As filed with the Securities and Exchange Commission on February 21, 2002
Registration No. 333-______
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
DANAHER CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 59-1995548
(State or other jurisdiction of incorporation or (I.R.S. Employer
organization) Identification No.)
2099 Pennsylvania Avenue, N.W., 12th Floor
Washington, D.C. 20006-1813
(202) 828-0850
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
Patrick W. Allender
Executive Vice President, Chief Financial Officer and Secretary
2099 Pennsylvania Avenue, N.W., 12th Floor
Washington, D.C. 20006-1813
(202) 828-0850
(Name, address, including zip code, and telephone number, including area code,
of agent for service of process)
With a copy to:
Meredith B. Cross
Wilmer, Cutler & Pickering
2445 Street, N.W.
Washington, D.C. 20037
(202) 663-6000
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this registration statement as determined by
market conditions and other factors.
If the only securities being registered on this form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box: [_]
If any of the securities being registered on this form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933 other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
CALCULATION OF REGISTRATION FEE
Proposed maximum Proposed maximum
Title of each class of Amount to be offering price aggregate Amount of
securities to be registered registered per unit(1) offering price(2) registration fee
---------------------------------------------------------------------------------------------------------------------------------
Debt Securities (4) (11)
Common Stock (5) (11) ..................... (3) (3) (3) (3)
Preferred Stock (6) (11) ..................
Depositary Shares (7) (11) ................
Warrants (8) (11) .........................
Stock Purchase Contracts (9) (11) .........
Stock Purchase Units (10) (11) ............
Total................................ $1,000,000,000(12) 100% $1,000,000,000(12) $92,000(12)(13)
___________________
(1) The proposed maximum offering price per unit will be determined from time
to time by the registrant in connection with the issuance by the registrant
of the securities registered hereunder.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o).
(3) Not specified as to each class of securities to be registered pursuant to
General Instruction II.D. to Form S-3.
(4) Subject to note (12) below, there is being registered an indeterminate
principal amount of debt securities.
(5) Subject to note (12) below, there is being registered an indeterminate
number of shares of common stock.
(6) Subject to note (12) below, there is being registered an indeterminate
number of shares of preferred stock.
(7) Subject to note (12) below, there is being registered an indeterminate
number of depositary shares to be evidenced by depositary receipts issued
pursuant to a deposit agreement. If the registrant elects to offer to the
public fractional interests in shares of preferred stock, then depositary
receipts will be distributed to those persons purchasing the fractional
interests and the shares will be issued to the depositary under the deposit
agreement.
(8) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of warrants, representing rights to
purchase debt securities, preferred stock or common stock.
(9) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of stock purchase contracts, representing
obligations to purchase preferred stock, depositary shares, common stock or
other securities.
(10) Subject to note (12) below, there is being registered hereunder an
indeterminate amount and number of stock purchase units, consisting of
stock purchase contracts together with debt securities, preferred stock,
warrants or debt obligations of third parties securing the holders'
obligations to purchase the securities under the stock purchase contracts.
(11) Subject to note (12) below, this Registration Statement also covers such
indeterminate amount of securities as may be issued in exchange for, or
upon conversion or exercise of, as the case may be, the debt securities,
preferred stock, depositary shares or warrants registered hereunder and
such indeterminate amount of securities as may be issued upon settlement of
the stock purchase contracts or stock purchase units registered hereunder.
No separate consideration will be received for any securities registered
hereunder that are issued in exchange for, or upon conversion of, as the
case may be, the debt securities, preferred stock, depositary shares or
warrants.
(12) In no event will the aggregate initial offering price of all securities
issued from time to time pursuant to this Registration Statement exceed
$1,000,000,000 or the equivalent thereof in one or more foreign currencies,
foreign currency units or composite currencies. Such amount represents the
offering price of any preferred stock, common stock and depositary shares,
the principal amount of any debt securities issued at their stated
principal amount, the issue price rather than the principal amount of any
debt securities issued at an original issue discount, the issue price of
any warrants, the exercise price of any securities issuable upon the
exercise of warrants, and the issue price of any securities issued upon
settlement of the stock purchase contracts or stock purchase units. The
aggregate principal amount of the debt securities may be increased if any
debt securities are issued at an original issue discount by an amount such
that the offering price to be received by the registrant shall be equal to
the above amount to be registered. Any offering of securities denominated
other than in U.S. dollars will be treated as the equivalent of U.S.
dollars based on the exchange rate applicable to the purchase of such
securities at the time of initial offering. Any securities registered
hereunder may be sold separately or as units with other securities
registered hereunder.
(13) Calculated pursuant to Rule 457(o) at the statutory rate of $92 per
$1,000,000 of securities registered.
The Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall file
a further amendment which specifically states that this Registration Statement
shall thereafter become effective in accordance with Section 8(a) of the
Securities Act of 1933, or until the Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to completion, dated February 21, 2002
PROSPECTUS
----------
$1,000,000,000
Danaher Corporation
Debt Securities
Preferred Stock
Common Stock
Warrants
Depositary Shares
Stock Purchase Contracts
Stock Purchase Units
We will provide the specific terms of the securities in one or more supplements
to this prospectus. You should read this prospectus and the related prospectus
supplement carefully before you invest in our securities. This prospectus may
not be used to offer and sell our securities unless accompanied by a prospectus
supplement describing the method and terms of the offering of those offered
securities.
Our common stock is listed on the New York Stock Exchange under the symbol
"DHR".
Neither the Securities and Exchange Commission nor any state securities
regulator has approved or disapproved of these securities, or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
____________________
The date of this prospectus is , 2002.
TABLE OF CONTENTS
Page
----
ABOUT THIS PROSPECTUS........................................ 1
FORWARD LOOKING INFORMATION.................................. 2
WHERE YOU CAN FIND MORE INFORMATION.......................... 2
DANAHER CORPORATION.......................................... 3
USE OF PROCEEDS.............................................. 4
RATIO OF EARNINGS TO FIXED CHARGES........................... 5
DESCRIPTION OF DEBT SECURITIES............................... 5
DESCRIPTION OF CAPITAL STOCK................................. 19
DESCRIPTION OF WARRANTS...................................... 22
DESCRIPTION OF DEPOSITARY SHARES............................. 23
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE
UNITS........................................................ 25
PLAN OF DISTRIBUTION......................................... 25
LEGAL MATTERS................................................ 27
EXPERTS...................................................... 27
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement on Form S-3 that we filed
with the Securities and Exchange Commission using a shelf registration process.
Under this shelf process, we may sell any combination of the securities
described in this prospectus in one or more offerings up to a total dollar
amount of $1,000,000,000 or the equivalent denominated in foreign currencies.
This prospectus provides you with a general description of the securities we may
offer. Each time we sell securities, we will provide a prospectus supplement
that will contain specific information about the terms of that offering. This
prospectus does not contain all of the information included in the registration
statement. For a more complete understanding of the offering of the securities,
you should refer to the registration statement, including its exhibits. The
prospectus supplement may also add, update or change information contained in
this prospectus. The prospectus supplement may also contain information about
any material federal income tax considerations relating to the securities
covered by the prospectus supplements. You should read both this prospectus and
any prospectus supplement together with additional information under the heading
"Where You Can Find More Information."
You should rely only on the information contained or incorporated by reference
in this prospectus and any prospectus supplement. We have not authorized anyone
to provide you with different information. We are not making offers to sell the
securities in any jurisdiction in which an offer or solicitation is not
authorized or in which the person making such offer or solicitation is not
qualified to do so or to anyone to whom it is unlawful to make an offer or
solicitation.
The information in this prospectus is accurate as of the date on the front
cover. You should not assume that the information contained in this prospectus
is accurate as of any other date.
When used in this prospectus, the terms "Danaher," "we," "our" and "us" refer to
Danaher Corporation and its consolidated subsidiaries, unless otherwise
specified.
1
FORWARD LOOKING INFORMATION
This document and the documents incorporated by reference in this document may
include "forward looking statements" within the meaning of Section 27A of the
Securities Act and Section 21E of the Exchange Act. All statements, other than
statements of historical facts, that address activities, events or developments
that we intend, expect, project, believe or anticipate will or may occur in the
future are forward looking statements. Those statements are characterized by
terminology such as "believe," "anticipate," "should," "intend," "plan," "will,"
"expects," "estimates," "projects," "positioned," "strategy" and similar
expressions. These statements are based on assumptions and assessments made by
our management in light of its experience and its perception of historical
trends, current conditions, expected future developments and other factors it
believes to be appropriate. These forward looking statements are subject to a
number of risks and uncertainties, including but not limited to continuation of
our longstanding relationship with major customers, our ability to integrate
acquired businesses into our operations and realize planned synergies, the
extent to which acquired businesses are able to meet our expectations and
operate profitably, changes in regulations (particularly environmental
regulations) which could affect demand for products in the Process/Environmental
Controls segment and unanticipated developments that could occur with respect to
contingencies such as environmental matters and litigation. In addition, we are
subject to risks and uncertainties that affect the manufacturing sector
generally including, but not limited to, economic, competitive, governmental and
technological factors affecting our operations, markets, products, services and
prices. Forward looking statements are not guarantees of future performance, and
actual results, developments and business decisions may differ from those
envisaged by such forward looking statements. We disclaim any duty to update any
forward looking statements, all of which are expressly qualified by the
foregoing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC under the Securities Exchange Act of 1934. You may read
and copy all or any portion of this information at the SEC's principal office in
Washington, D.C. , and copies of all or any part thereof may be obtained from
the Public Reference Section of the SEC, 450 Fifth Street, N.W., Washington,
D.C. 20549, and at the SEC's regional offices located at 175 W. Jackson Blvd.,
Suite 900, Chicago, Illinois 60604 and at 233 Broadway, New York, New York
10279, after payment of fees prescribed by the SEC. Please call the SEC at
1-800-SEC-0330 for further information about the public reference rooms.
The SEC also maintains a web site that contains reports, proxy statements and
other information about issuers, like Danaher, who file electronically with the
SEC. The address of that site is www.sec.gov.
You can also inspect reports, proxy statements and other information about
Danaher at the offices of the New York Stock Exchange, 20 Broad Street, New
York, New York 10005.
This prospectus is part of the registration statement and does not contain all
of the information included in the registration statement. Whenever a reference
is made in this prospectus to any contract or other document of Danaher, the
reference may not be complete and you should refer to the exhibits that are a
part of the registration statement for a copy of the contract or document.
The SEC allows us to "incorporate by reference" information into this
prospectus, which means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
incorporated by reference is deemed to be part of this prospectus, except for
any information superseded by information contained directly in this prospectus.
This prospectus incorporates by reference the documents set forth below that
Danaher has previously filed with the SEC. These documents contain important
information about Danaher and its finances.
2
Danaher SEC Filings (File No. 1-08089) Period
-------------------------------------- ------
Quarterly Reports on Form 10-Q Quarterly periods ended March 30,
2001, June 29, 2001 and September 28,
2001
Current Reports on Form 8-K Filed on January 22, 2001 and August
1, 2001
Annual Report on Form 10-K Fiscal year ended December 31, 2000
The description of Danaher common stock Filed on November 3, 1986
as set forth in its Registration
Statement on form 8-B, including all
amendments and reports filed for the
purpose of updating such description
All documents filed by us pursuant to Sections 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 after the date of this prospectus and before the
termination of the offering shall also be deemed to be incorporated herein by
reference. In addition, all documents filed by us pursuant to Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act after the date of the initial
registration statement and prior to the effectiveness of the registration
statement shall be deemed to be incorporated herein by reference. Any statement
contained in any document incorporated or deemed to be incorporated by reference
herein shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or in any
other subsequently filed document which also is or is deemed to be incorporated
by reference in this prospectus modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this prospectus.
