, at the office of the Company maintained for such purpose in Minneapolis, Minnesota, which shall initially be the office or agency of the Trustee.

(d) The 2015 Notes shall bear interest at the rate of 6% per annum, and the 2019 Notes shall bear interest at the rate of 7% per annum, in each case from May 21, 2009 or from the most recent date to which interest has been paid or duly provided for, as further provided in the forms of Note annexed hereto as Exhibit A-1 and Exhibit A-2, respectively. Interest shall be computed on the basis of a 360-day year composed of twelve 30-day months. The dates on which such interest shall be payable (each, an “ Interest Payment Date ”) shall be June 1 and December 1 of each year, beginning on December 1, 2009, and the “ Regular Record Date ” for any interest payable on each such Interest Payment Date shall be the immediately preceding May 15 and November 15, respectively. If any Interest Payment Date or the Stated Maturity of the Notes is not a Business Day, then the related payment of interest or principal payable, as applicable, on such date will be paid on the next succeeding Business Day with the same force and effect as if made on such Interest Payment Date or Stated Maturity and no further interest will accrue as a result of such delay.

(e) The Notes of each series will be issued in the form of one or more Global Securities, deposited with the Trustee as custodian for the Depositary or its nominee, duly executed by the Company and authenticated by the Trustee as provided in Section 3.03 and the Base Indenture.

Section 3.02 . Denominations. The Notes of each series shall be issuable only in registered form without coupons and only in denominations of $2,000 and any multiple of $1,000 in excess thereof.

Section 3.03 . Execution, Authentication, Delivery and Dating. The Notes shall be executed on behalf of the Company by its Chairman of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its President, its Chief Financial Officer or one of its Vice Presidents, and attested by its Secretary or one of its Assistant Secretaries. The signature of any of these officers on the Notes may be manual or facsimile.

 

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Notes bearing the manual or facsimile signatures of individuals who were at any time the proper officers of the Company shall bind the Company, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.

On Company Order, the Trustee shall authenticate for original issue Notes in an aggregate principal amount specified in the Company Order. The Trustee shall be entitled to receive an Officer’s Certificate and an Opinion of Counsel of the Company that it may reasonably request in connection with such authentication of Notes. Such Company Order shall specify the amount of Notes to be authenticated and the date on which the original issue of Notes is to be authenticated.

Each Note shall be dated the date of its authentication.

No Note shall be entitled to any benefit under this Indenture or be valid or obligatory for any purpose unless there appears on such Note a certificate of authentication substantially in the form provided for in the Base Indenture executed by the Trustee by manual signature, and such certificate upon any Note shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.

Section 3.04 . Book-entry Provisions for Global Securities. (a) Each Global Security initially shall (i) be registered in the name of the Depositary for such Global Securities or the nominee of such Depositary, (ii) be delivered to the Trustee as custodian for such Depositary and (iii) bear legends as set forth in Section 204 of the Base Indenture.

Members of, or participants in, the Depositary (“ Agent Members ”) shall have no rights under this Indenture with respect to any Global Security, and the Depositary may be treated by the Company, the Trustee and any agent of the Company or the Trustee as the absolute owner of such Global Security for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Company, the Trustee or any agent of the Company or the Trustee from giving effect to any written certification, proxy or other authorization furnished by the Depositary or impair, as between the Depositary and its Agent Members, the operation of customary practices governing the exercise of the rights of a beneficial owner of any Security. The registered holder of a Global Security may grant proxies and otherwise authorize any person, including Agent Members and persons that may hold interests through Agent Members, to take any action which a Holder is entitled to take under this Indenture or the Global Securities.

(b) Transfers of a Global Security shall be limited to transfers of such Global Security in whole, but not in part, to the Depositary, its successors or their respective Nominees. Interests of beneficial owners in a Global Security may be

 

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transferred or exchanged for physical Notes in accordance with the applicable rules and procedures of the Depositary and the provisions of Sections 305 of the Base Indenture.

