CALCULATION
OF REGISTRATION FEE
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Title of Each
Class of Securities Offered
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Amount to be
Registered(1)
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Maximum
Offering Price Per Share
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Maximum
Aggregate Offering Price
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Amount of
Registration Fee(2)
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Common Stock, par value $0.01
per share
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10,935,582
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$
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163.00
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$
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1,782,499,866
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$
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231,368.48
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(1)
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Assumes exercise
in full of the underwriters’ option to purchase up to 1,426,379
additional shares of Common Stock.
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(2)
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Calculated in
accordance with Rule 457(r) of the Securities Act of 1933, as
amended (the “Securities Act”).
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Filed
Pursuant to Rule 424(b)(5)
Registration
No. 333-224149
PROSPECTUS
SUPPLEMENT
(To
Prospectus dated July 9, 2019)
DANAHER
CORPORATION
9,509,203
Shares
Common
Stock
We are offering
9,509,203 shares of our common stock, par value $0.01 per share.
The public offering price is $163.00 per share.
Our common stock
is listed on The New York Stock Exchange under the symbol
“DHR.”
Concurrently with
this offering, we are also making a public offering (the
“Concurrent Offering”) of 1,550,000 shares of our 5% Mandatory
Convertible Preferred Stock, Series B, without par value (the
“Series B Mandatory Convertible Preferred Stock”). The Concurrent
Offering is being made by means of a separate prospectus supplement
and not by means of this prospectus supplement. In that offering,
we have granted the underwriters of that offering an option to
purchase up to an additional 167,500 shares of our Series B
Mandatory Convertible Preferred Stock to cover over-allotments. The
completion of this offering is not contingent on the completion of
the Concurrent Offering, and the completion of the Concurrent
Offering is not contingent on the completion of this
offering.
One or more
entities or individuals affiliated with Steven Rales, the Chairman
of our Board, or Mitchell Rales, one of our directors and Chairman
of our Executive Committee (collectively, the “Affiliated
Entities”), have agreed to purchase 93,300 shares of Series B
Mandatory Convertible Preferred Stock (representing an aggregate
liquidation preference of $93.3 million) in the Concurrent Offering
at the public offering price for investment purposes.
Investing in
our common stock involves risks. You should read this prospectus
supplement and the accompanying prospectus carefully before you
make your investment decision. See “Risk Factors” beginning on page
S-12 of this prospectus supplement, as well as documents we file
with the Securities and Exchange Commission (the “SEC”) that are
incorporated by reference herein for more information.
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Per
Share
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Total
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Public Offering
Price
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$
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163.00
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$
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1,550,000,089.00
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Underwriting
Discount
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$
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4.89
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$
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46,500,002.67
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Proceeds to Danaher
Corporation (before expenses)(1)
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$
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158.11
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$
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1,503,500,086.33
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__________________
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(1)
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The
underwriters have agreed to reimburse us for certain of our out of
pocket expenses associated with the offering. See
“Underwriting.”
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We have granted
the underwriters the option, exercisable in whole or from time to
time in part, to purchase up to an additional 1,426,379 shares of
our common stock from us at the public offering price per share
shown above, less the underwriting discount as described under
“Underwriting,” exercisable for 30 days after the date of this
prospectus supplement.
Neither the
Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
determined if this prospectus supplement or the accompanying
prospectus is truthful or complete. Any representation to the
contrary is a criminal offense.
The underwriters
expect to deliver the shares of common stock to purchasers on or
about May 12, 2020.
Joint Book-Running Managers
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Goldman
Sachs & Co. LLC
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J.P.
Morgan
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Citigroup
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Evercore
ISI
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Credit
Suisse
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Co-Managers
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BTIG
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COMMERZBANK
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Mizuho
Securities
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MUFG
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Raymond
James
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RBC Capital
Markets
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Scotiabank
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SMBC
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TD
Securities
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Wells Fargo
Securities
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The date of
this prospectus supplement is May 7, 2020
TABLE OF
CONTENTS
Prospectus
Supplement
Prospectus
You should rely only on the information contained or incorporated
by reference in this prospectus supplement, the accompanying
prospectus or any free writing prospectus we provide to you. We and
the underwriters have not authorized anyone else to provide you
with different or additional information. We are not making an
offer of the shares of common stock in any jurisdiction where the
offer is not permitted. You should not assume that the information
contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus or any free writing
prospectus is accurate as of any date other than the date on the
front of that document.
ABOUT THIS
PROSPECTUS SUPPLEMENT
This document
is in two parts. The first part is this prospectus supplement,
which describes the specific terms of this offering of common stock
and other matters relating to us and our financial condition. The
second part is the accompanying base prospectus, which gives more
general information about securities we may offer from time to
time, some of which does not apply to this offering. Generally,
when we refer to the prospectus, we are referring to both parts of
this document combined. If information in this prospectus
supplement or any related free writing prospectus differs from
information in the accompanying prospectus, you should rely on the
information in this prospectus supplement or the related free
writing prospectus, whichever is dated later.
Except as the
context otherwise requires, or as otherwise specified or used in
this prospectus supplement or the accompanying prospectus, the
terms “we,” “our,” “us,” “the Company,” and “Danaher” refer to
Danaher Corporation and its consolidated subsidiaries. Unless
otherwise indicated, all financial data in this prospectus
supplement refer to continuing operations only. References in this
prospectus supplement to “U.S. dollars,” “U.S. $” or “$” are to the
currency of the United States of America and references to “€” and
“euro” are to the single currency introduced at the third stage of
the European Economic and Monetary Union pursuant to the Treaty
establishing the European Community, as amended.
The
distribution of this prospectus supplement and the accompanying
prospectus and the offering of the shares of common stock in
certain jurisdictions may be restricted by law. Persons who come
into possession of this prospectus supplement, any related free
writing prospectus and the accompanying prospectus should inform
themselves about and observe any such restrictions. This prospectus
supplement, any related free writing prospectus and the
accompanying prospectus do not constitute, and may not be used in
connection with, an offer or solicitation by anyone in any
jurisdiction in which such offer or solicitation is not authorized
or in which the person making such offer or solicitation is not
qualified to do so or to any person to whom it is unlawful to make
such offer or solicitation.
We
and the underwriters have not authorized any person to provide you
with information or to make any representations other than those
contained or incorporated by reference in this prospectus
supplement, the accompanying prospectus and in any free writing
prospectus prepared by or on behalf of us or to which we have
referred you. We and the underwriters take no responsibility for,
and can provide no assurance as to the reliability of, any
information that others may give you. We are not, and the
underwriters are not, making an offer to sell the shares of common
stock in any jurisdiction where the offer or sale is not permitted.
You should not assume that the information contained in this
prospectus supplement, the accompanying prospectus or in any such
free writing prospectus is accurate as of any date other than their
respective dates. In the case of information contained in documents
we file with the Securities and Exchange Commission (the “SEC”) and
incorporated by reference in this prospectus supplement, the
accompanying prospectus and in any free writing prospectus prepared
by or on behalf of us or to which we have referred you, you should
assume that such information is accurate only as of the respective
dates of those documents. Our business, financial condition,
results of operations and prospects may have changed since those
dates.
You
should not consider any information in this prospectus supplement,
any related free writing prospectus or the accompanying prospectus
to be investment, legal or tax advice. You should consult your own
counsel, accountant and other advisors for legal, tax, business,
financial and related advice regarding the purchase of the shares
of common stock. We are not making any representation to you
regarding the legality of an investment in the shares of common
stock by you under applicable investment or similar
laws.
You
should read and consider all information contained or incorporated
by reference in this prospectus supplement, any related free
writing prospectus and the accompanying prospectus that we provide
or make available to you before making your investment
decision.
If
a jurisdiction requires that the offering be made by a licensed
broker or dealer and the underwriters or any affiliate of the
underwriters is a licensed broker or dealer in that jurisdiction,
the offering shall be deemed to be made by the underwriters or such
affiliate on behalf of the issuer in such
jurisdiction.
FORWARD-LOOKING
STATEMENTS
Certain
statements included or incorporated by reference in this prospectus
supplement, any related free writing prospectus or the accompanying
base prospectus are “forward-looking statements” within the meaning
of the United States federal securities laws. All statements other
than historical factual information are forward-looking statements,
including without limitation statements regarding: projections of
revenue, expenses, profit, profit margins, tax rates, tax
provisions, cash flows, pension and benefit obligations and funding
requirements, our liquidity position or other projected financial
measures; management’s plans and strategies for future operations,
including statements relating to anticipated operating performance,
cost reductions, restructuring activities, new product and service
developments, competitive strengths or market position,
acquisitions and the integration thereof (including the integration
of the Cytiva Acquisition (as defined below)), divestitures,
spin-offs, split-offs or other distributions, strategic
opportunities, securities offerings, stock repurchases, dividends
and executive compensation; growth, declines and other trends in
markets we sell into; new or modified laws, regulations and
accounting pronouncements; future regulatory approvals and the
timing and conditionality thereof; outstanding claims, legal
proceedings, tax audits and assessments and other contingent
liabilities; future foreign currency exchange rates and
fluctuations in those rates; the potential or anticipated direct or
indirect impact of COVID-19 on our business, results of operations
and/or financial condition; general economic and capital markets
conditions; the anticipated timing of any of the foregoing;
assumptions underlying any of the foregoing; and any other
statements that address events or developments that we intend or
believe will or may occur in the future. Terminology such as
“believe,” “anticipate,” “should,” “could,” “intend,” “will,”
“plan,” “expect,” “estimate,” “project,” “target,” “may,”
“possible,” “potential,” “forecast” and “positioned” and similar
references to future periods are intended to identify
forward-looking statements, although not all forward-looking
statements are accompanied by such words.
Forward-looking
statements are based on assumptions and assessments made by our
management in light of their experience and perceptions of
historical trends, current conditions, expected future developments
and other factors. Forward-looking statements are not guarantees of
future performance and actual results may differ materially from
the results, developments and business decisions contemplated by
our forward-looking statements. Accordingly, you should not place
undue reliance on any such forward-looking statements. Important
factors that in some cases have affected us in the past and that in
the future could cause actual results to differ materially from
those envisaged in the forward-looking statements include the
following:
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The
COVID-19 pandemic has adversely impacted, and poses risks to, our
business, results of operations and financial condition, the nature
and extent of which are highly uncertain and
unpredictable.
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Our
acquisition of the Biopharma business of General Electric Company’s
Life Sciences division (“GE BioPharma”), now known as Cytiva, (the
“Cytiva Acquisition”) could negatively impact our business, results
of operations and financial condition.