To obtain a copy of these filings at no cost, you may write or telephone us at
the following address:
Danaher Corporation
2099 Pennsylvania Avenue, N.W., 12th Floor
Washington, D.C. 20006-1813
Attention: Investor Relations
(202) 828-0850
Exhibits to the filings will not be sent, however, unless those exhibits have
specifically been incorporated by reference into such document.
DANAHER CORPORATION
Danaher Corporation designs, manufactures and markets industrial and consumer
products with strong brand names, proprietary technology and major market
positions in two principal segments: Process/Environmental Controls and Tools
and Components. For the year ended December 31, 2001, the Process/Environmental
Controls and Tools and Components segments comprised approximately 69% and 31%
of net sales, respectively.
Our Process/Environmental Controls segment consists of Hach Company, the Dr.
Bruno Lange Group, McCrometer, Videojet, Fluke Corporation, Fluke Networks,
Gilbarco, Veeder- Root Company, the Danaher Industrial Controls Group, the
Danaher Motion Control Group (including the General Purpose Systems Division,
the Motion Components Division and the Special Purpose Systems Division), the
controls business units of Joslyn Corporation and Pacific Scientific, M&M
Precision Systems, Danaher Power Solutions, QualiTROL Corporation, Gems Sensors,
Kollmorgen Artus, and Kollmorgen Electro-Optical. These companies produce and
sell compact, professional electronic test tools; product identification
equipment and consumables; retail petroleum automation products; underground
storage tank leak detection systems; motion, position, speed, temperature and
level instruments and sensing devices; power switches and controls;
communication line products; power protection products; liquid flow and quality
measuring devices; quality assurance products and systems; safety devices; and
electronic and mechanical counting and controlling devices. Our sales personnel
and independent representatives distribute these products to original equipment
manufacturers, distributors and other end-users.
3
Our Tools and Components segment consists of the Danaher Hand Tool Group,
including Special Markets, Professional Tool Division and Asian Tool Division,
Matco Tools, Jacobs Chuck Manufacturing Company, Delta Consolidated Industries,
Jacobs Vehicle Systems Company, Hennessy Industries and the hardware and
electrical apparatus lines of Joslyn Manufacturing Company. This segment is one
of the largest worldwide producers and distributors of general purpose
mechanics' hand tools and automotive specialty tools. These companies also
manufacture tool boxes and storage devices, diesel engine retarders, wheel
service equipment, drill chucks, custom designed headed tools and components,
hardware and components for the power generation and transmission industries,
high quality precision socket screws, fasteners, and high quality miniature
precision parts.
We manage our two principal business segments with a management philosophy that
we call the Danaher Business System. The Danaher Business System is based on the
following principles:
. continuous improvement, a concept embodied in the Japanese word Kaizen;
. management process based on Policy Deployment;
. total associate involvement;
. performance measured by customer satisfaction; and
. enhanced profitability.
The Danaher Business System approach uses customer satisfaction as a guideline
for continuous improvements in quality, delivery, cost and growth within our
businesses. We use the Policy Deployment management process to develop one-year
operating plans that reflect our long-term strategic objectives and link major
strategic objectives with specific support plans throughout the organization.
The Danaher Business System's focus on associate involvement includes fostering
a team working environment and encouraging personnel development and creativity.
We measure our performance by customer satisfaction, gauged by improvements in
quality, on-time delivery, cost position and service. Finally, the Danaher
Business System focuses on enhancing our profitability to allow for long term
growth. We began employing the Danaher Business System in 1988 and created an
executive level function to train associates of existing and acquired businesses
in 1992.
Danaher Corporation was incorporated in the State of Delaware on October 3,
1986, and our principal executive offices are located at 2099 Pennsylvania
Avenue, N.W., 12th Floor, Washington, DC 20006- 1813. Our telephone number is
(202) 828-0850.
For additional information concerning Danaher, please see our Form 10-K and our
other filings with the SEC, which are incorporated by reference into this
document. See "Where You Can Find More Information."
USE OF PROCEEDS
Unless we inform you otherwise in the prospectus supplement, we expect to use
the net proceeds from the sale of securities for general corporate purposes.
These purposes may include, but are not limited to:
. reduction or refinancing of debt or other corporate obligations;
. acquisitions;
. capital expenditures; and
. working capital.
Pending any specific application, we may initially invest funds in short- term
marketable securities or apply them to the reduction of short-term indebtedness.
4
RATIO OF EARNINGS TO FIXED CHARGES
Our ratio of earnings to fixed charges for each of the periods indicated is as
follows:
Nine Months Ended Year Ended December 31,
------------------------- ------------------------------------------
September 28, September 29,
2001 2000 2000 1999 1998 1997 1996
---- ---- ---- ---- ---- ---- ----
5.2 4.9 5.0x 5.2x 3.3x 5.0x 6.4x
These ratios include Danaher Corporation and its consolidated subsidiaries. The
ratio of earnings to fixed charges was computed by dividing earnings by fixed
charges for the periods indicated. For these ratios, earnings consist of net
income and fixed charges consist of interest and rent expenses.
DESCRIPTION OF DEBT SECURITIES
This section describes the general terms and provisions of the debt securities
that we may issue separately, upon exercise of a debt warrant, in connection
with a stock purchase contract or as part of a stock purchase unit from time to
time in the form of one or more series of debt securities. The applicable
prospectus supplement will describe the specific terms of the debt securities
offered through that prospectus supplement as well as any general terms
described in this section that will not apply to those debt securities. As used
in this prospectus, "debt securities" means the senior and subordinated
debentures, notes, bonds and other evidences of indebtedness that we issue and a
trustee authenticates and delivers under the applicable indenture. As used in
this "Description of Debt Securities," the terms "Danaher," "we," "our" and "us"
refer to Danaher Corporation and do not, unless the context otherwise indicates,
include our subsidiaries.
Our unsecured senior debt securities will be issued under an indenture to be
entered into by us and a trustee. The unsecured subordinated debt securities
will be issued under a separate indenture to be entered into by us and the same
or another trustee. A form of the senior debt indenture is filed as an exhibit
to the registration statement of which this prospectus is a part and is
incorporated by reference into this prospectus. A form of the subordinated debt
indenture is filed as an exhibit to the registration statement of which this
prospectus is a part and is incorporated by reference into this prospectus. The
following summaries of certain provisions of the indentures and the debt
securities are not complete and the summaries are subject to the detailed
provisions of the applicable indenture. You should refer to the applicable
indenture for more specific information. In addition, you should consult the
applicable prospectus supplement for particular terms of our debt securities. We
refer to the "senior indenture" and the "subordinated indenture" as the
"indenture".
The indentures will not limit the aggregate principal amount of debt securities
that we may issue, and will permit us to issue securities from time to time in
one or more series. The general provisions of the indentures do not contain any
provisions that would limit our ability to incur indebtedness or that would
afford holders of debt securities protection in the event of a highly leveraged
or similar transaction involving us. However, the senior indenture does restrict
us and our subsidiaries from granting certain security interests on certain of
our or their property or assets unless the senior debt securities are equally
secured. See "-- Covenants in the Senior Indenture" below.
The debt securities will be unsecured obligations of Danaher. We currently
conduct substantially all of our operations through subsidiaries, and the
holders of debt securities (whether senior or subordinated debt securities) will
be effectively subordinated to the creditors of our subsidiaries. This means
that creditors of our subsidiaries will have a claim to the assets of our
subsidiaries that is superior to the claim of our creditors, including holders
of our debt securities.
The applicable prospectus supplement will describe the following terms of any
series of debt securities that we may offer:
. the title and type of the debt securities;
. whether the debt securities will be senior or subordinated debt
securities, and, with respect to debt securities issued under the
subordinated debt indenture, as applicable, that the subordination
provisions of the indenture
5
shall apply to the securities of that series or that any different
subordination provisions, including different definitions of the terms
"senior indebtedness" or "existing subordinated indebtedness," shall
apply to securities of that series;
. any limit on the aggregate principal amount of the debt securities;
. the person who will receive interest payments on any debt securities
if other than the registered holder;
. the price or prices at which we will sell the debt securities;
. the maturity date or dates of the debt securities;
. the rate or rates, which may be fixed or variable, per annum at which
the debt securities will bear interest and the date from which such
interest will accrue;
. the dates on which interest will be payable and the related record
dates;
. whether any index, formula or other method will determine payments of
principal, premium or interest and the manner of determining the
amount of such payments;
. the place or places of payments on the debt securities;
. whether the debt securities are redeemable;
. any redemption dates, prices, obligations and restrictions on the debt
securities;
. any mandatory or optional sinking fund or purchase fund or analogous
provisions;
. the denominations of the debt securities if other than $1,000 or
multiples of $1,000;
. the currency of principal and interest payments if other than U.S.
dollars, and the manner of determining the equivalent thereof in U.S.
dollars for any purpose under the indenture;
. if the principal of or any premium or interest on any debt securities
of any series is payable, at our election or the election of the
holder, in one or more currencies other than that in which such debt
securities are stated to be payable, the currency or currencies in
which such principal, premium or interest shall be payable and other
terms and conditions regarding such payment;
. the amount that we will pay the holder if the maturity of the debt
securities is accelerated, if other than their principal amount;
. the amount that will be deemed to be the principal amount of the debt
securities as of a particular date before maturity if the principal
amount payable at the stated maturity date will not be able to be
determined on that date;
. the applicability of the legal defeasance and covenant defeasance
provisions in the applicable indenture;
. if the debt securities will be issued only in the form of one or more
book-entry securities, the name of the depositary or its nominee and
the circumstances under which the book-entry security may be
transferred or exchanged to someone other than the depositary or its
nominee;
. any provisions granting special rights if certain events happen;
6
. any deletions from, changes in or additions to the events of default
or the covenants specified in the indenture, or to the right of the
trustee or the requisite holders of such securities to declare the
principal amount of such securities due and payable;
. any trustees, authenticating or paying agents, transfer agents,
registrars or other agents for the debt securities;
. any conversion or exchange features of the debt securities;
. whether we will issue the debt securities as original issue discount
securities for federal income tax purposes;
. any special tax implications of the debt securities;
. the terms of payment upon acceleration; and
. any other material terms of the debt securities not inconsistent with
the provisions of the indenture.
Debt securities may bear interest at fixed or floating rates. We may issue our
debt securities at an original issue discount, bearing no interest or bearing
interest at a rate that, at the time of issuance, is below market rate, to be
sold at a substantial discount below their stated principal amount. Generally
speaking, if our debt securities are issued at an original issue discount and
there is an event of default or acceleration of their maturity, holders will
receive an amount less than their principal amount. Tax and other special
considerations applicable to any series of debt securities, including original
issue discount debt, will be described in the prospectus supplement in which we
offer those debt securities.
We will have the ability under the indenture to reopen a previously issued
series of debt securities and issue additional debt securities of that series or
establish additional terms of the series. We are also permitted to issue debt
securities with the same terms as previously issued debt securities.
We will comply with Section 14(e) under the Exchange Act and any other tender
offer rules under the Exchange Act that may then apply to any obligation we may
have to purchase debt securities at the option of the holders. Any such
obligation applicable to a series of debt securities will be described in the
related prospectus supplement.
Payment and Paying Agents
Unless the applicable prospectus supplement indicates otherwise, payment of
interest on a debt security (other than a bearer debt security) on any interest
payment date will be made to the person in whose name such debt security is
registered at the close of business on the regular record date for such interest
payment.
