UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of report (Date of earliest event reported): June 30, 2017

 

 

Danaher Corporation

(Exact Name of Registrant as Specified in Charter)

 

 

 

Delaware   001-08089   59-1995548

(State or Other Jurisdiction of

Incorporation)

 

(Commission

File Number)

 

(IRS Employer

Identification No.)

 

2200 Pennsylvania Ave., N.W., Suite 800W

Washington, D.C.

 

20037-1701

(Zip Code)

(Address of Principal Executive Offices)  

Registrant’s telephone number, including area code: 202-828-0850

Not applicable

(Former Name or Former Address, if Changed Since Last Report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company  ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.  ☐

 

 

 


Item 1.01. Entry into a Material Definitive Agreement

On June 30, 2017, DH Europe Finance S.A. (“Danaher International”) issued €250,000,000 aggregate principal amount of Floating Rate Senior Notes due 2022 (the “Floating Rate Notes”) and €600,000,000 aggregate principal amount of 1.200% Senior Notes due 2027 (the “2027 Notes,” and together with the Floating Rate Notes, the “Notes”), in an underwritten offering pursuant to a registration statement on Form S-3 (File No. 333-203948) filed with the Securities and Exchange Commission (the “Commission”) on May 7, 2015, as amended by a Post-Effective Amendment No. 1 thereto, filed with the Commission on June 15, 2015, and a related prospectus filed with the Commission. The Notes are fully and unconditionally guaranteed on an unsecured and unsubordinated basis by Danaher Corporation (“Danaher”) (the “Guarantees” and, together with the Notes, the “Securities”). The Securities were sold pursuant to the terms of an underwriting agreement (the “Underwriting Agreement”) dated as of June 19, 2017 among Danaher International, Danaher, and BNP Paribas, Merrill Lynch International, Deutsche Bank AG, London Branch and the other underwriters party thereto. The Underwriting Agreement was separately filed with the SEC on June 21, 2017 as Exhibit 1.1 to Danaher’s Current Report on Form 8-K.

Danaher has applied to list both series of the Notes on The New York Stock Exchange (the “NYSE”). The listing application has been approved by the NYSE.

The Securities were issued under an indenture dated as of July 8, 2015 (the “Base Indenture”) among Danaher International, Danaher, as guarantor, and The Bank of New York Mellon Trust Company, N.A. as trustee (the “Trustee”) and a second supplemental indenture dated as of June 30, 2017 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”). The Notes will be subject to a Paying and Calculation Agency Agreement, dated June 30, 2017 (the “Paying and Calculation Agency Agreement”), among Danaher International, Danaher, the Trustee and The Bank of New York Mellon, London Branch, as paying and calculation Agent.

The Floating Rate Notes will mature on June 30, 2022 and the 2027 Notes will mature on June 30, 2027. Interest on the Floating Rate Notes will be paid quarterly in arrears on March 31, June 30, September 30 and December 31 of each year, commencing on September 30, 2017. Interest on the 2027 Notes will be paid annually in arrears on June 30 of each year, commencing on June 30, 2018.

At any time and from time to time prior to March 30, 2027 (three months prior to the maturity date of the 2027 Notes), Danaher International will have the right, at its option, to redeem the 2027 Notes, in whole or in part, by paying a “make-whole” premium, plus accrued and unpaid interest, if any, to, but excluding, the redemption date. In addition, on or after March 30, 2027, Danaher International will have the right, at its option, to redeem the 2027 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2027 Notes to be redeemed, plus accrued and unpaid interest, if any, to, but excluding, the redemption date.


If a change of control triggering event occurs with respect to the Notes, each holder of Notes may require Danaher International to repurchase some or all of its Notes at a purchase price equal to 101% of the principal amount of the Notes being repurchased, plus accrued interest. A change of control triggering event means the occurrence of both a change of control and a rating event (as such terms are defined in the Supplemental Indenture).

The Notes are unsecured and rank equally in right of payment with all of Danaher International’s other unsecured and unsubordinated indebtedness. The Guarantees are unsecured obligations of Danaher and rank equally in right of payment with all of Danaher’s other unsecured and unsubordinated indebtedness.

Upon the occurrence of an event of default with respect to the Notes, which includes payment defaults, defaults in the performance of certain covenants, and bankruptcy and insolvency related defaults, Danaher International’s obligations under the Notes may be accelerated, in which case the entire principal amount of the Notes would be immediately due and payable.

Danaher and its affiliates maintain various commercial and service relationships with the Trustee and its affiliates in the ordinary course of business. Affiliates of the Trustee may in the future engage in lending or hedging transactions with Danaher and its affiliates. In addition, certain of the underwriters party to the Underwriting Agreement and their respective affiliates have, from time to time, performed, and may in the future perform, various financial advisory and investment banking services for Danaher or Danaher International for which they received or will receive customary fees and expenses. Certain of the underwriters or their respective affiliates have been or are lenders under one or more of Danaher’s credit facilities.

The above description of the Base Indenture and the Supplemental Indenture is qualified in its entirety by reference to the Base Indenture and the Supplemental Indenture. The Base Indenture is filed as Exhibit 4.1 and the Supplemental Indenture is filed as Exhibit 4.2 hereto. The Paying and Calculation Agency Agreement is filed as Exhibit 4.3 hereto. Each of the foregoing documents is incorporated herein by reference.

In connection with the offering of the Notes, Danaher is filing as Exhibits 5.1 and 5.2 hereto opinions of counsel addressing the validity of the Notes and the Guarantees and certain related matters. Such opinions are incorporated by reference into the Registration Statement.

Item 9.01 Financial Statements and Exhibits

The following exhibits are filed herewith:

 

Exhibit No.    Description
4.1    Base Indenture, dated as of July 8, 2015, among Danaher International, as issuer, Danaher, as guarantor, and the Trustee, as trustee (incorporated by reference to Exhibit 4.1 to Danaher’s Current Report on Form 8-K, filed with the Commission on July 8, 2015).


4.2    Second Supplemental Indenture, dated as of June 30, 2017, among Danaher International, as issuer, Danaher, as guarantor, and the Trustee, as trustee.
4.3    Paying and Calculation Agency Agreement, dated as of June 30, 2017, among Danaher International, Danaher, the Trustee and The Bank of New York Mellon, London Branch, as paying and calculation agent.
5.1    Opinion of Wilmer Cutler Pickering Hale and Dorr LLP.
5.2    Opinion of Luther S.A.
23.1    Consent of Wilmer Cutler Pickering Hale and Dorr LLP (contained in Exhibit 5.1 above).
23.2    Consent of Luther S.A. (contained in Exhibit 5.2 above).


SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    DANAHER CORPORATION
Date: June 30, 2017     By:   /s/ Daniel L. Comas
      Name: Daniel L. Comas
     

Title: Executive Vice President and Chief

Financial Officer

Exhibit 4.2

EXECUTION VERSION

DH EUROPE FINANCE S.A.,

as Issuer

DANAHER CORPORATION,

as Guarantor

AND

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

 

 

SECOND SUPPLEMENTAL INDENTURE

Floating Rate Senior Notes Due 2022

1.200% Senior Notes Due 2027

Dated as of June 30, 2017

 

 

 


THIS SECOND SUPPLEMENTAL INDENTURE (this “Supplemental Indenture ), dated as of June 30, 2017, is among DH EUROPE FINANCE S.A., a public limited liability company, société anonyme , duly organized and existing under the laws of Luxembourg (the “Company” ), having its registered office at 1B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B197470, DANAHER CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the “Guarantor ) and the indirect parent company of the Company, having its principal office at 2200 Pennsylvania Avenue, N.W., Suite 800W, Washington, D.C. 20037-1701, and THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., a national banking association duly organized and existing under the laws of the United States of America, as Trustee (the “Trustee” ).

RECITALS

WHEREAS, the Company and the Guarantor have heretofore executed and delivered to the Trustee an Indenture dated as of July 8, 2015, among the Company, the Guarantor and the Trustee (the “ Base Indenture ,” and together with this Supplemental Indenture, the “ Indenture ”), providing for the issuance from time to time of series of the Company’s Securities and Guarantees of such Securities by the Guarantor;

WHEREAS, Section 901(g) of the Base Indenture provides for the Company, the Guarantor and the Trustee to enter into an indenture supplemental to the Base Indenture to establish the form or terms of Securities of any series as permitted by Section 201 and Section 301 of the Base Indenture;

WHEREAS, pursuant to Section 301 of the Base Indenture, the Company wishes to provide for the issuance of two (2) new series of Securities to be known as its: (a) Floating Rate Senior Notes due 2022 (the “ Floating Rate Notes ”) and (b) 1.200% Senior Notes due 2027 (the “ 2027 Notes, ” and together with the Floating Rate Notes, the “ Notes ”). The forms of the Notes of each such series and the terms, provisions and conditions thereof shall be as set forth in this Supplemental Indenture;

WHEREAS, the Guarantor desires to Guarantee each series of Notes on the terms set forth in Article 14 of the Base Indenture; and

WHEREAS, the Company and the Guarantor have requested that the Trustee execute and deliver this Supplemental Indenture, and all requirements necessary to make this Supplemental Indenture a valid and binding instrument enforceable in accordance with its terms, to make each series of Notes, when executed and delivered by the Company and authenticated by the Trustee, the valid, binding and enforceable obligations of the Company, and to make the Guarantees of each series of Notes, when such series of Notes have been executed and delivered by the Company and authenticated by the Trustee, and when the notations of Guarantee to be attached to each Note are executed and delivered by the Guarantor, the valid, binding and enforceable obligations of the Guarantor, in each case, have been done and performed, and the execution and delivery of this Supplemental Indenture has been duly authorized in all respects;

 

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NOW, THEREFORE, in consideration of the covenants and agreements set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Relation to Base Indenture. This Supplemental Indenture constitutes an integral part of the Base Indenture.

Section 1.02 Definition of Terms. For all purposes of this Supplemental Indenture:

(a) Capitalized terms used herein without definition shall have the meanings set forth in the Base Indenture;

(b) a term defined anywhere in this Supplemental Indenture has the same meaning throughout and, to the extent any such term conflicts with a corresponding term defined in the Base Indenture or is otherwise set forth both in this Supplemental Indenture and in the Base Indenture, such term as defined in this Supplemental Indenture shall supersede the corresponding term defined in the Base Indenture with respect to the Notes;

(c) the singular includes the plural and vice versa;

(d) headings are for convenience of reference only and do not affect interpretation; and

(e) the following terms have the meanings given to them in this Section 1.02(e):

“2027 Notes Interest Payment Date” shall have the meaning set forth in Section 2.06(b).

“2027 Notes Maturity Date” shall have the meaning set forth in Section 2.02.

“2027 Notes Paying Agent” shall have the meaning set forth in Section 2.11.

2027 Notes Record Date ” means the fifteenth calendar day, whether or not a Business Day, immediately preceding the related 2027 Notes Interest Payment Date, which constitutes a Regular Record Date for purposes of the Base Indenture.

“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 the Guarantor) 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) 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).

 

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“Base Rate shall have the meaning set forth in Section 2.05(a).

Business Day ” means any day other than a Saturday or Sunday, which is (1) not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (2) a TARGET2 Business Day.

Change of Control ” means the occurrence of any of the following: (1) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any “person” (as that term is defined in Section 13(d)(3) of the Exchange Act) (other than (a) the Guarantor or one of its Subsidiaries, (b) any employee benefit plan of such Person or its Subsidiaries, and any Person acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan and (c) Steven M. Rales and Mitchell P. Rales) 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 Guarantor’s Voting Stock or other Voting Stock into which the Guarantor’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; (2) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or more series of related transactions, of all or substantially all of the Guarantor’s assets and the assets of the Guarantor’s Subsidiaries, taken as a whole, to any “person” (as that term is defined in Section 13(d)(3) of the Exchange Act) (other than the Guarantor or one of its Subsidiaries); or (3) the Guarantor ceases to own, directly or indirectly, 100% of the equity interests of the Company, other than as a result of the merger or consolidation of the Company with and into the Guarantor. Notwithstanding the foregoing, a transaction will not be deemed to involve a Change of Control if (1) the Guarantor becomes a direct or indirect wholly-owned subsidiary of a holding company and (2)(A) the direct or indirect holders of the Voting Stock of such holding company immediately following that transaction are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (B) immediately following that transaction no Person (other than a holding company satisfying the requirements of this sentence) is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.

“Change of Control Offer” shall have the meaning set forth in Section 3.03.

“Change of Control Payment” shall have the meaning set forth in Section 3.03.

“Change of Control Payment Date” shall have the meaning set forth in Section 3.03.

Change of Control Triggering Event ,” with respect to any series of Notes, means the occurrence of both a Change of Control and a Rating Event with respect to such series. No Change of Control Triggering Event will be deemed to have occurred in connection with any particular Change of Control unless and until such Change of Control has actually been consummated.

“Clearstream” means Clearstream Banking, S.A.

 

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Common Depositary ” means any Person acting as common depositary for Euroclear and Clearstream or its successor as appointed as such by the Depositary, which shall initially be The Bank of New York Mellon, London Branch.

Comparable Government Bond ” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German government bond whose maturity is closest to March 30, 2027, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.

Comparable Government Bond Rate ” means, with respect to any Redemption Date, the price, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), at which the gross redemption yield on the 2027 Notes to be redeemed, if they were to be purchased at such price on the third Business Day prior to the date fixed for redemption, would be equal to the gross redemption yield on such Business Day of the Comparable Government Bond on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Company.

Consolidated Assets ” means the aggregate of all assets of the Guarantor and its 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 GAAP), appearing on the most recent available consolidated balance sheet of the Guarantor and its Subsidiaries at their net book values, after deducting related depreciation, amortization and other valuation reserves, all prepared in accordance with GAAP.

Consolidated Current Liabilities ” means the aggregate of the current liabilities of the Guarantor and its Subsidiaries appearing on the most recent available consolidated balance sheet of the Guarantor and its Subsidiaries, all in accordance with GAAP (excluding current maturities of long-term debt and obligations under capital leases). In no event shall Consolidated Current Liabilities include any obligation of the Guarantor and its 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 the Guarantor’s option or the option of any of its Subsidiaries such that such obligation would mature on a date that is more than twelve months from the date of determination.

“Consolidated Net Assets” means Consolidated Assets after deduction of Consolidated Current Liabilities.

“Depositary means each of Clearstream and Euroclear.

“Exchange Act” means the Securities Exchange Act of 1934, as amended.

 

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“EURIBOR Interest Determination Date” shall have the meaning set forth in Section 2.05(a)

“Euroclear” means Euroclear Bank S.A./N.V.

Euro-Zone ” means, at any time, the region comprised of the countries (if any) then participating in the European Economic and Monetary Union (or any successor union) pursuant to the Treaty on European Union of February 1992 (or any successor treaty), as it may be amended from time to time.

“Floating Rate Notes Interest Payment Date” shall have the meaning set forth in Section 2.05(a).

Floating Rate Notes Maturity Date ” shall have the meaning set forth in Section 2.02.

“Floating Rate Notes Paying Agent” shall have the meaning set forth in Section 2.11.

Floating Rate Notes Record Date ” means the fifteenth calendar day, whether or not a Business Day, immediately preceding the related Floating Rate Interest Payment Date, which constitutes a Regular Record Date for purposes of the Base Indenture.