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Our
outstanding debt has increased significantly as a result of the
Cytiva Acquisition, and we may incur additional debt in the future.
Our existing and future indebtedness may limit our operations and
our use of our cash flow and negatively impact our credit ratings;
and any failure to comply with the covenants that apply to our
indebtedness could adversely affect our liquidity and financial
statements.
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Conditions in
the global economy, the particular markets we serve and the
financial markets may adversely affect our business and financial
statements.
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Significant
developments or uncertainties stemming from the U.S.
administration, including changes in U.S. trade policies, tariffs
and the reaction of other countries thereto, particularly China,
can have an adverse effect on our business.
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Our
growth could suffer if the markets into which we sell our products
and services decline, do not grow as anticipated or experience
cyclicality.
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We
face intense competition and if we are unable to compete
effectively, we may experience decreased demand and decreased
market share. Even if we compete effectively, we may be required to
reduce prices for our products and services.
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Our
growth depends in part on the timely development and
commercialization, and customer acceptance, of new and enhanced
products and services based on technological
innovation.
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Our
reputation, ability to do business and financial statements can be
impaired by improper conduct by any of our employees, agents or
business partners.
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Certain of our
businesses are subject to extensive regulation by the U.S. Food and
Drug Administration and by comparable agencies of other countries,
as well as laws regulating fraud and abuse in the health care
industry and the privacy and security of health information.
Failure to comply with those regulations could adversely affect our
reputation, ability to do business and financial
statements.
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Our
products are subject to clinical trials, the results of which may
be unexpected, or perceived as unfavorable by the market, and could
have a material adverse effect on our business, financial condition
or results of operations.
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Off-label
marketing of our products could result in substantial
penalties.
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Certain
modifications to our products may require new 510(k) clearances or
other marketing authorizations and may require us to recall or
cease marketing our products.
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The
health care industry and related industries that we serve have
undergone, and are in the process of undergoing, significant
changes in an effort to reduce costs, which could adversely affect
our financial statements.
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Any
inability to consummate acquisitions at our historical rate and at
appropriate prices, and to make appropriate investments that
support our long-term strategy, could negatively impact our growth
rate and stock price.
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Our
acquisition of businesses, investments, joint ventures and other
strategic relationships could negatively impact our financial
statements.
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The
indemnification provisions of acquisition agreements by which we
have acquired companies may not fully protect us and as a result we
may face unexpected liabilities.
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Divestitures or
other dispositions could negatively impact our business, and
contingent liabilities from businesses that we or our predecessors
have disposed could adversely affect our financial
statements.
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We
could incur significant liability if any of the 2015 separation and
split-off of our communications business, the 2016 separation and
spin-off of Fortive Corporation (“Fortive”) or the 2019 separation,
initial public offering (“IPO”) and split-off of Envista Holdings
Corporation (“Envista”) is determined to be a taxable
transaction.
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Potential
indemnification liabilities pursuant to the 2015 separation and
split-off of our communications business, the 2016 separation and
spin-off of Fortive or the 2019 separation, IPO and split-off of
Envista could materially and adversely affect our business and
financial statements.
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A
significant disruption in, or breach in security of, our
information technology systems or data or violation of data privacy
laws could adversely affect our business, reputation and financial
statements.
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Our
operations, products and services expose us to the risk of
environmental, health and safety liabilities, costs and violations
that could adversely affect our business, reputation and financial
statements.
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Our
businesses are subject to extensive regulation; failure to comply
with those regulations could adversely affect our financial
statements and our business, including our reputation.
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Our
restructuring actions can have long-term adverse effects on our
business.
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We
may be required to recognize impairment charges for our goodwill
and other intangible assets.
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Foreign
currency exchange rates can adversely affect our financial
statements.
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Changes in our
tax rates or exposure to additional income tax liabilities or
assessments can affect our profitability. In addition, audits by
tax authorities can result in additional tax payments for prior
periods.
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Changes in tax
law relating to multinational corporations could adversely affect
our tax position.
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We
are subject to a variety of litigation and other legal and
regulatory proceedings in the course of our business that can
adversely affect our business and financial
statements.
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If
we are unable to adequately protect our intellectual property, or
if third parties infringe our intellectual property rights, we may
suffer competitive injury or expend significant resources enforcing
our rights. These risks are particularly pronounced in countries in
which we do business that do not have levels of protection of
intellectual property comparable to the United States.
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Third parties
from time to time claim that we are infringing or misappropriating
their intellectual property rights and we could suffer significant
litigation expenses, losses or licensing expenses or be prevented
from selling products or services.
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The
U.S. government has certain rights to use and disclose some of the
intellectual property that we license and could exclusively license
it to a third party if we fail to achieve practical application of
the intellectual property.
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Defects and
unanticipated use or inadequate disclosure with respect to our
products or services (including software), or allegations thereof,
can adversely affect our business, reputation and financial
statements.
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The
manufacture of many of our products is a highly exacting and
complex process, and if we directly or indirectly encounter
problems manufacturing products, our reputation, business and
financial statements could suffer.
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Adverse changes
in our relationships with, or the financial condition, performance,
purchasing patterns or inventory levels of, key distributors and
other channel partners can adversely affect our financial
statements.
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Certain of our
businesses rely on relationships with collaborative partners and
other third parties for development, supply and marketing of
certain products and potential products, and such collaborative
partners or other third parties could fail to perform
sufficiently.
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Our
financial results are subject to fluctuations in the cost and
availability of commodities that we use in our
operations.
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If
we cannot adjust our manufacturing capacity or the purchases
required for our manufacturing activities to reflect changes in
market conditions and customer demand, our profitability may
suffer. In addition, our reliance upon sole or limited sources of
supply for certain materials, components and services can cause
production interruptions, delays and inefficiencies.
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Changes in laws
or governmental regulations can reduce demand for our products or
services or increase our expenses.
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Work stoppages,
union and works council campaigns and other labor disputes could
adversely impact our productivity and results of
operations.
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International
economic, political, legal, compliance and business factors could
negatively affect our financial statements.
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Significant
developments stemming from the United Kingdom’s departure from the
EU could have an adverse effect on us.
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If
we suffer loss to our facilities, supply chains, distribution
systems or information technology systems due to catastrophe or
other events, our operations could be seriously
harmed.
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Our
defined benefit pension plans are subject to financial market risks
that could adversely affect our financial statements.
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See
the risk factors included in this prospectus supplement and the
“Risk Factors” sections of our Annual Report on Form 10-K for the
year ended December 31, 2019 and our Quarterly Report for the
quarter ended April 3, 2020, as well as our consolidated financial
statements and related notes and our other documents incorporated
by reference herein for a further discussion regarding reasons that
actual results may differ materially from the results, developments
and business decisions contemplated by our forward-looking
statements. Forward-looking statements speak only as of the date of
the report, document, or other communication in which they are
made. Except to the extent required by applicable law, we do not
assume any obligation to update or revise any forward-looking
statement, whether as a result of new information, future events
and developments or otherwise.
WHERE YOU
CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and
other information with the SEC under the Exchange Act. Our SEC
filings are available to the public over the Internet at the SEC’s
website at http://www.sec.gov. Copies of certain information filed
by us with the SEC are also available on our website at
www.danaher.com. Our website is not a part of this prospectus
supplement or the accompanying prospectus and is not incorporated
by reference in this prospectus supplement or the accompanying
prospectus.
As
noted above, this prospectus supplement and the accompanying
prospectus are part of a registration statement we filed with the
SEC. This prospectus supplement and the accompanying prospectus
omit some information contained in the registration statement in
accordance with SEC rules and regulations. You should review the
information and exhibits in the registration statement for further
information on us and our consolidated subsidiaries and the
securities we are offering. Statements in this prospectus
supplement and the accompanying prospectus concerning any document
we filed as an exhibit to the registration statement or that we
otherwise filed with the SEC are not intended to be comprehensive
and are qualified by reference to these filings. You should review
the complete document to evaluate these statements.
INCORPORATION
BY REFERENCE
The
SEC allows us to incorporate by reference much of the information
we file with the SEC, which means that we can disclose important
information to you by referring you to those publicly available
documents. The information that we incorporate by reference in this
prospectus supplement and the accompanying prospectus is considered
to be part of this prospectus supplement and the accompanying
prospectus.
Because we are
incorporating by reference future filings with the SEC, this
prospectus supplement is continually updated and those future
filings may modify or supersede some of the information included or
incorporated in this prospectus supplement. This means that you
must look at all of the SEC filings that we incorporate by
reference to determine if any of the statements in this prospectus
supplement, the accompanying prospectus or in any document
previously incorporated by reference have been modified or
superseded. This prospectus supplement incorporates by reference
the documents listed below filed by Danaher (File No. 1-8089)
and any future filings we make with the SEC under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act (in each case, other than
those documents or the portions of those documents not deemed to be
filed) until this offering is terminated or completed:
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Annual Report
on Form 10-K for the fiscal year ended December 31, 2019,
including the information specifically incorporated by reference
into the Annual Report on Form 10-K for the fiscal year ended
December 31, 2019 from our definitive proxy statement for the 2020
Annual Meeting of Stockholders;
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Quarterly
Report on Form 10-Q for the fiscal quarter ended April 3,
2020;
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Current Reports
on Form 8-K filed with the SEC on February 21, 2020, March 6, 2020,
March 30, 2020, April 1, 2020, April 8, 2020 and May 6, 2020 (Items
5.02 and 5.07 only);
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The
description of our 4.75% Mandatory Convertible Preferred Stock,
Series A on Form 8-A filed on March 1, 2019, including any
amendments or reports filed for the purpose of updating such
description; and
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•
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The
description of our common stock contained in our Registration
Statement on Form 8-B filed on November 3, 1986, including any
amendments or reports filed for the purpose of updating such
description.
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You
may request a copy of these filings, at no cost, by writing or
telephoning us at the following address or phone
number:
Danaher
Corporation
2200 Pennsylvania
Avenue, N.W., Suite 800W
Washington, D.C.
20037-1701
Attention:
Investor Relations
(202)
828-0850
Exhibits to the
filings will not be sent, however, unless those exhibits have
specifically been incorporated by reference into such
document.
SUMMARY
The following summary highlights selected information contained
elsewhere in this prospectus supplement, the accompanying
prospectus and in the documents incorporated by reference into this
prospectus supplement and the accompanying prospectus and may not
contain all the information you will need in making your investment
decision. You should read this entire prospectus supplement and the
accompanying prospectus carefully, including the “Risk Factors”
section contained in this prospectus supplement, the “Risk Factors”
section of our Annual Report on Form 10-K for the year ended
December 31, 2019 and our Quarterly Report for the quarter
ended April 3, 2020, our consolidated financial statements and
related notes and the other documents incorporated by reference
herein.