Generally, we will pay the principal of, premium, if any, and interest on our
registered debt securities either at the office of the paying agent designated
by us in the applicable prospectus supplement or, if we elect, we may pay
interest by mailing a check to your address as it appears on our register or by
wire transfer to an account maintained by the person entitled thereto as
specified in the securities register. We may at any time designate additional
paying agents or rescind the designation of any paying agent or approve a change
in the office through which any paying agent acts, except that we will be
required to maintain a paying agent in each place of payment for the debt
securities of a particular series.
All moneys paid by us to a paying agent or the trustee, or held, for the payment
of the principal of or any premium or interest on any debt security which remain
unclaimed at the end of two years after such principal, premium or interest has
become due and payable will be repaid to us, or discharged from trust, and the
holder of such debt security shall thereafter, as an unsecured general creditor,
look only to us for payment thereof.
Senior Debt Securities
Senior debt securities will be issued under the senior indenture. Payment of the
principal of, premium, if any, and interest on senior debt securities will rank
on a parity with all of our other unsecured and unsubordinated debt.
7
Subordinated Debt Securities
Subordinated debt securities will be issued under the subordinated indenture.
Subordinated debt securities of a particular series will be subordinate in right
of payment, to the extent and in the manner set forth in the indenture and the
prospectus supplement relating to those subordinated debt securities, to the
prior payment of all of our indebtedness that is designated as senior
indebtedness with respect to that series. The definition of senior indebtedness
will include, among other things, senior debt securities and will be
specifically set forth in that prospectus supplement.
Upon any payment or distribution of our assets to creditors or upon our total or
partial liquidation or dissolution or in a bankruptcy, receivership, or similar
proceeding relating to us or our property, holders of senior indebtedness will
be entitled to receive payment in full of the senior indebtedness before holders
of subordinated debt securities will be entitled to receive any payment with
respect to the subordinated debt securities and, until the senior indebtedness
is paid in full, any distribution to which holders of subordinated debt
securities would otherwise be entitled (other than securities of Danaher or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at the least to the extent provided pursuant to
these subordination provisions, to the payment of all senior indebtedness then
outstanding and to any securities issued in respect thereof under any such plan
of reorganization or readjustment) will be made to the holders of senior
indebtedness, all as described in the applicable prospectus supplement. In the
event of any such proceeding, after payment in full of all sums owing with
respect to senior indebtedness, the holders of subordinated debt securities,
together with the holders of any of our obligations ranking on a parity with the
subordinated debt securities, will be entitled to be paid from our remaining
assets the amounts then due and owing with respect to such subordinated debt
securities and other obligations, before any payments or distributions will be
made on account of any of our capital stock or other obligations ranking junior
to such subordinated debt securities and other obligations.
If we default in the payment of any principal of, premium, if any, or interest
on any senior indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to us by the holders of
senior indebtedness or any trustee therefor, unless and until such default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment shall be made or agreed to be made on account of the principal, premium,
if any, or interest on any of the subordinated debt securities, or in respect of
any redemption, repayment, retirement, purchase or other acquisition of any of
the subordinated debt securities.
By reason of this subordination, in the event of insolvency, our creditors who
are holders of senior indebtedness or holders of any indebtedness or preferred
stock of our subsidiaries, as well as certain of our general creditors, may
recover more, ratably, than the holders of the subordinated debt securities.
Events of Default
Except as may be provided otherwise in a prospectus supplement, any of the
following events will constitute an event of default for a series of debt
securities under the indenture:
. failure to pay interest on our debt securities of that series for
thirty days past the applicable due date;
. failure to pay principal of, or premium, if any, on our debt
securities of that series when due (whether at maturity, upon
acceleration or otherwise);
. failure to deposit any sinking fund payment on debt securities of that
series when due;
. failure to perform, or breach of, any other covenant, agreement or
warranty for the benefit of the holders of the security in the
indenture, other than a covenant, agreement or warranty a default in
whose performance or breach is dealt with elsewhere in the indenture,
or which is included in the indenture solely for the benefit of a
different series of our debt securities, which continues for 90 days
after written notice from the trustee or holders of 25% of the
outstanding principal amount of the debt securities of that series as
provided in the indenture;
. specified events relating to our bankruptcy, insolvency or
reorganization; and
8
. any other event of default provided with respect to debt securities of
that series pursuant to the applicable supplement.
An event of default with respect to one series of debt securities is not
necessarily an event of default for another series.
If there is an event of default with respect to a series of our debt securities,
which continues for the requisite amount of time, either the trustee or holders
of at least 25% of the aggregate principal amount outstanding of that series may
declare the principal amount of all of the debt securities of that series to be
due and payable immediately, except that if an event of default occurs due to
bankruptcy, insolvency or reorganization as provided in the applicable
indenture, then the principal of and interest on the debt securities shall
become due and payable immediately without any act by the trustee or any holder
of debt securities. If the securities were issued at an original issue discount,
less than the stated principal amount may become payable. However, at any time
after an acceleration with respect to debt securities of any series has
occurred, but before a judgment or decree based on such acceleration has been
obtained, the holders of a majority in principal amount of the outstanding debt
securities of that series may, under certain circumstances, rescind and annul
such acceleration.
The holders of a majority in aggregate principal amount of the outstanding debt
securities of a series may, on behalf of the holders of all debt securities of
that series, waive any past default or event of default and its consequences for
that series, except (1) a default in the payment of the principal, premium, or
interest with respect to those debt securities or (2) a default with respect to
a provision of the applicable indenture that cannot be amended without the
consent of each holder affected by the amendment. In case of a waiver of a
default, that default shall cease to exist, and any event of default arising
from that default shall be deemed to have been cured for all purposes. The
holders of a majority in aggregate principal amount outstanding of the debt
securities of any series may also, on behalf of the holders of all debt
securities of that series, waive, with respect to that series, our compliance
with certain restrictive covenants in the applicable indenture.
If any event which is, or after notice or lapse of time or both would become, an
event of default (collectively referred to in this paragraph as a default)
occurs and is continuing with respect to debt securities of a particular series
and if it is known to any specified responsible officer of the trustee, the
trustee will mail to each holder of such debt securities notice of such default
within 90 days after it occurs or, if later, after the trustee obtains knowledge
of such default. Except in the case of default in the payment of principal,
premium, or interest with respect to the debt securities of that series or in
the making of any sinking fund payment with respect to the debt securities of
that series, the trustee may withhold such notice if and so long as the
corporate trust committee or a committee of specified responsible officers of
the trustee in good faith determines that withholding the notice is in the
interests of the holders of such debt securities.
A holder may institute a suit against us for enforcement of such holder's rights
under the applicable indenture, for the appointment of a receiver or trustee, or
for any other remedy only if the following conditions are satisfied:
. the holder gives the trustee written notice of a continuing event of
default with respect to a series of our debt securities held by that
holder;
. holders of at least 25% of the aggregate principal amount of the
outstanding debt securities of that series make a request, in writing,
and offer reasonable indemnity, to the trustee for the trustee to
institute the requested proceeding;
. the trustee does not receive direction contrary to the holder's
request from holders of a majority in aggregate principal amount of
the outstanding debt securities of that series within 60 days
following such notice, request and offer of indemnity under the terms
of the applicable indenture; and
. the trustee does not institute the requested proceeding within 60 days
following such notice.
The indentures will require us every year to deliver to the trustee a statement
as to performance of our obligations under the indentures and as to any
defaults.
A default in the payment of any of our debt securities, or a default with
respect to our debt securities that causes them to be accelerated, may give rise
to a cross-default under our other indebtedness.
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Satisfaction and Discharge of the Indentures
An indenture will generally cease to be of any further effect with respect to a
series of debt securities if:
. we have delivered to the applicable trustee for cancellation all debt
securities of that series (with certain limited exceptions); or
. all debt securities of that series not previously delivered to the
trustee for cancellation have become due and payable, will become due
and payable within one year, or are to be called for redemption within
one year under arrangements satisfactory to the trustee, and in any
such case we have deposited with the trustee as trust funds the entire
amount sufficient to pay at maturity or upon redemption all of the
principal, premium and interest due with respect to those debt
securities;
and if, in either case, we also pay or cause to be paid all other sums payable
under the applicable indenture by us and deliver to the trustee an officer's
certificate and opinion of counsel stating that all conditions precedent to the
satisfaction and discharge of the indenture have been complied with.
Legal Defeasance And Covenant Defeasance
Any series of our debt securities may be subject to the defeasance and discharge
provisions of the applicable indenture if so specified in the applicable
prospectus supplement. If those provisions are applicable, we may elect either:
. legal defeasance, which will permit us to defease and be discharged
from, subject to limitations, all of our obligations with respect to
those debt securities, including any subordination provisions; or
. covenant defeasance, which will permit us to be released from our
obligations to comply with certain covenants relating to those debt
securities as described in the applicable prospectus supplement, which
may include obligations concerning subordination of our subordinated
debt securities.
If we exercise our legal defeasance option with respect to a series of debt
securities, payment of those debt securities may not be accelerated because of
an event of default. If we exercise our covenant defeasance option with respect
to a series of debt securities, payment of those debt securities may not be
accelerated because of an event of default related to the specified covenants.
Unless otherwise provided in the applicable prospectus supplement, we may invoke
legal defeasance or covenant defeasance with respect to any series of our debt
securities only if:
. with respect to debt securities denominated in U.S. dollars, we
irrevocably deposit with the trustee, in trust, an amount in U.S.
dollars, U.S. government obligations (taking into account payment of
principal and interest thereon in accordance with their terms) or a
combination thereof which will provide money in an amount sufficient
to pay, when due upon maturity or redemption, as the case may be, the
principal of, premium, if any, and interest on those debt securities;
. with respect to debt securities denominated in a currency other than
U.S. dollars, we irrevocably deposit with the trustee, in trust, an
amount in such currency, obligations of the foreign government that
issued such currency (taking into account payment of principal and
interest thereon in accordance with their terms) or a combination
thereof which will provide money in an amount sufficient to pay, when
due upon maturity or redemption, as the case may be, the principal of,
premium, if any, and interest on those debt securities;
. we deliver to the trustee a certificate from a nationally recognized
firm of independent accountants expressing their opinion that the
payments of principal and interest when due on the deposited U.S.
government obligations or foreign government obligations, as
applicable, plus any deposited money will provide cash at such times
and in such amounts as will be sufficient to pay the principal,
premium, and interest when due with respect to all the debt securities
of that series to maturity or redemption, as the case may be;
10
. no event which is, or after notice or lapse of time would become, an
event of default under the indenture shall have occurred and be
continuing at the time of such deposit or, with regard to any default
relating to our bankruptcy, insolvency or reorganization, at any time
on or prior to the 90th day after such deposit;
. the deposit does not cause the trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all securities
under the indenture are in default within the meaning of such Act);
. the deposit is not a default under any other agreement binding on us;
. such deposit will not result in the trust arising from such deposit
constituting an investment company under the Investment Company Act of
1940, as amended, unless such trust is registered under, or exempt
from, such Act;
. we deliver to the trustee an opinion of counsel addressing certain
federal income tax matters relating to the defeasance;
. if the securities are to be redeemed prior to the stated maturity
(other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given or
provision for such notice satisfactory to the trustee shall have been
made;
. with respect to any series of subordinated debt securities, at the
time of such deposit, (1) no default in the payment of principal,
premium or interest with respect to any senior indebtedness shall have
occurred and be continuing, (2) no event of default shall have
resulted in any senior indebtedness becoming, and continuing to be,
due and payable prior to the date it would otherwise have become due
and payable (unless payment of such senior indebtedness has been
provided for), and (3) no other event of default shall have occurred
and be continuing which permits the holders thereof to declare such
indebtedness due and payable prior to the date it would otherwise have
become due and payable; and
. we deliver to the trustee an officers' certificate and an opinion of
counsel, each stating that all conditions precedent to the defeasance
and discharge of the debt securities of that series as contemplated by
the applicable indenture have been complied with.
