exv99w2
Exhibit 99.2
EXECUTION COPY
THERMO FISHER SCIENTIFIC INC.
as Issuer
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FOURTH SUPPLEMENTAL INDENTURE
Dated as of August 16, 2011
$1,000,000,000 of 2.250% Senior Notes due 2016
and
$1,100,000,000 of 3.600% Senior Notes due 2021
THIS FOURTH SUPPLEMENTAL INDENTURE (the “Fourth Supplemental Indenture”) is dated as of August
16, 2011 between THERMO FISHER SCIENTIFIC INC., a Delaware corporation (the “Company”) and THE BANK
OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association (the “Trustee”).
RECITALS
A. The Company and the Trustee executed and delivered an Indenture, dated as of November 20,
2009, (the “Base Indenture” and, as supplemented by the Fourth Supplemental Indenture, the
“Indenture”), to provide for the issuance by the Company from time to time of unsubordinated debt
securities evidencing its unsecured indebtedness.
B. Pursuant to a Board Resolution, the Company has authorized the issuance of $1,000,000,000
principal amount of 2.250% Senior Notes Due 2016 (the “2016 Notes”) and $1,100,000,000 principal
amount of 3.600% Senior Notes due 2021 (the “2021 Notes” and, together with the 2016 Notes, the
“Notes”).
C. The entry into this Fourth Supplemental Indenture by the parties hereto is in all respects
authorized by the provisions of the Base Indenture.
D. The Company desires to enter into this Fourth Supplemental Indenture pursuant to Section
9.01 of the Base Indenture to establish the terms of the Notes in accordance with Section 2.01 of
the Base Indenture and to establish the form of the Notes in accordance with Sections 2.01(a)(10)
and 2.02 of the Base Indenture.
E. All things necessary to make this Fourth Supplemental Indenture a valid and legally binding
agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of the respective
holders from time to time of the Notes as follows:
ARTICLE I
Section 1.1 Terms of the Notes.
The following terms relate to the Notes:
(1) The 2016 Notes shall constitute a separate series of Notes having the title “2.250% Senior
Notes due 2016” and the 2021 Notes shall constitute a separate series of Notes having the title
“3.600% Senior Notes due 2021”.
(2) The aggregate principal amount of the 2016 Notes (the “Initial 2016 Notes”) and the 2021
Notes (the “Initial 2021 Notes” and, together with the Initial 2016 Notes, the “Initial Notes”)
that may be initially authenticated and delivered under the Indenture shall be $1,000,000,000 and
$1,100,000,000, respectively. The Company may from time to time, without the consent of the
Holders of Notes, issue additional 2016 Notes (in any such case,
“Additional 2016 Notes”) or additional 2021 Notes (in any such case, “Additional 2021 Notes”)
having the same ranking and the same interest rate, maturity and other terms as Initial 2016 Notes
or the Initial 2021 Notes, as the case may be. Any Additional 2016 Notes and the Initial 2016
Notes and any Additional 2021 Notes and the Initial 2021 Notes, as the case may be, shall each
constitute a single series under the Indenture and all references to the 2016 Notes shall include
the Initial 2016 Notes and any Additional 2016 Notes and all references to the 2021 Notes shall
include the Initial 2021 Notes and any Additional 2021 Notes, unless the context otherwise
requires. The aggregate principal amount of each of the Additional 2016 Notes and Additional 2021
Notes shall be unlimited.
(3) The entire Outstanding principal amount of the 2016 Notes and 2021 Notes shall be payable
on August 15, 2016 and on August 15, 2021, respectively.
(4) The rate at which the Notes shall bear interest shall be 2.250% per year for the 2016
Notes and 3.600% per year for the 2021 Notes. The date from which interest shall accrue on the
2016 Notes shall be the most recent Interest Payment Date to which interest has been paid or
provided for or, if no interest has been paid, from August 16, 2011. The Interest Payment Dates
for the 2016 Notes shall be February 15 and August 15 of each year, beginning February 15, 2012,
until the principal is paid or made available for payment. Interest shall be payable on each
Interest Payment Date to the holders of record at the close of business on the January 31 and July
31 prior to each Interest Payment Date (in connection with the 2016 Notes, a “regular record
date”). The date from which interest shall accrue on the 2021 Notes shall be the most recent
Interest Payment Date to which interest has been paid or provided for or, if no interest has been
paid, from August 16, 2011. The Interest Payment Dates for the 2021 Notes shall be February 15 and
August 15 of each year, beginning February 15, 2012, until the principal is paid or made available
for payment. Interest shall be payable on each Interest Payment Date to the holders of record at
the close of business on the January 31 and July 31 prior to each Interest Payment Date (in
connection with the 2021 Notes, a “regular record date”). The basis upon which interest shall be
calculated shall be that of a 360-day year consisting of twelve 30-day months.
(5) The Notes shall be issuable in whole in the form of one or more registered Global
Securities, and the Depository for such Global Securities shall be The Depository Trust Company,
New York, New York. The Notes shall be substantially in the form attached hereto as Exhibit A
(2016 Notes) and Exhibit B (2021 Notes) the terms of which are herein incorporated by reference.
The Notes shall be issuable in denominations of $2,000 or any integral multiple of $1,000 in excess
thereof.
(6) The Notes may be redeemed at the option of the Company prior to the maturity date, as
provided in Section 1.3 hereof, and must be redeemed, under certain circumstances, on the Special
Mandatory Redemption Date, as provided in Section 1.3A hereof.
(7) The Notes will not have the benefit of any sinking fund.
(8) Except as provided herein, the holders of the Notes shall have no special rights in
addition to those provided in the Base Indenture upon the occurrence of any particular events.
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(9) The Notes will be general unsecured and unsubordinated obligations of the Company and will
be ranked equally among themselves.
(10) The Notes are not convertible into shares of common stock or other securities of the
Company.
(11) The restrictive covenant set forth in Section 1.4 hereof shall be applicable to the
Notes.
Section 1.2 Additional Defined Terms.