Danaher Corporation
Danaher Corporation designs, manufactures and markets professional,
medical, industrial and commercial products and services, which are
typically characterized by strong brand names, innovative
technology and major market positions. We are committed to
innovating and developing forward-looking technologies that solve
our customers’ most complex challenges. Danaher’s research and
development, manufacturing, sales, distribution, service and
administrative facilities are located in more than 60 countries.
Our business consists of three segments: Life Sciences;
Diagnostics; and Environmental & Applied Solutions. Danaher
strives to create shareholder value primarily through three
strategic priorities:
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enhancing its
portfolio in attractive science and technology markets through
strategic capital allocation;
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strengthening
its competitive advantage through consistent application of the
DANAHER BUSINESS SYSTEM (“DBS”) tools; and
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consistently
attracting and retaining exceptional talent.
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Danaher
measures its progress against these strategic priorities over the
long-term based primarily on financial metrics relating to revenue
growth, profitability, cash flow and capital returns.
The
Company’s businesses use a set of growth, lean and leadership tools
and processes, known as the DANAHER BUSINESS SYSTEM, which are
designed to continuously improve business performance in the
critical areas of quality, delivery, cost, growth and innovation.
Within the DBS framework, the Company pursues a number of ongoing
strategic initiatives relating to customer insight generation,
product development and commercialization, global sourcing of
materials and services, manufacturing improvement and sales and
marketing impact.
Danaher
Corporation, originally DMG, Inc., was organized in 1969 as a
Massachusetts real estate investment trust. In 1978 it was
reorganized as a Florida corporation under the name Diversified
Mortgage Investors, Inc. which in a second reorganization in 1980
became a subsidiary of a newly created holding company named DMG,
Inc. DMG, Inc. adopted the name Danaher in 1984 and was
reincorporated as a Delaware corporation in 1986.
Our
common stock is listed on The New York Stock Exchange under the
ticker symbol “DHR.” Our executive offices are located at 2200
Pennsylvania Avenue N.W., Suite 800W, Washington, D.C. 20037, and
our telephone number is (202) 828-0850. For additional information
concerning Danaher, please see “Where You Can Find More
Information.”
Recent
Developments
Concurrent
Offering
Concurrently
with this offering of common stock, we are offering, by means of a
separate prospectus supplement and accompanying prospectus,
1,550,000 shares of our Series B Mandatory Convertible Preferred
Stock (and up to an additional 167,500 shares of our Series B
Mandatory Convertible Preferred Stock that the underwriters in the
Concurrent Offering have the option to purchase from us,
exercisable within 30 days from the date of the prospectus
supplement for the Concurrent Offering). We estimate that the net
proceeds to us from the Concurrent Offering, if completed, will be
approximately $1.51 billion (or approximately $1.67 billion if the
underwriters in the Concurrent Offering exercise their option to
purchase additional shares of Series B Mandatory Convertible
Preferred Stock in full), in each case
after deducting
estimated expenses and underwriting discounts and commissions. The
Concurrent Offering is not contingent on this offering and there
can be no assurance that the Concurrent Offering will be completed
on the terms described herein or at all. For additional
information, see “Series B Mandatory Convertible Preferred Stock
Offering.”
The
Offering
The following is a brief summary of some of the terms of this
offering. For a more complete description of the terms of the
Common Stock, see “Description of Capital Stock — Common Stock” in
the accompanying prospectus and any free writing prospectus we may
provide you in connection with this offering carefully before
making an investment decision.
As used in this section, references to “Danaher Corporation,” “we,”
“us” and “our” mean Danaher Corporation excluding its subsidiaries
and affiliates.
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|
|
Issuer
|
Danaher Corporation, a
Delaware corporation
|
|
|
Common Stock We are
Offering
|
9,509,203 shares (10,935,582
shares if the underwriters’ option is exercised in
full).
|
|
|
Common stock Outstanding
after this Offering
|
706,519,793 shares (or
707,946,172 shares if the underwriters’ option is exercised in
full).
|
|
|
Use of Proceeds
|
We intend to use the net
proceeds of the offering for general corporate purposes, which may
include, without limitation and in our sole discretion, funding
potential future acquisitions and investments, working capital,
capital expenditures, investments in or loans to our subsidiaries,
refinancing of outstanding indebtedness, refinancing of outstanding
capital securities, share repurchases (including, but not limited
to, repurchases of our common stock), dividends and satisfaction of
other obligations. The precise amounts and timing of these uses of
proceeds will depend on our funding requirements and those of our
subsidiaries. See “Use of Proceeds” in this prospectus
supplement.
|
|
|
Concurrent Mandatory
Convertible Preferred Stock Offering
|
Concurrently with this
offering, we are offering, by means of a separate prospectus
supplement, 1,550,000 shares of our Series B Mandatory Convertible
Preferred Stock, plus up to an additional 167,500 shares
of our Series B Mandatory Convertible Preferred Stock that the
underwriters of such offering have the option to purchase from us
within 30 days from the date of the prospectus supplement for the
Concurrent Offering. We estimate that the net proceeds to us from
the sale of shares of our Series B Mandatory Convertible Preferred
Stock in the Concurrent Offering, if completed, will be
approximately $1.51 billion (or approximately $1.67 billion if the
underwriters exercise their option to purchase additional shares of
Series B Mandatory Convertible Preferred Stock in full), in each
case after deducting estimated expenses and underwriting discounts
and commissions. The Concurrent Offering is not contingent on the
completion of this offering, and there can be no assurance that the
Concurrent Offering will be completed on the terms described herein
or at all. For additional information, see “Series B Mandatory
Convertible Preferred Stock Offering.”
One or more individuals or
entities affiliated with Steven Rales, the Chairman of our Board,
or Mitchell Rales, one of our directors and Chairman of our
Executive Committee (collectively, the “Affiliated Entities”), have
agreed to purchase 93,300 shares of Series B Mandatory Convertible
Preferred Stock (representing an aggregate liquidation preference
of $93.3 million) in the Concurrent Offering at the public offering
price for investment purposes.
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|
|
New York Stock Exchange
Symbol
|
Our common stock is listed on
The New York Stock Exchange under the symbol “DHR.”
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|
Risk Factors
|
See “Risk Factors” in this
prospectus supplement and the documents and other information
included or incorporated by reference in this prospectus supplement
and the accompanying prospectus for a discussion of some of the
risks and other factors you should carefully consider before
deciding to invest in shares of our common stock.
|
Shares
Outstanding Following the Offerings
Immediately
after the consummation of this offering, we will have 706,519,793
shares of our common stock (or 707,946,172 shares, if the
underwriters exercise their option to purchase additional shares of
our common stock in full) of our common stock issued and
outstanding, but such numbers of shares of common stock
exclude:
|
|
•
|
9,509,095
shares of our common stock (or 10,536,690 shares of our common
stock, if the underwriters in the Concurrent Offering exercise
their over-allotment option to purchase additional shares of Series
B Mandatory Convertible Preferred Stock in full) that would
initially be issuable upon conversion of the Series B Mandatory
Convertible Preferred Stock issued in the Concurrent Offering, in
each case assuming mandatory conversion at the maximum conversion
rate of 6.1349 shares of common stock per share of Series B
Mandatory Convertible Preferred Stock, subject to anti-dilution,
make-whole and other possible adjustments or any shares of our
common stock that may be issued in payment of a dividend,
fundamental change dividend make-whole amount or accumulated
dividend amount;
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|
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•
|
13,449,645
shares of our common stock issuable upon conversion of the
outstanding Series A Mandatory Convertible Preferred Stock
(together with our Series B Mandatory Convertible Preferred Stock,
the “Mandatory Convertible Preferred Stock”) assuming mandatory
conversion on April 3, 2020, at the maximum conversion rate of
8.1513 shares of common stock per share of Series A Mandatory
Convertible Preferred Stock, subject to anti-dilution, make-whole
and other possible adjustments or any shares of our common stock
that may be issued in payment of a dividend, fundamental change
dividend make-whole amount or accumulated dividend
amount;
|
|
|
•
|
18,166,387
shares of our common stock issuable upon exercise of outstanding
options at a weighted average exercise price of $93.39 per
share;
|
|
|
•
|
3,463,507
shares of our common stock issuable upon exercise of outstanding
restricted stock units and performance stock units;
|
|
|
•
|
55,091,096
shares of our common stock reserved for issuance under the Danaher
Corporation 2007 Omnibus Incentive Plan;
|
|
|
•
|
1,746,118
shares of our common stock reserved for issuance under the Amended
and Restated Danaher Corporation Executive Deferred Incentive
Program;
|
|
|
•
|
1,973,132
shares of our common stock reserved for issuance pursuant to the
Danaher Deferred Compensation Plan; and
|
|
|
•
|
1,291,986
shares of our common stock issuable upon conversion of our
outstanding Liquid Yield Option Notes (“LYONs™”) due
2021.
|
The
number of shares of common stock outstanding immediately after this
offering that appears above is based on 697,010,590 shares of our
common stock outstanding as of April 3, 2020.
A
description of our common stock is included in the accompanying
prospectus under the caption “Description of Capital
Stock.”
RISK
FACTORS
An investment in our common stock involves risks. You should
carefully consider the risks and uncertainties described in this
prospectus supplement and the accompanying prospectus, including
the risk factors set forth below, and in the documents and reports
filed with the SEC that are incorporated by reference herein, such
as the risk factors under the heading “Risk Factors” in our Annual
Report on Form 10-K for the year ended December 31, 2019 and
our Quarterly Report on Form 10-Q for the quarter ended April 3,
2020 on file with the SEC, before you make an investment decision
pursuant to this prospectus supplement and the accompanying
prospectus. The risks and uncertainties we have described are not
the only ones facing us. Additional risks and uncertainties not
presently known to us or that we currently deem immaterial may also
affect our business operations.
Risks
Related to our Common Stock
The market price of our common stock may fluctuate
significantly.