Modification and Waiver
We and the trustee may enter into supplemental indentures for the purpose of
modifying or amending an indenture with the consent of holders of at least a
majority in aggregate principal amount of each series of our outstanding debt
securities affected. However, unless otherwise provided in the applicable
prospectus supplement, the consent of all of the holders of our debt securities
that are affected thereby is required for any of the following modifications or
amendments:
. to reduce the percentage in principal amount of debt securities of any
series whose holders must consent to a supplemental indenture, or
consent to any waiver of compliance with certain provisions of the
indenture, or consent to certain defaults under the indenture, in each
case as provided for in the indenture;
. to reduce the rate of or extend the time for payment of interest on
any debt security or reduce the amount of any interest payment to be
made with respect to any debt security;
. to reduce the principal of or change the stated maturity of principal
of, or any installment of principal of or interest on, any debt
security or reduce the amount of principal of any original issue
discount security that would be due and payable upon declaration of
acceleration of maturity;
. to reduce the premium payable upon the redemption of any debt
security;
. to make any debt security, or any premium or interest thereon, payable
in a currency other than that stated in that debt security;
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. to change any place of payment where any debt security or any premium
or interest thereon is payable;
. to modify the subordination provisions of our subordinated debt
securities in a manner adverse to holders of such debt securities;
. to change the right to convert any debt security in accordance with
its terms;
. to impair the right to bring a lawsuit for the enforcement of any
payment on or after the stated maturity of any debt security (or in
the case of redemption, on or after the date fixed for redemption);
. to modify the provisions of the indenture with respect to
subordination of debt securities in a manner adverse to any registered
holder of a debt security; or
. generally, to modify any of the above provisions of the indenture or
any provisions providing for the waiver of past defaults or waiver of
compliance with certain covenants, except to increase the percentage
in principal amount of debt securities of any series whose holders
must consent to an amendment or waiver, as applicable, or to provide
that certain other provisions of the indenture cannot be modified or
waived without the consent of the holder of each outstanding debt
security affected by the modification or waiver.
In addition, we and the trustee with respect to an indenture may enter into
supplemental indentures without the consent of the holders of debt securities
for one or more of the following purposes (in addition to any other purposes
specified in an applicable prospectus supplement):
. to evidence that another person has become our successor and that the
successor assumes our covenants, agreements, and obligations in the
indenture and in the debt securities;
. to surrender any of our rights or powers under the indenture, or to
add to our covenants further covenants for the protection of the
holders of all or any series of debt securities;
. to add any additional events of default for the benefit of the holders
of all or any series of debt securities;
. to cure any ambiguity, to correct or supplement any provision in the
indenture that may be defective or inconsistent with any other
provision in the indenture, or to make other provisions in regard to
matters or questions arising under the indenture, in each case to the
extent such action does not adversely affect the interests of any
holders of debt securities of any series in any material respect;
. to add to or change any of the provisions of the indenture as
necessary to permit or facilitate the issuance of debt securities in
bearer form, registrable or not registrable as to principal, and with
or without interest coupons, or to permit or facilitate the issuance
of debt securities in uncertificated form;
. to secure the debt securities;
. to add to, change, or eliminate any of the provisions of the indenture
with respect to one or more series of debt securities, so long as the
addition, change, or elimination not otherwise permitted under the
indenture will (1) neither apply to any debt security of any series
created before the execution of the supplemental indenture and
entitled to the benefit of that provision nor modify the rights of the
holders of that debt security with respect to that provision or (2)
become effective only when there is none of that debt security
outstanding;
. to evidence and provide for the acceptance of appointment by a
successor or separate trustee with respect to the debt securities of
one or more series and to add to or change any of the provisions of
the indenture as necessary to provide for the administration of the
indenture by more than one trustee;
. with respect to the subordinated indenture, to add to, change or
eliminate any of the subordination provisions in the indenture or
change the definition of "senior indebtedness" in respect of one or
more series of debt
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securities, provided that any such addition, change or elimination
does not adversely affect the interests of the holders of outstanding
debt securities in any material respect;
. to establish the form or terms of debt securities and coupons of any
series; and
. to make provisions with respect to the conversion rights of holders,
including providing for the conversion of debt securities of any
series into any security or securities of ours.
Certain Covenants
In addition to such other covenants, if any, as may be described in the
accompanying prospectus supplement and except as may be otherwise set forth in
the accompanying prospectus supplement, the indenture will require us, subject
to certain limitations described therein, to, among other things, do the
following:
. deliver to the trustee all information, documents and reports required
to be filed by us with the SEC under Section 13 or 15(d) of the
Exchange Act, within 15 days after the same is filed with the SEC;
. deliver to the trustee annual officers' certificates with respect to
our compliance with our obligations under the indenture;
. maintain the existence, rights and franchises of us and our
significant subsidiaries, except to the extent our board of directors
determines that the preservation thereof is no longer desirable in the
conduct of our business and that the loss thereof is not adverse in
any material respect to the holders of the debt securities; and
. pay, and cause our significant subsidiaries to pay, our and their
taxes, assessments and government levies when due, except to the
extent the same is being contested in good faith by appropriate
proceedings.
Covenants in the Senior Indenture
You can find the definitions of certain terms used in this description under the
subheading "Certain Definitions."
Limitation on Secured Debt
Unless otherwise provided in the applicable prospectus supplement, we will not,
and will not permit any Subsidiary to, create, assume, or guarantee any Secured
Debt without making effective provision for securing the senior debt securities
equally and ratably with such Secured Debt. This covenant does not apply to debt
secured by:
. purchase money mortgages created to secure payment for the acquisition
or construction of any property including, but not limited to, any
indebtedness incurred by us or a Subsidiary prior to, at the time of,
or within 180 days after the later of the acquisition, the completion
of construction (including any improvements on an existing property)
or the commencement of commercial operation of such property, which
indebtedness is incurred for the purpose of financing all or any part
of the purchase price of such property or construction or improvements
on such property;
. mortgages, pledges, liens, security interest or encumbrances
(collectively referred to as security interests) on property, or any
conditional sales agreement or any title retention with respect to
property, existing at the time of acquisition thereof, whether or not
assumed by us or a Subsidiary;
. security interests on property or shares of capital stock or
indebtedness of any corporation or firm existing at the time such
corporation or firm becomes a Subsidiary;
. security interests in property or shares of capital stock or
indebtedness of a corporation existing at the time such corporation is
merged into or consolidated with us or a Subsidiary or at the time of
a sale, lease, or other disposition of the properties of a corporation
or firm as an entirety or substantially as an entirety to us or a
Subsidiary, provided that no such security interests shall extend to
any other Principal Property of ours or such Subsidiary prior to such
acquisition or to other Principal Property thereafter acquired other
than additions or improvements to the acquired property;
. security interests on our property or property of a Subsidiary in
favor of the United States of America or any state thereof, or in
favor of any other country, or any department, agency, instrumentality
or political subdivision thereof
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(including, without limitation, security interests to secure
indebtedness of the pollution control or industrial revenue type) in
order to permit us or any Subsidiary to perform a contract or to
secure indebtedness incurred for the purpose of financing all or any
part of the purchase price for the cost of constructing or improving
the property subject to such security interests or which is required
by law or regulation as a condition to the transaction of any business
or the exercise of any privilege, franchise or license;
. security interests on any property or assets of any Subsidiary to
secure indebtedness owing by it to us or to another Subsidiary;
. any mechanics', materialmen's, carriers' or other similar lien arising
in the ordinary course of business, including construction of
facilities, in respect of obligations which are not yet due or which
are being contested in good faith;
. any security interest for taxes, assessments or government charges or
levies not yet delinquent, or already delinquent, but the validity of
which is being contested in good faith;
. any security interest arising in connection with legal proceedings
being contested in good faith, including any judgment lien so long as
execution thereof is being stayed;
. landlords' liens on fixtures located on premises leased by us or a
Subsidiary in the ordinary course of business; or
. any extension, renewal or replacement, or successive extensions,
renewals or replacements, in whole or in part, of any security
interest referred to in the foregoing bullets.
Limitation on Sale and Leaseback Transactions
The indenture provides that we will not, and will not permit any Subsidiary to,
enter any lease longer than three years (excluding leases of newly acquired,
improved or constructed property) covering any Principal Property of ours or any
Subsidiary that is sold to any other person in connection with such lease (a
Sale and Leaseback Transaction), unless either:
. we or such Subsidiary would be entitled, without equally and ratably
securing the senior debt securities, to incur Indebtedness secured by
a mortgage on the Principal Property leased pursuant to any of the
bullets referenced above under "-- Limitation on Secured Debt," or
. an amount equal to the value of the Principal Property so leased is
applied to the retirement, within 120 days of the effective date of
such arrangement, of indebtedness for borrowed money incurred or
assumed by us or a Subsidiary which is recorded as Funded Debt as
shown on our most recent consolidated balance sheet and which in the
case of such Indebtedness of ours, is not subordinate and junior in
right of payment to the prior payment of the senior debt securities.
Exempted Indebtedness
Notwithstanding the limitations on Secured Debt and Sale and Leaseback
Transactions described above, we and any one or more Subsidiaries may, without
securing the senior debt securities, issue, assume, or guarantee Secured Debt or
enter into any Sale and Leaseback Transaction which would otherwise be subject
to the foregoing restrictions, provided that, after giving effect thereto, the
aggregate amount of such Secured Debt then outstanding (not including Secured
Debt permitted under the foregoing exceptions) and the Attributable Debt of Sale
and Leaseback Transactions, other than Sale and Leaseback Transactions described
in either bullet of the preceding paragraph, at such time does not exceed 15% of
Consolidated Net Assets.
Certain Definitions
Set forth below are certain defined terms used in the indenture. Reference is
made to the indenture for a complete definition of these terms, as well as any
other capitalized terms used herein for which no definition is provided. Unless
otherwise provided in the applicable prospectus supplement, the following terms
will mean as follows for purposes of covenants that may be applicable to any
particular series of senior debt securities.
The term "Attributable Debt," in respect of a Sale and Leaseback Transaction,
means, as of any particular time, the present value (discounted at the rate of
interest implicit in the lease involved in such Sale and Leaseback Transaction,
as determined in good faith by us) of the obligation of the lessee thereunder
for rental payments (excluding, however, any amounts required to be paid by such
lessee, whether or not designated as rent or additional rent, on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges or any amounts required to be paid by such lessee thereunder contingent
upon the amount of sales, maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges)
14
during the remaining term of such lease (including any period for which such
lease has been extended or may, at the option of the lessor, be extended).
The term "Consolidated Assets" means the aggregate of all assets of us and our
Subsidiaries (including the value of all existing Sale and Leaseback
Transactions and any assets resulting from the capitalization of other long-term
lease obligations in accordance with generally accepted accounting principles
(GAAP)), appearing on the most recent available consolidated balance sheet of us
and our Subsidiaries at their net book values, after deducting related
depreciation, amortization and other valuation reserves, all prepared in
accordance with GAAP.
The term "Consolidated Current Liabilities" means the aggregate of the current
liabilities of us and our Subsidiaries appearing on the most recent available
consolidated balance sheet of us and our Subsidiaries, all in accordance with
GAAP. In no event shall Consolidated Current Liabilities include any obligation
of us and our Subsidiaries issued under a revolving credit or similar agreement
if the obligation issued under such agreement matures by its terms within twelve
months from the date thereof but by the terms of such agreement such obligation
may be renewed or extended or the amount thereof reborrowed or refunded at our
option or the option of any Subsidiary for a term in excess of twelve months
from the date of determination.