As used herein, the following defined terms shall have the following meanings with respect to
the Notes only:
“Below Investment Grade Rating Event” means the Notes are downgraded below Investment Grade
Rating by any two of the Rating Agencies on any date during the period (the “Trigger Period”)
commencing 60 days prior to the first public announcement by the Company of the occurrence of a
Change of Control (or pending Change of Control) and ending 60 days following consummation of such
Change of Control (which Trigger Period shall be extended so long as the rating of the Notes is
under publicly announced consideration for possible downgrade by at least two of such Rating
Agencies on such 60th day, such extension to last with respect to each such Rating Agency until the
date on which such Rating Agency considering such possible downgrade either (x) rates the Notes
below Investment Grade or (y) publicly announces that it is no longer considering the Notes for
possible downgrade, provided that no such extension will occur if on such 60th day the Notes are
rated Investment Grade by at least two of such Rating Agencies in question and are not subject to
review for possible downgrade by such Rating Agencies).
“Change of Control” means the occurrence of any of the following: (1) direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Company and its subsidiaries taken as a whole to any “person” (as that term is used in Section
13(d)(3) of the Exchange Act) other than the Company or one of its direct or indirect wholly-owned
subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) as a result of which any “person” (as that term is used in Section 13(d)(3) of the
Exchange Act) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the Company’s outstanding Voting Stock
or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated,
exchanged or changed, measured by voting power rather than number of shares; (3) the Company
consolidates with, or merges with or into, any “person” or “group” (as that term is used in Section
13(d)(3) of the Exchange Act), or any “person” or “group” consolidates with, or merges with or
into, the Company, in any such event pursuant to a transaction in which any of the Company’s Voting
Stock or the Voting Stock of such other person is converted into or exchanged for cash, securities
or other property, other than any such transaction where the shares of the Company’s Voting Stock
outstanding immediately prior to such transaction constitute, or are converted into or exchanged
for, a majority of the Voting Stock of the surviving person or any direct or indirect parent
company of the surviving person immediately after giving effect to such transaction; (4) the first
day on which a majority of the
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members of the Company’s board of directors are not Continuing Directors; or (5) the adoption
of a plan relating to the Company’s liquidation or dissolution. Notwithstanding the foregoing, a
transaction will not be deemed to involve a Change of Control if (a) the Company becomes a direct
or indirect wholly owned subsidiary of a holding company (which shall include a parent company) and
(b)(i) the holders of the Voting Stock of such holding company immediately following that
transaction are substantially the same as the holders of our Voting Stock immediately prior to that
transaction or (ii) no “person” (as that term is used in Section 13(d)(3) of the Exchange Act)
(other than a holding company satisfying the requirements of this sentence) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of
more than 50% of the voting power of the Voting Stock of such holding company immediately following
such transaction.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Independent Investment Banker as having an actual or interpolated maturity comparable to the
remaining term of the Notes to be redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate debt securities of
comparable maturity to the remaining term of the Notes to be redeemed.
“Comparable Treasury Price” means, with respect to any redemption date, (a) the average of the
Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest of the Reference Treasury Dealer Quotations, (b) if the Company obtains fewer than four
Reference Treasury Dealer Quotations, the arithmetic average of those quotations or (c) if the
Company obtains only one Reference Treasury Dealer Quotation, such Reference Treasury Dealer
Quotation.
“Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Company who (1) was a member of the Board of Directors of the Company on the date
of the issuance of the Notes; or (2) was nominated for election or elected to the Board of
Directors of the Company with the approval of a majority of the Continuing Directors who were
members of such Board of Directors of the Company at the time of such nomination or election
(either by specific vote or by approval of the Company’s proxy statement in which such member was
named as a nominee for election as a director, without objection to such nomination).
“Fitch” means Fitch Ratings Limited.
“Independent Investment Banker” means the Reference Treasury Dealer appointed by the Company
as Independent Investment Banker (initially, Barclays Capital Inc., Merrill Lynch, Pierce, Fenner &
Smith Incorporated or J.P. Morgan Securities LLC).
“Investment Grade Rating” means a rating by Moody’s equal to or higher than Baa3 (or the
equivalent under a successor rating category of Moody’s) or a rating by S&P equal to or higher than
BBB- (or the equivalent under any successor rating category of S&P) or a rating by Fitch equal to
or higher than BBB- (or the equivalent under any successor rating category of Fitch).
“Moody’s” means Moody’s Investors Service, Inc.
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“Optional Redemption Date” when used with respect to any Note to be redeemed at the Company’s
option, means the date fixed for such redemption by or pursuant to Section 1.3 of this Fourth
Supplemental Indenture.
“Optional Redemption Price” when used with respect to any Note to be redeemed at the Company’s
option, means the price at which it is to be redeemed pursuant to Section 1.3 of this Fourth
Supplemental Indenture.
“Phadia Acquisition” means the acquisition of the Phadia group companies pursuant to the
Purchase Agreement.
“Purchase Agreement” means the Sale and Purchase Agreement dated May 19, 2011 among CB
Diagnostics Luxembourg S.À.R.L, a Luxembourg corporation, certain funds managed and advised by
Cinven Limited and the Company in the form filed as Exhibit 99.1 to the Company’s Form 8-K filed
with the Commission on May 24, 2011.
“Rating Agencies” means (1) Moody’s, S&P and Fitch; and (2) if any of Moody’s, S&P or Fitch
ceases to rate the Notes or fails to make a rating of the Notes publicly available for any reason,
a “nationally recognized statistical rating organization” within the meaning of Rule
15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Company (as certified by a resolution
of the Board of Directors) as a replacement agency for any of Moody’s, S&P or Fitch, or all of
them, as the case may be.
“Reference Treasury Dealer” means each of (i) Barclays Capital Inc., Merrill Lynch, Pierce,
Fenner & Smith Incorporated and J.P. Morgan Securities LLC, and their respective successors and
(ii) two other nationally recognized investment banking firms (or their affiliates) that the
Company selects in connection with the particular redemption, and their respective successors,
provided that if at any time any of the above is not a primary U.S. Government securities dealer,
the Company will substitute that entity with another nationally recognized investment banking firm
that the Company selects that is a primary U.S. Government securities dealer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the arithmetic average, as determined by the Trustee, of the bid and asked
prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal
amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York
City time, on the third business day preceding such redemption date.
“Remaining Scheduled Payments” means, with respect to each Note to be redeemed, the remaining
scheduled payments of the principal thereof and interest thereon that would be due after the
related redemption date for such redemption; provided, however, that, if such redemption date is
not an interest payment date with respect to such Note, the amount of the next succeeding scheduled
interest payment thereon will be reduced by the amount of interest accrued thereon to such
redemption date.