Significant
fluctuations in the market price and trading volume of our common
stock may result not only from general stock market conditions but
also from a change in sentiment in the market regarding our
operations, business prospects, future funding or this offering. In
addition to the risk factors related to our business discussed in
Item 1A of our Annual Report on Form 10-K for the year ended
December 31, 2019 and our Quarterly Report on Form 10-Q for
the quarter ended April 3, 2020 incorporated by reference into this
prospectus supplement, the price and volume volatility of our
common stock may be affected by:
|
|
•
|
developments in
our business generally;
|
|
|
•
|
quarterly
variations in our operating results;
|
|
|
•
|
regulatory
changes affecting our operations;
|
|
|
•
|
operating
results that vary from the expectations of management, securities
analysts and investors;
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|
•
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changes in
expectations as to our future financial performance;
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|
•
|
announcements
of strategic developments, significant contracts, loss of
significant contracts, acquisitions, divestitures or other
dispositions and other material events by us or our
competitors;
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|
•
|
the
operating and securities price performance of other companies that
investors believe are comparable to us;
|
|
|
•
|
future sales of
our equity or equity-related securities; and
|
|
|
•
|
economic
conditions and monetary and other governmental actions designed to
address those conditions.
|
You may not receive dividends on the common stock.
Under
applicable Delaware law, holders of our common stock are only
entitled to receive such dividends as our board of directors may
declare out of funds legally available for such payments. Although
we have in the past declared cash dividends on our common stock, we
are not required to do so and may reduce or eliminate our common
stock dividend in the future. This could adversely affect the
market price of our common stock. Further, even if we are permitted
under our contractual obligations and Delaware law to declare and
pay cash dividends on the shares of common stock, Series A
Mandatory Convertible Preferred Stock and Series B Mandatory
Convertible Preferred Stock, we may not have sufficient cash to do
so.
The Concurrent Offering, and the possibility of the sale of our
common stock in the future, could reduce the market price of our
common stock by us or other shareholders.
Concurrently
with this offering, we are offering 1,550,000 shares of Series B
Mandatory Convertible Preferred Stock, plus up to 167,500 of
additional shares of Series B Mandatory Convertible Preferred Stock
if the underwriters in that offering exercise their option to
purchase additional shares of Series B Mandatory Convertible
Preferred Stock in full. This offering is not conditioned on the
closing of the Concurrent Offering, and t
he
Concurrent Offering is not conditioned on the closing of this
offering.
We
are not restricted other than as described in “Underwriting” from
issuing additional common stock, including securities that are
convertible into or exchangeable for, or that represent the right
to receive, common stock, including any common stock that may be
issued upon the conversion of the Series A Mandatory Convertible
Preferred Stock or Series B Mandatory Convertible Preferred Stock.
In the future, we may sell additional shares of our common stock to
raise capital or acquire other companies. We also expect to issue
shares upon exercise of options or the vesting of restricted stock
units and performance stock units and in connection with our
retirement and deferred compensation programs. In addition, a
substantial number of shares of our common stock are reserved for
issuance upon the exercise of stock options, the vesting of
restricted stock units and performance stock units and in
connection with our retirement and deferred compensation programs
or upon conversion of the LYONs, Series A Mandatory Convertible
Preferred Stock or Series B Mandatory Convertible Preferred Stock.
Any of these events may dilute your ownership interest in Danaher
and any of these events or the perception that these sales and/or
conversions or exchanges could occur may have an adverse impact on
the price of our common stock. Furthermore, sales of a substantial
amount of our common stock in the public market, or the perception
that these sales may occur, could reduce the market price of our
common stock. This could also impair our ability to raise
additional capital through the sale of our securities.
The Series A Mandatory Convertible Preferred Stock and Series B
Mandatory Convertible Preferred Stock may adversely affect the
market price of our common stock.
The
market price of our common stock is likely to be influenced by the
Series A Mandatory Convertible Preferred Stock and the Series B
Mandatory Convertible Preferred Stock, when issued. For example,
the market price of our common stock could become more volatile and
could be depressed by: (i) investors’ anticipation of the potential
resale in the market of a substantial number of additional shares
of our common stock received upon conversion of either series of
Mandatory Convertible Preferred Stock; (ii) possible sales of our
common stock by investors who view the Mandatory Convertible
Preferred Stock as a more attractive means of equity participation
in us than owning shares of our common stock; and (iii) hedging or
arbitrage trading activity that may develop involving the Mandatory
Convertible Preferred Stock and our common stock.
The common stock is equity and is subordinate to our existing and
future indebtedness, the Series A Mandatory Convertible Preferred
Stock and the Series B Mandatory Preferred Stock, when issued, and
any other preferred stock we may issue in the future.
Shares of the
common stock are equity interests in Danaher and do not constitute
indebtedness. As such, shares of the common stock will rank junior
to all indebtedness and other non-equity claims on Danaher with
respect to assets available to satisfy claims on Danaher, including
in a liquidation of Danaher. Additionally, holders of our common
stock may be subject to prior dividend and liquidation rights of
any holders of our preferred stock or depositary shares
representing such preferred stock then outstanding.
Our
common stock will rank junior to our Series A Mandatory Convertible
Preferred Stock and our Series B Mandatory Convertible Preferred
Stock, when issued, with respect to the payment of dividends and
amounts payable in the event of our liquidation, dissolution or
winding-up of our affairs. This means that, unless accumulated
dividends have been paid on all our Series A Mandatory Convertible
Preferred Stock and our Series B Mandatory Convertible Preferred
then outstanding through the most recently completed dividend
period, no dividends may be declared or paid on our common stock
and we will not be permitted to repurchase any of our common stock,
subject to limited exceptions. Likewise, in the event of our
voluntary or involuntary liquidation, dissolution or winding-up of
our affairs, no distribution of our assets may be made to holders
of our common stock until we have paid to holders of our Series A
Mandatory Convertible Preferred Stock and our Series B Mandatory
Convertible Preferred Stock then outstanding a liquidation
preference equal to $1,000 per share plus accumulated and unpaid
dividends.
Our
board of directors is authorized to issue additional classes or
series of preferred stock without any action on the part of the
shareholders. The board of directors also has the power, without
shareholder approval, to set the terms of any such classes or
series of preferred stock that may be issued, including voting
rights, dividend rights, and preferences over our common stock with
respect to dividends or upon our dissolution, winding-up and
liquidation
and
other terms. If we issue preferred stock in the future that has a
preference over our common stock with respect to the payment of
dividends or upon our liquidation, dissolution, or winding up, or
if we issue preferred stock with voting rights that dilute the
voting power of our common stock, the rights of holders of our
common stock or the market price of our common stock could be
adversely affected.
Certain rights of the holders of the Series A Mandatory Convertible
Preferred Stock and the Series B Mandatory Convertible Preferred
Stock could delay or prevent an otherwise beneficial takeover or
takeover attempt of us.
Certain rights
of the holders of the Mandatory Convertible Preferred Stock could
make it more difficult or more expensive for a third party to
acquire us. For example, if a fundamental change were to occur on
or prior to April 15, 2022, in the case of the Series A Mandatory
Convertible Preferred Stock, or on or prior to April 15, 2023 in
the case of the Series B Mandatory Convertible Preferred Stock,
holders of such series of Mandatory Convertible Preferred Stock may
have the right to convert their Mandatory Convertible Preferred
Stock, in whole or in part, at an increased conversion rate and
will also be entitled to receive a make-whole amount equal to the
present value of all remaining dividend payments on their Mandatory
Convertible Preferred Stock as described in the applicable
Certificate of Designations governing such series of Mandatory
Convertible Preferred Stock. These features of the Mandatory
Convertible Preferred Stock could increase the cost of acquiring us
or otherwise discourage a third party from acquiring us or removing
incumbent management.
Danaher Corporation’s ability to pay dividends and to meet its debt
obligations largely depends on the performance of its subsidiaries
and the ability to utilize the cash flows from those
subsidiaries.
Danaher
Corporation is a holding company substantially all of whose assets
are owned by its subsidiaries. Danaher Corporation’s ability to pay
dividends and meet its debt and other obligations depends almost
entirely on cash flows from its subsidiaries and joint ventures and
other entities in which it has invested and, in the short term, its
ability to raise capital from external sources. In the long term,
cash flows from the subsidiaries and the joint ventures and other
entities in which we have invested depend on their ability to
generate operating cash flows in excess of their expenditures,
common and preferred stock dividends (if any), and debt or other
obligations. In addition, the subsidiaries are separate and
distinct legal entities that are not obligated to pay dividends or
make loans or distributions to Danaher Corporation, whether to
enable Danaher Corporation to pay dividends on its common stock,
the Series A Mandatory Convertible Preferred Stock or the Series B
Mandatory Convertible Preferred Stock or for paying principal and
interest on its debt securities or for paying its other
obligations, and could be precluded from paying any such dividends
or making any such loans or distributions under certain
circumstances, including, without limitation, as a result of
legislation, regulation, court order, contractual restrictions,
including the terms of its indebtedness, or in times of financial
distress.
Anti-takeover provisions could adversely affect our
shareholders.
Provisions of
Delaware law and of our restated certificate of incorporation and
amended bylaws could make it more difficult for a third party to
acquire control of us or have the effect of discouraging a third
party from attempting to acquire control of us. For example, we are
subject to Section 203 of the Delaware General Corporation Law,
which would make it more difficult for another party to acquire us
without the approval of our board of directors. For additional
information concerning these provisions, please refer to the
description of our common stock contained in Exhibit 4.13 to the
Annual Report on Form 10-K for the year ended December 31,
2019.
USE OF
PROCEEDS
The
net proceeds of this offering will be approximately $1.50 billion
(or approximately $1.73 billion if the underwriters exercise their
option to purchase additional shares in full), after deducting
the underwriting discount and estimated offering
expenses.
We
intend to use the net proceeds of this offering for general
corporate purposes, which may include, without limitation and in
our sole discretion, funding potential future acquisitions and
investments, working capital, capital expenditures, investments in
or loans to our subsidiaries, refinancing of outstanding
indebtedness, refinancing of outstanding capital securities, share
repurchases (including, but not limited to, repurchases of our
common stock), dividends and satisfaction of other obligations. The
precise amounts and timing of these uses of proceeds will depend on
our funding requirements and those of our subsidiaries. We may
invest the net proceeds of this offering in short-term bank
deposits or interest-bearing, investment-grade securities until
they are used for their stated purpose.
PRICE RANGE OF COMMON STOCK AND DIVIDENDS
Our
common stock trades on The New York Stock Exchange under the symbol
“DHR.” As of April 3, 2020, there were 697,010,590 shares of our
common stock issued and outstanding. As of April 3, 2020, there
were approximately 2,415 shareholders of record. The following
table provides the high and low sales price per share during the
periods indicated, as reported on The New York Stock Exchange, and
dividends declared per share of our common stock and per share of
the Series A Mandatory Convertible Preferred Stock during such
periods.