The term "Consolidated Net Assets" means Consolidated Assets after deduction of
Consolidated Current Liabilities.
The term "Funded Debt" means all indebtedness for money borrowed having a
maturity of more than twelve months from the date of the most recent
consolidated balance sheet of us and our Subsidiaries or renewable and
extendable beyond twelve months at the option of the borrower and all
obligations in respect of lease rentals which under GAAP would be shown on our
consolidated balance sheet as a liability item other than a current liability;
provided, however, that Funded Debt shall not include any of the foregoing to
the extent that such indebtedness or obligations are not required by GAAP to be
shown on our balance sheet.
The term "Principal Property" means any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding leases and
other contract rights which might otherwise be deemed real property) owned by us
or any Subsidiary, whether owned on the date of the indenture or thereafter,
provided each such plant, warehouse, office building or parcel of real property
has a gross book value (without deduction for any depreciation reserves) at the
date as of which the determination is being made of in excess of two percent of
the Consolidated Net Assets of us and our Subsidiaries, other than any such
plant, warehouse, office building or parcel of real property or portion thereof
which, in the opinion of our board of directors (evidenced by a certified board
resolution delivered to the trustee), is not of material importance to the
business conducted by us and our Subsidiaries taken as a whole.
The term "Secured Debt" means Indebtedness for borrowed money and any Funded
Debt which, in each case, is secured by a security interest in:
. any Principal Property, or
. any shares of capital stock or Indebtedness of any Subsidiary.
The term "Subsidiary" means any corporation or other entity (including, without
limitation, partnerships, joint ventures and associations) of which at least a
majority of the outstanding stock having by the terms thereof ordinary voting
power for the election of directors of such corporation or other entity
(irrespective of whether or not at the time the stock of any other class or
classes of such corporation shall have or might have voting power by reason of
the happening of any such contingency) is at the time directly or indirectly
owned by Danaher, or by one or more Subsidiaries of Danaher, or by Danaher and
one or more other Subsidiaries.
Consolidation, Merger and Sale of Assets
Unless otherwise provided in the applicable prospectus supplement, our
indentures prohibit us from consolidating with or merging into another business
entity, or conveying, transferring or leasing our properties and assets
substantially as an entirety to any business entity, unless:
15
. the surviving or acquiring entity is a U.S. corporation, limited
liability company, partnership or trust, and it expressly assumes our
obligations with respect to outstanding debt securities by executing a
supplemental indenture;
. immediately after giving effect to the transaction, no event of
default, or event which, after notice or lapse of time or both, would
become an event of default, shall have happened and be continuing; and
. we have delivered to the trustee an officers' certificate and an
opinion of counsel, each stating that the consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture, comply with the indenture and all conditions precedent
relating to such transaction have been complied with.
Conversion Rights
We will describe the terms upon which debt securities may be convertible into
our common stock or other securities in a prospectus supplement. These terms
will include the type of securities the debt securities are convertible into,
the conversion price or manner of calculation thereof, the conversion period,
provisions as to whether conversion will be at our option or the option of the
holders, the events requiring an adjustment of the conversion price and
provisions affecting conversion in the event of the redemption of the debt
securities and any restrictions on conversion. They may also include provisions
adjusting the number of shares of our common stock or other securities issuable
upon conversion.
Denomination, Form, Registration and Transfer
Normally, we will denominate and make payments on debt securities in U.S.
dollars. If we issue debt securities denominated, or with payments, in a foreign
or composite currency, a prospectus supplement will specify the currency or
composite currency. Except as may be provided otherwise in the applicable
prospectus supplement, we will issue registered securities in denominations of
$1,000 or integral multiples of $1,000.
We may from time to time issue debt securities as registered securities. This
means that holders will be entitled to receive certificates representing the
debt securities registered in their name. You can transfer or exchange debt
securities in registered form without service charge, but we may require that
you pay the amount of any applicable tax or other governmental charge. You can
make this transfer or exchange at the trustee's corporate trust office or at any
other office we maintain for such purposes. If we elect to or are required to
redeem debt securities of a particular series in part, we will not be required
to:
. issue, register the transfer of or exchange any debt securities of
that series for a period of 15 days before the first mailing of the
notice of redemption or exchange; or
. register the transfer of or exchange any security selected for
redemption, in whole or in part, except the unredeemed portion of any
security being redeemed in part.
As a general rule, however, we will issue debt securities in book-entry form.
This means that one or more permanent global certificates registered in the name
of a depositary, or a nominee of the depositary, will represent the debt
securities. Each global security will be issued in the denomination of the
aggregate principal amount of securities that it represents. Unless and until it
is exchanged in whole or in part for debt securities that are in definitive
registered form as permitted under the indenture, a global security may not be
transferred or exchanged except as a whole to the depositary, another nominee of
the depositary, or a successor of the depositary or its nominee. The applicable
prospectus supplement will describe this concept more fully.
The specific material terms of the depositary arrangement with respect to any
portion of a series of our debt securities that will be represented by a global
security will be described in the applicable prospectus supplement. We
anticipate that the following provisions will apply to our depositary
arrangements.
Upon the issuance of any global security, and its deposit with or on behalf of
the depositary, the depositary will credit, on its book-entry registration and
transfer system, the principal amounts of our debt securities represented by the
global security to
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the accounts of participating institutions that have accounts with the
depositary or its nominee. The underwriters or agents engaging in the
distribution of our debt securities, or we, if we are offering and selling our
debt securities directly, will designate the accounts to be credited. Ownership
of beneficial interests in a global security will be limited to participating
institutions or their clients. The depositary or its nominee will keep records
of the ownership and transfer of beneficial interests in a global security by
participating institutions. Participating institutions will keep records of the
ownership and transfer of beneficial interests by their clients. The laws of
some jurisdictions may require that purchasers of our securities receive
physical certificates, which may impair a holder's ability to transfer its
beneficial interests in global securities.
While the depositary or its nominee is the registered owner of a global
security, the depositary or its nominee will be considered the sole owner of all
of our debt securities represented by the global security for all purposes under
the indentures. Generally, if a holder owns beneficial interests in a global
security, that holder will not be entitled to have our debt securities
registered in that holder's own name, and that holder will not be entitled to
receive a certificate representing that holder's ownership. Accordingly, if a
holder owns a beneficial interest in a global security, the holder must rely on
the depositary and, if applicable, the participating institution of which that
holder is a client to exercise the rights of that holder under the applicable
indenture.
The depositary may grant proxies and otherwise authorize participating
institutions to take any action that a holder is entitled to take under the
indentures. We understand that, according to existing industry practices, if we
request any action of holders, or any owner of a beneficial interest in a global
security wishes to give any notice or take any action, the depositary would
authorize the participating institutions to give the notice or take the action,
and the participating institutions would in turn authorize their clients to give
the notice or take the action.
Generally, we will make payments on our debt securities represented by a global
security directly to the depositary or its nominee. It is our understanding that
the depositary will then credit the accounts of participating institutions,
which will then distribute funds to their clients. We also expect that payments
by participating institutions to their clients will be governed by standing
instructions and customary practices, as is now the case with securities held
for the accounts of clients registered in street names, and will be the
responsibility of the participating institutions. Neither we nor the trustee,
nor our respective agents, will have any responsibility, or bear any liability,
for any aspects of the records relating to or payments made on account of
beneficial interests in a global security, or for maintaining, supervising or
reviewing records relating to beneficial interests.
Generally, unless otherwise specified in the applicable supplemental indenture,
a global security may be exchanged for certificated debt securities only in the
following instances:
. the depositary notifies us that it is unwilling or unable to continue
as depositary, or it ceases to be a registered clearing agency under
the Securities Exchange Act of 1934, as amended, if required to be so
registered by law; or
. there shall have occurred and be continuing an event of default with
respect to such global security.
The following is based on information furnished to us:
Unless otherwise specified in the applicable prospectus supplement, The
Depository Trust Company (DTC) will act as depositary for securities issued in
the form of global securities. Global securities will be issued only as fully-
registered securities registered in the name of Cede & Co., which is DTC's
nominee. One or more fully-registered global securities will be issued for these
securities representing in the aggregate the total number of these securities,
and will be deposited with or on behalf of DTC.
DTC is a limited-purpose trust company organized under the New York Banking Law,
a banking organization within the meaning of the New York Banking Law, a member
of the Federal Reserve System, a clearing corporation within the meaning of the
New York Uniform Commercial Code, and a clearing agency registered pursuant to
the provisions of Section 17A of the Securities Exchange Act of 1934. DTC holds
securities that its participants deposit with it. DTC also facilitates the
settlement among its participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized book-entry
changes in participants' accounts, thereby eliminating the need for physical
movement of securities certificates. Direct participants include securities
brokers and dealers, banks, trust companies, clearing
17
corporations and other organizations. DTC is owned by a number of its direct
participants and by the New York Stock Exchange, the American Stock Exchange and
the National Association of Securities Dealers. Access to the DTC system is also
available to others, known as indirect participants, such as securities brokers
and dealers, banks and trust companies that clear through or maintain custodial
relationships with direct participants, either directly or indirectly. The rules
applicable to DTC and its participants are on file with the SEC.
Purchases of securities within the DTC system must be made by or through direct
participants, which will receive a credit for the securities on DTC's records.
The ownership interest of each actual purchaser of each security, commonly
referred to as the beneficial owner, is in turn to be recorded on the direct and
indirect participants' records. Beneficial owners will not receive written
confirmation from DTC of their purchases, but beneficial owners are expected to
receive written confirmations providing details of the transactions, as well as
periodic statements of their holdings, from the direct or indirect participants
through which the beneficial owners purchased securities. Transfers of ownership
interests in securities issued in the form of global securities are accomplished
by entries made on the books of participants acting on behalf of beneficial
owners. Beneficial owners will not receive certificates representing their
ownership interests in these securities, except if use of the book-entry system
for such securities is discontinued.
DTC has no knowledge of the actual beneficial owners of the securities issued in
the form of global securities. DTC's records reflect only the identity of the
direct participants to whose accounts such securities are credited, which may or
may not be the beneficial owners. The participants will remain responsible for
keeping accounts of their holdings on behalf of their customers. Conveyance of
notices and other communications by DTC to direct participants, by direct
participants to indirect participants, and by direct participants and indirect
participants to beneficial owners, will be governed by arrangements among them,
subject to any statutory or regulatory requirements as may be in effect from
time to time.
Any redemption notices need to be sent to DTC. If less than all of the
securities of a series or class are being redeemed, DTC's practice is to
determine by lot the amount to be redeemed from each participant.
Although voting with respect to securities issued in the form of global
securities is limited to the holders of record, when a vote is required, neither
DTC nor Cede & Co. will itself consent or vote with respect to such securities.
Under its usual procedures, DTC would mail an omnibus proxy to the issuer of the
securities as soon as possible after the record date. The omnibus proxy assigns
Cede & Co.'s consenting or voting rights to those direct participants to whose
accounts such securities are credited on the record date, identified in a
listing attached to the omnibus proxy.
Payments in respect of securities issued in the form of global securities will
be made by the issuer of such securities to DTC. DTC's practice is to credit
direct participants' accounts on the relevant payment date in accordance with
their respective holdings shown on DTC's records unless DTC has reason to
believe that it will not receive payments on such payment date. Payments by
participants to beneficial owners will be governed by standing instructions and
customary practices and will be the responsibility of such participant and not
of DTC or the issuer, subject to any statutory or regulatory requirements as may
be in effect from time to time. Payments to DTC are the responsibility of the
issuer of the applicable securities, disbursement of such payments to direct
participants is the responsibility of DTC, and disbursements of such payments to
the beneficial owners is the responsibility of direct and indirect participants.