“S&P” means Standard & Poor’s Ratings Services, a business of Standard & Poor’s Financial
Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor to its rating
agency business.
“Treasury Rate” means, for any redemption date, the rate per annum equal to the semi-annual
equivalent yield to maturity or interpolated yield to maturity, computed as the
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second business day immediately preceding that redemption date, of the Comparable Treasury
Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) equal to the Comparable Treasury Price for that redemption date.
Section 1.3 Optional Redemption.
(a) The provisions of Article Three of the Base Indenture, as amended by the provisions of
this Fourth Supplemental Indenture, shall apply to the Notes with respect to this Section 1.3.
(b) The 2016 Notes shall be redeemable in whole at any time or in part from time to time, at
the Company’s option. Upon redemption of the Notes, the Company shall pay an Optional Redemption
Price equal to the greater of:
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(i) |
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100% of the principal amount of the 2016 Notes to
be redeemed, and |
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(ii) |
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the sum of the present values of the Remaining
Scheduled Payments of the 2016 Notes to be redeemed, discounted to the
Optional Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) using a discount rate equal to the
Treasury Rate plus 20 basis points, |
plus, in addition to such Optional Redemption Price, accrued and unpaid interest thereon, if any,
to, but excluding, the Optional Redemption Date.
(c) Prior to May 15, 2021, the 2021 Notes shall be redeemable in whole at any time or in part
from time to time, at the Company’s option. Upon redemption of the Notes, the Company shall pay an
Optional Redemption Price equal to the greater of:
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(iii) |
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100% of the principal amount of the 2021 Notes to
be redeemed, and |
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(iv) |
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the sum of the present values of the Remaining
Scheduled Payments of the 2021 Notes to be redeemed, discounted to the
Optional Redemption Date on a semi-annual basis (assuming a 360-day year
consisting of twelve 30-day months) using a discount rate equal to the
Treasury Rate plus 20 basis points, |
plus, in addition to such Optional Redemption Price, accrued and unpaid interest thereon, if any,
to, but excluding, the Optional Redemption Date.
In addition, on or after May 15, 2021, the 2021 Notes shall be redeemable, in whole at any
time or in part from time to time, at the Company’s option at a redemption price equal to 100% of
the principal amount of the 2021 Notes to be redeemed, plus accrued and unpaid interest thereon, if
any, to, but excluding, the Optional Redemption Date.
(d) Notwithstanding the foregoing, installments of interest whose Stated Maturity is on or
prior to the Optional Redemption Date shall be payable on the applicable Interest Payment
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Date to the Securityholders of such Notes registered as such at the close of business on the
applicable regular record date pursuant to the Notes and the Indenture.
(e) On and after the Optional Redemption Date for the Notes, interest shall cease to accrue on
the Notes or any portion thereof called for redemption, unless the Company defaults in the payment
of the Optional Redemption Price and accrued interest, if any. On or before the Optional
Redemption Date for the Notes, the Company shall deposit with the Trustee or a paying agent, funds
sufficient to pay the Optional Redemption Price of the Notes to be redeemed on the Optional
Redemption Date, and (except if the date fixed for redemption shall be an Interest Payment Date)
accrued interest, if any. If less than all of the Notes are to be redeemed, the Notes shall be
redeemed in accordance with Section 3.02 of the Base Indenture.
(f) Notice of any optional redemption shall be mailed at least 15 days but not more than 60
days before the Optional Redemption Date to each holder of the Notes to be redeemed; provided,
however, that the Company shall notify the Trustee of the Optional Redemption Date at least 15 days
prior to the date of the giving of such notice (unless a shorter notice shall be satisfactory to
the Trustee). Such notice shall be provided in accordance with Section 3.02 of the Base Indenture.
If the Optional Redemption Price cannot be determined at the time such notice is to be given, the
actual Optional Redemption Price, calculated as described above in clause (b) or (c), as
applicable, shall be set forth in an Officers’ Certificate of the Company delivered to the Trustee
no later than two (2) Business Days prior to the Optional Redemption Date. Notice of redemption
having been given as provided in the Indenture, the Notes called for redemption shall, on the
Optional Redemption Date, become due and payable at the Optional Redemption Price, plus accrued and
unpaid interest, if any, to, but excluding, the Optional Redemption Date.
Section 1.3A Special Mandatory Redemption.
(a) The provisions of Article Three of the Base Indenture, as amended by the provisions of
this Fourth Supplemental Indenture, shall apply to the Notes with respect to this Section 1.3A.
(b) The 2016 Notes and the 2021 Notes shall be redeemed, in each case, in whole and not in
part (a “Special Mandatory Redemption”) in the event that (each, a “Special Mandatory Redemption
Triggering Event”) either:
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(i) |
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the Company does not consummate the Phadia
Acquisition on or prior to December 31, 2011; or |
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(ii) |
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the Purchase Agreement is terminated any time prior
thereto for any reason. |
(c) The Company shall redeem all of the aggregate principal amount of the Outstanding Notes on
the earlier to occur of (i) in the case of redemption pursuant to clause (b)(i) above, January 30,
2012 or (ii) in the case of redemption pursuant to clause (b)(ii) above, the 30th day (or if such
day is not a Business Day, the first Business Day thereafter) following such termination of the
Purchase Agreement (the “Special Mandatory Redemption Date”).
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(d) Upon Special Mandatory Redemption, the Company shall pay the sum of 101% of the aggregate
principal amount of the 2016 Notes or the 2021 Notes to be redeemed (the “Special Mandatory
Redemption Price”), plus, in addition to such Special Mandatory Redemption Price, in each case,
accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date.
Notwithstanding the foregoing, installments of interest whose Stated Maturity is on or prior to the
Special Mandatory Redemption Date shall be payable on the applicable Interest Payment Date to the
Securityholders of such Notes registered as such at the close of business on the applicable regular
record date pursuant to the Notes and the Indenture.