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Period
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High
|
|
Low
|
|
Common Stock
Dividends
|
|
Series A
Mandatory Convertible Preferred Stock Dividends
|
2017:
|
|
|
|
|
|
|
|
|
|
First Quarter
|
|
$
|
88.01
|
|
|
$
|
78.22
|
|
|
$
|
0.14
|
|
(a)
|
|
—
|
|
Second Quarter
|
|
87.00
|
|
|
81.36
|
|
|
0.14
|
|
|
|
—
|
|
Third Quarter
|
|
88.62
|
|
|
78.97
|
|
|
0.14
|
|
|
|
—
|
|
Fourth Quarter
|
|
95.16
|
|
|
83.81
|
|
|
0.14
|
|
|
|
—
|
|
2018:
|
|
|
|
|
|
|
|
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First Quarter
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|
$
|
104.82
|
|
|
$
|
91.84
|
|
|
$
|
0.16
|
|
(b)
|
|
—
|
|
Second Quarter
|
|
104.13
|
|
|
95.02
|
|
|
0.16
|
|
|
|
—
|
|
Third Quarter
|
|
109.32
|
|
|
97.40
|
|
|
0.16
|
|
|
|
—
|
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Fourth Quarter
|
|
110.86
|
|
|
94.59
|
|
|
0.16
|
|
|
|
—
|
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2019:
|
|
|
|
|
|
|
|
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|
First Quarter
|
|
$
|
132.60
|
|
|
$
|
96.44
|
|
|
$
|
0.17
|
|
(c)
|
|
—
|
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Second Quarter
|
|
144.57
|
|
|
124.01
|
|
|
0.17
|
|
|
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$
|
17.681
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Third Quarter
|
|
147.33
|
|
|
133.84
|
|
|
0.17
|
|
|
|
11.875
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|
Fourth Quarter
|
|
154.00
|
|
|
132.88
|
|
|
0.17
|
|
|
|
11.875
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2020:
|
|
|
|
|
|
|
|
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First Quarter
|
|
$
|
169.19
|
|
|
$
|
119.60
|
|
|
$
|
0.18
|
|
(d)
|
|
$
|
11.875
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|
Second Quarter (through May
7, 2020)
|
|
170.64
|
|
|
127.70
|
|
|
—
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|
|
|
—
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|
__________________
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(a)
|
We increased our
quarterly common stock dividend rate in the first quarter of 2017
to $0.14 per share.
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|
(b)
|
We increased our
quarterly common stock dividend rate in the first quarter of 2018
to $0.16 per share.
|
|
|
(c)
|
We increased our
quarterly common stock dividend rate in the first quarter of 2019
to $0.17 per share.
|
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(d)
|
We increased our
quarterly common stock dividend rate in the first quarter of 2020
to $0.18 per share.
|
The
last reported sale price per share of our common stock on May 7,
2020, as reported by The New York Stock Exchange, was
$163.48.
CAPITALIZATION
The
following table sets forth our capitalization and cash and cash
equivalents as of April 3, 2020 on (i) an actual basis; (ii) an as
adjusted basis to give effect to the issuance and sale of our
common stock in this offering (assuming no exercise of the
underwriters’ option) and the receipt of approximately $1.50
billion of net proceeds, after deducting the underwriting discount
and estimated offering expenses (but not the application of the net
proceeds therefrom); and (iii) a further adjusted basis to give
effect to the issuance and sale of our Series B Mandatory
Convertible Preferred Stock in the Concurrent Offering (assuming no
exercise of the underwriters’ option) and the receipt of
approximately $1.51 billion of net proceeds, after deducting the
underwriting discount and estimated offering expenses (but not the
application of the net proceeds therefrom).
You
should read this table in conjunction with our consolidated
financial statements and related notes contained in our Exchange
Act reports filed with the SEC and incorporated by reference in
this prospectus supplement and the accompanying
prospectus.
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As of April
3, 2020
|
(amounts in
millions)
|
Actual
|
|
As
Adjusted
|
|
As Further
Adjusted
|
Cash and cash
equivalents
|
$
|
4,367.7
|
|
|
$
|
5,870.9
|
|
|
$
|
7,376.4
|
|
U.S. dollar-denominated
commercial paper
|
790.2
|
|
|
790.2
|
|
|
790.2
|
|
Euro-denominated commercial
paper (€4.3 billion aggregate principal amount)
|
4,616.0
|
|
|
4,616.0
|
|
|
4,616.0
|
|
364-day revolving credit
facility(1)
|
—
|
|
|
—
|
|
|
—
|
|
Zero-coupon Liquid Yield
Option Notes due 2021
|
33.2
|
|
|
33.2
|
|
|
33.2
|
|
0.352% senior unsecured notes
due 2021 (¥30.0 billion aggregate principal
amount)
|
276.7
|
|
|
276.7
|
|
|
276.7
|
|
1.7% senior unsecured notes
due 2022 (€800.0 million aggregate principal
amount)
|
863.8
|
|
|
863.8
|
|
|
863.8
|
|
Floating rate senior
unsecured notes due 2022 (€250.0 million aggregate principal
amount)
|
270.1
|
|
|
270.1
|
|
|
270.1
|
|
2.05% senior unsecured notes
due 2022
|
697.3
|
|
|
697.3
|
|
|
697.3
|
|
0.5% senior unsecured bonds
due 2023 (CHF 540.0 million aggregate principal
amount)
|
554.7
|
|
|
554.7
|
|
|
554.7
|
|
1.7% senior notes due 2024
(€750.0 million aggregate principal amount)(2)
|
805.5
|
|
|
805.5
|
|
|
805.5
|
|
5-year revolving credit
facility
|
2,500.0
|
|
|
2,500.0
|
|
|
2,500.0
|
|
2.2% senior unsecured notes
due 2024
|
696.2
|
|
|
696.2
|
|
|
696.2
|
|
2.5% senior unsecured notes
due 2025 (€800.0 million aggregate principal
amount)
|
862.6
|
|
|
862.6
|
|
|
862.6
|
|
3.35% senior unsecured notes
due 2025
|
497.4
|
|
|
497.4
|
|
|
497.4
|
|
2.1% senior notes due 2026
(€500.0 million aggregate principal amount)(2)
|
534.9
|
|
|
534.9
|
|
|
534.9
|
|
0.2% senior unsecured notes
due 2026 (€1.25 billion aggregate principal
amount)
|
1,343.6
|
|
|
1,343.6
|
|
|
1,343.6
|
|
0.3% senior unsecured notes
due 2027 (¥30.8 billion aggregate principal
amount)
|
283.4
|
|
|
283.4
|
|
|
283.4
|
|
1.2% senior unsecured notes
due 2027 (€600.0 million aggregate principal
amount)
|
644.7
|
|
|
644.7
|
|
|
644.7
|
|
0.45% senior unsecured notes
due 2028 (€1.250 billion aggregate principal
amount)
|
1,341.7
|
|
|
1,341.7
|
|
|
1,341.7
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of April
3, 2020
|
(amounts in
millions)
|
Actual
|
|
As
Adjusted
|
|
As Further
Adjusted
|
1.125% senior unsecured bonds
due 2028 (CHF 210.0 million aggregate principal
amount)
|
219.3
|
|
|
219.3
|
|
|
219.3
|
|
2.6% senior unsecured notes
due 2029
|
794.3
|
|
|
794.3
|
|
|
794.3
|
|
2.5% senior notes due 2030
(€500.0 million aggregate principal amount)(2)
|
535.3
|
|
|
535.3
|
|
|
535.3
|
|
0.75% senior unsecured notes
due 2031 (€1.75 billion aggregate principal
amount)
|
1,880.8
|
|
|
1,880.8
|
|
|
1,880.8
|
|
0.65% senior unsecured notes
due 2032 (¥53.2 billion aggregate principal
amount)
|
489.3
|
|
|
489.3
|
|
|
489.3
|
|
1.35% senior unsecured notes
due 2039 (€1.25 billion aggregate principal
amount)
|
1,335.1
|
|
|
1,335.1
|
|
|
1,335.1
|
|
3.25% senior unsecured notes
due 2039
|
888.9
|
|
|
888.9
|
|
|
888.9
|
|
4.375% senior unsecured notes
due 2045
|
499.4
|
|
|
499.4
|
|
|
499.4
|
|
1.8% senior unsecured notes
due 2049 (€750.0 million aggregate principal amount)
|
801.7
|
|
|
801.7
|
|
|
801.7
|
|
3.4% senior unsecured notes
due 2049
|
888.4
|
|
|
888.4
|
|
|
888.4
|
|
Other
|
27.0
|
|
|
27.0
|
|
|
27.0
|
|
Total debt
|
25,971.5
|
|
|
25,971.5
|
|
|
25,971.5
|
|
Less: currently
payable
|
3,234.3
|
|
|
3,234.3
|
|
|
3,234.3
|
|
Long-term debt
|
22,737.2
|
|
|
22,737.2
|
|
|
22,737.2
|
|
Stockholders’
Equity:
|
|
|
|
|
|
Preferred stock, without par
value, 15.0 million shares authorized; 1.65 million shares of 4.75%
Mandatory Convertible Preferred Stock, Series A, issued and
outstanding, actual, as adjusted and as further adjusted; no shares
of 5.00% Mandatory Convertible Preferred Stock, Series B, issued
and outstanding, actual and as adjusted; 1,550,000 shares issued
and outstanding, as further adjusted
|
1,599.6
|
|
|
1,599.6
|
|
|
3,105.1
|
|
Common stock, $0.01 par
value, 2.0 billion shares authorized; 837.3 million issued and
697.0 million outstanding, actual; 846.8 million issued and 706.5
million outstanding, as adjusted and as further
adjusted
|
8.4
|
|
|
8.5
|
|
|
8.5
|
|
Additional paid-in
capital
|
7,629.8
|
|
|
9,132.9
|
|
|
9,132.9
|
|
Retained
earnings
|
24,608.6
|
|
|
24,608.6
|
|
|
24,608.6
|
|
Accumulated other
comprehensive loss
|
(2,791.3
|
)
|
|
(2,791.3
|
)
|
|
(2,791.3
|
)
|
Total Danaher stockholders’
equity
|
31,055.1
|
|
|
32,558.3
|
|
|
34,063.8
|
|
Non-controlling
interests
|
11.3
|
|
|
11.3
|
|
|
11.3
|
|
Total stockholders’
equity
|
31,066.4
|
|
|
32,569.6
|
|
|
34,075.1
|
|
Total
capitalization
|
$
|
57,037.9
|
|
|
$
|
58,541.1
|
|
|
$
|
60,046.6
|
|
__________________
|
|
(1)
|
On April 7, 2020,
we borrowed $2.5 billion under our 364-day revolving credit
facility and are using and intend to use such proceeds for general
corporate purposes, which may include repayment of a portion of our
outstanding commercial paper borrowings as they mature and/or
repayment of any amounts borrowed under our revolving credit
facilities.