DTC may discontinue providing its services as depositary with respect to any
securities at any time by giving reasonable notice to the issuer of such
securities. If a successor depositary is not obtained, individual security
certificates representing such securities are required to be printed and
delivered. We, at our option, may decide to discontinue use of the system of
book-entry transfers through DTC or a successor depositary.
The information in this section concerning DTC and DTC's book-entry system has
been obtained from sources that we believe to be accurate, but we assume no
responsibility for its accuracy. We have no responsibility for the performance
by DTC or its participants of their obligations as described in this prospectus
or under the rules and procedures governing their operations.
Debt securities may be issued as registered securities (which will be registered
as to principal and interest in the register maintained by the registrar for
those senior debt securities) or bearer securities (which will be transferable
only by delivery). If debt securities are issuable as bearer securities, certain
special limitations and considerations will apply, as set forth in the
applicable prospectus supplement.
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Our Debt Trustee
Unless stated in the applicable prospectus supplement, (i) the trustee may also
be the trustee under any other indenture for debt securities and (ii) any
trustee or its affiliates may lend money to us, and may from time to time have
lender or other business arrangements with us. If and when the trustee becomes a
creditor of ours, the trustee will be subject to the provisions of the Trust
Indenture Act regarding the collection of claims against us. The trustee and its
affiliates will be permitted to engage in other transactions; however, if they
acquire any conflicting interest, the conflict must be eliminated or the trustee
must resign.
Governing Law
The indentures and the debt securities will be governed by the laws of the State
of New York.
DESCRIPTION OF CAPITAL STOCK
General
The following summary description of our capital stock is based on the
provisions of the Delaware General Corporation Law and our certificate of
incorporation, as amended, and bylaws. This description does not purport to be
complete and is qualified in its entirety by reference to the terms of the
certificate of incorporation and bylaws, which are included as exhibits to the
registration statement of which this prospectus is a part. See "Where You Can
Find More Information."
Our authorized capital stock consists of 300,000,000 shares of common stock, par
value $.01 per share, and 15,000,000 shares of preferred stock, without par
value. As of January 25, 2002, we had 143,440,997 shares of our common stock
outstanding and no shares of preferred stock outstanding. The holders of a
majority of voting stock may increase or decrease the number of authorized
shares of any class.
Common Stock
Each stockholder of record of our common stock is entitled to one vote for each
share held on every matter properly submitted to the stockholders for their
vote. Holders of our common stock do not have cumulative voting rights. As a
result, holders of a majority of the shares of common stock entitled to vote in
any election of directors may elect all of the directors standing for election.
After satisfaction of the divided rights of holders of preferred stock, holders
of common stock are entitled ratably to any dividend declared by the board of
directors out of funds legally available for this purpose. Upon our liquidation,
dissolution or winding up, the holders of our common stock are entitled to
receive ratably our net assets available, if any, after the payment of all debts
and other liabilities and subject to the prior rights of any outstanding
preferred stock. Holders of our common stock have no redemption or conversion
rights, no sinking fund provisions and no preemptive right to subscribe for or
purchase additional shares of any class of our capital stock. The outstanding
shares of our common stock are fully paid and nonassessable, and any shares of
common stock issued in an offering pursuant to this prospectus and any shares of
common stock issuable upon the exercise of common stock warrants or conversion
or exchange of debt securities which are convertible into or exchangeable for
our common stock, or in connection with the obligations of a holder of stock
purchase contracts to purchase our common stock, when issued in accordance with
their terms will be fully paid and nonassessable. The rights, preferences and
privileges of holders of common stock are subject to, and may be adversely
affected by, the rights of the holders of shares of any series of preferred
stock that we may designate and issue in the future.
Preferred Stock
This section describes the general terms and provisions of our preferred stock.
The applicable prospectus supplement will describe the specific terms of the
shares of preferred stock offered through that prospectus supplement, as well as
any general terms described in this section that will not apply to those shares
of preferred stock. We will file a copy of the certificate of designation that
contains the terms of each new series of preferred stock with the SEC each time
we issue a new series of preferred stock. Each certificate of designation will
establish the number of shares included in a designated series and fix the
designation, powers, privileges, preferences and rights of the shares of each
series as well as any applicable qualifications,
19
limitations or restrictions. You should refer to the applicable certificate of
designation as well as our certificate of incorporation before deciding to buy
shares of our preferred stock as described in the applicable prospectus
supplement.
Our board of directors has been authorized to provide for the issuance of up to
15,000,000 shares of our preferred stock in multiple series without the approval
of stockholders. With respect to each series of our preferred stock, our board
of directors has the authority to fix the following terms:
. the designation of the series;
. the number of shares within the series;
. whether dividends are cumulative and, if cumulative, the dates from
which dividends are cumulative;
. the rate of any dividends, any conditions upon which dividends are
payable, and the dates of payment of dividends;
. whether interests in the shares of preferred stock will be
represented by depositary shares as more fully described below under
"Description of Depositary Shares";
. whether the shares are redeemable, the redemption price and the terms
of redemption;
. the amount payable to you for each share you own if we dissolve or
liquidate;
. whether the shares are convertible or exchangeable, the price or rate
of conversion or exchange, and the applicable terms and conditions;
. any restrictions on issuance of shares in the same series or any
other series;
. voting rights applicable to the series of preferred stock; and
. any other rights, priorities, preferences, restrictions or
limitations of such series.
Your rights with respect to your shares of preferred stock will be subordinate
to the rights of our general creditors. Shares of our preferred stock that we
issue in accordance with their terms will be fully paid and nonassessable, and
will not be entitled to preemptive rights unless specified in the applicable
prospectus supplement.
Our ability to issue preferred stock, or rights to purchase such shares, could
discourage an unsolicited acquisition proposal. For example, we could impede a
business combination by issuing a series of preferred stock containing class
voting rights that would enable the holders of such preferred stock to block a
business combination transaction. Alternatively, we could facilitate a business
combination transaction by issuing a series of preferred stock having sufficient
voting rights to provide a required percentage vote of the stockholders.
Additionally, under certain circumstances, our issuance of preferred stock could
adversely affect the voting power of the holders of our common stock. Although
our board of directors is required to make any determination to issue any
preferred stock based on its judgment as to the best interests of our
stockholders, our board of directors could act in a manner that would discourage
an acquisition attempt or other transaction that some, or a majority, of our
stockholders might believe to be in their best interests or in which
stockholders might receive a premium for their stock over prevailing market
prices of such stock. Our board of directors does not at present intend to seek
stockholder approval prior to any issuance of currently authorized stock, unless
otherwise required by law or applicable stock exchange requirements.
Limitation on Directors' Liability
Our certificate of incorporation provides, as authorized by Section 102(b)(7) of
the Delaware General Corporation Law, that our directors will not be personally
liable to us or our stockholders for monetary damages for breach of fiduciary
duty as a director, except for liability
20
. for any breach of the director's duty of loyalty to us or our
stockholders;
. for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law;
. for unlawful payments of dividends or unlawful stock repurchases or
redemptions as provided in Section 174 of the Delaware General
Corporation Law; or
. for any transaction from which the director derived an improper
personal benefit.
The inclusion of this provision in our certificate of incorporation may have the
effect of reducing the likelihood of derivative litigation against directors,
and may discourage or deter stockholders or management from bringing a lawsuit
against directors for breach of their duty of care, even though such an action,
if successful, might otherwise have benefited us and our stockholders.
Section 203 of the Delaware General Corporation Law
Section 203 of the Delaware General Corporation Law prohibits a defined set of
transactions between a Delaware corporation, such as us, and an interested
stockholder. An interested stockholder is defined as a person who, together with
any affiliates or associates of such person, beneficially owns, directly or
indirectly, 15% or more of the outstanding voting shares of a Delaware
corporation. This provision may prohibit business combinations between an
interested stockholder and a corporation for a period of three years after the
date the interested stockholder becomes an interested stockholder. The term
business combination is broadly defined to include mergers, consolidations,
sales or other dispositions of assets having a total value in excess of 10% of
the consolidated assets of the corporation, and some other transactions that
would increase the interested stockholder's proportionate share ownership in the
corporation.
This prohibition is effective unless:
. the business combination is approved by the corporation's board of
directors prior to the time the interested stockholder becomes an
interested stockholder;
. the interested stockholder acquired at least 85% of the voting stock
of the corporation, other than stock held by directors who are also
officers or by qualified employee stock plans, in the transaction in
which it becomes an interested stockholder; or
. the business combination is approved by a majority of the board of
directors and by the affirmative vote of two-thirds of the
outstanding voting stock that is not owned by the interested
stockholder.
In general, the prohibitions do not apply to business combinations with persons
who were stockholders before we became subject to Section 203.
Special Charter Provisions
Our certificate of incorporation divides our board of directors into three
classes of directors serving staggered, three-year terms. Vacancies, and
newly-created directorships resulting from any increase in the size of our
board, must be filled by our board, even if the directors then on the board do
not constitute a quorum or only one director is left in office. These
provisions, together with the provisions of Section 203 of the Delaware General
Corporation Law, could have the effect of delaying, deferring or preventing a
change in control or the removal of existing management, of deterring potential
acquirors from making an offer to our stockholders and of limiting any
opportunity to realize premiums over prevailing market prices for our common
stock in connection therewith. This could be the case notwithstanding that a
majority of our stockholders might benefit from such a change in control or
offer.
Transfer Agent and Registrar
SunTrust Bank serves as the registrar and transfer agent for the common stock.
21
Stock Exchange Listing
Our common stock is listed on the New York Stock Exchange under the trading
symbol "DHR".
DESCRIPTION OF WARRANTS
General
We may issue warrants to purchase our debt or equity securities. We may issue
warrants independently or together with any offered securities and the warrants
may be attached to or separate from those offered securities. We will issue the
warrants under warrant agreements to be entered into between us and a bank or
trust company, as warrant agent, all as described in the applicable prospectus
supplement. The warrant agent will act solely as our agent in connection with
the warrants of the series being offered and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of
warrants.
The applicable prospectus supplement will describe the following terms, where
applicable, of warrants in respect of which this prospectus is being delivered:
. the title of the warrants;
. the designation, amount and terms of the securities for which the
warrants are exercisable;
. the designation and terms of the other securities, if any, with which
the warrants are to be issued and the number of warrants issued with
each such security;
. the price or prices at which the warrants will be issued;
. the aggregate number of warrants;
. any provisions for adjustment of the number or amount of securities
receivable upon exercise of the warrants or the exercise price of the
warrants;
. the price or prices at which the securities purchasable upon exercise
of the warrants may be purchased;
. if applicable, the date on and after which the warrants and the
securities purchasable upon exercise of the warrants will be
separately transferable;
. if applicable, a discussion of the material United States federal
income tax considerations applicable to the exercise of the warrants;
. any other terms of the warrants, including terms, procedures and
limitations relating to the exchange and exercise of the warrants;
. the date on which the right to exercise the warrants shall commence,
and the date on which the right shall expire;
. the currency or currencies in which the stock warrants are
exercisable;
. the terms of any mandatory or optional redemption or call provisions;
. the identity of the warrant agent;
22
. if applicable, the maximum or minimum number of warrants which may be
exercised at any time; and
. information with respect to book-entry procedures, if any.