(e) On and after the Special Mandatory Redemption Date for the Notes, interest shall cease to
accrue on the Notes unless the Company defaults in the payment of the Special Mandatory Redemption
Price and accrued interest, if any. On or before the Special Mandatory Redemption Date for the
Notes, the Company shall deposit with the Trustee or a paying agent, funds sufficient to pay the
Special Mandatory Redemption Price of the Notes to be redeemed on the Special Mandatory Redemption
Date, and (except if the date fixed for redemption shall be an Interest Payment Date) accrued
interest, if any.
(f) Notice of redemption shall be mailed, with a copy to the Trustee, no later than five (5)
Business Days following the Special Mandatory Redemption Triggering Event, to each Securityholder
at its registered address (a “Special Mandatory Redemption Notice”). The Special Mandatory
Redemption Notice shall state the information set forth in, and shall be subject to the terms and
conditions of, Section 3.02 of the Base Indenture. Notice of redemption having been given as
provided in the Indenture, the Notes called for redemption shall, on the Special Mandatory
Redemption Date, become due and payable at the Special Mandatory Redemption Price, plus accrued and
unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date.
Section 1.4 Additional Covenant.
The following additional covenant shall apply with respect to the Notes so long as any of the
Notes remain Outstanding:
(1) Change of Control Triggering Event.
(a) If a Change of Control Triggering Event occurs with respect to the Notes,
unless the Company shall have redeemed the 2016 Notes and 2021 Notes in full, as set
forth in Section 1.3 or 1.3A of this Fourth Supplemental Indenture or the Company shall
have defeased the Notes or have satisfied and discharged the Notes, as set forth in
Article Eleven of the Base Indenture, the Company shall make an offer (the “Change of
Control Offer”) to each holder of the 2016 Notes and 2021 Notes to repurchase any and
all of such holder’s 2016 Notes and 2021 Notes at a repurchase price in cash equal to
101% of the aggregate principal amount of 2016 Notes and 2021 Notes to be repurchased
(such principal amount to be equal to $2,000 or any integral multiple of $1,000 in
excess of $2,000), plus accrued and unpaid interest, if any, on the 2016 Notes and 2021
Notes to be repurchased up to, but excluding, the date of repurchase (the “Change of
Control Payment”). Within 30 days following any Change of Control Triggering Event,
notice shall be mailed to Holders of the Notes describing the
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transaction or transactions that constitute the Change of Control Triggering Event and
offering to repurchase the Notes on the date specified in the notice, which date will be no
earlier than 15 days and no later than 60 days from the date such notice is mailed (the
“Change of Control Payment Date”). Notwithstanding the foregoing, installments of interest
whose Stated Maturity is on or prior to the Change of Control Payment Date shall be payable
on the applicable Interest Payment Date to the Securityholders of such Notes registered as
such at the close of business on the applicable regular record date pursuant to the Notes
and the Indenture.
(b) On the Change of Control Payment Date, the Company shall, to the extent lawful:
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(i) |
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accept for payment all Notes or portions of Notes
properly tendered pursuant to the Change of Control Offer; |
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(ii) |
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deposit with the Trustee or a paying agent an
amount equal to the Change of Control Payment in respect of all Notes or
portions of Notes properly tendered; and |
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(iii) |
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deliver or cause to be delivered to the Trustee
the Notes properly accepted, together with an Officers’ Certificate
stating (1) the aggregate principal amount of Notes or portions of Notes
being repurchased, (2) that all conditions precedent contained herein to
make a Change of Control Offer have been complied with and (3) that the
Change of Control Offer has been made in compliance with the Indenture. |
The Company shall publicly announce the results of the Change of Control Offer on or as soon
as possible after the date of purchase.
The Company shall comply in all material respects with the requirements of Rule 14e-1 under
the Exchange Act and any other securities laws and regulations thereunder to the extent such laws
and regulations are applicable in connection with the repurchase of the Notes as a result of a
Change of Control Triggering Event. To the extent that the provisions of any such securities laws
or regulations conflict with the Change of Control Offer provisions of this Section 1.4, the
Company shall comply with the applicable securities laws and regulations and shall not be deemed to
have breached its obligations under this Section 1.4 by virtue of any such conflict.
Section 1.5 Events of Default.
(a) With respect to the Notes, “Event of Default” means any one or more of the following
events that has occurred and is continuing:
(1) default in the payment of the principal or any premium on any Note of that series
when due (whether at maturity, upon acceleration, redemption or otherwise);
(2) default for 30 days in the payment of interest on any Note of such series when due;
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(3) failure by the Company to comply with Section 1.3A or Section 1.4 of this Fourth
Supplemental Indenture;
(4) failure by the Company to observe or perform any term of the Indenture (other than
those referred to in (1), (2) or (3) above and other than a covenant or agreement included
in this Fourth Supplemental Indenture not for the benefit of such series) for a period of 90
days after the Company receives a notice of default stating that the Company is in breach.
The notice must be sent by either the Trustee or Holders of 25% of the principal amount of
the Notes of the affected series;
(5) (A) failure by the Company to pay indebtedness for money borrowed by the Company or
for which the Company has guaranteed the payment, in an aggregate principal amount of at
least $100,000,000, at the later of final maturity and the expiration of any related
applicable grace period and such defaulted payment shall not have been made, waived or
extended within 30 days or (B) acceleration of the maturity of any indebtedness for money
borrowed by the Company or for which the Company has guaranteed the payment, in an aggregate
principal amount of at least $100,000,000, if such indebtedness has not been discharged in
full or such acceleration has not been rescinded or annulled within 30 days; provided,
however, that, if the default under the instrument is cured by the Company, or waived by the
holders of the indebtedness, in each case as permitted by the governing instrument, then the
Event of Default under the Indenture caused by such default will be deemed likewise to be
cured or waived;
(6) the entry by a court having competent jurisdiction of:
(A) an order for relief in respect of the Company as debtor in an involuntary
proceeding under any applicable Bankruptcy Law and such order shall remain unstayed
and in effect for a period of 60 consecutive days; or
(B) a final and non-appealable order appointing a Custodian of the Company, or
ordering the winding up or liquidation of the affairs of the Company, and such order
shall remain unstayed and in effect for a period of 60 consecutive days;
(7) the commencement by the Company of a voluntary proceeding under any applicable
Bankruptcy Law or the consent by the Company as debtor to the entry of a decree or order for
relief in an involuntary proceeding under any applicable Bankruptcy Law, or the filing by
the Company as debtor of a consent to an order for relief in any involuntary proceeding
under any Bankruptcy Law, or to the appointment of a Custodian or the making by the Company
of an assignment for the benefit of creditors.