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 the Guarantor and its 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 the Guarantor’s 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 the Guarantor’s balance sheet; provided further , however , that if any operating lease would be recharacterized as a capital lease due to changes in the accounting treatment of such operating leases under GAAP since the date of the Indenture, then solely with respect to the accounting treatment of any such lease, GAAP shall be interpreted as it was in effect on the date of the Indenture.

“Global Note” shall have the meaning set forth in Section 2.04.

Interest Payment Date ” means the Floating Rate Notes Interest Payment Date or the 2027 Notes Interest Payment Date, as applicable.

“Interest Reset Date” shall have the meaning set forth in Section 2.05(a).

Investment Grade Rating ” means a rating equal to or higher than Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P; and, the equivalent investment grade credit rating from any additional rating agency or rating agencies selected by the Guarantor.

“Issue Date” means June 30, 2017.

 

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Market Exchange Rate ” means the noon buying rate in The City of New York for cable transfers of euro as certified for customs purposes (or, if not so certified, as otherwise determined) by the Federal Reserve Bank of New York.

Maturity Date ” means the Floating Rate Notes Maturity Date or the 2027 Notes Maturity Date, as applicable.

Moody’s ” means Moody’s Investors Service Inc., and any successor to its rating agency business.

Paying Agent ” shall have the meaning set forth in Section 2.11.

Paying and Calculation Agent ” means The Bank of New York Mellon, London Branch, or its successor appointed as such by the Company.

Paying and Calculation Agency Agreement ” means the Paying and Calculation Agency Agreement, dated as of June 30, 2017, among the Company, the Guarantor, the Trustee and the Paying and Calculation Agent, as it may be amended from time to time.

Principal Property ” means any manufacturing plant, warehouse, office building or single parcel of real property (including fixtures but excluding leases and other contract rights which might otherwise be deemed real property) owned by the Guarantor or any of its Subsidiaries and located in the United States as of the date of determination, 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 the Guarantor and its Subsidiaries, other than any such plant, warehouse, office building or parcel of real property or portion thereof which, in the opinion of the board of directors of the Guarantor (evidenced by a Board Resolution of the Guarantor delivered to the Trustee), is not of material importance to the business conducted by the Guarantor and its Subsidiaries taken as a whole.

Rating Agency ” means (1) each of Moody’s and S&P; and (2) if either of Moody’s or S&P ceases to rate the applicable series of Notes or fails to make a rating of such series of Notes publicly available for reasons outside of the Company’s or the Guarantor’s control, a “nationally recognized statistical rating organization” within the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act selected by the Guarantor (as certified by a Board Resolution of the Guarantor) as a replacement agency for Moody’s or S&P, or both of them, as the case may be.

Rating Event ” means the rating on the applicable series of Notes is lowered by each of the Rating Agencies and such series of Notes is rated below an Investment Grade Rating by each of the Rating Agencies on any day within the 60-day period (which 60-day period will be extended so long as the rating of such series of Notes is under publicly announced consideration for a possible downgrade by any of the Rating Agencies) after the earlier of (1) the occurrence of a Change of Control and (2) public notice of the occurrence of a Change of Control or the Guarantor’s intention to effect a Change of Control ; provided, however , that a Rating Event otherwise arising by virtue of a particular reduction in rating will not be deemed to have occurred in respect of a particular Change of Control (and thus will not be deemed a Rating Event for

 

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purposes of the definition of Change of Control Triggering Event) if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at the Company’s or its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, the applicable Change of Control (whether or not the applicable Change of Control has occurred at the time of the Rating Event).

Redemption Date ” means, with respect to any redemption of any series of Notes, the date fixed for such redemption pursuant to the Indenture and such series of Notes.

Remaining Scheduled Payments ” means, with respect to the 2027 Notes to be redeemed, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related Redemption Date (assuming that such 2027 Notes matured on March 30, 2027) but for such redemption ; provided , however , that, if such Redemption Date is not an Interest Payment Date with respect to the 2027 Notes, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced by the amount of interest accrued thereon to such Redemption Date.

“Sale and Leaseback Transaction” shall have the meaning set forth in Section 6.02.

S&P ” means S&P Global Ratings, a division of S&P Global Inc., and any successor to its rating agency business.

Secured Debt ” means indebtedness for borrowed money and any Funded Debt which, in each case, is secured by a security interest in (1) any Principal Property, or (2) any shares of capital stock or Indebtedness of any Subsidiary that owns a Principal Property.

TARGET2 System ” means the Trans-European Automated Real-Time Gross Settlement Express Transfer System and any successor thereto.

“TARGET2 Business Day” means any day on which the TARGET2 System is open for business.

Voting Stock ” means, with respect to any specified Person as of any date, the capital stock of such Person that is at the time entitled to vote generally in the election of the Board of Directors or similar governing body of such Person.

The terms “ 2027 Notes ,” “ Base Indenture ,” “ Company ,” “ Floating Rate Notes ,” “ Guarantor ,” “ Indenture ,” “ Notes ” and “ Trustee ” shall have the respective meanings set forth in the recitals to this Supplemental Indenture and the paragraph preceding such recitals.

ARTICLE II

GENERAL TERMS AND CONDITIONS OF THE NOTES

Section 2.01 Designation and Principal Amount. Each series of Notes may be issued from time to time upon written order of the Company for the authentication and delivery of such series of Notes pursuant to Section 303 of the Base Indenture. There are hereby authorized:

 

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(a) a series of Securities designated as the Floating Rate Senior Notes due 2022, limited in initial aggregate principal amount to €250,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture); and

(b) a series of Securities designated as the 1.200% Senior Notes due 2027, limited in initial aggregate principal amount to €600,000,000 (except upon registration of transfer of, or in exchange for, or in lieu of, other Securities pursuant to Sections 304, 305, 306, 906 or 1107 of the Base Indenture).

The Company may create and issue additional Notes of any series having the same terms and conditions as such series of Notes in all respects (or in all respects except for the Issue Date, issue price and, to the extent applicable, the payment of interest accruing prior to the Issue Date of such additional Notes or the first payment of interest following the Issue Date), so that such additional Notes of such series will be consolidated and form a single series with the initial Notes of such series.

Section 2.02 Maturity. (a)  The date upon which the Floating Rate Notes shall become due and payable at final maturity, together with any accrued and unpaid interest, is June 30, 2022 (the “ Floating Rate Notes Maturity Date ”) and (b)  the date upon which the 2027 Notes shall become due and payable at final maturity, together with any accrued and unpaid interest, is June 30, 2027 (the “ 2027 Notes Maturity Date ”).

Section 2.03 Form, Payment and Appointment. Except as provided in Section 2.04, each series of Notes shall be issued in fully registered, certificated form. Principal of and interest on each series of Notes will be payable, the transfer of such series of Notes will be registrable, and such series of Notes will be exchangeable for such series of Notes of a like aggregate principal amount, at the office or agency of the Company maintained for such purpose located at One Canada Square, London E14 5AL, United Kingdom, which shall initially be the corporate trust office of the Paying and Calculation Agent ; provided , however , that payment of interest may be made at the option of the Company by check mailed to the Person entitled thereto at such address as shall appear in the Security register or by wire transfer to an account appropriately designated by the Person entitled to payment ; provided , that the Paying and Calculation Agent shall have received written notice of such account designation at least five (5) Business Days prior to the date of such payment (subject to surrender of the relevant Note in the case of a payment of interest on a Redemption Date or the Maturity Date).

No service charge shall be made for any registration of transfer or exchange of any series of Notes, but the Company may require payment from the applicable Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.

The Notes shall be issuable in denominations of €100,000 and integral multiples of €1,000 in excess thereof.

The specified currency of the Notes shall be euro. Initial Holders of Notes of a series will be required to pay for such Notes in euro, and all payments of interest and principal, including payments made upon any redemption or repurchase of such Notes, will be payable in euro

 

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(except as otherwise provided in this Section 2.03) in immediately available funds at the corporate trust office of the Paying and Calculation Agent or such other place designated by the Company with written notification to the Trustee. If the euro is unavailable to the Company or, in the case of the Guarantees, the Guarantor due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or if the euro is no longer being used by the then-member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of the Notes of each series shall be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantees, the Guarantor or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars on the basis of the most recently available Market Exchange Rate for the euro. Any payment in respect of the Notes of a series so made in U.S. dollars will not constitute an Event of Default under such series of Notes or the Indenture. Neither the Trustee nor the Paying and Calculation Agent for the Notes shall have any responsibility for any calculation or conversion in connection with the foregoing.

Section 2.04 Global Notes. The Notes of each series shall be issued initially in the form of a permanent Global Security in registered form (each, a “ Global Note ”), deposited with, or on behalf of, Euroclear and Clearstream, and registered in the name of the nominee of the Common Depositary or its nominee for the accounts of Euroclear and Clearstream. Unless and until a Global Note is exchanged for Notes of such series in certificated form, such Global Note may be transferred, in whole but not in part.

All payments due in respect of any series of Notes while such Notes are in the form of a Global Note, including the redemption price due in respect of the redemption of any such series, shall be made to the Paying and Calculation Agent, which in turn shall make payment with respect to the applicable series of Notes to the Common Depositary for the account of Euroclear and Clearstream, or in each case to their respective successors selected or approved by the Company or to the nominee of such successor.

Section 2.05 Interest on the Floating Rate Notes. (a)  The Floating Rate Notes shall bear interest at a rate equivalent to the 3-month EURIBOR (the “ Base Rate ”) plus 0.300% per year, as calculated by the Paying and Calculation Agent ; provided, however , that the minimum interest rate shall be zero. The Floating Rate Notes will bear interest from the Issue Date or from the immediately preceding Floating Rate Notes Interest Payment Date to which interest has been paid or duly provided for. Interest on the Floating Rate Notes shall be payable quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each, a “ Floating Rate Notes Interest Payment Date ”), commencing on September 30, 2017 ; provided , that, if any Floating Rate Notes Interest Payment Date would be a day that is not a Business Day, such Floating Rate Notes Interest Payment Date shall be the next succeeding day that is a Business Day (and no additional interest will accrue or otherwise accumulate on the amount payable for the period from and after such Floating Rate Notes Interest Payment Date); except that if such next succeeding Business Day falls in the next succeeding calendar month, such Floating Rate Notes Interest Payment Date shall be the immediately preceding Business Day. The interest rate on the Floating Rate Notes will be reset quarterly on March 31, June 30, September 30 and December 31 of each year (each, an “ Interest Reset Date ”), commencing on September 30, 2017; provided , that, if any Interest Reset Date would be a day that is not a Business Day, such

 

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Interest Reset Date shall be the next succeeding day that is a Business Day, except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. The initial Base Rate for the Floating Rate Notes in effect from the Issue Date to, but excluding, the first Interest Reset Date will be the 3-month EURIBOR in effect on June 28, 2017. The interest rate on the Floating Rate Notes will be determined on the second TARGET2 Business Day preceding the applicable Interest Reset Date (a “ EURIBOR Interest Determination Date ”). Interest on a Floating Rate Notes Interest Payment Date shall be paid to the Persons in whose names the Floating Rate Notes are registered on the Security Register at the close of business on the Floating Rate Notes Record Date, except as provided in Section 2.07. Interest on the Floating Rate Notes will be computed on the basis of a 360-day year and the actual number of days in the period for which interest is being calculated.

(b) The Base Rate that takes effect on any Interest Reset Date shall equal the interest rate for deposits in euro designated as “EURIBOR” and sponsored jointly by the European Banking Federation and ACI — the Financial Market Association (or any company established by the joint sponsors for purposes of compiling and publishing that rate) on each EURIBOR Interest Determination Date, and will be determined by the Paying and Calculation Agent in accordance with the following provisions:

(i) EURIBOR will be the offered rate for deposits in euro having a maturity of three months, as that rate appears on Reuters Page EURIBOR01 as of 11:00 a.m., Brussels time, on the relevant EURIBOR Interest Determination Date.

(ii) If the rate described in clause (i) above does not appear on Reuters Page EURIBOR01, EURIBOR will be determined on the basis of the rates, at approximately 11:00 a.m., Brussels time, on the relevant EURIBOR Interest Determination Date, at which deposits of the following kind are offered to prime banks in the Euro-Zone interbank market by the principal Euro-Zone office of each of four major banks in that market selected by the Company: euro deposits having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. The Paying and Calculation Agent will request the principal Euro-Zone office of each of these banks to provide a quotation in writing of its rate. If at least two quotations are provided in writing, EURIBOR for such EURIBOR Interest Determination Date will be the arithmetic mean (rounded upwards) calculated by the Paying and Calculation Agent of such quotations. The Company will ensure that the Paying and Calculation Agent is provided with appropriate contact details of the relevant personnel at each of the reference banks that the Paying and Calculation Agent will be requested to contact to provide such quotation of its rates.

(iii) If fewer than two quotations are provided as described in clause (ii) above, EURIBOR for the relevant EURIBOR Interest Determination Date will be the arithmetic mean of the rates for loans of the following kind to leading Euro-Zone banks quoted in writing, at approximately 11:00 a.m., Brussels time, on such EURIBOR Interest Determination Date, by three major banks in the Euro-Zone selected by the Company: loans of euro having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time.

 

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(iv) If fewer than three banks selected by the Company are quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR in effect on such EURIBOR Interest Determination Date (or, in the case of the first Interest Reset Date, the initial Base Rate).

(c) Upon request of the Holder to the Paying and Calculation Agent, the Paying and Calculation Agent will provide the interest rate then in effect on the Floating Rate Notes and, if determined, the interest rate that will become effective on the next Interest Reset Date.

(d) All percentages resulting from any calculation with respect to the Floating Rate Notes will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to the Floating Rate Notes will be rounded upward or downward, as appropriate, to the nearest cent, in the case of euro amounts or U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than euro amounts or U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.

Section 2.06 Interest on the 2027 Notes. (a)  Interest payable on any Interest Payment Date, the Maturity Date or, if applicable, a Redemption Date, with respect to the 2027 Notes shall be the amount of interest accrued from, and including, the immediately preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or from and including the Issue Date, if no interest has previously been paid or duly provided for with respect to the 2027 Notes) to, but excluding, such Interest Payment Date, Maturity Date or, if applicable, Redemption Date, as the case may be. Interest on the 2027 Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the 2027 Notes (or the Issue Date if no interest has been paid on the 2027 Notes), to but excluding the next scheduled Interest Payment Date, Maturity Date or Redemption Date, as applicable. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Markets Association.

(b) The 2027 Notes will bear interest at the rate of 1.200% per year. Interest on the 2027 Notes shall be payable annually in arrears on June 30 of each year (each, a “ 2027 Notes Interest Payment Date ”), commencing June 30, 2018, to the Persons in whose names the 2027 Notes are registered at the close of business on the 2027 Notes Record Date for such 2027 Notes Interest Payment Date, except as provided in Section 2.07.

Section 2.07 In the event that any Interest Payment Date with respect to the 2027 Notes or the Maturity Date or a Redemption Date for any series of Notes falls on a day that is not a Business Day, then the related payments of principal, premium, if any, and interest shall be made on the next succeeding day that is a Business Day (and no additional interest will accrue or otherwise accumulate on the amount payable for the period from and after such Interest Payment

 

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Date, Maturity Date or Redemption Date, as applicable). Interest due on the Maturity Date or a Redemption Date (in each case, whether or not an Interest Payment Date) of any series of Notes will be paid to the Person to whom principal of such Notes is payable.