Exercise of Warrants
Each warrant will entitle the holder of warrants to purchase for cash the amount
of debt or equity securities, at the exercise price as shall be set forth in, or
be determinable as set forth in, the prospectus supplement relating to the
warrants. Warrants may be exercised at any time up to the close of business on
the expiration date set forth in the prospectus supplement relating to the
warrants. After the close of business on the expiration date, unexercised
warrants will become void.
Warrants may be exercised as set forth in the prospectus supplement relating to
the warrants. When the warrant holder makes the payment and properly completes
and signs the warrant certificate at the corporate trust office of the warrant
agent or any other office indicated in the prospectus supplement, we will, as
soon as possible, forward the debt or equity securities which the warrant holder
has purchased. If the warrant holder exercises the warrant for less than all of
the warrants represented by the warrant certificates, we will issue a new
warrant certificate for the remaining warrants.
Until the exercise of their warrants for debt or equity securities, holders of
warrants will not have rights as a holder of the debt or equity securities, as
the case may be, by virtue of such holder's ownership of warrants.
DESCRIPTION OF DEPOSITARY SHARES
General
We may offer fractional shares of preferred stock, rather than full shares of
preferred stock. If we do so, we may issue receipts for depositary shares that
each represent a fraction of a share of a particular series of preferred stock.
The prospectus supplement will indicate that fraction. The shares of preferred
stock represented by depositary shares will be deposited under a depositary
agreement between us and a bank or trust company that meets certain requirements
and is selected by us (the Bank Depositary). Each owner of a depositary share
will be entitled to all the rights and preferences of the preferred stock
represented by the depositary share. The depositary shares will be evidenced by
depositary receipts issued pursuant to the depositary agreement. Depositary
receipts will be distributed to those persons purchasing the fractional shares
of preferred stock in accordance with the terms of the offering.
We have summarized some common provisions of a depositary agreement and the
related depositary receipts. The forms of the depositary agreement and the
depositary receipts relating to any particular issue of depositary shares will
be filed with the SEC each time we issue depositary shares, and you should read
those documents for provisions that may be important to you.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock
represented by depositary shares, the Bank Depositary will distribute such
dividends to the record holders of such depositary shares. If the distributions
are in property other than cash, the Bank Depositary will distribute the
property to the record holders of the depositary shares. However, if the Bank
Depositary determines that it is not feasible to make the distribution of
property, the Bank Depositary may, with our approval, sell such property and
distribute the net proceeds from such sale to the record holders of the
depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the
Bank Depositary will redeem the depositary shares from the proceeds received by
the Bank Depositary in connection with the redemption. The redemption price per
depositary share will equal the applicable fraction of the redemption price per
share of the preferred stock. If fewer than all the depositary shares are
redeemed, the depositary shares to be redeemed will be selected by lot or pro
rata as the Bank Depositary may determine.
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Voting the Preferred Stock
Upon receipt of notice of any meeting at which the holders of the preferred
stock represented by depositary shares are entitled to vote, the Bank Depositary
will mail the notice to the record holders of the depositary shares relating to
such preferred stock. Each record holder of these depositary shares on the
record date, which will be the same date as the record date for the preferred
stock, may instruct the Bank Depositary as to how to vote the preferred stock
represented by such holder's depositary shares. The Bank Depositary will
endeavor, insofar as practicable, to vote the amount of the preferred stock
represented by such depositary shares in accordance with such instructions, and
we will take all action which the Bank Depositary deems necessary in order to
enable the Bank Depositary to do so. The Bank Depositary will abstain from
voting shares of the preferred stock to the extent it does not receive specific
instructions from the holders of depositary shares representing such preferred
stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary shares and any
provision of the depositary agreement may be amended by agreement between the
Bank Depositary and us. However, any amendment that materially and adversely
alters the rights of the holders of depositary shares will not be effective
unless such amendment has been approved by the holders of at least a majority of
the depositary shares then outstanding. The depositary agreement may be
terminated by the Bank Depositary or us only if (1) all outstanding depositary
shares have been redeemed or (2) there has been a final distribution in respect
of the preferred stock in connection with any liquidation, dissolution or
winding up of our company and such distribution has been distributed to the
holders of depositary receipts.
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely
from the existence of the depositary arrangements. We will pay charges of the
Bank Depositary in connection with the initial deposit of the preferred stock
and any redemption of the preferred stock. Holders of depositary receipts will
pay other transfer and other taxes and governmental charges and any other
charges, including a fee for the withdrawal of shares of preferred stock upon
surrender of depositary receipts, as are expressly provided in the depositary
agreement to be for their accounts.
Withdrawal of Preferred Stock
Except as may be provided otherwise in the applicable prospectus supplement,
upon surrender of depositary receipts at the principal office of the Bank
Depositary, subject to the terms of the depositary agreement, the owner of the
depositary shares may demand delivery of the number of whole shares of preferred
stock and all money and other property, if any, represented by those depositary
shares. Partial shares of preferred stock will not be issued. If the depositary
receipts delivered by the holder evidence a number of depositary shares in
excess of the number of depositary shares representing the number of whole
shares of preferred stock to be withdrawn, the Bank Depositary will deliver to
such holder at the same time a new depositary receipt evidencing the excess
number of depositary shares. Holders of preferred stock thus withdrawn may not
thereafter deposit those shares under the depositary agreement or receive
depositary receipts evidencing depositary shares therefor.
Miscellaneous
The Bank Depositary will forward to holders of depositary receipts all reports
and communications from us that are delivered to the Bank Depositary and that we
are required to furnish to the holders of the preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or delayed
by law or any circumstance beyond our control in performing our obligations
under the depositary agreement. The obligations of the Bank Depositary and us
under the depositary agreement will be limited to performance in good faith of
our duties thereunder, and we will not be obligated to prosecute or defend any
legal proceeding in respect of any depositary shares or preferred stock unless
satisfactory indemnity is furnished. We may rely upon written advice of counsel
or accountants, or upon information provided by persons presenting preferred
stock for deposit, holders of depositary receipts or other persons believed to
be competent and on documents believed to be genuine.
24
Resignation and Removal of Bank Depositary
The Bank Depositary may resign at any time by delivering to us notice of its
election to do so, and we may at any time remove the Bank Depositary. Any such
resignation or removal will take effect upon the appointment of a successor Bank
Depositary and its acceptance of such appointment. The successor Bank Depositary
must be appointed within 60 days after delivery of the notice of resignation or
removal and must be a bank or trust company meeting the requirements of the
depositary agreement.
DESCRIPTION OF THE STOCK PURCHASE CONTRACTS
AND STOCK PURCHASE UNITS
We may issue stock purchase contracts, including contracts obligating holders to
purchase from us, and obligating us to sell to the holders, a specified number
of shares of common stock or other securities at a future date or dates, which
we refer to in this prospectus as stock purchase contracts. The price per share
of the securities and the number of shares of the securities may be fixed at the
time the stock purchase contracts are issued or may be determined by reference
to a specific formula set forth in the stock purchase contracts. The stock
purchase contracts may be issued separately or as part of units consisting of a
stock purchase contract and debt securities, preferred securities, warrants or
debt obligations of third parties, including U.S. treasury securities, securing
the holders' obligations to purchase the securities under the stock purchase
contracts, which we refer to herein as stock purchase units. The stock purchase
contracts may require holders to secure their obligations under the stock
purchase contracts in a specified manner. The stock purchase contracts also may
require us to make periodic payments to the holders of the stock purchase units
or vice versa, and those payments may be unsecured or refunded on some basis.
The applicable prospectus supplement will describe the terms of the stock
purchase contracts or stock purchase units. The description in the prospectus
supplement will not necessarily be complete, and reference will be made to the
stock purchase contracts, and, if applicable, collateral or depositary
arrangements relating to the stock purchase contracts or stock purchase units,
which will be filed with the SEC each time we issue stock purchase contracts or
stock purchase units. Material United States federal income tax considerations
applicable to the stock purchase units and the stock purchase contracts will
also be discussed in the applicable prospectus supplement.
PLAN OF DISTRIBUTION
General
We may sell the offered securities in and outside the United States (1) through
underwriters or dealers, (2) directly to purchasers, including to our affiliates
and stockholders in a rights offering, (3) through agents, or (4) through a
combination of any of these methods. The applicable prospectus supplement will
include the following information:
. the terms of the offering;
. the names of any underwriters or agents;
. the name or names of any managing underwriter or underwriters;
. the purchase price or initial public offering price of the
securities;
. the net proceeds from the sale of the securities;
. any delayed delivery arrangements;
. any underwriting discounts, commissions and other items constituting
underwriters' compensation;
25
. any discounts or concessions allowed or reallowed or paid to dealers;
and
. any commissions paid to agents.
The distribution of the securities described in this prospectus may be effected
from time to time in one or more transactions either:
. at a fixed price or prices, which may be changed;
. at market prices prevailing at the time of sale;
. at prices relating to such prevailing market prices; or
. at negotiated prices.
Sale through Underwriters or Dealers
If underwriters are used in the sale, the underwriters will acquire the
securities for their own account. The underwriters may resell the securities
from time to time in one or more transactions, including negotiated
transactions, at a fixed public offering price or at varying prices determined
at the time of sale. Underwriters may offer securities to the public either
through underwriting syndicates represented by one or more managing underwriters
or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to
purchase the securities will be subject to certain conditions, and the
underwriters will be obligated to purchase all the offered securities if they
purchase any of them. The underwriters may change from time to time any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers.
During and after an offering through underwriters, the underwriters may purchase
and sell the securities in the open market. These transactions may include
overallotment and stabilizing transactions and purchases to cover syndicate
short positions created in connection with the offering. The underwriters may
also impose a penalty bid, which means that selling concessions allowed to
syndicate members or other broker-dealers for the offered securities sold for
their account may be reclaimed by the syndicate if the offered securities are
repurchased by the syndicate in stabilizing or covering transactions. These
activities may stabilize, maintain or otherwise affect the market price of the
offered securities, which may be higher than the price that might otherwise
prevail in the open market. If commenced, the underwriters may discontinue these
activities at any time.
Some or all of the securities that we offer though this prospectus may be new
issues of securities with no established trading market. Any underwriters to
whom we sell our securities for public offering and sale may make a market in
those securities, but they will not be obligated to do so and they may
discontinue any market making at any time without notice. Accordingly, we cannot
assure you of the liquidity of, or continued trading markets for, any securities
that we offer.
If dealers are used in the sale of securities, we will sell the securities to
them as principals. They may then resell those securities to the public at
varying prices determined by the dealers at the time of resale. We will include
in the prospectus supplement the names of the dealers and the terms of the
transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In this case, no underwriters or agents
would be involved. We may also sell the securities through agents designated
from time to time. In the prospectus supplement, we will name any agent involved
in the offer or sale of the offered securities, and we will describe any
commissions payable to the agent. Unless we inform you otherwise in the
prospectus supplement, any agent will agree to use its reasonable best efforts
to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors or others who may
be deemed to be underwriters within the meaning of the Securities Act of 1933
with respect to any sale of those securities. We will describe the terms of any
such sales in the prospectus supplement.
26
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more remarketing firms, acting as principals for their
own accounts or as agents for us. Any remarketing firm will be identified and
the terms of its agreements, if any, with us and its compensation will be
described in the applicable prospectus supplement.
Delayed Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents,
underwriters or dealers to solicit offers from certain types of institutions to
purchase securities from us at the public offering price under delayed delivery
contracts. These contracts would provide for payment and delivery on a specified
date in the future. The contracts would be subject only to those conditions
described in the prospectus supplement. The prospectus supplement will describe
the commission payable for solicitation of those contracts.