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ARTICLE II
MISCELLANEOUS
Section 2.1 Definitions.
Capitalized terms used but not defined in this Fourth Supplemental Indenture shall have the
meanings ascribed thereto in the Base Indenture.
Section 2.2 Confirmation of Indenture.
The Base Indenture, as supplemented and amended by this Fourth Supplemental Indenture, is in
all respects ratified and confirmed, and the Base Indenture, this Fourth Supplemental Indenture and
all indentures supplemental thereto shall be read, taken and construed as one and the same
instrument.
Section 2.3 Concerning the Trustee.
In carrying out the Trustee’s responsibilities hereunder, the Trustee shall have all of the
rights, protections and immunities which it possesses under the Indenture. The recitals contained
herein and in the Notes, except the Trustee’s certificate of authentication, shall be taken as the
statements of the Company, and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Fourth Supplemental
Indenture or of the Notes. The Trustee shall not be accountable for the use or application by the
Company of the Notes or the proceeds thereof.
Section 2.4 Governing Law.
This Fourth Supplemental Indenture and the Notes shall be deemed to be a contract made under
the internal laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of said State.
Section 2.5 Separability.
In case any provision in this Fourth Supplemental Indenture shall for any reason be held to be
invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section 2.6 Counterparts.
This Fourth Supplemental Indenture may be executed in any number of counterparts each of which
shall be an original, but such counterparts shall together constitute but one and the same
instrument.
Section 2.7 No Benefit.
Nothing in this Fourth Supplemental Indenture, express or implied, shall give to any Person
other than the parties hereto and their successors or assigns, and the holders of the Notes, any
benefit or legal or equitable rights, remedy or claim under this Fourth Supplemental Indenture or
the Base Indenture.
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental Indenture to be
duly executed all as of the day and year first above written.
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THERMO FISHER SCIENTIFIC INC.
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/s/ Seth H. Hoogasian
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Seth H. Hoogasian |
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Senior Vice President, General Counsel and Secretary |
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Fourth Supplemental Indenture
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee
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/s/
Thomas J. Provenzano |
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Thomas J. Provenzano |
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Title: |
Vice President |
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Fourth Supplemental Indenture
EXHIBIT A
FORM OF 2.250% SENIOR NOTES DUE 2016
[Insert the Global Security legend, if applicable]
2.250% SENIOR NOTES DUE 2016
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$[ ] |
| CUSIP No. 883556 BA9
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THERMO FISHER SCIENTIFIC INC.
promises to pay to [ ] or registered assigns, the principal sum of [ ] Dollars on August
15, 2016.
Interest Payment Dates: February 15 and August 15
Record Dates: January 31 and July 31
Each holder of this Security (as defined below), by accepting the same, agrees to and shall be
bound by the provisions hereof and of the Indenture described herein, and authorizes and directs
the Trustee described herein on such holder’s behalf to be bound by such provisions. Each holder
of this Security hereby waives all notice of the acceptance of the provisions contained herein and
in the Indenture and waives reliance by such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become
obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side
hereof, and such continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
A-1
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section
2.04 of the Base Indenture.
Date: August 16, 2011
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THERMO FISHER SCIENTIFIC INC.
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A-2
CERTIFICATE OF AUTHENTICATION
This is one of the 2.250% Senior Notes due 2016 issued by Thermo Fisher Scientific Inc. of the
series designated therein referred to in the within-mentioned Indenture.
Date: August 16, 2011
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
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By: |
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Authorized Signatory |
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A-3
Thermo Fisher Scientific Inc.
2.250% Senior Notes due 2016
This security is one of a duly authorized series of debt securities of Thermo Fisher Scientific
Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under
and pursuant to an Indenture for the Company’s unsubordinated debt securities, dated as of November
20, 2009 (the “Base Indenture”), duly executed and delivered by and among the Company and The Bank
of New York Mellon Trust Company, N.A. (the “Trustee”), as supplemented by the Fourth Supplemental
Indenture, dated as of August 16, 2011 (the “Fourth Supplemental Indenture”), by and between the
Company and the Trustee. The Base Indenture as supplemented and amended by the Fourth Supplemental
Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt
securities issuable thereunder are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Base Indenture. This security is one of
the series designated on the face hereof (individually, a “Security,” and collectively, the
“Securities”), and reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities of the Trustee, the Company and the
holders of the Securities (the “Securityholders”). Capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Base Indenture or the Fourth Supplemental
Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this
Security at an annual rate of 2.250%. The Company will pay interest semi-annually on February 15
and August 15 of each year (each such day, an “Interest Payment Date”) until the principal is paid
or made available for payment. If any Interest Payment Date, redemption date or maturity date of
this Security is not a Business Day, then payment of interest or principal (and premium, if any)
shall be made on the next succeeding Business Day with the same force and effect as if made on the
date such payment was due, and no interest shall accrue for the period after such date to the date
of such payment on the next succeeding Business Day. Interest on the Securities will accrue from
the most recent date to which interest has been paid or duly made available for payment or, if no
interest has been paid, from the date of issuance; provided that, if there is no existing Default
in the payment of interest, and if this Security is authenticated between a regular record date
referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; and provided, further, that the first Interest
Payment Date shall be February 15, 2012. Interest will be calculated on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities (except
defaulted interest), if any, to the persons in whose name such Securities are registered at the
close of business on the regular record date referred to on the facing page of this Security for
such interest installment. In the event that the Securities or a portion thereof are called for
redemption (pursuant to either an optional redemption or a Special Mandatory Redemption) or there
is a Change of Control Offer, and the Optional Redemption Date, the Special Mandatory Redemption
Date or the Change of Control Payment Date, as applicable, is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such
Securities will instead be paid upon presentation and surrender of such Securities as provided in
the Indenture. The principal of and the interest on the Securities shall
A-4
be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that
purpose in accordance with the Indenture.
3. Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company,
N.A., the Trustee, will act as paying agent and Security Registrar. The Company may change or
appoint any paying agent or Security Registrar without notice to any Securityholder. The Company
or any of their Subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in
effect on the date the Indenture is qualified. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and TIA for a statement of such terms. The
Securities are unsecured general obligations of the Company and constitute the series designated on
the face hereof as the “2.250% Senior Notes due 2016”, initially limited to $1,000,000,000 in
aggregate principal amount. The Company will furnish to any Securityholder upon written request
and without charge a copy of the Base Indenture and the Fourth Supplemental Indenture. Requests
may be made to: Thermo Fisher Scientific Inc., 81 Wyman Street Waltham, Massachusetts, Attention:
Seth H. Hoogasian.
5. Redemption. The Securities may be redeemed at the option of the Company prior to
the maturity date, as provided in Section 1.3 of the Fourth Supplemental Indenture, and must be
redeemed, under certain circumstances, on the Special Mandatory Redemption Date, as provided in
Section 1.3A of the Fourth Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the
Securities.
6. Change of Control Triggering Event. Upon the occurrence of a Change of Control
Triggering Event, unless the Company has redeemed this Security or the Company has defeased this
Security or satisfied and discharged this Security, the holder of this Security will have the right
to require that the Company purchase all or a portion (such principal amount to be equal to $2,000
or any integral multiple of $1,000 in excess of $2,000), of this Security at a purchase price equal
to 101% of the aggregate principal amount repurchased plus accrued and unpaid interest, if any, on
the amount to be repurchased to the date of purchase. Within 30 days following any Change of
Control Triggering Event, the Company shall send, by first class mail, a notice to each Holder, in
accordance with Section 1.4(1)(a) of the Fourth Supplemental Indenture, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer.
7. Denominations, Transfer, Exchange. The Securities are in registered form without
coupons in the denominations of $2,000 or any integral multiple of $1,000 in excess thereof. The
transfer of Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company
or the Security Registrar) at the office of the Security Registrar or at the office of any transfer
agent designated by the Company for such purpose. No service charge will be
A-5
made for any registration of transfer or exchange, but a Securityholder may be required to pay
any applicable taxes or other governmental charges. If the Securities are to be redeemed, the
Company will not be required to: (i) issue, register the transfer of, or exchange any Security
during a period beginning at the opening of business 15 days before the day of mailing of a notice
of redemption of less than all of the outstanding Securities of the same series and ending at the
close of business on the day of such mailing; (ii) register the transfer of or exchange any
Security of any series or portions thereof selected for redemption, in whole or in part, except the
unredeemed portion of any such Security being redeemed in part; nor (iii) register the transfer of
or exchange of a Security of any series between the applicable record date and the next succeeding
Interest Payment Date.
8. Persons Deemed Owners. The registered Securityholder may be treated as its owner
for all purposes.
9. Repayment to the Company. Any funds or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for payment of principal of,
premium, if any, or interest on the Securities of a particular series that are not applied but
remain unclaimed by the holders of such Securities for at least one year after the date upon which
the principal of, premium, if any, or interest on such Securities shall have respectively become
due and payable, shall be repaid to the Company, as applicable, or (if then held by the Company)
shall be discharged from such trust. After return to the Company, Holders entitled to the money or
securities must look to the Company, as applicable, for payment as unsecured general creditors.
10. Amendments, Supplements and Waivers. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
11. Defaults and Remedies. If an Event of Default with respect to the securities of a
series issued pursuant to the Fourth Supplemental Indenture occurs and is continuing, the Trustee
or the holders of at least 25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Company (and to the Trustee if notice is given by such
holders), may declare the entire principal of, premium, if any, and accrued interest, if any, due
and payable immediately. Subject to the terms of the Indenture, if an Event of Default under the
Indenture shall occur and be continuing, the Trustee will be under no obligation to exercise any of
its rights or powers under the Indenture at the request or direction of any of the holders, unless
such holders have offered the Trustee indemnity satisfactory to it. Upon satisfaction of certain
A-6
conditions set forth in the Indenture, the holders of a majority in principal amount of the
Outstanding securities of a series issued pursuant to the Fourth Supplemental Indenture will have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the securities of such series.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee,
subject to certain limitations imposed by the TIA, or any paying agent or Security Registrar, in
its individual or any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
13. No Recourse Against Others. No recourse under or upon any obligation, covenant or
agreement of the Indenture, or of any Security, or for any claim based thereon or otherwise in
respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that the Indenture and the obligations issued
hereunder and thereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers
or directors as such, of the Company or of any predecessor or successor corporation, or any of
them, because of the creation of the indebtedness authorized by the Indenture, or under or by
reason of the obligations, covenants or agreements contained in the Indenture or in the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the
creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations,
covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the acceptance
of the Securities.
14. Discharge of Indenture. The Indenture contains certain provisions pertaining to
discharge and defeasance, which provisions shall for all purposes have the same effect as if set
forth herein.
15. Authentication. This Security shall not be valid until the Trustee signs the
certificate of authentication attached to the other side of this Security.
16. Additional Amounts. The Company is obligated to pay Other Additional Amounts on
this Security to the extent provided in Section 10.03 of the Base Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
A-7
18. Governing Law. The Base Indenture, the Fourth Supplemental Indenture and this
Security shall be deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said State.
A-8
ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this
Security to
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ____________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: __________
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Your Signature: _________________________ |
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of this Security) |
Signature Guarantee: ____________________
A-9
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 1.4(1)
of the Fourth Supplemental Indenture, check the box:
1.4(1) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 1.4(1) of the Fourth Supplemental Indenture, state the amount: $______.
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Date: ________________________
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on the other side of the Security) |
Tax I.D. number
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Signature Guarantee:
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_______________________________ |
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participant in a recognized signature |
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guarantee medallion program) |
EXHIBIT B
FORM OF 3.600% SENIOR NOTES DUE 2021
[Insert the Global Security legend, if applicable]
3.600% SENIOR NOTES DUE 2021
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$[ ] |
| CUSIP No. 883556 AZ5
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THERMO FISHER SCIENTIFIC INC.
promises to pay to [ ] or registered assigns, the principal sum of [ ] Dollars on August
15, 2021.
Interest Payment Dates: February 15 and August 15
Record Dates: January 31 and July 31
Each holder of this Security (as defined below), by accepting the same, agrees to and shall be
bound by the provisions hereof and of the Indenture described herein, and authorizes and directs
the Trustee described herein on such holder’s behalf to be bound by such provisions. Each holder
of this Security hereby waives all notice of the acceptance of the provisions contained herein and
in the Indenture and waives reliance by such holder upon said provisions.