Section 2.08 Payments of Additional Amounts. The provisions of Section 1502 of the Base Indenture shall apply to each series of Notes. Whenever in any series of Notes there is mentioned, in any context, the payment of the principal of or interest or any other amounts on, or in respect of, such series of Notes, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms hereof and the Indenture, and express mention of the payment of Additional Amounts in any provision of any series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions thereof where such express mention is not made.

Section 2.09 No Sinking Fund. The Notes are not entitled to the benefit of any sinking fund.

Section 2.10 Guarantees. Each series of Notes shall have the benefit of a Guarantee from the Guarantor on the terms set forth in Article 14 of the Base Indenture.

Section 2.11 Security Registrar; Paying and Calculation Agent. The Security Registrar for each series of Notes shall initially be the Trustee. A copy of the Security Register shall be maintained by the Company at its registered office, in order to comply with Luxembourg law (the “ Duplicate Register ”). In case of discrepancy between the Security Register and the Duplicate Register, the Duplicate Register shall prevail for Luxembourg law purposes.

The paying agent for the 2027 Notes shall initially be the Paying and Calculation Agent (in such capacity, the “ 2027 Notes Paying Agent ”). With respect to the Floating Rate Notes, the Paying and Calculation Agent shall act as the paying agent (in such capacity, the “ Floating Rate Notes Paying Agent ” and, together with the 2027 Notes Paying Agent, each, a “ Paying Agent ”) and/or the calculation agent in accordance with the terms of the Paying and Calculation Agency Agreement. The Company may change either Paying Agent, the Paying and Calculation Agent and/or the Trustee without prior notice to any Holder. The Company will give the Trustee prompt written notice of any change in any such appointment. Insofar as any series of Notes provide for any such agent to obtain rates, quotes or other data from a bank, dealer or other institution for use in making any determination hereunder, such agent may do so from any institution or institutions of the kind contemplated hereby notwithstanding that any one or more of such institutions are Affiliates of any such agent or Affiliates of the Company. All determinations made by the Paying and Calculation Agent may be made by such agent in its sole discretion and, absent manifest error, shall be conclusive for all purposes and binding on the Holders of the applicable series of Notes and the Company .

 

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ARTICLE III

REDEMPTION OF THE NOTES

Section 3.01 Optional Redemption by Company . (a)  Except as set forth in Section 3.02, the Floating Rate Notes shall not be redeemable prior to the Floating Rate Notes Maturity Date.

(b) At any time and from time to time prior to March 30, 2027, the Company has the right, at its option, to redeem the 2027 Notes, in whole or in part, at a redemption price equal to the greater of:

(i) 100% of the principal amount of the 2027 Notes to be redeemed, and

(ii) the sum of the present values of the Remaining Scheduled Payments on the 2027 Notes to be redeemed (not including any portion of the payments of interest that will be accrued and unpaid to and including the Redemption Date) discounted to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 15 basis points, plus accrued and unpaid interest, if any, on the principal amount of the 2027 Notes being redeemed to, but excluding, the Redemption Date.

(c) On or after March 30, 2027, the Company has the right, at its option, to redeem the 2027 Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the 2027 Notes to be redeemed, plus accrued and unpaid interest, if any, on the principal amount of the 2027 Notes being redeemed to, but excluding, the Redemption Date.

(d) The Company will cause the notice of any redemption to be mailed (or sent electronically in accordance with applicable Depositary procedures) to the registered Holders of the applicable 2027 Notes to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date. If the 2027 Notes are only partially redeemed pursuant to this Section 3.01, such 2027 Notes to be redeemed will be selected by the Trustee in such manner as in its sole discretion it shall deem appropriate and fair, subject to any applicable Depositary procedures. The price for any redemption pursuant to this Section 3.01 shall be paid prior to 12:00 noon, London time, on the applicable Redemption Date or at such later time as is then permitted by the rules of the Depositary applicable to the 2027 Notes (if then registered as Global Notes); provided , that the Company shall deposit with the Trustee or the 2027 Notes Paying Agent an amount sufficient to pay the applicable redemption price by 10:00 a.m., London time, on the date such redemption price is to be paid.

(e) If money sufficient to pay the redemption price of all of the 2027 Notes (or a portion thereof) to be redeemed on the applicable Redemption Date is deposited with the Trustee or the 2027 Notes Paying Agent on or before such Redemption Date as provided herein, then on and after such Redemption Date, interest will cease to accrue on such 2027 Notes (or such portion thereof) called for redemption.

 

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Section 3.02 Redemption Upon Changes in Withholding Tax . The provisions of Section 1501 of the Base Indenture shall apply to each series of Notes. The redemption price for any redemption pursuant to this Section 3.02 shall be paid prior to 12:00 noon, London time, on the applicable Redemption Date or at such later time as is then permitted by the rules of the Depositary applicable to the Notes (if then registered as Global Notes); provided, that the Company shall deposit with the Trustee or the applicable Paying Agent an amount sufficient to pay such redemption price by 10:00 a.m., London time, on the date such redemption price is to be paid. If money sufficient to pay such redemption price of each series of Notes to be redeemed on the applicable Redemption Date is deposited with the Trustee or the applicable Paying Agent on or before such Redemption Date as provided herein, then on and after such Redemption Date, interest will cease to accrue on such Notes called for redemption.

Section 3.03 Change of Control Triggering Event . (a)  If a Change of Control Triggering Event occurs, unless, with respect to the 2027 Notes, the Company has exercised its right to redeem the 2027 Notes in full as described in Section 3.01, or with respect to any series of Notes, such series of Notes has become redeemable as described in Section 3.02, Holders of both series of Notes will have the right to require the Company to repurchase all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of their Notes pursuant to the offer described below (the “ Change of Control Offer ”) on the terms set forth in the Notes. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase (the “ Change of Control Payment ”). Within 30 days following any Change of Control Triggering Event, or, at the Company’s option, prior to the date of the consummation of any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company will be required to mail a notice to Holders of each applicable series of Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase such applicable series of Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”), pursuant to the procedures required by the Notes and described in such notice. The notice shall, if mailed prior to the date of the consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date. The Company must comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those 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 securities laws or regulations conflict with the Change of Control Triggering Event provisions of the Notes, the Company will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under this Section 3.03 or the Change of Control Triggering Event provisions of the Notes by virtue of such conflicts.

(b) On the Change of Control Payment Date, the Company will be required, to the extent lawful, to:

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

 

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

(iii) deliver or cause to be delivered to the Trustee the Notes of each applicable series properly accepted together with an Officers’ Certificate stating the aggregate principal amount of such Notes, or portions of such Notes, being repurchased.

(c) The applicable Paying Agent will promptly mail to each Holder of Notes of each applicable series properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each such Holder a new Note of such series equal in principal amount to any unpurchased portion of any Notes of such series surrendered; provided that each new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Company will not be required to make an offer to repurchase Notes of any series upon a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes of each such series properly tendered and not withdrawn under its offer. In addition, the Company will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

ARTICLE IV

FORM OF NOTES AND GUARANTEES

Section 4.01 Form of Notes and Guarantees . (a)  The Floating Rate Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the forms attached as Exhibit A hereto and (b)  the 2027 Notes and the Trustee’s Certificate of Authentication to be endorsed thereon are to be substantially in the forms attached as Exhibit B hereto, in each case with such changes therein as the officers of the Company executing the Notes (by manual or facsimile signature) may approve, such approval to be conclusively evidenced by his or her execution thereof. The notation of Guarantee to be attached to each Note is to be substantially in the form attached as Exhibit C hereto, with such changes therein as the officer of the Guarantor executing the notation of Guarantee (by manual or facsimile signature) may approve, such approval to be conclusively evidenced by their execution thereof.

ARTICLE V

ORIGINAL ISSUE OF NOTES

Section 5.01 Original Issue of Notes . (a)  Floating Rate Notes having an initial aggregate principal amount of €250,000,000 may from time to time, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said Floating Rate Notes to or upon the written order of the Company pursuant to Section 303 of the Base Indenture without any further action by the Company (other than as required by the Base Indenture).

 

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(b) 2027 Notes having an initial aggregate principal amount of €600,000,000 may from time to time, upon execution of this Supplemental Indenture, be executed by the Company and delivered to the Trustee for authentication, and the Trustee shall thereupon authenticate and deliver said 2027 Notes to or upon the written order of the Company pursuant to Section 303 of the Base Indenture without any further action by the Company (other than as required by the Base Indenture).

ARTICLE VI

COVENANTS

Section 6.01 Limitation on Secured Debt . The Guarantor will not, and will not permit any of its Subsidiaries to, create, assume, or guarantee any Secured Debt without making effective provision for securing the Securities equally and ratably with such Secured Debt. The foregoing restrictions shall not apply, however, to debt secured by (i) purchase money mortgages created to secure payment for the acquisition or construction of any property including, but not limited to, any indebtedness incurred by the Guarantor or any of its Subsidiaries prior to, at the time of, or within 18 months 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, (ii) mortgages, pledges, liens, security interest or encumbrances (collectively referred to herein 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 the Guarantor or any of its Subsidiaries, (iii) security interests on property or shares of capital stock or indebtedness of any entity existing at the time such entity becomes a Subsidiary, (iv) security interests in property or shares of capital stock or indebtedness of an entity existing at the time such entity is merged into or consolidated with the Guarantor or any of its Subsidiaries or at the time of a sale, lease, or other disposition of the properties of an entity as an entirety or substantially as an entirety to the Guarantor or any of its Subsidiaries, provided that no such security interests shall extend to any other Principal Property of the Guarantor or such Subsidiary prior to such acquisition or to other Principal Property thereafter acquired other than additions or improvements to the acquired property, (v) security interests on the Guarantor’s 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 (including, without limitation, security interests to secure indebtedness of the pollution control or industrial revenue type) in order to permit the Guarantor or any of its Subsidiaries 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, (vi) security interests on any property or assets of any Subsidiary to secure indebtedness owing by it to the Guarantor or to another Subsidiary of the Guarantor, (vii) liens securing reimbursement obligations with respect to letters of credit related to trade payables and issued in the ordinary course of business, which

 

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liens encumber documents and other property relating to such letters of credit and the products and proceeds thereof, (viii) liens encumbering customary initial deposits and margin deposits and other liens in the ordinary course of business, in each case securing indebtedness under any interest swap obligations and currency agreements and forward contract, option, futures contracts, futures options or similar agreements or arrangements designed to protect the Guarantor or any of its Subsidiaries from fluctuations in interest rates or currencies, or (ix) 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 clauses (i) to (viii) inclusive.

Section 6.02 Limitation on Sale and Leaseback Transactions . The Guarantor will not, and will not permit any of its Subsidiaries to, enter any lease longer than three years (excluding leases of newly acquired, improved or constructed property) covering any Principal Property of the Guarantor or any Subsidiary of the Guarantor that is sold to any other person in connection with such lease (a “ Sale and Leaseback Transaction ”), unless either (a) the Guarantor or such Subsidiary of the Guarantor would be entitled, without equally and ratably securing the Securities to incur Indebtedness secured by a mortgage on the Principal Property leased pursuant to clauses (i) through (ix) of Section 6.01 hereof, or (b) an amount equal to the value of the Principal Property so leased is applied to the retirement, within 180 days of the effective date of such arrangement, of indebtedness for borrowed money incurred or assumed by the Guarantor or a Subsidiary of the Guarantor which is recorded as Funded Debt as shown on the most recent consolidated balance sheet of the Guarantor and which in the case of such Indebtedness of the Company or the Guarantor, is not subordinate and junior in right of payment to the prior payment of the Securities, as applicable.

Section 6.03 Exempted Indebtedness . Notwithstanding Section 6.01 and Section 6.02, (1) the Guarantor and any one or more of its Subsidiaries may, without securing the Securities, issue, assume, or guarantee Secured Debt or enter into any Sale and Leaseback Transaction which would otherwise be subject to the restrictions of Section 6.01 and Section 6.02; provided that, after giving effect thereto, the aggregate amount of such Secured Debt then outstanding (not including Secured Debt permitted under the exceptions set forth in Section 6.01) and the Attributable Debt of Sale and Leaseback Transactions, other than Sale and Leaseback Transactions in accordance with clause (a) or (b) of Section 6.02, at such time does not exceed 15% of Consolidated Net Assets, and (2) leases between only the Guarantor and a wholly-owned Subsidiary of the Guarantor or only between wholly-owned Subsidiaries of the Guarantor are permitted.

Section 6.04 Classification . For purposes of determining compliance with Section 6.01 and Section 6.02, (a) a lien securing an item of Secured Debt need not be permitted solely by reference to one category (or portion thereof) described in Section 6.01 or Section 6.02, but may be permitted in part under any combination thereof and (b) in the event that a lien securing an item of Secured Debt (or any portion thereof) meets the criteria of one or more of the categories (or portions thereof) described in Section 6.01 or Section 6.02, the Guarantor may, in its sole discretion, divide, classify or reclassify, or later divide, classify, or reclassify, such lien securing such item of Secured Debt (or any portion thereof) in any manner that complies (based on circumstances existing at the time of such division, classification or reclassification) with Section 6.01 and Section 6.02.

 

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ARTICLE VII

MISCELLANEOUS

Section 7.01 Ratification and Applicability of Indenture . To the extent of any conflict between the provisions of this Supplemental Indenture and the Base Indenture, the provisions of this Supplemental Indenture shall control. The provisions of Sections 1010, 1011 and 1012 of the Base Indenture shall not apply to the Floating Rate Notes or the 2027 Notes. The provisions of Sections 1302 and 1303 of the Base Indenture shall apply to the Floating Rate Notes and the 2027 Notes (including with respect to Sections 6.01 and 6.02 of this Supplemental Indenture). Except as otherwise provided in Section 1.02 and this Section 7.01, the Base Indenture is in all respects ratified and confirmed, and this Supplemental Indenture shall be deemed part of the Base Indenture in the manner and to the extent herein and therein provided.

Section 7.02 Trustee Not Responsible for Recitals . The recitals herein contained are made by the Company and the Guarantor and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Supplemental Indenture.

Section 7.03 New York Law to Govern . THIS SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. FOR THE AVOIDANCE OF DOUBT, THE APPLICABILITY OF ARTICLES 86 TO 94-8 OF THE LUXEMBOURG LAW DATED AUGUST 10, 1915 ON COMMERCIAL COMPANIES, AS AMENDED, SHALL BE EXCLUDED.

Section 7.04 Separability . In case any one or more of the provisions contained in this Supplemental Indenture or in any series of the Notes shall for any reason be held to be invalid, illegal or unenforceable in any respect, then, to the extent permitted by law, such invalidity, illegality or unenforceability shall not affect any other provisions of this Supplemental Indenture or of such series of the Notes, but this Supplemental Indenture and such series of the Notes shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein or therein.

Section 7.05 Counterparts . This 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.

 

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IN WITNESS WHEREOF the parties hereto have caused this Supplemental Indenture to be duly executed, as of the day and year first written above.

 

DH EUROPE FINANCE S.A.