(c) In connection with any transfer or exchange of a portion of the beneficial interest in any Global Security to beneficial owners for physical Notes pursuant to paragraph (b), the Security Registrar shall record on its books and records the date and a decrease in the principal amount of such Global Security in an amount equal to the beneficial interest in the Global Security being transferred, and the Company shall execute, and the Trustee shall authenticate and deliver, one or more physical Notes of like tenor and principal amount of authorized denominations.

(d) In connection with a transfer of an entire Global Security to beneficial owners pursuant to paragraph (b), the applicable Global Security shall be deemed to be surrendered to the Trustee for cancellation, and the Company shall execute, and the Trustee shall authenticate and deliver, to each beneficial owner identified by the Depositary in exchange for its beneficial interest in the applicable Global Security, an equal aggregate principal amount at maturity of physical Notes of the same series of authorized denominations.

(e) Any beneficial interest in one of the Global Securities that is transferred to a Person who takes delivery in the form of an interest in the other Global Security will, upon transfer, cease to be an interest in such Global Security and become an interest in the other Global Security and, accordingly, will thereafter be subject to all transfer restrictions, if any, and other procedures applicable to beneficial interests in such other Global Security for as long as it remains such an interest.

Section 3.05 . Additional Notes. The Company may, from time to time, subject to compliance with any other applicable provisions of this Indenture, without the consent of the Holders of the Notes, create and issue pursuant to this Indenture additional Notes (“ Additional Notes ”) having terms and conditions set forth in Exhibit A-1 or Exhibit A-2, as applicable, identical to those of the other Notes of such series, except that Additional Notes of a series:

(i) may have a different issue date from other Outstanding Notes;

(ii) may have a different issue price from other Outstanding Notes of such series;

(iii) may have a different amount of interest payable on the first Interest Payment Date after issuance than is payable on other Outstanding Notes of such series; and

 

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(iv) may have terms specified in the Board Resolution or supplemental indenture for such Additional Notes making appropriate adjustments to this Article 3 and Exhibit A-1 or Exhibit A-2 (and related definitions), as applicable, in order to conform to and ensure compliance with the Securities Act (or other applicable securities laws).

No Additional Notes of a series shall be issued, however, unless such Additional Notes will be fungible for U.S. federal income tax purposes with Notes of such series issued on the date hereof.

ARTICLE 4

R EDEMPTION OF S ECURITIES

Section 4.01 . Optional Redemption. (a)   Subject to Section 1.02 hereof, the provisions of Article XI of the Base Indenture, as supplemented by the provisions of this Supplemental Indenture, shall apply to the Notes.

(b) At any time and from time to time, the Notes of either series shall be redeemable, as a whole or in part, at the Company’s option, on at least 30 days, but not more than 60 days, prior notice mailed to the registered address of each Holder of the Notes to be redeemed, at a Redemption Price equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed, or (ii) as determined by the Quotation Agent, the sum of the present values of the remaining scheduled payments of interest and principal thereon (exclusive of interest accrued and unpaid to, but not including, 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 50 basis points, in the case of the 2015 Notes, and 50 basis points, in the case of the 2019 Notes, plus, in either case, accrued and unpaid interest to, but not including, the Redemption Date for such Notes.

(c) On and after the Redemption Date for a series of Notes, interest will cease to accrue on such Notes or any portion thereof called for redemption, unless the Company defaults in the payment of the Redemption Price and accrued interest, if any. On or before the Redemption Date for the Notes, the Company shall deposit with the Trustee or a Paying Agent, funds sufficient to pay the Redemption Price of the Notes to be redeemed on the Redemption Date, and (except if the Redemption Date shall be an Interest Payment Date) accrued interest, if any. If less than all of the Notes of a series are to be redeemed, the Depositary shall select the Notes to be redeemed in accordance with its operational arrangements. If the Notes are not Global Notes held by the Depositary, the Notes to be redeemed shall be selected by the Trustee by such method as the Trustee deems fair and appropriate; provided , however that in no event, shall Notes of a principal amount of $2,000 or less be redeemed in part.