|
|
|
(2)
|
On April 8, 2020,
we issued €150,000,000 principal amount of additional 1.7% senior
notes due 2024, €300,000,000 principal amount of additional 2.1%
senior notes due 2026 and €300,000,000 principal amount of
additional 2.5% senior notes due 2030, in an underwritten offering
(the “April Eurobond Offering”). We received net proceeds from the
April Eurobond Offering, after underwriting discounts and estimated
offering expenses, of approximately €753.7 million, that we are
using and intend to use for general corporate purposes, which may
include repayment of a portion of our outstanding commercial paper
borrowings as they mature and/or repayment of amounts borrowed
under our revolving credit facilities.
|
SERIES B
MANDATORY CONVERTIBLE PREFERRED STOCK OFFERING
Concurrently
with this offering of common stock, we are offering, by means of a
separate prospectus supplement and an accompanying prospectus,
1,550,000 shares of 5.00% Mandatory Convertible Preferred Stock,
Series B (and up to an additional 167,500 shares of our Series B
Mandatory Convertible Preferred Stock if the underwriters in the
Concurrent Offering exercise their option to purchase additional
shares). The closing of this offering of shares of common stock is
not conditioned upon the closing of the Concurrent Offering, and
the closing of the Concurrent Offering is not conditioned upon the
closing of this offering.
The
Affiliated Entities have agreed to purchase 93,300 shares of Series
B Mandatory Convertible Preferred Stock (representing an aggregate
liquidation preference of $93.3 million) in the Concurrent Offering
at the public offering price for investment purposes.
The
shares of Series B Mandatory Convertible Preferred Stock will
initially be convertible into an aggregate of up to 9,509,095
shares of our common stock (or 10,536,690 shares of our
common stock, if the underwriters in that offering exercise their
over-allotment option in full), assuming conversion at the maximum
conversion rate of 6.1349 shares of common stock per share of
Series B Mandatory Convertible Stock in each case subject to
anti-dilution, make-whole and other adjustments, as described in
the prospectus supplement related to the offering of our shares of
Series B Mandatory Convertible Preferred Stock.
Unless
converted in accordance with the terms of the certificate of
designations setting forth the terms of the Series B Mandatory
Convertible Preferred Stock, which we refer to as the “Certificate
of Designations,” each share of Series B Mandatory Convertible
Preferred Stock will convert automatically on the mandatory
conversion date, which is expected to be April 15, 2023, into
between 5.0081 and 6.1349 shares of our common stock, subject to
certain anti-dilution and other adjustments. The number of shares
of common stock issuable upon conversion will be determined based
on the average volume weighted average price per share of our
common stock over the 20 consecutive trading day period beginning
on and including the 21st scheduled trading day immediately
preceding April 15, 2023.
Dividends on
the Series B Mandatory Convertible Preferred Stock will be payable
on a cumulative basis when, as and if declared by our board of
directors at an annual rate of 5.00% on the liquidation preference
of $1,000 per share of Series B Mandatory Convertible Preferred
Stock. We may pay declared dividends in cash or, subject to certain
limitations, in shares of our common stock, par value $0.01 per
share, or by delivery, at our election, of any combination of cash
and shares of our common stock on January 15, April 15, July 15 and
October 15 of each year, commencing on July 15, 2020 and to, and
including, April 15, 2023.
We
estimate that the net proceeds to us from the Concurrent Offering,
after deducting the underwriting discounts and commissions and
estimated offering expenses payable by us, will be approximately
$1.51 billion (or approximately $1.67 billion if the underwriters
in the Concurrent Offering exercise their over-allotment option in
full). There can be no assurance that the Concurrent Offering will
be completed. Completion of this offering of common stock is not
contingent upon the completion of the Concurrent Offering, and the
completion of the Concurrent Offering is not contingent upon the
completion of this offering.
Our
common stock will rank junior to our Series B Mandatory Convertible
Preferred Stock with respect to the payment of dividends and
amounts payable in the event of our liquidation, dissolution or
winding-up of our affairs. This means that, unless accumulated
dividends have been paid or set aside for payment on all
outstanding shares of our Series B Mandatory Convertible Preferred
Stock for all past completed dividend periods, no dividends may be
declared or paid on our common stock. Likewise, in the event of our
voluntary or involuntary liquidation, dissolution or winding-up, no
distribution of our assets may be made to holders of our common
stock until we have paid to holders of our Series B Mandatory
Convertible Preferred Stock a liquidation preference equal to
$1,000 per share plus accrued and unpaid dividends.
Except as
specifically required by Delaware law or our restated certificate
of incorporation, which will include the Certificate of
Designations for the Series B Mandatory Convertible Preferred
Stock, and except as described below, the holders of Series B
Mandatory Convertible Preferred Stock will have no voting
rights.
Whenever
dividends on any shares of the Series B Mandatory Convertible
Preferred Stock (i) have not been declared and paid, or (ii) have
been declared but a sum of cash or number of shares of our common
stock sufficient for payment thereof has not been set aside for the
benefit of the holders thereof on the applicable record date, for
the equivalent of six or more dividend periods, whether or not for
consecutive dividend periods (a “Nonpayment”), the authorized
number of directors on our board of directors will, at the next
annual meeting of stockholders or at a special meeting of
stockholders as provided below, automatically be increased by two
and the holders of the Series B Mandatory Convertible Preferred
Stock, voting together as a single class with holders of any and
all other series of Voting Preferred Stock (as defined below) then
outstanding, will be entitled, at our next annual meeting or at a
special meeting of stockholders, if any, to fill such newly created
directorships by electing two additional directors (the “Preferred
Stock Directors”); provided, however, that the election of any such
directors will not cause us to violate any applicable state or
federal law, rule or regulation, our amended bylaws as in effect on
the date of initial issuance of the Series B Mandatory Convertible
Preferred Stock or the corporate governance requirements of The New
York Stock Exchange (or any other exchange or automated quotation
system on which our securities may be listed or quoted) for listed
or quoted companies to have a majority of independent directors;
and provided, further, that our board of directors shall, at no
time, include more than two Preferred Stock Directors.
In
the event of a Nonpayment, the holders of record of at least 25% of
the shares of the Series B Mandatory Convertible Preferred Stock
and any other series of Voting Preferred Stock may request that a
special meeting of stockholders be called to elect such Preferred
Stock Directors (provided, however, that if our next annual or a
special meeting of stockholders is scheduled to be held within 90
days of the receipt of such request, the election of such Preferred
Stock Directors, to the extent otherwise permitted by our amended
bylaws, will, instead, be included in the agenda for and will be
held at such scheduled annual or special meeting of stockholders).
The Preferred Stock Directors will stand for reelection annually,
and at each subsequent annual meeting of the stockholders, so long
as the holders of the Series B Mandatory Convertible Preferred
Stock continue to have such voting rights.
At
any meeting at which the holders of the Series B Mandatory
Convertible Preferred Stock are entitled to elect Preferred Stock
Directors, the holders of record of a majority of the then
outstanding shares of the Series B Mandatory Convertible Preferred
Stock and all other series of Voting Preferred Stock, present in
person or represented by proxy, will constitute a quorum and the
vote of the holders of a majority of such shares of the Series B
Mandatory Convertible Preferred Stock and other Voting Preferred
Stock so present or represented by proxy at any such meeting at
which there shall be a quorum shall be sufficient to elect the
Preferred Stock Directors.
As
used in this prospectus supplement, “Voting Preferred Stock” means
any series of our preferred stock, other than the Series B
Mandatory Convertible Preferred Stock, ranking equally with the
Series B Mandatory Convertible Preferred Stock either as to
dividends or to the distribution of assets upon liquidation,
dissolution or winding-up and upon which like voting rights for the
election of directors have been conferred and are exercisable.
Whether a plurality, majority or other portion in voting power of
the Series B Mandatory Convertible Preferred Stock and any other
Voting Preferred Stock have been voted in favor of any matter shall
be determined by reference to the respective Liquidation Preference
amounts of the Series B Mandatory Convertible Preferred Stock and
such other Voting Preferred Stock voted. Our Series A Mandatory
Convertible Preferred Stock will constitute Voting Preferred Stock
so long as the right of the holders of our Series A Mandatory
Convertible Preferred Stock to vote in the election of Preferred
Stock Directors is exercisable. For the avoidance of doubt, holders
of any Voting Preferred Stock, including any outstanding shares of
Series A Mandatory Convertible Preferred Stock and Series B
Mandatory Convertible Preferred Stock will collectively have the
right, but only under the circumstances described above, to
collectively elect no more than two Preferred Stock
Directors.
If
and when all accumulated and unpaid dividends on the Series B
Mandatory Convertible Preferred Stock have been paid in full (a
“Nonpayment Remedy”), the holders of the Series B Mandatory
Convertible Preferred Stock shall immediately and, without any
further action by us, be divested of the foregoing voting rights,
subject to the revesting of such rights in the event of each
subsequent Nonpayment. If such voting rights for the holders of the
Series B Mandatory Convertible Preferred Stock and all other
holders of Voting Preferred Stock have terminated, the term of
office of each Preferred Stock Director so elected will terminate
at such time and the authorized number of directors on our board of
directors shall automatically decrease by two.
Any
Preferred Stock Director may be removed at any time, with cause as
provided by law or without cause by the holders of record of a
majority in voting power of the outstanding shares of the Series B
Mandatory Convertible Preferred Stock and any other series of
Voting Preferred Stock then outstanding (voting together as a
single class) when they have the voting rights described above. In
the event that a Nonpayment shall have occurred and there shall not
have been a Nonpayment Remedy, any vacancy in the office of a
Preferred Stock Director (other than prior to the initial election
of Preferred Stock Directors after a Nonpayment) may be filled by
the written consent of the Preferred Stock Director remaining in
office or, if none remains in office, by a vote of the holders of
record of a majority in voting power of the outstanding shares of
the Series B Mandatory Convertible Preferred Stock and any other
series of Voting Preferred Stock then outstanding (voting together
as a single class) when they have the voting rights described
above; provided, however, that the filling of each vacancy will not
cause us to violate any applicable state or federal law, rule or
regulation, our amended bylaws as in effect on the date of initial
issuance of the Series B Mandatory Convertible Preferred Stock or
the corporate governance requirements of The New York Stock
Exchange (or any other exchange or automated quotation system on
which our securities may be listed or quoted) for listed or quoted
companies to have a majority of independent directors. The
Preferred Stock Directors will each be entitled to one vote per
director on any matter that comes before our board of directors for
a vote.