 

By:  

/s/ Frank T. McFaden

Name:   Frank T. McFaden
Title:   Category A Director
DANAHER CORPORATION
By:   /s/ Daniel L. Comas
Name:   Daniel L. Comas
Title:   Executive Vice President and Chief Financial Officer

THE BANK OF NEW YORK MELLON TRUST

COMPANY, N.A.,

as Trustee

By:   /s/ Richard Tarnas
Name:   Richard Tarnas
Title:   Vice President

[ Signature Page to Second Supplemental Indenture ]

 

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EXHIBIT A

[IF THIS NOTE IS TO BE A GLOBAL SECURITY, INSERT:]

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK, S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) AND CLEARSTREAM BANKING, S.A. (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY FOR THE ACCOUNT OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED, HAS AN INTEREST HEREIN.

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH COMMON DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

DH EUROPE FINANCE S.A.

Floating Rate Senior Note due 2022

 

No.                                              

                                                    
     CUSIP: 23290Y AF3  
     Common Code: 163716224  
     ISIN: XS1637162246  

DH Europe Finance S.A., a public limited liability company ( société anonyme ) duly organized and existing under the laws of Luxembourg, having its registered office at 1 B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 197470 (herein called the “ Company ,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to              , or registered assigns, the principal sum set forth in the Schedule of Increases or Decreases in Note attached hereto on June 30, 2022, and to pay interest thereon from June 30, 2017 or from the immediately preceding Interest

 

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Payment Date to which interest has been paid or duly provided for, quarterly in arrears on March 31, June 30, September 30 and December 31 of each year (each an “ Interest Payment Date ”), commencing on September 30, 2017, until the principal hereof is paid or made available for payment ; provided , that if any Interest Payment Date would be a day that is not a Business Day, such Interest Payment Date shall be the next succeeding day that is a Business Day (and no additional interest will accrue or otherwise accumulate on the amount payable for the period from and after such Interest Payment Date); except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Payment Date shall be the immediately preceding Business Day. This Note shall bear interest at a rate equivalent to the 3-month EURIBOR (the “ Base Rate ”) plus 0.300% per year, as calculated by the Paying and Calculation Agent ; provided , however, that the minimum interest rate shall be zero. The interest rate on this Note will be reset quarterly on March 31, June 30, September 30 and December 31 of each year (each, an “ Interest Reset Date ”), commencing on September 30, 2017; provided , that, if any Interest Reset Date would be a day that is not a Business Day, such Interest Reset Date shall be the next succeeding day that is a Business Day, except that if such next succeeding Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. The initial Base Rate for this Note in effect from the Issue Date to, but excluding, the first Interest Reset Date will be the 3-month EURIBOR in effect on June 28, 2017.

The interest rate on this Note will be determined on the second TARGET2 Business Day preceding the applicable Interest Reset Date (a “ EURIBOR Interest Determination Date ”).

The Base Rate that takes effect on any Interest Reset Date shall equal the interest rate for deposits in euro designated as “EURIBOR” and sponsored jointly by the European Banking Federation and ACI — the Financial Market Association (or any company established by the joint sponsors for purposes of compiling and publishing that rate) on each EURIBOR Interest Determination Date, and will be determined by the Paying and Calculation Agent in accordance with the following provisions:

(i) EURIBOR will be the offered rate for deposits in euro having a maturity of three months, as that rate appears on Reuters Page EURIBOR01 as of 11:00 a.m., Brussels time, on the relevant EURIBOR Interest Determination Date.

(ii) If the rate described in clause (i) above does not appear on Reuters Page EURIBOR01, EURIBOR will be determined on the basis of the rates, at approximately 11:00 a.m., Brussels time, on the relevant EURIBOR Interest Determination Date, at which deposits of the following kind are offered to prime banks in the Euro-Zone interbank market by the principal Euro-Zone office of each of four major banks in that market selected by the Company: euro deposits having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time. The Paying and Calculation Agent will request the principal Euro-Zone office of each of these banks to provide a quotation in writing of its rate. If at least two quotations are provided in writing, EURIBOR for such EURIBOR Interest Determination Date will be the arithmetic mean (rounded upwards) calculated by the Paying and Calculation Agent of such quotations.

 

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(iii) If fewer than two quotations are provided as described in clause (ii) above, EURIBOR for the relevant EURIBOR Interest Determination Date will be the arithmetic mean of the rates for loans of the following kind to leading Euro-Zone banks quoted in writing, at approximately 11:00 a.m., Brussels time, on such EURIBOR Interest Determination Date, by three major banks in the Euro-Zone selected by the Company: loans of euro having a maturity of three months beginning on such Interest Reset Date and in a principal amount of not less than €1,000,000 that is representative for a single transaction in such market at such time.

(iv) If fewer than three banks selected by the Company are quoting as described in clause (iii) above, EURIBOR shall be the EURIBOR in effect on such EURIBOR Interest Determination Date (or, in the case of the first Interest Reset Date, the initial Base Rate).

Upon request of the Holder to the Paying and Calculation Agent, the Paying and Calculation Agent will provide the interest rate then in effect on this Note and, if determined, the interest rate that will become effective on the next Interest Reset Date.

All percentages resulting from any calculation with respect to this Note will be rounded upward or downward, as appropriate, to the next higher or lower one hundred-thousandth of a percentage point (e.g., 9.876541% (or .09876541) being rounded down to 9.87654% (or .0987654) and 9.876545% (or .09876545) being rounded up to 9.87655% (or .0987655)). All amounts used in or resulting from any calculation with respect to this Note will be rounded upward or downward, as appropriate, to the nearest cent, in the case of euro amounts or U.S. dollars, or to the nearest corresponding hundredth of a unit, in the case of a currency other than euro amounts or U.S. dollars, with one-half cent or one-half of a corresponding hundredth of a unit or more being rounded upward.

The Company has initially appointed The Bank of New York Mellon, London Branch, as the Paying and Calculation Agent to act as Paying Agent and calculation agent with respect to the Notes, but the Company may, in its sole discretion, appoint any other institution (including any Affiliate of the Company) to serve as any such agent from time to time, without any prior notice to any Holder. The Company will give the Trustee prompt written notice of any change in any such appointment.

Interest on this Note will be computed on the basis of a 360-day year and the actual number of days in the period for which interest is being calculated.

The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered on the Security Register at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day, whether or not a Business Day, immediately preceding the related Interest Payment Date, except as provided in Section 2.07 of the Supplemental Indenture. Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the

 

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payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of this Note not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in accordance with the Indenture, which shall initially be the corporate trust office of the Paying and Calculation Agent, in euro in immediately available funds ; provided , however, that at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register, and provided further that if the euro is unavailable to the Company or, in the case of the Guarantees, the Guarantor due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or if the euro is no longer being used by the then-member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of this Note shall be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantees, the Guarantor or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars on the basis of the most recently available Market Exchange Rate for the euro.

This Note is fully and unconditionally guaranteed by Danaher Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the “ Guarantor ”), as provided in the Indenture.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

 

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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated:                                           

 

DH EUROPE FINANCE S.A.
By:    
Name:    
Title:    

 

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TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein described in the within-mentioned Indenture.

Dated:                                                   

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

By:                                                       

Authorized Officer

 

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REVERSE OF NOTE

This Note is one of a duly authorized issue of Securities of the Company (herein called the “ Notes ”), issued and to be issued in one or more series under a Base Indenture, dated as of July 8, 2015 (herein called the “ Base Indenture ”), among the Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), as amended and supplemented by the Second Supplemental Indenture, dated as of June 30, 2017 (herein called the “ Supplemental Indenture ,” which term shall have the meaning assigned to it in such instrument, and together with the Base Indenture, herein called the “ Indenture ”) and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be authenticated and delivered. This Note is one of the series designated on the face hereof initially limited in aggregate principal amount to €250,000,000. The Notes are unsecured general obligations of the Company.

1. Redemption Upon Changes in Withholding Taxes; Additional Amounts

The provisions of Sections 1501 and 1502 of the Base Indenture and Sections 2.08 and 3.02 of the Supplemental Indenture shall apply to this series of Notes.

Whenever the payment of the principal of or interest or any other amounts on, or in respect of, this Note is mentioned, in any context, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment of Additional Amounts in any provision of this series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions thereof where such express mention is not made.

2. No Optional Redemption

Except as set forth in Section 1 of this Note and in Section 3.02 of the Supplemental Indenture, the Company may not redeem the Notes of this Series prior to the Maturity Date.

3. Change of Control Triggering Event

If a Change of Control Triggering Event occurs, unless the Notes of this series have become redeemable as described in Section 3.02 of the Supplemental Indenture, Holders of the Notes of this series will have the right to require the Company to repurchase all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of their Notes pursuant to the offer described below (the “ Change of Control Offer ”) on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase (the “ Change of Control Payment ”). Within 30 days following any Change of Control Triggering Event, or, at the Company’s option, prior to the date of the consummation of any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company will be required to mail a notice to Holders of the Notes, with a copy to the Trustee, describing the

 

A-7


transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”), pursuant to the procedures required by the Indenture and described in such notice. The notice shall, if mailed prior to the date of the consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

On the Change of Control Payment Date, the Company will be required, to the extent lawful, to:

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

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

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

The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each such Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered; provided that each new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.

In addition, the Company will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

4. No Sinking Fund

The Notes are not entitled to the benefit of any sinking fund.

5. Defeasance and Discharge

The Indenture contains provisions for defeasance and discharge and for defeasance at any time of certain restrictive covenants and Events of Default with respect to this Note upon compliance with certain conditions set forth in the Indenture.

 

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6. Guarantee

This Note is fully and unconditionally guaranteed by the Guarantor, as provided in Article 14 of the Indenture.

7. Modification and Waiver

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 Guarantor and the rights of the Holders of the Notes of each series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company and the Guarantor 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 Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note. Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes in addition to or in place of certificated Notes, or make any other change that does not adversely affect the rights of any Holder of a Note.

8. Events of Default

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

9. Remedies

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, the Holders of not less than 25% in principal amount of the Notes of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

 

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10. Transfer and Exchange

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

The Notes of this series are issuable only in registered form without coupons in denominations of €100,000 or an integral multiple of €1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Note for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

A copy of the Security Register shall be maintained by the Company at its registered office, in order to comply with Luxembourg law (the “Duplicate Register”). In case of discrepancy between the Security Register and the Duplicate Register, the Duplicate Register shall prevail for Luxembourg law purposes.

11. Governing Law

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. FOR THE AVOIDANCE OF DOUBT, THE APPLICABILITY OF ARTICLES 86 TO 94-8 OF THE LUXEMBOURG LAW DATED AUGUST 10, 1915 ON COMMERCIAL COMPANIES, AS AMENDED, SHALL BE EXCLUDED.

 

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12. Defined Terms

All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. As used in this Note, the term “ Predecessor Note ” shall have the meaning assigned to the term “Predecessor Security” in the Indenture.

 

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ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
 
 
(Insert assignee’s social security or tax identification number)
 
 
 
(Insert address and zip code of assignee) and irrevocably appoints
 
 
 
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him or her.

 

Date:                                 
    Signature:      
    Signature Guarantee:      

(Sign exactly as your name appears on the other side of this Note)

 

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SIGNATURE GUARANTEE

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

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SCHEDULE OF INCREASES OR DECREASES IN NOTE

The initial principal amount of this Note is €         . The following increases or decreases in the principal amount of this Note have been made:

 

Date

  

Amount of

decrease in

principal

amount of this

Note

  

Amount of

increase in

principal

amount of this

Note

  

Principal

amount of this

Note following

such decrease

or increase

  

Signature of
authorized

officer or

Trustee

 

A-14


EXHIBIT B

[IF THIS NOTE IS TO BE A GLOBAL SECURITY, INSERT:]

UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR BANK, S.A./N.V., AS OPERATOR OF THE EUROCLEAR SYSTEM (“EUROCLEAR”) AND CLEARSTREAM BANKING, S.A. (“CLEARSTREAM” AND, TOGETHER WITH EUROCLEAR, “EUROCLEAR/CLEARSTREAM”), TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE BANK OF NEW YORK MELLON, LONDON BRANCH, AS COMMON DEPOSITARY FOR THE ACCOUNT OF EUROCLEAR/CLEARSTREAM (AND ANY PAYMENT IS MADE TO THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF EUROCLEAR/CLEARSTREAM), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED, HAS AN INTEREST HEREIN.

THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE COMMON DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH COMMON DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.

DH EUROPE FINANCE S.A.

1.200% Senior Note due 2027

 

No.                                               €                                        
      CUSIP: 23290Y AE6
      Common Code: 163716259
      ISIN: XS1637162592

DH Europe Finance S.A., a public limited liability company ( société anonyme ) duly organized and existing under the laws of Luxembourg, having its registered office at 1 B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 197470 (herein called the “ Company ,” which term includes any successor Person under the Indenture hereinafter referred to), for value received, hereby promises to pay to              , or registered assigns, the principal sum set forth in the Schedule of Increases or Decreases in Note attached hereto on June 30, 2027, and to pay interest thereon from June 30, 2017 or from the immediately preceding

 

B-1


Interest Payment Date to which interest has been paid or duly provided for, annually in arrears on June 30 of each year, commencing June 30, 2018 at the rate of 1.200% per annum, until the principal hereof is paid or made available for payment. Interest shall be computed on the basis of the payment convention ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Markets Association and in accordance with the Supplemental Indenture. The interest so payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided in such Indenture, be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered on the Security Register at the close of business on the Regular Record Date for such interest, which shall be the fifteenth calendar day, whether or not a Business Day, immediately preceding the related Interest Payment Date, except as provided in Section 2.07 of the Supplemental Indenture.

Any such interest not so punctually paid or duly provided for will forthwith cease to be payable to the Holder on such Regular Record Date and may either be paid to the Person in whose name this Note (or one or more Predecessor Notes) is registered at the close of business on a Special Record Date for the payment of such Defaulted Interest to be fixed by the Trustee, notice whereof shall be given to Holders of this Note not less than 10 days prior to such Special Record Date, or be paid at any time in any other lawful manner not inconsistent with the requirements of any securities exchange on which the Notes of this series may be listed, and upon such notice as may be required by such exchange, all as more fully provided in said Indenture.

Payment of the principal of (and premium, if any) and interest on this Note will be made at the office or agency of the Company maintained for that purpose in accordance with the Indenture, which shall initially be the corporate trust office of the Paying and Calculation Agent, in euro in immediately available funds ; provided , however, that at the option of the Company, payment of interest may be made by check mailed to the address of the Person entitled thereto as such address shall appear in the Security Register or by wire transfer to an account maintained by the Person entitled thereto as specified in the Security Register, and provided further that if the euro is unavailable to the Company or, in the case of the Guarantees, the Guarantor due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or if the euro is no longer being used by the then-member states of the European Economic and Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions of or within the international banking community, then all payments in respect of this Note shall be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantees, the Guarantor or so used. In such circumstances, the amount payable on any date in euro will be converted into U.S. dollars on the basis of the most recently available Market Exchange Rate for the euro.

The Company has initially appointed The Bank of New York Mellon, London Branch, as the Paying Agent to act as such agent with respect to the Notes, but the Company may, in its sole discretion, appoint any other institution (including any Affiliate of the Company) to serve as any such agent from time to time, without any prior notice to any Holder. The Company will give the Trustee prompt written notice of any change in any such appointment.

 

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This Note is fully and unconditionally guaranteed by Danaher Corporation, a corporation duly organized and existing under the laws of the State of Delaware (the “ Guarantor ”), as provided in the Indenture.

Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

Unless the certificate of authentication hereon has been executed by the Trustee referred to on the reverse hereof by manual signature, this Note shall not be entitled to any benefit under the Indenture or be valid or obligatory for any purpose.

IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed under its corporate seal.

Dated:                          

 

DH EUROPE FINANCE S.A.
By:  

                          

 

Name:  

 

Title:  

 

 

B-3


TRUSTEE’S CERTIFICATE OF AUTHENTICATION

This is one of the Notes of the series designated therein described in the within-mentioned Indenture.

Dated:                          

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,

as Trustee

By:                                           

Authorized Officer

 

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REVERSE OF NOTE

This Note is one of a duly authorized issue of Securities of the Company (herein called the “ Notes ”), issued and to be issued in one or more series under a Base Indenture, dated as of July 8, 2015 (herein called the “ Base Indenture ”), among the Company, the Guarantor and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the “ Trustee ,” which term includes any successor trustee under the Indenture), as amended and supplemented by the Second Supplemental Indenture, dated as of June 30, 2017 (herein called the “ Supplemental Indenture ,” which term shall have the meaning assigned to it in such instrument, and together with the Base Indenture, herein called the “ Indenture ”) and reference is hereby made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Guarantor, the Trustee and the Holders of the Notes and of the terms upon which the Notes are, and are to be authenticated and delivered. This Note is one of the series designated on the face hereof initially limited in aggregate principal amount to €600,000,000. The Notes are unsecured general obligations of the Company.

1. Optional Redemption

At any time and from time to time prior to March 30, 2027, the Company shall have the right to redeem the Notes, in whole or in part, at its option, at a redemption price equal to the greater of:

(i) 100% of the principal amount of the Notes to be redeemed; and

(ii) the sum of the present values of the Remaining Scheduled Payments on the Notes to be redeemed (not including any portion of the payments of interest that will be accrued and unpaid to and including the Redemption Date) discounted to the Redemption Date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate plus 15 basis points, plus accrued and unpaid interest, if any, on the principal amount of the Notes being redeemed to, but excluding, the Redemption Date.

On or after March 30, 2027, the Company shall have the right, at its option, to redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes, plus accrued and unpaid interest, if any, on the principal amount of the Notes being redeemed to, but excluding, the Redemption Date.

The Company will mail notice of any redemption to the registered Holders of the Notes to be redeemed not less than 30 nor more than 60 days prior to the Redemption Date. If the Notes are only partially redeemed pursuant to Section 3.01 of the Supplemental Indenture, the Notes to be redeemed will be selected by the Trustee in such manner as in its sole discretion it shall deem appropriate and fair, subject to any applicable Depositary procedures.

If money sufficient to pay the redemption price of all of the Notes (or a portion thereof) to be redeemed on the Redemption Date is deposited with the Trustee or Paying Agent on or before the Redemption Date as provided herein and in the Indenture, then on and after such Redemption Date, interest will cease to accrue on such Notes (or such portion thereof) called for redemption.

 

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In the event of redemption of this Note in part only, a new Note or Notes for the unredeemed portion hereof shall be issued in the name of the Holder hereof upon the cancellation hereof.

2. Redemption Upon Changes in Withholding Taxes; Additional Amounts

The provisions of Sections 1501 and 1502 of the Base Indenture and Sections 2.08 and 3.02 of the Supplemental Indenture shall apply to this series of Notes.

Whenever the payment of the principal of or interest or any other amounts on, or in respect of, this Note is mentioned, in any context, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment of Additional Amounts in any provision of this series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions thereof where such express mention is not made.

3. No Other Redemption

Except as set forth in Sections 1 and 2 of this Note and in Article 3 of the Supplemental Indenture, the Company may not redeem the Notes prior to the Maturity Date.

4. Change of Control Triggering Event

If a Change of Control Triggering Event occurs, unless the Notes of this series have become redeemable as described in Sections 3.01 and 3.02 of the Supplemental Indenture, Holders of the Notes of this series will have the right to require the Company to repurchase all or any part (equal to €100,000 or an integral multiple of €1,000 in excess thereof) of their Notes pursuant to the offer described below (the “ Change of Control Offer ”) on the terms set forth herein. In the Change of Control Offer, the Company will be required to offer payment in cash equal to 101% of the aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the Notes repurchased to the date of purchase (the “ Change of Control Payment ”). Within 30 days following any Change of Control Triggering Event, or, at the Company’s option, prior to the date of the consummation of any Change of Control, but after public announcement of the transaction that constitutes or may constitute the Change of Control, the Company will be required to mail a notice to Holders of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed (the “ Change of Control Payment Date ”), pursuant to the procedures required by the Indenture and described in such notice. The notice shall, if mailed prior to the date of the consummation of the Change of Control, state that the offer to purchase is conditioned on the Change of Control Triggering Event occurring on or prior to the Change of Control Payment Date.

On the Change of Control Payment Date, the Company will be required, to the extent lawful, to:

 

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

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

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

The Paying Agent will promptly mail to each Holder of Notes properly tendered the Change of Control Payment for such Notes, and the Trustee will promptly authenticate and mail (or cause to be transferred by book-entry) to each such Holder a new Note equal in principal amount to any unpurchased portion of any Notes surrendered ; provided that each new Note will be in a principal amount of €100,000 or an integral multiple of €1,000 in excess thereof. The Company will not be required to make an offer to repurchase the Notes upon a Change of Control Triggering Event if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for an offer made by the Company and such third party purchases all Notes properly tendered and not withdrawn under its offer.

In addition, the Company will not repurchase any Notes if there has occurred and is continuing on the Change of Control Payment Date an Event of Default under the Indenture, other than a default in the payment of the Change of Control Payment upon a Change of Control Triggering Event.

5. No Sinking Fund

The Notes are not entitled to the benefit of any sinking fund.

6. Defeasance and Discharge

The Indenture contains provisions for defeasance and discharge and for defeasance at any time of certain restrictive covenants and Events of Default with respect to this Note upon compliance with certain conditions set forth in the Indenture.

7. Guarantee

This Note is fully and unconditionally guaranteed by the Guarantor, as provided in Article 14 of the Indenture.

8. Modification and Waiver

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 Guarantor and the rights of the Holders of the Notes of each series to be affected under the Indenture at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in principal amount of the Notes at the time Outstanding of each series to be affected. The Indenture also contains provisions permitting the Holders of specified percentages in

 

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principal amount of the Notes of each series at the time Outstanding, on behalf of the Holders of all Notes of such series, to waive compliance by the Company and the Guarantor 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 Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and of any Note 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 Note. Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency, provide for uncertificated Notes in addition to or in place of certificated Notes, or make any other change that does not adversely affect the rights of any Holder of a Note.

9. Events of Default

If an Event of Default with respect to the Notes shall occur and be continuing, the principal of the Notes may be declared due and payable in the manner and with the effect provided in the Indenture.

10. Remedies

As provided in and subject to the provisions of the Indenture, the Holder of this Note shall not have the right to institute any proceeding with respect to the Indenture or for the appointment of a receiver or trustee or for any other remedy thereunder, unless such Holder shall have previously given the Trustee written notice of a continuing Event of Default with respect to the Notes of this series, the Holders of not less than 25% in principal amount of the Notes of this series at the time Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default as Trustee and offered the Trustee reasonable indemnity, and the Trustee shall not have received from the Holders of a majority in principal amount of Notes of this series at the time Outstanding a direction inconsistent with such request, and shall have failed to institute any such proceeding, for 60 days after receipt of such notice, request and offer of indemnity. The foregoing shall not apply to any suit instituted by the Holder of this Note for the enforcement of any payment of principal hereof or any premium or interest hereon on or after the respective due dates expressed herein.

No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and any premium and interest on this Note at the times, place and rate, and in the coin or currency, herein prescribed.

11. Transfer and Exchange

As provided in the Indenture and subject to certain limitations therein set forth, the transfer of this Note is registrable in the Security Register, upon surrender of this Note for registration of transfer at the office or agency of the Company in any place where the principal of and any premium and interest on this Note are payable, duly endorsed by, or accompanied by a written instrument of transfer in form satisfactory to the Company and the Security Registrar duly executed by, the Holder hereof or his attorney duly authorized in writing, and thereupon one or more new Notes of this series and of like tenor, of authorized denominations and for the same aggregate principal amount, will be issued to the designated transferee or transferees.

 

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The Notes of this series are issuable only in registered form without coupons in denominations of €100,000 or an integral multiple of €1,000 thereof. As provided in the Indenture and subject to certain limitations therein set forth, Notes of this series are exchangeable for a like aggregate principal amount of Notes of this series and of like tenor of a different authorized denomination, as requested by the Holder surrendering the same.

No service charge shall be made for any such registration of transfer or exchange, but the Company may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith.

Prior to due presentment of this Note for registration of transfer, the Company, the Guarantor, the Trustee and any agent of the Company, the Guarantor or the Trustee may treat the Person in whose name this Note is registered as the owner hereof for all purposes, whether or not this Note be overdue, and none of the Company, the Guarantor, the Trustee nor any such agent shall be affected by notice to the contrary.

A copy of the Security Register shall be maintained by the Company at its registered office, in order to comply with Luxembourg law (the “ Duplicate Register ”). In case of discrepancy between the Security Register and the Duplicate Register, the Duplicate Register shall prevail for Luxembourg law purposes.

12. Governing Law

THIS NOTE SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE. FOR THE AVOIDANCE OF DOUBT, THE APPLICABILITY OF ARTICLES 86 TO 94-8 OF THE LUXEMBOURG LAW DATED AUGUST 10, 1915 ON COMMERCIAL COMPANIES, AS AMENDED, SHALL BE EXCLUDED.

13. Defined Terms

All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. As used in this Note, the term “ Predecessor Note ” shall have the meaning assigned to the term “ Predecessor Security ” in the Indenture.

 

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ASSIGNMENT

 

FOR VALUE RECEIVED, the undersigned assigns and transfers this Note to:
 
 
(Insert assignee’s social security or tax identification number)
 
 
 
(Insert address and zip code of assignee) and irrevocably appoints
 
 
 
agent to transfer this Note on the books of the Company. The agent may substitute another to act for him or her.

 

Date:                                                  
    Signature:     

 

    Signature Guarantee:     

(Sign exactly as your name appears on the other side of this Note)

 

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SIGNATURE GUARANTEE

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Security Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“ STAMP ”) or such other “signature guarantee program” as may be determined by the Security Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.

 

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SCHEDULE OF INCREASES OR DECREASES IN NOTE

The initial principal amount of this Note is € . The following increases or decreases in the principal amount of this Note have been made:

 

Date

  

Amount of

decrease in

principal

amount of this

Note

  

Amount of

increase in

principal

amount of this

Note

  

Principal

amount of this

Note following

such decrease

or increase

  

Signature of
authorized

officer or

Trustee

 

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EXHIBIT C

[FORM OF GUARANTEE]

For value received, the undersigned (the “ Guarantor ”), to the extent set forth in and subject to the terms of the Indenture, dated as of July 8, 2015 (the “ Base Indenture ”), among DH Europe Finance S.A., a public limited liability company, société anonyme , duly organized and existing under the laws of Luxembourg, having its registered office at 1 B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 197470 (the “ Company ”), the Guarantor and The Bank of New York Mellon Trust Company, N.A., as Trustee (herein called the Trustee, which term includes any successor trustee under the Indenture) and the Second Supplemental Indenture, among the Company, the Guarantor and the Trustee (the “ Supplemental Indenture ,” and together with the Base Indenture, the “ Indenture ”), irrevocably and unconditionally guarantees to each Holder and to the Trustee and its successors and assigns (1) the full and punctual payment when due, whether at Stated Maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under the Indenture (including obligations to the Trustee) and the Notes, whether for payment of principal of, interest on, premium, if any, or Additional Amounts, if any, on the Notes and all other monetary obligations of the Company under the Indenture and the Notes and (2) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under the Indenture and the Notes.

The obligations of the Guarantor to the Holders and to the Trustee pursuant to this Guarantee and the Indenture are expressly set forth in Article 14 of the Indenture, and reference is hereby made to the Indenture for the precise terms and limitations of this Guarantee. Each Holder of the Notes to which this Guarantee is endorsed, by accepting such Notes, agrees to and shall be bound by such provisions.

All terms used and not otherwise defined in this Guarantee which are defined in the Indenture shall have the meanings assigned to them in the Indenture.

IN WITNESS WHEREOF, the Guarantor has caused this Guarantee to be signed by a duly authorized officer.

 

DANAHER CORPORATION, as Guarantor

 

By:    
Authorized Signatory

 

C-1

Exhibit 4.3

EXECUTION VERSION

 

 

PAYING AND CALCULATION AGENCY AGREEMENT

Dated June 30, 2017

among

DH Europe Finance S.A.

as Issuer

Danaher Corporation

as Guarantor

and

The Bank of New York Mellon, London Branch as Paying and Calculation Agent

and

The Bank of New York Mellon Trust Company N.A.

as Trustee

 

 


THIS PAYING AND CALCULATION AGENCY AGREEMENT (this “ Agreement ”) is made as of June 30, 2017, among DH Europe Finance S.A. (the “ Issuer ”), whose principal office is at 1B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg, Danaher Corporation (the “ Guarantor ”), whose principal office is at 2200 Pennsylvania Avenue, N.W., Suite 800W, Washington, D.C. 20037-1701, The Bank of New York Mellon, London Branch, as Paying and Calculation Agent (the “ Paying and Calculation Agent ”), whose principal office is at One Canada Square, London E 1 4 5AL, United Kingdom and The Bank of New York Mellon Trust Company, N.A., as Trustee (the “ Trustee ”), whose principal office is at 2 North LaSalle, Suite 1020, Chicago, Illinois 60602.

WHEREAS, the Issuer proposes to issue €600,000,000 aggregate principal amount of 1.200% senior notes due 2027 (the “ 2027 Notes ”) and €250,000,000 aggregate principal amount of floating rate senior notes due 2022 (the “ Floating Rate Notes ” and, together with the 2027 Notes, the “ Notes ”), in each case, on the date hereof, pursuant to that certain indenture dated as of July 8, 2015 (the “ Base Indenture ”) among the Issuer, the Guarantor and the Trustee, and that certain second supplemental indenture among the Issuer, the Guarantor, and the Trustee (the “ Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”), the forms of which Indenture and Notes are attached hereto as Annex A; and

WHEREAS, solely with respect to the Notes, the Issuer wishes to appoint the Paying and Calculation Agent, as set forth above, upon the terms and subject to the conditions set forth herein;

NOW, THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows:

1. DEFINITIONS

1.1 All capitalized terms used herein, but not defined, shall have the meanings given to them in the Indenture.

1.2 In addition, the following terms shall have the following meanings:

Business Day ” means any day other than a Saturday or Sunday, (i) which is not a day on which banking institutions in The City of New York or London are authorized or required by law, regulation or executive order to close and (ii) in the event that any payment by the Issuer of the principal of and interest on the Notes is to be made in euro, on which the Trans-European Automated Real Time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, is open.

Code ” means the US Internal Revenue Code of 1986, as amended.

FATCA Compliant Entity ” means an entity not subject to FATCA Withholding Tax.

FATCA Withholding Tax ” means any withholding or deduction pursuant to an agreement described in Section 1471(b) of the Code or otherwise imposed pursuant to Sections 1471 through 1474 of the Code (or any regulations or agreements thereunder or official interpretations thereof) or any intergovernmental agreement between the United States and another jurisdiction facilitating the implementation thereof (or any law implementing such an intergovernmental agreement).