General Information
We may have agreements with the agents, dealers, underwriters and remarketing
firms to indemnify them against certain civil liabilities, including liabilities
under the Securities Act of 1933, or to contribute with respect to payments that
the agents, dealers, underwriters or remarketing firms may be required to make.
Agents, dealers, underwriters and remarketing firms may be customers of, engage
in transactions with or perform services for us in the ordinary course of their
businesses.
LEGAL MATTERS
Wilmer, Cutler & Pickering, Washington, D.C., will pass upon the validity of our
debt securities, common stock, preferred stock, depositary shares, warrants,
stock purchase contracts and stock purchase units.
EXPERTS
The consolidated financial statements of Danaher as of December 31, 2000 and
1999, and for each of the years in the three-year period ended December 31,
2000, included in Danaher's Annual Report on Form 10-K filed on March 27, 2001
and incorporated by reference in this document, have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said reports.
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[LOGO]
Danaher Corporation
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table sets forth the fees and expenses in connection with the
issuance and distribution of the securities being registered. Except for the SEC
registration fee, all amounts are estimates.
SEC registration fee................................... $ 92,000
Accounting fees and expenses .......................... 25,000
Legal fees and expenses ............................... 150,000
Blue Sky fees and expenses (including counsel fees) ... 10,000
Printing and engraving expenses ....................... 100,000
Trustee fees and expenses ............................. 30,000
Rating Agency fees..................................... 180,000
Miscellaneous expenses, including Listing Fees........ 30,000
-----------------
Total ........................................... $617,000
-----------------
Item 15. Indemnification of Directors and Officers.
Under Section 145 of the General Corporation Law of the State of Delaware (the
"DGCL"), a corporation may indemnify its directors, officers, employees and
agents and its former directors, officers, employees and agents and those who
serve, at the corporation's request, in such capacities with another enterprise,
against expenses (including attorney's fees), as well as judgments, fines and
settlements in nonderivative lawsuits, actually and reasonably incurred in
connection with the defense of any action, suit or proceeding in which they or
any of them were or are made parties or are threatened to be made parties by
reason of their serving or having served in such capacity. The DGCL provides,
however, that such person must have acted in good faith and in a manner he or
she reasonably believed to be in (or not opposed to) the best interests of the
corporation and, in the case of a criminal action, such person must have had no
reasonable cause to believe his or her conduct was unlawful. In addition, the
DGCL does not permit indemnification in an action or suit by or in the right of
the corporation, where such person has been adjudged liable to the corporation,
unless, and only to the extent that, a court determines that such person fairly
and reasonably is entitled to indemnity for costs the court deems proper in
light of liability adjudication. Indemnity is mandatory to the extent a claim,
issue or matter has been successfully defended.
Article Ten of Danaher's Certificate of Incorporation provides that Danaher will
indemnify its directors and officers to the full extent permitted by law and
that no director shall be liable for monetary damages to Danaher or its
stockholders for any breach of fiduciary duty, except to the extent provided by
applicable law (i) for any breach of the director's duty of loyalty to Danaher
or its stockholders, (ii) for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation of law, (iii) pursuant to
Section 174 of the DGCL, or (iv) for any transaction from which such director
derived an improper personal benefit. Article Eight of Danaher's Bylaws provides
that Danaher will indemnify directors, officers, employees or agents of Danaher
in non-derivative claims if such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
Danaher, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. For non-derivative claims,
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, in
itself, create a presumption that the person did not act in good faith and in a
manner which such person believed to be in or not opposed to the best interests
of Danaher, and, with respect to any criminal action or proceeding, had
reasonable cause to believe that such person's conducts was unlawful. For
derivative claims, Article Eight of Danaher's Bylaws provides that Danaher will
indemnify directors, officers, employees or agents of Danaher if such person
acted in good faith and in a manner such person reasonably believed to be in or
not opposed to the best interests of Danaher; except that no indemnification
shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to Danaher unless and only to the extent
that the Court of Chancery or the court in which such action or suit was brought
shall determine upon application that, despite the adjudication of liability but
in view of all the circumstances of the
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case, such person is fairly and reasonably entitled to indemnity for such
expenses which the Court of Chancery or such other court shall deem proper.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits:
Exhibit Number Description
-------------- -----------
1(a)** Form of Underwriting Agreement.
1(b)** Form of Selling Agent Agreement
4(a) Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3 to the
Registrant's Quarterly Report on Form 10-Q for
the quarter ended June 26, 1998).
4(b) Bylaws (incorporated by reference to Exhibit
3 to the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 26, 1998).
4(c)* Form of Senior Debt Indenture.
4(d)* Form of Senior Debt Securities (see Exhibit 4(c)).
4(e)* Form of Subordinated Debt Indenture.
4(f)* Form of Subordinated Debt Securities (see Exhibit
4(e)).
4(g)** Form of Warrant Agreement.
4(h)** Form of Warrant Certificate.
4(i)** Form of Depositary Agreement.
4(j)** Form of Depositary Receipt.
4(k)** Form of Stock Purchase Contract.
4(l)** Form of Stock Purchase Unit.
5* Opinion of Wilmer, Cutler & Pickering.
12* Statement Regarding Computation of Ratio of Earnings
to Fixed Charges.
23(a)* Consent of Arthur Andersen LLP, independent public
accountants.
23(b)* Consent of Wilmer, Cutler & Pickering (included in
Exhibit 5 to this Registration Statement).
24* Powers of Attorney (included on signature page to this
Registration Statement).
25(a)*** Form T-1 Statement of Eligibility under Trust
Indenture Act of 1939 of Trustee under Senior
Debt Indenture.
25(b)*** Form T-1 Statement of Eligibility under Trust
Indenture Act of 1939 of Trustee under Subordinated
Debt Indenture.
___________________________
* Filed herewith.
** To be filed either by amendment or as an exhibit to a report on Form 8-K
filed under the Securities Exchange Act of 1934, and incorporated herein by
reference.
***To be filed in accordance with the requirements of Section
305(b)(2) of the Trust Indenture Act and Rule 5b-3 thereunder.
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Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(a) to file, during any period in which offers or sales are being made of
the securities registered hereby, a post-effective amendment to this
registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
(ii) to reflect in the prospectus any fact or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in this registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high and of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if,
in the aggregate, the changes in volume and price represent no
more than 20 percent change in the maximum aggregate offering
price set forth in the Calculation of Registration Fee table in
the effective registration statement;
(iii) to include any material information with respect to the plan of
distribution not previously disclosed in this registration
statement or any material change to such information in the
registration statement;
provided, however, that the undertakings set forth in the paragraphs (i) and
(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in this
registration statement.
(b) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(c) to remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the
termination of the offering.
(d) that, for purposes of determining any liability under the Securities
Act of 1933, each filing of the registrant's annual report pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at
that time shall be deemed to be the initial bona fide offering
thereof.
(e) that, insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the registrant pursuant to the provisions
described under Item 15 above, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in such Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the registrant of expenses incurred or paid by a director, officer or
controlling person of the registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in such Act and will be
governed by the final adjudication of such issue.
(f) that, for purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and
contained in a form of
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prospectus filed by the registrant pursuant to Rule 424(b)(1) or (a) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(g) that, for purposes of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof.
(h) to file an application for the purposes of determining the eligibility of
the trustee to act under subsection (a) of Section 310 of the Trust
Indenture Act in accordance with the rules and regulations prescribed by
the Commission under Section 305(b)(2) of such Act.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the District of Columbia, on February 21, 2002.
DANAHER CORPORATION
By: /s/ Patrick W. Allender
---------------------------------------------
Patrick W. Allender
Executive Vice President, Chief Financial
Officer and Secretary
POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Patrick W.
Allender and Christopher C. McMahon, and each of them, with full power of
substitution and resubstitution and each with full power to act without the
other, his or her true and lawful attorney-in-fact and agent, for him or her and
in his or her name, place and stead, in any and all capacities, to sign any and
all amendments (including post-effective amendments) to this Registration
Statement and any related Registration Statement filed pursuant to Rule 462(b)
under the Securities Act of 1933, and to file the same, with all exhibits
thereto, and all other documents in connection therewith, with the Securities
and Exchange Commission or any state, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he or she might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or any of them, or their, his or her substitutes or substitute, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration
statement has been signed by the following persons in the capacities and on the
dates indicated.
Date: February 21, 2002 By:
/s/ H. Lawrence Culp, Jr.
---------------------------------------
H. Lawrence Culp, Jr.
Director, President and Chief
Executive Officer
(Principal Executive Officer)
Date: February 21, 2002 By:
/s/ Patrick W. Allender
--------------------------------------
Patrick W. Allender
Executive Vice President, Chief Financial
Officer and Secretary
(Principal Financial Officer)
Date: February 21, 2002 By:
/s/ Christopher C. McMahon
--------------------------------------
Christopher C. McMahon
Vice President and Controller
(Principal Accounting Officer)
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Date: By:
-------------------------------------
Mortimer M. Caplin
Director
Date: February 21, 2002 By:
/S/ Donald J. Ehrlich
-------------------------------------
Donald J. Ehrlich
Director
Date: February 21, 2002 By:
/s/ Mitchell P. Rales
-------------------------------------
Mitchell P. Rales
Director and Chairman of the Executive
Committee
Date: February 21, 2002 By:
/s/ Steven M. Rales
-------------------------------------
Steven M. Rales
Director and Chairman of the Board
Date: February 21, 2002 By:
/s/ Walter G. Lohr, Jr.
-------------------------------------
Walter G. Lohr, Jr.
Director
Date: February 21, 2002 By:
/s/ Alan G. Spoon
-------------------------------------
Alan G. Spoon
Director
Date: By:
-------------------------------------
A. Emmet Stephenson, Jr.
Director
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INDEX TO EXHIBITS
Exhibit Number Description
1(a)** Form of Underwriting Agreement.
1(b)** Form of Selling Agent Agreement
4(a) Certificate of Incorporation, as amended
(incorporated by reference to Exhibit 3 to
the Registrant's Quarterly Report on Form
10-Q for the quarter ended June 26, 1998).
4(b) Bylaws (incorporated by reference to Exhibit
3 to the Registrant's Quarterly Report on
Form 10-Q for the quarter ended June 26,
1998).
4(c)* Form of Senior Debt Indenture.
4(d)* Form of Senior Debt Securities (see Exhibit 4(c)).
4(e)* Form of Subordinated Debt Indenture.
4(f)* Form of Subordinated Debt Securities (see Exhibit
4(e)).
4(g)** Form of Warrant Agreement.
4(h)** Form of Warrant Certificate.
4(i)** Form of Depositary Agreement.
4(j)** Form of Depositary Receipt.
4(k)** Form of Stock Purchase Contract.
4(l)** Form of Stock Purchase Unit.
5* Opinion of Wilmer, Cutler & Pickering.
12* Statement Regarding Computation of Ratio of
Earnings to Fixed Charges.
23(a)* Consent of Arthur Andersen LLP, independent public
accountants.
23(b)* Consent of Wilmer, Cutler & Pickering (included in
Exhibit 5 to this
Registration Statement).
24* Powers of Attorney (included on signature page to
this Registration Statement).
25(a)*** Form T-1 Statement of Eligibility under Trust
Indenture Act of 1939 of Trustee
under Senior Debt Indenture.
25(b)*** Form T-1 Statement of Eligibility under Trust
Indenture Act of 1939 of Trustee under
Subordinated Debt Indenture.
_______________________________
* Filed herewith.
** To be filed either by amendment or as an exhibit to a report on Form 8-K
filed under the Securities Exchange Act of 1934, and incorporated herein by
reference.
*** To be filed in accordance with the requirements of Section
305(b)(2) of the Trust Indenture Act and Rule 5b-3 thereunder.
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