This Security shall not be entitled to any benefit under the Indenture, or be valid or become
obligatory for any purpose, until the Certificate of Authentication hereon shall have been signed
by or on behalf of the Trustee. The provisions of this Security are continued on the reverse side
hereof, and such continued provisions shall for all purposes have the same effect as though fully
set forth at this place.
B-1
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section
2.04 of the Base Indenture.
Date: August 16, 2011
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THERMO FISHER SCIENTIFIC INC.
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B-2
CERTIFICATE OF AUTHENTICATION
This is one of the 3.600% Senior Notes due 2021 issued by Thermo Fisher Scientific Inc. of the
series designated therein referred to in the within-mentioned Indenture.
Date: August 16, 2011
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THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.
as Trustee
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Authorized Signatory |
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B-3
Thermo Fisher Scientific Inc.
3.600% Senior Notes due 2021
This security is one of a duly authorized series of debt securities of Thermo Fisher Scientific
Inc., a Delaware corporation (the “Company”), issued or to be issued in one or more series under
and pursuant to an Indenture for the Company’s unsubordinated debt securities, dated as of November
20, 2009 (the “Base Indenture”), duly executed and delivered by and among the Company and The Bank
of New York Mellon Trust Company, N.A. (the “Trustee”), as supplemented by the Fourth Supplemental
Indenture, dated as of August 16, 2011(the “Fourth Supplemental Indenture”), by and between the
Company and the Trustee. The Base Indenture as supplemented and amended by the Fourth Supplemental
Indenture is referred to herein as the “Indenture.” By the terms of the Base Indenture, the debt
securities issuable thereunder are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Base Indenture. This security is one of
the series designated on the face hereof (individually, a “Security,” and collectively, the
“Securities”), and reference is hereby made to the Indenture for a description of the rights,
limitations of rights, obligations, duties and immunities of the Trustee, the Company and the
holders of the Securities (the “Securityholders”). Capitalized terms used herein and not otherwise
defined shall have the meanings given them in the Base Indenture or the Fourth Supplemental
Indenture, as applicable.
1. Interest. The Company promises to pay interest on the principal amount of this
Security at an annual rate of 3.600%. The Company will pay interest semi-annually on February 15
and August 15 of each year (each such day, an “Interest Payment Date”) until the principal is paid
or made available for payment. If any Interest Payment Date, redemption date or maturity date of
this Security is not a Business Day, then payment of interest or principal (and premium, if any)
shall be made on the next succeeding Business Day with the same force and effect as if made on the
date such payment was due, and no interest shall accrue for the period after such date to the date
of such payment on the next succeeding Business Day. Interest on the Securities will accrue from
the most recent date to which interest has been paid or duly made available for payment or, if no
interest has been paid, from the date of issuance; provided that, if there is no existing Default
in the payment of interest, and if this Security is authenticated between a regular record date
referred to on the face hereof and the next succeeding Interest Payment Date, interest shall accrue
from such next succeeding Interest Payment Date; and provided, further, that the first Interest
Payment Date shall be February 15, 2012. Interest will be calculated on the basis of a 360-day
year of twelve 30-day months.
2. Method of Payment. The Company will pay interest on the Securities (except
defaulted interest), if any, to the persons in whose name such Securities are registered at the
close of business on the regular record date referred to on the facing page of this Security for
such interest installment. In the event that the Securities or a portion thereof are called for
redemption (pursuant to either an optional redemption or a Special Mandatory Redemption) or there
is a Change of Control Offer, and the Optional Redemption Date, the Special Mandatory Redemption
Date or the Change of Control Payment Date, as applicable, is subsequent to a regular record date
with respect to any Interest Payment Date and prior to such Interest Payment Date, interest on such
Securities will instead be paid upon presentation and surrender of such Securities as provided in
the Indenture. The principal of and the interest on the Securities shall
B-4
be payable in the coin or currency of the United States of America that at the time is legal
tender for public and private debt, at the office or agency of the Company maintained for that
purpose in accordance with the Indenture.
3. Paying Agent and Registrar. Initially, The Bank of New York Mellon Trust Company,
N.A., the Trustee, will act as paying agent and Security Registrar. The Company may change or
appoint any paying agent or Security Registrar without notice to any Securityholder. The Company
or any of their Subsidiaries may act in any such capacity.
4. Indenture. The terms of the Securities include those stated in the Indenture and
those made part of the Indenture by reference to the Trust Indenture Act of 1939 (“TIA”) as in
effect on the date the Indenture is qualified. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture and TIA for a statement of such terms. The
Securities are unsecured general obligations of the Company and constitute the series designated on
the face hereof as the “3.600% Senior Notes due 2021”, initially limited to $1,100,000,000 in
aggregate principal amount. The Company will furnish to any Securityholder upon written request
and without charge a copy of the Base Indenture and the Fourth Supplemental Indenture. Requests
may be made to: Thermo Fisher Scientific Inc., 81 Wyman Street Waltham, Massachusetts, Attention:
Seth H. Hoogasian.
5. Redemption. The Securities may be redeemed at the option of the Company prior to
the maturity date, as provided in Section 1.3 of the Fourth Supplemental Indenture, and must be
redeemed, under certain circumstances, on the Special Mandatory Redemption Date, as provided in
Section 1.3A of the Fourth Supplemental Indenture.
The Company shall not be required to make sinking fund payments with respect to the
Securities.
6. Change of Control Triggering Event. Upon the occurrence of a Change of Control
Triggering Event, unless the Company has redeemed this Security or the Company has defeased this
Security or satisfied and discharged this Security, the holder of this Security will have the right
to require that the Company purchase all or a portion, (such principal amount to be equal to $2,000
or any integral multiple of $1,000 in excess of $2,000), of this Security at a purchase price equal
to 101% of the aggregate principal amount repurchased plus accrued and unpaid interest, if any, on
the amount to be repurchased to the date of purchase. Within 30 days following any Change of
Control Triggering Event, the Company shall send, by first class mail, a notice to each Holder, in
accordance with Section 1.4(1)(a) of the Fourth Supplemental Indenture, with a copy to the Trustee,
which notice shall govern the terms of the Change of Control Offer.