References to the records of Euroclear Bank S.A./N.V. (“ Euroclear ”) and Clearstream Banking S.A. (“ Clearstream ”) shall be to the records that each of Euroclear and Clearstream holds for its customers which reflect the amount of such customers’ interests in the Notes.

2. APPOINTMENT OF PAYING AND CALCULATION AGENT AND AS COMMON DEPOSITARY

The Issuer hereby appoints the Paying and Calculation Agent at its office specified above as the Paying and Calculation Agent solely in respect of the Notes and as the common depositary for Euroclear and Clearstream for the Notes, in each case, upon the terms and conditions herein contained, and the Paying and Calculation Agent accepts such appointments. In the event of any inconsistency between the Indenture and this Agreement, the terms of this Agreement (including the Annexes attached hereto) shall prevail.


3. PAYMENT

3.1 In order to provide for all payments due on the Notes as the same shall become due, the Issuer shall cause to be paid to the Paying and Calculation Agent, no later than 10:00 a.m. London time one Business Day prior to the due date for the payment of each Note, at such bank as the Paying and Calculation Agent shall previously have notified to the Issuer, an amount in immediately available funds in the currency of payment sufficient to meet all payments due on such Notes.

3.2 The Issuer hereby authorizes and directs the Paying and Calculation Agent, solely from the amounts paid to it pursuant to this Section 3, to make or cause to be made all payments on the Notes in accordance with the terms thereof. Such payments shall be made to the Holder or Holders of Notes in accordance with the terms of the Notes, the provisions contained in this Agreement and the procedures of Euroclear and Clearstream. All interest payments and Additional Amounts, if any, in respect of the Notes will be made by the Paying and Calculation Agent on the relevant Interest Payment Date (as set forth in the Note) to the Holders in whose names the Notes are registered at the close of business (in New York) on the record date specified in the Notes next preceding the relevant Interest Payment Date or such other date as is provided in the Notes. So long as the Notes are represented by one or more global certificates and registered in the name of a common depository for Euroclear and Clearstream or its nominee, all interest payments and Additional Amounts, if any, on the Notes shall be made by the Paying and Calculation Agent by wire transfer of immediately available funds in Euro to Euroclear and Clearstream.

3.3 The Paying and Calculation Agent will pay the principal amount of each Note on the applicable maturity date or upon any redemption date with respect thereto, together with accrued and unpaid interest and Additional Amounts, if any, due at maturity or such redemption date, if any, upon presentation and surrender of such Note on or after the maturity date or redemption date thereof to the Paying and Calculation Agent, or as specified in the Notes.

3.4 If for any reason the amounts received by the Paying and Calculation Agent are insufficient to satisfy all claims in respect of all payments then due on the Notes, the Paying and Calculation Agent shall forthwith notify the Issuer, and the Paying and Calculation Agent shall not be obliged to pay any such claims until the Paying and Calculation Agent has received from the Issuer the full amount of the monies then due and payable in respect of such Notes.

3.5 The Paying and Calculation Agent hereby agrees that:

 

  (a) it will hold all sums held by it as Paying and Calculation Agent for the payment of the principal of or interest and Additional Amounts, if any, on the Notes in trust uninvested for the benefit of the Holders of the Notes entitled thereto, or for the benefit of the Trustee, as the case may be, until such sums shall be paid out to such Holders or otherwise as provided in Section 3.6 below and in the Indenture;

 

  (b) it will promptly give the Trustee notice of: (x) an Issuer deposit for the payment of principal of or interest, and Additional Amounts, if any, on the Notes, (y) any failure by the Issuer in the making of any deposit for the payment of principal of or interest, and Additional Amounts, if any, on the Notes that shall have become due and payable, and (z) any default by the Issuer in making any payment of the principal of or interest, and Additional Amounts, if any, on the Notes where the same shall be due and payable as provided in the Notes; and

 

  (c)

At any time after an Event of Default by the Issuer in the making of any payment of principal of, or interest on, or any Additional Amounts with respect to the Notes shall have occurred (after giving effect to any applicable grace period under the Notes and the Indenture), the Paying and Calculation Agent shall, if so required by notice in writing given by the Trustee to the Paying and Calculation Agent: (y) thereafter, until otherwise instructed by the Trustee, act as agent of the Trustee under the terms of the Indenture; and/or (z) deliver all Notes and all sums, documents and

 

2


  records held by the Paying and Calculation Agent in respect of the Notes to the Trustee or as the Trustee shall direct in such notice; provided that such notice shall be deemed not to apply to any document or record which the Paying and Calculation Agent is obliged not to release by any applicable law or regulation.

3.6 Notwithstanding the foregoing,

 

  (a) if any Note is presented or surrendered for payment to the Paying and Calculation Agent and the Paying and Calculation Agent has delivered a replacement therefor or has been notified that the same has been replaced, the Paying and Calculation Agent shall as soon as is reasonably practicable notify the Issuer in writing of such presentation or surrender and shall not make payment against the same until it is so instructed by the Issuer and has received the amount to be so paid; and

 

  (b) the Paying and Calculation Agent shall cancel each Note against surrender of which it has made full payment and shall deliver each Note so cancelled by it to the Trustee upon its request therefor.

3.7 In no event, shall the Paying and Calculation Agent be obliged to make any payments hereunder if it has not received the full amount of any such payment.

4. CALCULATION OF INTEREST

4.1 The Paying and Calculation Agent shall calculate the amount of interest payable on the Notes in the manner and at the times set forth in Annex A and in the Prospectus Supplement in respect of the Notes attached hereto as Annex B.

4.2 As soon as practicable after each Interest Determination Date (as defined in the Notes), the Paying and Calculation Agent will cause to be forwarded to the Issuer and the Trustee information regarding the interest rates, the interest periods, the amount of interest for each interest period and the relevant Interest Payment Date. The Paying and Calculation Agent will, upon the written request of any Holder of any Note, provide the interest rate then in effect and, if determined, the interest rate which will become effective for the next interest period with respect to such Note.

4.3 In no event shall the interest rate be less than the minimum rate, if any, or more than the maximum rate, if any, designated in the applicable pricing supplement, or more than the maximum rate permitted by New York law, as the same may be modified by United States law of general application.

5. INDEMNITY

5.1 Each of the Issuer and the Guarantor, jointly and severally, shall indemnify and keep indemnified the Paying and Calculation Agent against any losses, liabilities, costs (including reasonable fees and expenses of counsel), taxes (other than taxes attributable to income), claims, actions or demands incurred by it as a result of or in connection with its appointment or the exercise of its powers and duties under this Agreement or in respect of the Issuer’s issue of Notes, except to the extent resulting from the Paying and Calculation Agent’s bad faith, gross negligence or willful misconduct. Promptly after the receipt by the Paying and Calculation Agent of notice of any demand or claim or the commencement of any action, suit, proceeding or investigation, the Paying and Calculation Agent shall provide such notice to the Issuer; provided that the Paying and Calculation Agent’s failure to provide such notice shall, to the extent that the Issuer or the Guarantor, as applicable, is prejudiced as a result of such failure, relieve the Issuer or the Guarantor of its obligation to indemnify and keep indemnified the Paying and Calculation Agent pursuant to this Section 5.1.

5.2 The Issuer, in its sole discretion, may elect to assume the defense of any such claim, in which case the Paying and Calculation Agent shall cooperate in the defense of such claim. The Paying and Calculation Agent may have separate counsel in any such defense, but the fees and expenses of any such counsel shall be at the expense of the Paying and Calculation Agent, unless (i) the employment of such counsel has been specifically authorized in writing by the Issuer or (ii) the named parties to any such action (including any impleaded parties)

 

3


include both the Paying and Calculation Agent and the Issuer or any affiliate of the Issuer, and such Paying and Calculation Agent shall have reasonably concluded that, in the written opinion of counsel, an actual conflict of interest exists between the Paying and Calculation Agent and the Issuer or such affiliate of the Issuer. Neither the Issuer nor the Guarantor shall be required to pay for or agree to any settlement without its respective written consent.

5.3 In connection with its execution of and acting under this Agreement, the Trustee is entitled to all rights, privileges, protections, benefits, immunities and indemnities (i) provided to it under the Indenture and (ii) provided to the Paying and Calculation Agent hereunder.

5.4 The indemnities contained in Section 5.1 shall survive the termination or expiry of this Agreement and the resignation or removal of the Paying and Calculation Agent.

6. GENERAL

6.1 In acting under this Agreement, the Paying and Calculation Agent shall not (a) be under any fiduciary duty towards any person, (b) be responsible for or liable in respect of the authorization, validity or legality of any Note amount paid by it hereunder (except to the extent that any such liability is determined by a court of competent jurisdiction to have been resulted from the Paying and Calculation Agent’s bad faith, gross negligence or wilful misconduct), (c) be under any obligation towards any person other than the Trustee and Issuer or (d) assume any relationship of agency or trust for or with any Holder.

6.2 Except as otherwise permitted hereunder or as ordered by a court of competent jurisdiction or required by law or otherwise instructed by the Issuer, the Paying and Calculation Agent shall be entitled to treat the registered Holder of any Note as the absolute owner of such Note for all purposes and make payments thereon accordingly.

6.3 The Paying and Calculation Agent shall not exercise any lien, right of set-off or similar claim against any Holder of a Note in respect of moneys payable by it under this Agreement.

6.4 The Paying and Calculation Agent may consult on any matter concerning its duties hereunder any legal adviser selected by it, and the Paying and Calculation Agent shall not be liable in respect of anything done, or omitted to be done in good faith reliance on that legal adviser’s opinion; provided that, prior to taking or omitting to take any action in reliance on such opinion, the Paying and Calculation Agent shall notify the Issuer of such proposed action or omission. At any time, the Paying and Calculation Agent may apply to any duly authorized representative of the Issuer for a written instruction, and shall not be liable for action taken or omitted to be taken in good faith and in accordance with such instruction.

6.5 The Paying and Calculation Agent shall be entitled to rely, and shall not be liable in respect of anything done or suffered by it in reliance, on any notice, document, communication or information reasonably believed in good faith by it to be genuine and given by the proper parties.

6.6 The Paying and Calculation Agent shall be obliged to perform only such duties as are specifically set forth herein and in the Notes, and no implied duties or obligations shall be read into this Agreement or the Notes against the Paying and Calculation Agent.

6.7 Subject as provided in Section 6.3 above, the Paying and Calculation Agent shall not be liable to account to the Issuer for any interest or other amounts in respect of funds received by it hereunder from the Issuer. Money held by the Paying and Calculation Agent need not be segregated except as required by law.

6.8 No provision of this Agreement or the Notes shall require the Paying and Calculation Agent to risk or expend its own funds, or to take any action which in its reasonable judgment would result in any expense or liability accruing to it.

6.9 In no event will the Paying and Calculation Agent be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its

 

4


control, including, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, severe loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Paying and Calculation Agent will use reasonable best efforts to resume performance as soon as practicable.

6.10 The Paying and Calculation Agent shall have no duty to enquire as to the performance of the covenants of the Issuer, nor shall it be charged with knowledge of any default or Event of Default under the Indenture.

6.11 Notwithstanding any provision of this Agreement to the contrary, the Paying and Calculation Agent will not in any event be liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), whether or not foreseeable, even if the Paying and Calculation Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.

6.12 Except to the extent otherwise provided in this Agreement, the Paying and Calculation Agent shall incur no liability hereunder except to the extent such liability has been determined to arise from the Paying and Calculation Agent’s bad faith, gross negligence or willful misconduct.

6.13 The Paying and Calculation Agent, its officers, directors, employees and shareholders may become the owners of, or acquire any interest in, the Notes, with the same rights that it or they would have if it were not the Paying and Calculation Agent, and may engage or be interested in any financial or other transaction with the Issuer as freely as if it were not the Paying and Calculation Agent.

6.14 The Paying and Calculation Agent shall retain the right not to act and shall not be held liable for refusing to act unless it has received clear and reasonable documentation which complies with the terms of this Agreement.

6.15 The Issuer will supply the Paying and Calculation Agent with the names and specimen signatures of its authorized persons.

7. CHANGE OF PAYING AND CALCULATION AGENT

7.1 At any time, other than on a day during the forty-five (45) day period preceding any payment date on the Notes, the Paying and Calculation Agent may resign by giving at least forty-five (45) days’ prior written notice to the Issuer; and the Paying and Calculation Agent’s agency shall be terminated and its duties shall cease upon expiration of such forty-five (45) days or such lesser period of time as shall be mutually agreeable to Paying and Calculation Agent and the Issuer. At any time, following at least forty-five (45) days’ prior written notice (or such lesser period of time as shall be mutually agreeable to the Paying and Calculation Agent and the Issuer) from the Issuer, the Paying and Calculation Agent may be removed from its agency. Such removal shall become effective upon the expiration of the forty-five (45) day or agreed lesser time period (provided that any such removal shall be immediate in case the Paying and Calculation Agent shall be adjudicated bankrupt or insolvent), and upon payment to the Paying and Calculation Agent of all amounts due and payable to it in connection with its agency. In such event, following payment of its fees and expenses due and payable, the Paying and Calculation Agent shall deliver to the Issuer, or to the Issuer’s designated representative, all Notes (if any) and cash (if any) belonging to the Issuer and, at the Issuer’s expense, shall furnish to the Issuer, or to the Issuer’s designated representative, such information regarding the status of the Issuer’s outstanding Notes as is reasonably requested by the Issuer.

7.2 Any corporation or banking association into which the Paying and Calculation Agent may be merged or consolidated or any corporation or banking association resulting from any merger or consolidation to which the Paying and Calculation Agent is a party or any corporation or banking association to which the Paying and Calculation Agent shall sell or otherwise transfer all or substantially all of its corporate trust or agency assets shall on the date on which such merger, consolidation or transfer becomes effective, become the successor to the Paying and Calculation Agent under this Agreement without the execution or filing of any paper or any further act on the part of the parties hereto.

 

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8. COMPENSATION AND FEES

8.1 The Issuer or the Guarantor, as applicable, will pay to the Paying and Calculation Agent from time to time, compensation as shall be agreed to in writing between the Issuer and the Paying and Calculation Agent in connection with its duties hereunder, together with any applicable value added tax and stamp, issue, or other documentary taxes and duties. In addition, the Issuer or the Guarantor, as applicable, shall reimburse the Paying and Calculation Agent, upon the Paying and Calculation Agent’s request, for all reasonable out of pocket expenses and disbursements incurred by the Paying and Calculation Agent in accordance with the provisions of this Agreement (including the reasonable compensation, expenses and disbursements of any outside counsel for the Paying and Calculation Agent), except any expense or disbursement attributable to its gross negligence, willful misconduct or bad faith.

9. NOTICES

9.1 Each notice or communication under this Agreement shall be made in writing, by fax or e-mail or otherwise in accordance with this Section 9. Each communication or document to be delivered to any party under this Agreement shall be sent to that party at the fax number, e-mail or address, and marked for the attention of the person (if any), from time to time designated by that party to the Paying and Calculation Agent (or, in the case of the Paying and Calculation Agent, by it to each other party) for the purpose of this Agreement. The initial telephone number, fax number, e-mail, address and person so designated are:

in the case of the Issuer, to it at:

DH Europe Finance S.A.