The
Series B Mandatory Convertible Preferred Stock will have certain
other voting rights with respect to certain amendments to our
restated certificate of incorporation or the Certificate of
Designations establishing the terms of the Series B Mandatory
Convertible Preferred Stock or certain other transactions as
described in such Certificate of Designations.
The
foregoing information concerning the Series B Mandatory Convertible
Preferred Stock is not complete and is subject to, and qualified in
its entirety by reference to, the provisions of the Certificate of
Designations establishing the terms of the Series B Mandatory
Convertible Preferred Stock, a copy of which has been or will be
incorporated by reference as an exhibit into the registration
statement of which this prospectus supplement and the accompanying
prospectus form a part and which may be obtained as described under
“Where You Can Find More Information.” In addition, a description
of the proposed Series B Mandatory Convertible Preferred Stock is
set forth in the separate prospectus supplement pursuant to which
such preferred stock is being offered.
Because the
closing of this offering is not contingent upon the completion of
the Concurrent Offering, you should not assume that the Concurrent
Offering will take place.
MATERIAL
U.S. FEDERAL INCOME TAX CONSIDERATIONS FOR NON-U.S. HOLDERS OF
COMMON STOCK
The
following is a discussion of material U.S. federal income tax
considerations relating to the ownership and disposition of our
common stock by a non-U.S. holder. For purposes of this discussion,
the term “non-U.S. holder” means a beneficial owner (other than a
partnership or other pass-through entity) of our common stock that
is not, for U.S. federal income tax purposes:
|
|
•
|
an
individual who is a citizen or resident of the United
States;
|
|
|
•
|
a
corporation, or other entity treated as a corporation for U.S.
federal income tax purposes, created or organized in or under the
laws of the United States or any state thereof or the District of
Columbia;
|
|
|
•
|
an
estate the income of which is subject to U.S. federal income
taxation regardless of its source; or
|
|
|
•
|
a
trust if (a) a U.S. court is able to exercise primary supervision
over the administration of the trust and one or more U.S. persons
have authority to control all substantial decisions of the trust or
(b) the trust has a valid election in effect to be treated as a
United States person under applicable U.S. Treasury
Regulations.
|
This discussion
is based on current provisions of the U.S. Internal Revenue Code of
1986, as amended (the “Code”) existing and proposed U.S. Treasury
Regulations promulgated thereunder, current administrative rulings
and judicial decisions, all as in effect as of the date of this
prospectus supplement and all of which are subject to change or to
differing interpretation, possibly with retroactive effect. Any
change or differing interpretation could alter the tax consequences
to non-U.S. holders described in this prospectus supplement. In
addition, the Internal Revenue Service, or the IRS, could challenge
one or more of the tax consequences described in this prospectus
supplement.
We
assume in this discussion that each non-U.S. holder holds shares of
our common stock as a “capital asset” within the meaning of Section
1221 of the Code (generally, property held for investment). This
discussion does not address all aspects of U.S. federal income
taxation that may be relevant to a particular non-U.S. holder in
light of that non-U.S. holder’s individual circumstances nor does
it address the alternative minimum tax, the Medicare tax on net
investment income, any U.S. federal non-income taxes, such as the
estate tax, or any aspects of U.S. state, local or non-U.S. taxes.
This discussion also does not consider any specific facts or
circumstances that may apply to a non-U.S. holder and does not
address the special tax rules applicable to particular non-U.S.
holders, such as:
|
|
•
|
tax-exempt
organizations;
|
|
|
•
|
financial
institutions;
|
|
|
•
|
brokers,
dealers or traders in securities;
|
|
|
•
|
controlled
foreign corporations;
|
|
|
•
|
passive foreign
investment companies;
|
|
|
•
|
owners that
hold our common stock as part of a straddle, hedge, conversion
transaction, synthetic security or other integrated investment;
and
|
|
|
•
|
certain U.S.
expatriates.
|
In
addition, this discussion does not address the tax treatment of
partnerships or other entities that are pass-through entities for
U.S. federal income tax purposes or persons who hold their common
stock through partnerships or other pass-through entities. A
partner in a partnership or other pass-through entity that will
hold our common stock should consult his, her or its own tax
advisor regarding the tax consequences of the acquisition,
ownership and disposition of our common stock through a partnership
or other pass-through entity, as applicable.
Prospective non-U.S. holders of our common stock should consult
their own tax advisors regarding the U.S. federal, state, local and
non-U.S. income and other tax considerations of acquiring, holding
and disposing of our common stock.
Distributions
on our Common Stock
Distributions
on our common stock generally will constitute dividends for U.S.
federal income tax purposes to the extent paid from our current or
accumulated earnings and profits, as determined under U.S. federal
income tax principles. If a distribution exceeds our current and
accumulated earnings and profits, the excess will be treated as a
tax-free return of the non-U.S. holder’s investment, up to such
holder’s tax basis in the common stock. Any remaining excess will
be treated as capital gain, subject to the tax treatment described
below under the heading “Gain on Disposition of Common Stock.” Any
distributions will also be subject to the discussions below under
the headings “Information Reporting and Backup Withholding” and
“FATCA.”
Subject to the
discussion below on effectively connected income, dividends paid to
a non-U.S. holder generally will be subject to withholding of U.S.
federal income tax at a 30% rate or such lower rate as may be
specified by an applicable income tax treaty between the United
States and such holder’s country of residence.
Dividends that
are treated as effectively connected with a trade or business
conducted by a non-U.S. holder within the United States, and, if an
applicable income tax treaty so provides, that are attributable to
a permanent establishment or a fixed base maintained by the
non-U.S. holder within the United States, are generally exempt from
the 30% withholding tax if the non-U.S. holder satisfies applicable
certification and disclosure requirements. However, such U.S.
effectively connected income is taxed on a net income basis at the
same U.S. federal income tax rates applicable to U.S. persons (as
defined in the Code). Any U.S. effectively connected income
received by a non-U.S. holder that is classified as a corporation
for U.S. federal income tax purposes may also, under certain
circumstances, be subject to an additional “branch profits tax” at
a 30% rate or such lower rate as may be specified by an applicable
income tax treaty between the United States and such holder’s
country of residence.
A
non-U.S. holder of our common stock who claims the benefit of an
applicable income tax treaty between the United States and such
holder’s country of residence generally will be required to provide
a properly executed IRS Form W-8BEN or W-8BEN-E (or successor form)
and satisfy applicable certification and other requirements.
Non-U.S. holders are urged to consult their own tax advisors
regarding their entitlement to benefits under a relevant income tax
treaty and the specific methods available to them to satisfy these
requirements.
A
non-U.S. holder that is eligible for a reduced rate of U.S.
withholding tax under an income tax treaty may obtain a refund or
credit of any excess amounts withheld by timely filing an
appropriate claim with the IRS.
Gain on
Disposition of Common Stock
In
general (subject to the discussion below under the headings
“Information Reporting and Backup Withholding” and “FATCA”), a
non-U.S. holder will not be subject to U.S. federal income tax on
gain recognized upon such holder’s sale, exchange or other
disposition of shares of our common stock unless:
|
|
•
|
the
gain is effectively connected with the non-U.S. holder’s conduct of
a trade or business in the United States, and if an applicable
income tax treaty so provides, the gain is attributable to a
permanent establishment or fixed base maintained by the non-U.S.
holder in the United States; in these cases, the non-U.S. holder
will be taxed on a net income basis at the same U.S. federal income
tax rates applicable to U.S. persons (as defined in the Code), and
if the non-U.S. holder is a foreign corporation, the branch profits
tax described above under the heading “Distributions on our Common
Stock” also may apply;
|
|
|
•
|
the
non-U.S. holder is a non-resident alien present in the United
States for 183 days or more in the taxable year of the disposition
and certain other requirements are met, in which case the non-U.S.
holder will be subject to a 30% tax (or such lower rate as may be
specified by an applicable income tax treaty) on the net gain
derived from the disposition, which may be offset by U.S.-source
capital losses of the non-U.S. holder, if any, provided the
non-U.S. holder has timely filed U.S. federal income tax returns
with respect to such losses; or
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•
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we
are or have been, at any time during the five-year period preceding
such disposition (or the non-U.S. holder’s holding period, if
shorter) a “U.S. real property holding corporation” unless our
common stock was “regularly traded” (as defined by applicable
Treasury Regulations) on an established securities market at any
time during the calendar year in which the disposition occurs and
the non-U.S. holder held no more than 5% of our outstanding common
stock, directly, indirectly or constructively, during the shorter
of the 5-year period ending on the date of the disposition or the
period that the non-U.S. holder held our common stock. We believe
that we are not currently, and we do not anticipate becoming, a
“U.S. real property holding corporation” for U.S. federal income
tax purposes.
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Information
Reporting and Backup Withholding
We
must report the gross amount of the distributions on our common
stock paid to each non-U.S. holder and the tax withheld, if any,
with respect to such distributions annually to the IRS and to each
non-U.S. holder. Non-U.S. holders may have to comply with specific
certification procedures to establish that the holder is not a U.S.
person (as defined in the Code) in order to avoid backup
withholding at the applicable rate with respect to dividends on our
common stock. Generally, a non-U.S. holder will comply with such
procedures if it provides a properly executed IRS Form W-8BEN or
W-8BEN-E (or other applicable Form W-8) or otherwise meets
documentary evidence requirements for establishing that it is a
non-U.S. holder, or otherwise establishes an exemption. Dividends
paid to non-U.S. holders subject to withholding of U.S. federal
income tax, as described above under the heading “Distributions on
our Common Stock,” will generally be exempt from U.S. backup
withholding.
Information
reporting and backup withholding generally will apply to the
proceeds of a disposition of our common stock by a non-U.S. holder
effected by or through the U.S. office of any broker, U.S. or
foreign, unless the holder certifies its status as a non-U.S.
holder and satisfies certain other requirements, or otherwise
establishes an exemption. Generally, information reporting and
backup withholding will not apply to a payment of disposition
proceeds to a non-U.S. holder where the transaction is effected
outside the United States through a non-U.S. office of a broker.
However, for information reporting purposes, dispositions effected
through a non-U.S. office of a broker with substantial U.S.
ownership or operations generally will be treated in a manner
similar to dispositions effected through a U.S. office of a broker.