7. Denominations, Transfer, Exchange. The Securities are in registered form without
coupons in the denominations of $2,000 or any integral multiple of $1,000 in excess thereof. The
transfer of Securities may be registered and Securities may be exchanged as provided in the
Indenture. The Securities may be presented for exchange or for registration of transfer (duly
endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company
or the Security Registrar) at the office of the Security Registrar or at the office of any transfer
agent designated by the Company for such purpose. No service charge will be
B-5
made for any registration of transfer or exchange, but a Securityholder may be required to pay
any applicable taxes or other governmental charges. If the Securities are to be redeemed, the
Company will not be required to: (i) issue, register the transfer of, or exchange any Security
during a period beginning at the opening of business 15 days before the day of mailing of a notice
of redemption of less than all of the outstanding Securities of the same series and ending at the
close of business on the day of such mailing; (ii) register the transfer of or exchange any
Security of any series or portions thereof selected for redemption, in whole or in part, except the
unredeemed portion of any such Security being redeemed in part; nor (iii) register the transfer of
or exchange of a Security of any series between the applicable record date and the next succeeding
Interest Payment Date.
8. Persons Deemed Owners. The registered Securityholder may be treated as its owner
for all purposes.
9. Repayment to the Company. Any funds or Governmental Obligations deposited with any
paying agent or the Trustee, or then held by the Company, in trust for payment of principal of,
premium, if any, or interest on the Securities of a particular series that are not applied but
remain unclaimed by the holders of such Securities for at least one year after the date upon which
the principal of, premium, if any, or interest on such Securities shall have respectively become
due and payable, shall be repaid to the Company, as applicable, or (if then held by the Company)
shall be discharged from such trust. After return to the Company, Holders entitled to the money or
securities must look to the Company, as applicable, for payment as unsecured general creditors.
10. Amendments, Supplements and Waivers. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time Outstanding of each series
to be affected. The Indenture also contains provisions permitting the Holders of a majority in
principal amount of the Securities of each series at the time Outstanding, on behalf of the Holders
of all Securities of such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences. Any such consent
or waiver by the Holder of this Security shall be conclusive and binding upon such Holder and upon
all future Holders of this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
11. Defaults and Remedies. If an Event of Default with respect to the securities of a
series issued pursuant to the Fourth Supplemental Indenture occurs and is continuing, the Trustee
or the holders of at least 25% in aggregate principal amount of the Securities of such series then
Outstanding, by notice in writing to the Company (and to the Trustee if notice is given by such
holders), may declare the entire principal of, premium, if any, and accrued interest, if any, due
and payable immediately. Subject to the terms of the Indenture, if an Event of Default under the
Indenture shall occur and be continuing, the Trustee will be under no obligation to exercise any of
its rights or powers under the Indenture at the request or direction of any of the holders, unless
such holders have offered the Trustee indemnity satisfactory to it. Upon satisfaction of certain
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conditions set forth in the Indenture, the holders of a majority in principal amount of the
Outstanding securities of a series issued pursuant to the Fourth Supplemental Indenture will have
the right to direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the Trustee, with respect
to the securities of such series.
12. Trustee, Paying Agent and Security Registrar May Hold Securities. The Trustee,
subject to certain limitations imposed by the TIA, or any paying agent or Security Registrar, in
its individual or any other capacity, may become the owner or pledgee of Securities with the same
rights it would have if it were not Trustee, paying agent or Security Registrar.
13. No Recourse Against Others. No recourse under or upon any obligation, covenant or
agreement of the Indenture, or of any Security, or for any claim based thereon or otherwise in
respect hereof or thereof, shall be had against any incorporator, stockholder, officer or director,
past, present or future as such, of the Company or of any predecessor or successor corporation,
either directly or through the Company or any such predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that the Indenture and the obligations issued
hereunder and thereunder are solely corporate obligations, and that no such personal liability
whatever shall attach to, or is or shall be incurred by, the incorporators, stockholders, officers
or directors as such, of the Company or of any predecessor or successor corporation, or any of
them, because of the creation of the indebtedness authorized by the Indenture, or under or by
reason of the obligations, covenants or agreements contained in the Indenture or in the Securities
or implied therefrom; and that any and all such personal liability of every name and nature, either
at common law or in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director as such, because of the
creation of the indebtedness authorized by the Indenture, or under or by reason of the obligations,
covenants or agreements contained in the Indenture or in the Securities or implied therefrom, are
hereby expressly waived and released as a condition of, and as a consideration for, the acceptance
of the Securities.
14. Discharge of Indenture. The Indenture contains certain provisions pertaining to
discharge and defeasance, which provisions shall for all purposes have the same effect as if set
forth herein.
15. Authentication. This Security shall not be valid until the Trustee signs the
certificate of authentication attached to the other side of this Security.
16. Additional Amounts. The Company is obligated to pay Other Additional Amounts on
this Security to the extent provided in Section 10.03 of the Base Indenture.
17. Abbreviations. Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).
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18. Governing Law. The Base Indenture, the Fourth Supplemental Indenture and this
Security shall be deemed to be a contract made under the internal laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of said State.
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ASSIGNMENT FORM
To assign this Security, fill in the form below: (I) or (we) assign and transfer this
Security to
(Insert assignee’s soc. sec. or tax I.D. no.)
(Print or type assignee’s name, address and zip code)
and irrevocably appoint ____________________________
agent to transfer this Security on the books of the Company. The agent may
substitute another to act for him.
Date: __________
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Your Signature: _________________________ |
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(Sign exactly as your name appears on the face |
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of this Security) |
Signature Guarantee: ____________________
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OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the Company pursuant to Section 1.4(1)
of the Fourth Supplemental Indenture, check the box:
1.4(1) Change of Control Triggering Event
If you want to elect to have only part of this Security purchased by the Company pursuant to
Section 1.4(1) of the Fourth Supplemental Indenture, state the amount: $______.
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Date: ________________________
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Your Signature: |
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(Sign exactly as your name appears |
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on the other side of the Security) |
Tax I.D. number
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Signature Guarantee:
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______________________________ |
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(Signature must be guaranteed by a |
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participant in a recognized signature |
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guarantee medallion program) |