1B, Heienhaff, L-1736 Senningerberg

Grand Duchy of Luxembourg

Attention: Director

Email: karel.heeren@danaher.com

with a copy (which shall not constitute notice) to each of the Guarantor and Wilmer Cutler Pickering Hale and Dorr LLP at their respective addresses set forth below

in the case of the Guarantor, to it at:

c/o Danaher Corporation

2200 Pennsylvania Avenue, N.W., Suite 800W,

Washington, D.C. 20037-1701.

Attention: Vice President-Treasurer

Fax: (202) 828-0860

with a copy (which shall not constitute notice) to:

Wilmer Cutler Pickering Hale and Dorr LLP

1875 Pennsylvania Avenue, NW

Washington, DC 20006

Attention: Erika L. Robinson

E-mail: Erika.Robinson@wilmerhale.com

in the case of the Paying and Calculation Agent, to it at:

The Bank of New York Mellon, London Branch

One Canada Square, London El4 5AL, United Kingdom

Attention: Corporate Trust Administration

Tel no: +44 (0) 207 964 5028

Fax: +44 (0) 20 7964 2536

E-mail: corpsovl@bnymellon.com

 

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in the case of the Trustee, to it at:

The Bank of New York Mellon Trust Company, N.A.

2 North LaSalle, Suite 1020, Chicago, Illinois 60602.

Attention: Corporate Finance

Fax: (312) 827-8542

9.2 All notices under this Agreement shall be effective (if by fax) when receipt is confirmed by the recipient following enquiry by the sender and (if by e-mail or letter) when delivered, except that a communication received outside normal business hours shall be deemed to be received on the next business day in the city in which the recipient is located, provided, however , that any notices or other communications to the Paying and Calculation Agent or the Trustee shall be deemed effective only when actually received.

9.3 The Paying and Calculation Agent agrees to accept and act upon instructions or directions pursuant to this Agreement sent by unsecured e-mail, PDF, facsimile transmission or other similar unsecured electronic methods, provided that the Paying and Calculation Agent shall have received an incumbency certificate listing persons authorized to give such instructions or directions and containing specimen signatures of such authorized persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. Subject to Section 5 and Section 6.12 of this Agreement, in no event shall the Paying and Calculation Agent be liable for any losses resulting from the Paying and Calculation Agent receiving from an authorized person via any non-secure method of transmission or communication, such as by facsimile or e-mail. The Paying and Calculation Agent is authorized to comply with and rely upon any such notice, instruction or other communications reasonably believed by it to have been sent or given by an authorized person. The Issuer shall use all reasonable endeavours to ensure that instructions transmitted to the Paying and Calculation Agent pursuant to this Agreement are complete and correct. Any instructions properly delivered pursuant to the requirements of this Agreement shall be conclusively deemed to be valid instructions from the Issuer to the Paying and Calculation Agent for the purposes of this Agreement.

10. GOVERNING LAW AND JURISDICTION; WAIVER OF JURY TRIAL

10.1 The interpretation, validity and enforcement of this Agreement, and all legal actions brought under or in connection with the subject matter of this Agreement, shall be governed by the laws of the State of New York.

10.2 Any court action brought under or in connection with the subject matter of this Agreement shall be brought only in any federal or New York State court, in either case, sitting in the Borough of Manhattan, City of New York. Each of the Issuer and the Paying and Calculation Agent submits to the exclusive jurisdiction of these courts and agrees not to commence any legal action under or in connection with the subject matter of this Agreement in any other court or forum.

10.3 Each of the Issuer, the Trustee and the Paying and Calculation Agent waives any objection to the laying of the venue of any legal action brought under or in connection with the subject matter of this Agreement in the Federal or state courts sitting in the Borough of Manhattan, City of New York, and agrees not to plead or claim in such courts that any such action has been brought in an inconvenient forum.

10.4 EACH OF THE ISSUER, THE GUARANTOR, THE HOLDERS OF THE NOTES, THE TRUSTEE AND THE PAYING AND CALCULATION AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTION CONTEMPLATED HEREBY.

11. WITHHOLDING

11.1 Notwithstanding any other provision of this Agreement, the Paying and Calculation Agent or Trustee (as applicable, “ BNYM ”) shall be required to make a deduction or withholding (including the deduction of FATCA Withholding Tax) from any payment which it makes under this Agreement for or on account of any present

 

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or future taxes, duties or charges if and to the extent so required by any applicable law and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach thereto or by virtue of the relevant holder failing to satisfy any certification or other requirements in respect of the Notes (the “ Applicable Law ”), in which event BNYM shall make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted, and BNYM shall have no obligation to gross up any payment hereunder or pay any Additional Amount as a result of such withholding tax.

11.2 If the Paying and Calculation Agent or Trustee is a “foreign financial institution” as such term is defined under FATCA, then such Paying and Calculation Agent or Trustee must be or become, prior to receiving any payment from the Issuer under this Agreement, a FATCA Compliant Entity. Notwithstanding any other paragraph herein, any additional, substitute or successor Paying and Calculation Agent or Trustee appointed under this Agreement that is a foreign financial institution must be a FATCA Compliant Entity.

11.3 If, for any reason, the Paying and Calculation Agent or Trustee is not, or ceases to be, a FATCA Compliant Entity and, as a result, the Issuer considers in its sole discretion that it may be required to deduct or withhold FATCA Withholding Tax in respect of any payment due on any Notes, then the Issuer will be entitled to redirect or reorganise any such payment in any way that it sees fit in order that the payment may be made without such FATCA Withholding Tax. In order to comply with Applicable Law, the Company agrees: (i) to provide to BNYM reasonably sufficient information about holders or other applicable parties and/or transactions (including any modification to the terms of the Notes), to the extent such information is in the possession of the Company, so BNYM can determine whether it has tax related obligations under Applicable Law and (ii) that BNYM shall be entitled to make any withholding or deduction from payments under the transaction documents to the extent necessary to comply with Applicable Law.

12. HEADINGS

12.1 The headings of the Sections of this Agreement are inserted for convenience only and shall not constitute a part of or affect in any way the meaning or interpretation of this Agreement.

13. COUNTERPARTS

13.1 This Agreement may be executed by manual, PDF or other electronic signature in counterparts, each of which shall be an original and all of which, together, shall constitute one and the same instrument.

[signature pages follow]

 

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IN WITNESS WHEREOF the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.

 

DH EUROPE FINANCE S.A.

as Issuer

By:   /s/ Frank T. McFaden
  Name: Frank T. McFaden
  Title: Category A Director

 

DANAHER CORPORATION

as Guarantor

By:   /s/ Daniel L. Comas
  Name: Daniel L. Comas
 

Title: Executive Vice President and Chief

          Financial Officer

 

THE BANK OF NEW YORK MELLON, LONDON BRANCH

as Paying Agent and Calculation Agent

By:   /s/ Latoya S. Elvin
  Name: Latoya S. Elvin
  Title: Vice President

 

THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.

as Trustee

By:   /s/ Richard Tarnas
  Name: Richard Tarnas
  Title: Vice President

[Signature Page to Paying and Calculation Agency Agreement]


ANNEX A

FORMS OF NOTES AND INDENTURE

(attached)


ANNEX B

PROSPECTUS SUPPLEMENT

(attached)

Exhibit 5.1

 

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June 30, 2017    LOGO
  

Danaher Corporation

2200 Pennsylvania Avenue NW, Suite 800W

Washington, DC 20037-1701

Re: Floating Rate Senior Notes due 2022

1.200% Senior Notes due 2027

Ladies and Gentlemen:

We have acted as U.S. counsel for DH Europe Finance S.A., a Luxembourg public limited company (the “Company”) and Danaher Corporation, a Delaware corporation (“Parent”) in connection with the issue and sale by the Company of €250,000,000 aggregate principal amount of its Floating Rate Senior Notes due 2022 (the “Floating Rate Notes”) and €600,000,000 aggregate principal amount of its 1.200% Senior Notes due 2027 (the “2027 Notes”, and together with the Floating Rate Notes, the “Notes”), pursuant to an underwriting agreement dated as of June 19, 2017 (the “Underwriting Agreement”) among the Company, Parent and the underwriters named therein. The Notes will be fully and unconditionally guaranteed as to payment of principal, premium, if any, and interest on a senior unsecured basis by Parent (the “Guarantees” and, together with the Notes, the “Securities”). The Securities will be issued pursuant to an indenture (the “Base Indenture”) dated July 8, 2015 among the Company, Parent and The Bank of New York Mellon Trust Company, N.A. as trustee (the “Trustee”), as supplemented by a Second Supplemental Indenture (the “Supplemental Indenture” and together with the Base Indenture, the “Indenture”) of even date herewith among the Company, Parent and the Trustee, and will be subject to the Paying and Calculation Agency Agreement (the “Paying and Calculation Agency Agreement”), of even date herewith among the Company, Parent, the Trustee, and The Bank of New York Mellon, London Branch, as Paying and Calculation Agent.

Parent filed with the Securities and Exchange Commission (the “Commission”) a Registration Statement on Form S-3 (File No. 333-203948) under the Securities Act of 1933, as amended (the “Securities Act”), on May 7, 2015, and Parent and the Company filed with the Commission a Post-Effective Amendment No. 1 to Registration Statement on Form S-3 (File No. 333-203948) under the Securities Act, on June 15, 2015, including the prospectus dated June 15, 2015 (the “Base Prospectus”). The Company and Parent filed with the Commission the Base Prospectus, as supplemented by the preliminary prospectus supplement dated June 19, 2017 (the “Preliminary Prospectus Supplement”) on June 19, 2017, and the final prospectus supplement dated June 19, 2017 (the “Prospectus Supplement”) on June 21, 2017.

We have examined the Indenture, the Securities, the Registration Statement, the Preliminary Prospectus Supplement and the Prospectus Supplement and we have examined and relied upon corporate or other proceedings of Parent regarding the authorization of the execution

 

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Danaher Corporation

June 30, 2017

Page 2

and delivery of the Indenture, the Paying and Calculation Agency Agreement, the Underwriting Agreement and the issuance of the Securities, the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement and the Prospectus Supplement. We have also examined and relied upon originals or copies, certified or otherwise identified to our satisfaction, of such other corporate records of Parent, such other agreements and instruments, certificates of public officials, directors of the Company and officers of Parent and other persons, and such other documents, instruments and certificates as we have deemed necessary as a basis for the opinions hereinafter expressed. For purposes of this opinion, we have relied without investigation on the opinion relating to matters of the laws of the Grand Duchy of Luxembourg being given on the date hereof by Luther S.A., special Luxembourg counsel for the Company.

In our examination of the documents referred to above, we have assumed the genuineness of all signatures, the legal capacity of all individual signatories, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as copies, the authenticity of such original documents, and the completeness and accuracy of the corporate records of the Company and Parent provided to us by the Company and Parent.

In rendering the opinions set forth below, we have assumed (i) the due execution and delivery, pursuant to due authorization, of the Indenture by the Trustee; (ii) that the Trustee has all requisite power and authority to perform its obligations under the Indenture; (iii) the Indenture will be a valid and binding obligation of the Trustee; (iv) that the Paying and Calculation Agency Agreement will be a valid and binding obligation of the Paying and Calculation Agent and (v) the accuracy of the opinion letter, dated June 30, 2017, of Luther S.A., which is being filed as an exhibit to Parent’s Current Report on Form 8-K to be filed on the date hereof. We have also assumed that at the time of the issuance and sale of the Securities, the Board of Directors of Parent (or any committee of such Board of Directors or any person acting pursuant to authority properly delegated to such person by the Board of Directors of the Company or any committee of such Board of Directors) or the directors of the Company shall not have taken any action to rescind or otherwise reduce its prior authorization of the issuance of the Securities.

We express no opinion herein as to the laws of any jurisdiction other than the state laws of the State of New York, the General Corporation Law of the State of Delaware and the federal laws of the United States of America.

Our opinions below are qualified to the extent that they may be subject to or affected by (i) applicable bankruptcy, insolvency, reorganization, moratorium, usury, fraudulent conveyance or similar laws relating to or affecting the rights or remedies of creditors generally, (ii) duties and standards imposed on creditors and parties to contracts, including, without limitation, requirements of materiality, good faith, reasonableness and fair dealing, and (iii) general equitable principles. Furthermore, we express no opinion as to the availability of any equitable or specific remedy upon any breach of the Indenture or the Securities, or to the successful assertion

 


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Danaher Corporation

June 30, 2017

Page 3

of any equitable defenses, inasmuch as the availability of such remedies or the success of any equitable defenses may be subject to the discretion of a court. We also express no opinion herein with respect to compliance by the Company or Parent with the securities or “blue sky” laws of any state or other jurisdiction of the United States or of any foreign jurisdiction. In addition, we express no opinion and make no statement herein with respect to the antifraud laws of any jurisdiction.

On the basis of, and subject to, the foregoing, we are of the opinion that when the Securities have been duly executed by Parent and the Company and duly authenticated by the Trustee in accordance with the terms of the Indenture, and delivered to the purchasers thereof against payment of the consideration therefor in accordance with the terms of the Underwriting Agreement duly approved by Parent, the Notes will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms and the Guarantees will constitute valid and binding obligations of Parent, enforceable against Parent in accordance with their terms.

Please note that we are opining only as to the matters expressly set forth herein, and no opinion should be inferred as to any other matters. This opinion is based upon currently existing statutes, rules, regulations and judicial decisions and is rendered as of the date hereof, and we disclaim any obligation to advise you of any change in any of the foregoing sources of law or subsequent developments in law or changes in facts or circumstances that might affect any matters or opinions set forth herein.

We hereby consent to the filing of this opinion with the Commission as an exhibit to Parent’s Current Report on Form 8-K to be filed on the date hereof, which Form 8-K will be incorporated by reference into the Registration Statement and to the use of our name in the Preliminary Prospectus Supplement and Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

Very truly yours,

WILMER CUTLER PICKERING

HALE AND DORR LLP

By:   /s/ Erika L. Robinson
  Erika L. Robinson, a Partner

 

Exhibit 5.2

 

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DH Europe Finance S.A.     
1B Heienhaff     
L-1736 Senningerberg     
Grand Duchy of Luxembourg     

Danaher Corporation

2200 Pennsylvania Avenue, N.W., Suite 800W

Washington, D.C. 20037-1701

United States of America

(together, the “ Addressees ”)

Luxembourg, June 30, 2017

Legal opinion – Issuance of Notes (as defined below)

Dear ladies and gentlemen,

 

1. INTRODUCTION

 

1.1 We are acting as special Luxembourg legal counsel to DH Europe Finance S.A., a public limited liability company ( société anonyme ) incorporated and existing under the laws of the Grand Duchy of Luxembourg, having its registered office at 1B Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg and registered with the Luxembourg Trade and Companies Register under number B 197470 (the “ Company ”) in connection with the issuance by the Company of EUR 250,000,000 aggregate principal amount of Floating Rate Senior Notes due 2022 and EUR 600,000,000 aggregate principal amount of 1.200% Senior Notes due 2027 (collectively, the “ Notes ”). The Notes will be fully and unconditionally guaranteed by Danaher Corporation (“ Danaher ”) (all such guarantees and Notes, collectively the “ Securities ”).