 

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(d) Notice of any redemption shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of the Notes to be redeemed; provided , however, that if the Trustee is asked to give such notice it shall be notified in writing of such request at least 15 days prior to the date of the giving of such notice (unless a shorter notice shall be satisfactory to the Trustee). Such notice shall state the Redemption Price (if known) or the formula pursuant to which the Redemption Price is to be determined if the Redemption Price cannot be determined at the time the notice is given. If the Redemption Price cannot be determined at the time such notice is to be given, the actual Redemption Price, calculated as described above in clause (b), shall be set forth in an Officer’s Certificate of the Company delivered to the Trustee no later than two Business Days prior to the Redemption Date. Notice of redemption having been given as provided in the Indenture, the Notes called for redemption shall become due and payable on the Redemption Date and at the applicable Redemption Price, plus accrued and unpaid interest, if any, to, but not including, the Redemption Date.

Section 4.02 . Special Mandatory Redemption. If, for any reason, (i) the Company’s proposed acquisition of the diagnostic systems portion of Olympus Corporation’s life sciences business is not consummated on or prior to January 30, 2010 or (ii) the Master Purchase Agreement is terminated on or prior to January 30, 2010, the Company shall redeem all of the Outstanding Notes on the Special Mandatory Redemption Date at the Special Mandatory Redemption Price. Notice of a special mandatory redemption will be mailed promptly after the occurrence of the event triggering such redemption to the registered address of each Holder of Notes. If funds sufficient to pay the Special Mandatory Redemption Price of all of the Notes to be redeemed on the Special Mandatory Redemption Date are deposited with a Paying Agent or the Trustee on or before such Special Mandatory Redemption Date, on and after such Special Mandatory Redemption Date, the Notes will cease to bear interest and, other than the right to receive the Special Mandatory Redemption Price, all rights under the Notes shall terminate.

Section 4.03 . Repurchase of Notes Upon a Change of Control. (a) If a Change of Control Triggering Event occurs with respect to a series of Notes, unless (i) the Company shall have exercised its option to redeem such Notes as described in Section 4.01 of this Supplemental Indenture or (ii) the Company shall have mailed notice of a special mandatory redemption pursuant to Section 4.02 hereof, the Company shall be required to make an offer (the “Change of Control Offer” ) to each Holder of such Notes to repurchase all or any part (equal to $2,000 or any multiple of $1,000 in excess thereof) of that Holder’s Notes of such series on the terms set forth in this Section 4.03 and in the Notes. In the Change of Control Offer, the Company shall 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 up to, but not including, the date of repurchase (the “Change of Control Payment” ). Within 30 days following any Change of Control Triggering Event with respect to a

 

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series of Notes or, at the option of the Company, prior to any Change of Control, but after the public announcement of the transaction that constitutes or may constitute the Change of Control, the Company shall mail a notice to Holders of Notes describing the transaction that constitutes or may constitute the Change of Control Triggering Event and offering to repurchase such Notes on the date specified in the notice, which date shall be no earlier than 30 days and no later than 60 days from the date such notice is mailed or, if the notice is mailed prior to the Change of Control, no earlier than 30 days and no later than 60 days from the date on which the Change of Control Triggering Event occurs (the “ Change of Control Payment Date ”). The notice shall, if mailed prior to the date of consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. On the Change of Control Payment Date, the Company shall, to the extent lawful:

(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;

(ii) deposit with the Paying Agent an amount equal to the Change of Control Payment in respect of all Notes or portions of Notes properly tendered; and

(iii) deliver or cause to be delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased.

The Company shall publicly announce the results of the Change of Control Offer on or as soon as possible after the date of purchase.

(c) The Company shall not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and the third party purchases all Notes properly tendered and not withdrawn under its offer. In addition, the Company shall not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than an Event of Default arising as a result of a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

(d) The Company shall comply in all material respects with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent such laws and regulations are applicable in connection with the repurchase of the Notes as a result of a Change of Control Triggering Event. To the extent that the provisions of any such securities laws or regulations conflict with the Change of Control Offer provisions of the Notes, the

 

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Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the Change of Control Offer provisions of the Notes by virtue of any suc