 

1.2

The Securities are being sold pursuant to an underwriting agreement (the “ Underwriting Agreement ”) dated as of June 19, 2017, entered into among the Company, Danaher, and the underwriters named therein. The Securities will be issued pursuant to a base indenture dated as of July 8, 2015 (the “ Base Indenture ”) entered into among the Company, Danaher as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee,

 


  as supplemented by a second supplemental indenture dated as of June 30, 2017 entered into among the Company, Danaher and The Bank of New York Mellon Trust Company, N.A., as trustee (the “ Second Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”). Danaher filed with the Securities and Exchange Commission (the “ Commission ”) a Registration Statement on Form S-3 (File No. 333-203948) under the Securities Act of 1933, as amended (the “ Securities Act ”) on May 7, 2015 and Danaher and the Company filed with the Commission a Post-Effective Amendment No. 1 to the Registration Statement (as so amended, the “ Registration Statement ”) on Form S-3 (File No. 333-203948) under the Securities Act, on June 15, 2015. Danaher and the Company filed with the Commission the prospectus dated June 15, 2015, as supplemented by the preliminary prospectus supplement dated June 19, 2017 (the “ Preliminary Prospectus Supplement ”) on June 19, 2017, and the final prospectus supplement dated June 19, 2017 (the “ Prospectus Supplement ”) on June 21, 2017.

 

1.3 We are giving this legal opinion in connection with the Transaction Documents (as defined in Schedule A (as annexed hereto)).

 

1.4 The undersigned is admitted to the Luxembourg bar.

 

2. SCOPE AND INTERPRETATION

 

2.1 This legal opinion shall be governed by the law of the Grand Duchy of Luxembourg (“ Luxembourg Law ”)

 

2.2 This legal opinion is strictly limited to the Transaction Documents and does not relate to any extent to any other agreement or matter. We express no opinion as to any matters other than those expressly set forth herein, and no opinion is, or may be, implied or inferred here from. We express no opinion as to matters of fact.

 

2.3 We want to stress that we do not represent ourselves to be familiar with any laws other than Luxembourg Law and, in giving this legal opinion, we assume that there does not exist any provision in other law affecting our opinion.

 

2.4 The opinions expressed below are limited to Luxembourg Law currently in effect. We have made no investigation of the laws of any jurisdiction outside the Grand Duchy of Luxembourg (“ Luxembourg ”) as a basis for this legal opinion and do not express or imply any opinion with respect to the matters governed by or to be determined on the basis of any such laws outside Luxembourg.

 

2.5 The Schedule A to this legal opinion forms an integral part of the legal opinion. The section headings used in this legal opinion are for convenience or reference only and are not to affect its construction or to be taken into consideration in its interpretation.

 

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3. BENEFIT OF THIS LEGAL OPINION

 

3.1 This legal opinion is addressed to the Addressees and is given in connection with the issuance of Notes. Wilmer Cutler Pickering Hale and Dorr LLP in rendering its legal opinion, dated the date hereof, to Danaher in connection with the issuance of the Securities is expressly permitted to rely on this legal opinion.

 

3.2 We hereby consent to the filing of this legal opinion with the Commission as an exhibit to Danaher’s Current Report on Form 8-K to be filed on or about June 30, 2017, which Form 8-K will be incorporated by reference into the Registration Statement and to the use of our name in the Preliminary Prospectus Supplement and Prospectus Supplement under the caption “Legal Matters.” In giving such consent, we do not hereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or the rules and regulations of the Commission.

 

4. DOCUMENTATION

 

4.1 For the purposes of this legal opinion, we have examined the documents listed in Schedule A annexed hereto.

 

4.2 Except as stated above, we have not, for the purposes of this legal opinion, examined any contracts, deeds, instruments or other documents relating to the Transaction Documents or entered into by or affecting any party to any such contracts, deeds, instruments or documents, or any corporate records of any such party, save that with respect to the Company, we have reviewed the Corporate Documents (as defined in Schedule A) and have not made any other enquiries concerning such parties. In particular, but without limitation, we have not investigated whether any such parties will, by reason of the transaction contemplated by the Transaction Documents (and any document in connection therewith), be in breach of any of its obligations under any such contracts, deeds, instruments or documents.

 

5. ASSUMPTIONS

For purposes of this legal opinion we assumed each of the following without any further verification:

 

5.1 that the different parties to the Transaction Documents (other than the Company) are duly incorporated and organized, validly existing under the laws of their respective place of incorporation and all other applicable laws and are capable of evaluating and understanding (on their own behalf or through independent professional advice), and understand and accept the terms, conditions and risks (whether financial, tax, accounting, regulatory or otherwise) of the Transaction Documents;

 

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5.2 that all factual matters and statements relied upon or assumed herein were true and complete on the date of execution of the Transaction Documents;

 

5.3 that the Transaction Documents have been executed by each of the parties (other than the Company) and signatories thereto in the form examined by us;

 

5.4 that the central administration ( administration centrale ), the principal place of business (principal établissement ) and (for the purposes of the Regulation (EU) 2015/848 of the European Parliament and of the Council of May 20, 2015 on insolvency proceedings (the “ EU Insolvency Regulation ”)) the centre of main interests (centre des intérêts principaux ) of the Company is located at the place of its registered office ( siège statutaire ) in Luxembourg and that the Company has no establishment (as such term is defined in the EU Insolvency Regulation) outside Luxembourg and that no parties to the Transaction Documents (other than the Company) have their principal legal seat, central administration, place of business, their main interest or any other establishment in Luxembourg;

 

5.6 the genuineness of all signatures, stamps and seals and that the persons purported to have signed have in fact signed;

 

5.7 the conformity to the originals of the documents supplied to us as certified or photostatic copies, the authenticity of the originals of such documents as well as the accuracy, authenticity, completeness and up to datedness of all documents submitted to us;

 

5.8 the due authorization, execution and delivery of the Transaction Documents by all the parties thereto under all applicable laws (other than the Company under Luxembourg Law) as well as the power, authority and legal right of all the parties thereto under all applicable laws (other than the Company under Luxembourg Law) to enter into, execute, deliver and perform their respective obligations under the Transaction Documents;

 

5.9 that the execution, delivery and performance by each of the parties to the Transaction Documents (other than the Company) is legal, valid, binding and enforceable against them under the laws of their place of incorporation or organization and under all other applicable laws and have been and remain duly approved and authorized by all necessary corporate, partnership, governmental and other action in accordance with their respective constitutive documents, the laws of their respective places of incorporation or organization and all other applicable laws;

 

5.10

that all obligations under the Transaction Documents are valid, legally binding upon, validly perfected where required, and enforceable against, the respective parties to the Transaction Documents (other than the Company) as a matter of all relevant laws (other

 

4


  than Luxembourg Law) most notably the expressed governing law, and that the choice of New York law as the governing law of the Transaction Documents is valid and enforceable as a matter of all applicable laws (other than Luxembourg Law), and that there is no provision of the laws of any jurisdiction (other than Luxembourg) that would have a negative bearing on the foregoing;

 

5.11 that the parties to the Transaction Documents (including the Company) entered into the Transaction Documents to which they are party with good faith, for the purpose of carrying out their business and without any intention to defraud or deprive of any legal benefit of any other parties (such as third parties and in particular creditors) or to circumvent any mandatory laws or regulations of any jurisdiction;

 

5.12 that the Articles of Association (as defined in Schedule A) have not been amended since the date mentioned in Schedule A;

 

5.13 that the Resolutions (i) are true records of the proceedings described therein and (ii) have not been amended, varied, revoked, declared null and void or superseded in any respect and are in full force and effect;

 

5.14 that the Excerpt (as defined in Schedule A) is true, correct, complete and up-to-date in all respects;

 

5.15 that the Certificate (as defined in Schedule A) is true, correct, complete and up-to-date in all respects;

 

5.16 that no proceedings have been lodged or injunction granted or requested against the Company to restrain it from performing any of its respective obligations under the Transaction Documents;

 

5.17 that the Company has a corporate interest in the signing of the Transaction Documents and it is in the best corporate interest ( intérêt social ) of the Company to enter into the contemplated transaction;

 

5.18 that there are no other arrangements or agreements in existence between the parties to the Transaction Documents which in any way amend, add to or vary the terms of the Transaction Documents or the respective rights and interests of the parties thereto;

 

5.19 that all matters (including without limitation the making of necessary filings and registrations) required in connection with the Transaction Documents to render them enforceable in all relevant jurisdictions (other than in Luxembourg) have been duly complied with and that such compliance remains in full force and effect and will continue to be effective where required for the validity and enforceability, under such laws as applicable, of the Transaction Documents (or any document related thereto);

 

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5.20 the appointment by the Company of a process agent as its authorized agent upon whom process may be served in any proceedings before the courts of New York arising out of or in relation to the Transaction Documents constitutes a valid and legally binding appointment under any applicable laws (other than Luxembourg law); and

 

5.21 that there is no abuse of trust or abuse of corporate assets in connection with the Transaction Documents.

 

6. OPINIONS

Based on the foregoing, and subject to the qualifications stated herein, we are of the opinion that insofar as Luxembourg Law is concerned as of the date hereof and without regard to any change in facts and circumstances which may occur subsequent to the issuance of this legal opinion:

 

6.1 the Company is duly incorporated and validly existing under Luxembourg Law for an unlimited duration with corporate power and authority to own and operate its properties and to enter into and perform its obligations under each Transaction Document;

 

6.2 the Company has the corporate power and authority under Luxembourg Law to enter into, execute and deliver each of the Transaction Documents and to perform its obligations thereunder;

 

6.3 the execution and delivery of the Company of the Transaction Documents by the Company does not violate any provision of its Articles of Association and Luxembourg Law applicable to companies in general relating to the capacity to represent a company;

 

6.4 each of the Transaction Documents and the Notes have been duly authorised, executed and delivered on behalf of the Company and, assuming receipt by the Company of payment of the issue price of such Notes, such Notes, when issued as provided in the Transaction Documents, will be legally issued and will constitute valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject to limitations by reason of bankruptcy, insolvency, moratorium, reorganization or similar laws affecting the rights of creditors generally, and shall be entitled to the benefits of the Transaction Documents; and

 

6.5 the Company has taken all corporate actions necessary for its valid entry into and performance of its obligations under each Transaction Document to which it is a party.

 

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7. QUALIFICATIONS

This opinion is subject to the following qualifications:

 

7.1 no opinion is given as to tax laws or regulations whatsoever in respect of the Company or the tax consequences of the transaction contemplated by the Transaction Documents (or any document in connection therewith);

 

7.2 save for the opinion expressed under point 6.3 of section 6 above, no opinion is given on the legal validity and the enforceability of the Transaction Documents;

 

7.3 corporate documents (including but not limited to, a transfer of the registered office, a notice of a winding-up order or resolution, notice of the appointment of a receiver, director, manager, or administrative receiver, notice of the appointment or revocation of a director) may not be held at the Luxembourg Trade and Companies Register immediately and there may be a delay in the relevant notice appearing on the files of the relevant party. Consequently, any search conducted at the Luxembourg Trade and Companies Register can speak only as per the date it was carried out and not as per the date of this legal opinion;

 

7.4 this legal opinion is subject to all limitations from the application of Luxembourg public policy rules and no opinion is expressed whatsoever on any bankruptcy ( faillite ), composition with creditors ( concordat ), suspension of payments ( sursis de paiement ), controlled management ( gestion contrôlée ), or the appointment of a temporary administrator ( administrateur provisoire ) and any similar Luxembourg or foreign proceedings affecting the capacity of the Luxembourg Company to validly enter into the Transaction Documents in respect of the Company or any other party to the Transaction Documents;

 

7.5 the Articles of Association and any documents relating to the Company the publication of which is required by Luxembourg Law will only be enforceable against third parties after they have been published on the electronic platform RESA ( Recueil électronique des sociétés et associations ), except where such third parties have knowledge thereof. For the 15 days following the publication, such documents would not be enforceable against third parties who prove that it was impossible for them to have knowledge thereof;

 

7.6 this legal opinion is as of this date and we undertake no obligation to update it or to advise of changes hereafter occurring. We express no opinion as to any matters other than those expressly set forth herein, and no opinion is, or may be, implied or inferred here from. We express no opinion as to matters of fact. This legal opinion is strictly limited to its terms, the Transaction Documents and the Corporate Documents and does not relate to any extent to any other agreement or matter; and

 

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7.7 Luxembourg legal concepts are defined in their original French terms used in Luxembourg Law so that the legal concepts used in the Transaction Documents may not be identical to the Luxembourg legal concepts. Luxembourg Courts may require that decisions granted in other jurisdictions than Luxembourg or any document tabled as evidence before Luxembourg Courts be translated into French language.

The Courts of Luxembourg shall have exclusive jurisdiction to settle any dispute among the parties hereto arising in connection with this legal opinion.

This opinion is issued by and signed on behalf of Luther S.A., admitted to practice in Luxembourg and registered on the List V of lawyers of the Luxembourg bar association.

 

Yours sincerely,
/s/ Laurent Massinon
Luther S.A.
Represented by Laurent Massinon
Partner, Avocat à la Cour

 

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SCHEDULE A – DOCUMENTATION

 

1. TRANSACTION DOCUMENTS

In connection with this legal opinion, we have examined the following documents (the “ Transaction Documents ”):

 

1.1 an executed copy of the indenture dated July 8, 2015 and entered into by, amongst others, the Company, Danaher as guarantor and The Bank of New York Mellon Trust Company, N.A. as trustee (the “ Base Indenture ”);

 

1.2 an executed copy of the first supplemental indenture dated July 8, 2015 entered into by the Company, Danaher Corporation as guarantor and The Bank of New York Mellon Trust Company, N.A. as trustee (the “ First Supplemental Indenture ”);

 

1.3 an executed copy of the second supplemental indenture dated June 30, 2017 and entered into by the Company, Danaher as guarantor and The Bank of New York Mellon Trust Company, N.A. as trustee (the “ Second Supplemental Indenture ” and together with the Base Indenture, the “ Indenture ”);

 

1.4 an executed copy of a New York law governed paying and calculation agency agreement dated June 30, 2017 entered into by the Company, Danaher Corporation as guarantor, The Bank of New York Mellon, London Branch as paying and calculation agent and The Bank of New York Mellon Trust Company, N.A. as trustee (the “ Paying and Calculation Agency Agreement ”);

 

1.5 an executed copy of the underwriting agreement dated June 19, 2017 and entered into by the Company, Danaher and the respective underwriters (the “ Underwriting Agreement ”); and

 

1.6 a copy of the New York law governed Notes dated June 30, 2017 as described and set out in the Indenture (the “ Notes ”).

We have also seen the copy of the Securities as described and set forth in the Indenture.

 

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2. CORPORATE DOCUMENTS

In connection with this legal opinion, we have examined the following documents (the “ Corporate Documents ”):

 

2.1 a copy of the articles of association of the Company dated June 2, 2015 (the “ Articles of Association ”);

 

2.2 a copy of the circular resolutions of the board of directors of the Company on June 14 2017 and a copy of the board resolutions taken by the board of directors of the Company on June 21, 2017 (the “ Resolutions ”);

 

2.3 an excerpt of the Luxembourg Trade and Companies Register related to the Company dated June 29, 2017 (the “ Excerpt ”);

 

2.4 a certificate of the Luxembourg Trade and Companies Register related to the Company dated June 29, 2017 (the “ Certificate ”).

 

 

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