Non-U.S. holders should consult their own tax advisors regarding
the application of the information reporting and backup withholding
rules to them.
Copies of
information returns may be made available to the tax authorities of
the country in which the non-U.S. holder resides or is incorporated
under the provisions of a specific treaty or
agreement.
Backup
withholding is not an additional tax. Rather, any amounts withheld
under the backup withholding rules from a payment to a non-U.S.
holder can be refunded or credited against the non-U.S. holder’s
U.S. federal income tax liability, if any, provided that an
appropriate claim is timely filed with the IRS.
FATCA
Provisions of
the Code commonly known as the Foreign Account Tax Compliance Act,
or FATCA, generally impose a U.S. federal withholding tax at a rate
of 30% on dividends (including deemed dividends), and gross
proceeds from the sale or other disposition of, our common stock if
paid to a foreign entity unless: (i) if the foreign entity is a
“foreign financial institution,” the foreign entity undertakes
certain due diligence, reporting, withholding, and certification
obligations, (ii) if the foreign entity is not a “foreign financial
institution,” the foreign entity identifies certain of its U.S.
investors, if any, or (iii) the foreign entity is otherwise exempt
under FATCA.
Withholding
under FATCA generally will apply to payments of dividends on our
common stock. While withholding under FATCA may apply to payments
of gross proceeds from a sale or other disposition of our common
stock, under recently proposed U.S. Treasury Regulations
withholding on payments of such gross proceeds is not required.
Although such regulations are not final, applicable withholding
agents may rely on the proposed regulations until final regulations
are issued.
If
withholding under FATCA is required on any payment related to our
common stock, investors not otherwise subject to withholding (or
that otherwise would be entitled to a reduced rate of withholding)
on such payment may be required to seek a refund or credit from the
IRS. An intergovernmental agreement between the United States
and
an
applicable foreign country may modify the requirements described in
this section. Non-U.S. holders should consult their own tax
advisors regarding the possible implications of FATCA on their
investment in our common stock.
The preceding discussion of material U.S. federal tax
considerations is for prospective investors’ information only. It
is not tax advice. Prospective investors should consult their own
tax advisors regarding the particular U.S. federal, state, local,
and non-U.S. tax consequences of the purchasing, converting, and
disposing of our common stock, including the consequences of any
proposed changes in applicable laws.
UNDERWRITING
We
and the underwriters for the offering named below, for whom Goldman
Sachs & Co. LLC, J.P. Morgan Securities LLC, Citigroup Global
Markets Inc., and Evercore Group L.L.C. are acting as
representatives, have entered into an underwriting agreement with
respect to the shares of common stock. Subject to certain
conditions, each underwriter has severally agreed to purchase the
number of shares indicated in the following table.
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Name of
Underwriter
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Number of
Initial Securities to be Purchased
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Goldman Sachs & Co.
LLC
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2,852,762
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J.P. Morgan Securities
LLC
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1,901,841
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Citigroup Global Markets
Inc.
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1,426,380
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Evercore Group
L.L.C.
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1,426,380
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Credit Suisse Securities
(USA) LLC
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713,190
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BTIG, LLC
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118,865
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Commerz Markets
LLC
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118,865
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Mizuho Securities USA
LLC
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118,865
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MUFG Securities Americas
Inc.
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118,865
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Raymond James &
Associates, Inc.
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118,865
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RBC Capital Markets,
LLC
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118,865
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Scotia Capital (USA)
Inc.
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118,865
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SMBC Nikko Securities,
Inc.
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118,865
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TD Securities (USA)
LLC
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118,865
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Wells Fargo Securities,
LLC
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118,865
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Total
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9,509,203
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The
underwriting agreement provides that the obligations of the several
underwriters to purchase the shares of common stock included in
this offering are subject to approval of certain legal matters by
counsel and to other customary conditions. The underwriters are
obligated to purchase all of the shares of common stock reflected
in the table above if they purchase any of the shares of common
stock. The offering of the shares of common stock by the
underwriters is subject to receipt and acceptance and to the
underwriters’ right to reject any order in whole or in
part.
The
underwriters propose to offer the shares of common stock directly
to the public initially at the public offering price set forth on
the cover page of this prospectus supplement. Shares of common
stock sold by the underwriters to dealers may be sold at the public
offering price less a concession not to exceed $2.934 per share.
After the initial offering of the shares of common stock to the
public, the representatives may change the public offering price
and concessions.
Option
to Purchase Additional Shares
We
have granted the underwriters an option to purchase from us up to
an additional 1,426,379 shares of common stock. The shares
purchased under this option will be purchased at the public
offering price, less the underwriting discount and commissions,
subject to certain possible adjustments. The underwriters may
exercise this option in whole or, from time to time, in part,
through and including the 30th day after the date of this
prospectus supplement. If any additional shares of common stock are
purchased, the underwriters will offer the additional shares on the
same terms as those on which the other shares are being
offered.
If
the underwriters exercise their option to purchase additional
shares, each underwriter will be obligated, subject to the
conditions contained in the underwriting agreement, to purchase a
number of additional shares of our common stock in approximately
the same proportion as shown in the table above.
Underwriting
Discount
The
following table shows the per share and total underwriting
discounts to be paid to the underwriters assuming both no exercise
and full exercise of the underwriters’ option to purchase
additional shares of common stock.
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Without
exercise of option to purchase additional shares
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With full
exercise of option to purchase additional shares
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Per Share
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$
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4.89
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$
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4.89
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Total
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$
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46,500,002.67
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$
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53,474,995.98
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We
estimate that the total expenses of this offering payable by us,
including registration, filing and listing fees, printing fees and
legal and accounting expenses, but excluding the underwriting
discounts, will be approximately $300,000. The underwriters have
agreed to reimburse us for certain of our out of pocket expenses
associated with the offering.
We
have agreed to indemnify the underwriters against certain
liabilities, including liabilities under the Securities Act of
1933, as amended (the “Securities Act”), or to contribute to
payments the underwriters may be required to make because of any of
those liabilities.
Listing
Our
common stock is listed on The New York Stock Exchange under the
symbol “DHR.”
Electronic
Prospectus Delivery
This prospectus
supplement and the accompanying prospectus in electronic format may
be made available on the websites maintained by one or more
underwriters, or selling group members, if any, participating in
the offering. The representatives may agree to allocate a number of
shares to underwriters and selling group members for sale to their
online brokerage account holders. Internet distributions will be
allocated by the representatives to underwriters and selling group
members that may make Internet distributions on the same basis as
other allocations. None of the other information appearing on or
that can be accessed through websites maintained by any of the
underwriters or selling group members, if any, is a part of, or is
incorporated by reference into, this prospectus supplement or the
accompanying prospectus.
No Sales of
Similar Securities
We
have agreed that, subject to certain exceptions and without the
prior written consent of Goldman Sachs & Co. LLC, we will not,
during the period from and including the date of this prospectus
supplement through and including the 60th
day
after the date of this prospectus supplement, (1) offer for sale,
sell, pledge, or otherwise dispose of (or enter into any
transaction or device that is designed to, or could reasonably be
expected to, result in the disposition by any person at any time in
the future of) any shares of Series B Mandatory Convertible
Preferred Stock, common stock or securities convertible into or
exercisable or exchangeable for common stock (other than the
securities, common stock and shares issued pursuant to employee
incentive, retirement, deferred compensation or other benefit
plans, qualified stock option plans or other employee compensation
plans existing on the date hereof), or sell or grant options,
rights or warrants with respect to any shares of Series B Mandatory
Convertible Preferred Stock, common stock or securities convertible
into or exchangeable for common stock (other than the grant of
options pursuant to option plans existing on the date of the
underwriting agreement); (2) enter into any swap or other
derivatives transaction that transfers to another, in whole or in
part, any of the economic benefits or risks of ownership of such
shares of Series B Mandatory Convertible Preferred Stock or common
stock or any such other securities, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery
of common stock or such other securities, in cash or otherwise; or
(3) file, confidentially submit or cause to be confidentially
submitted or filed a registration statement, including any
amendments thereto, with respect to the registration of any shares
of Series B Mandatory Convertible Preferred Stock, common stock or
securities convertible, exercisable or exchangeable into Series B
Mandatory Convertible Preferred Stock, common stock or any other
securities of the
Company, or (4)
publicly disclose the intention to do any of the foregoing. The
foregoing sentence shall not apply to:
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the
sale of shares of common stock to the underwriters;
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•
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the
issuance by us of the Series B Mandatory Convertible Preferred
Stock in the Concurrent Offering;
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•
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the
issuance by us of shares of common stock upon conversion of the
Series A Mandatory Convertible Preferred Stock or the Series B
Mandatory Convertible Preferred Stock;
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•
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the
issuance by us of shares of common stock issued as dividends on the
Series A Mandatory Convertible Preferred Stock or the Series B
Mandatory Convertible Preferred Stock;
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securities,
including common stock, issued pursuant to existing employee,
incentive, retirement, deferred compensation or other benefit
plans, qualified stock option plans or other employee compensation
plans;
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•
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shares of
common stock issuable to existing security holders upon conversion
of our Liquid Yield Option Notes due 2021;
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•
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the
filing by us of any registration statement on Form
S-8;
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•
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the
issuance by us of shares of common stock, restricted stock awards
or options to purchase shares in connection with acquisitions,
joint ventures, commercial relationships or other strategic
relationships provided that the number of shares of our common
stock issued in connection with such acquisitions and other
transactions does not exceed 5% of the aggregate number of shares
of our common stock outstanding immediately following the
Concurrent Offering and certain other conditions are satisfied;
and
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•
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securities,
including common stock, issued by our subsidiaries.
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Certain of our
directors and executive officers have entered into lock-up
agreements with the underwriters prior to the commencement of this
offering pursuant to which each of these persons has agreed that,
without the prior written consent of Goldman Sachs & Co. LLC,
on behalf of the underwriters, and subject to certain exceptions,
such person will not, directly or indirectly, during the period
commencing on and including the date of such person’s lock-up
agreement through and including the 60th day after the date of this
prospectus supplement (the “Lock-Up Period), (1) offer for sale,
sell, pledge, or otherwise dispose of (or enter into any
transaction or device that is designed to, or could be expected to,
result in the disposition by any person at any time in the future
of) any shares of our Series A Mandatory Convertible Preferred
Stock, Series B Mandatory Convertible Preferred Stock or common
stock (including, without limitation, shares of our common stock
that may be deemed to be beneficially owned (as such term is used
in Rule 13d-3 of the Securities Exchange Act of 1934, as amended
(the “Exchange Act”)) and shares of our common stock that may be
issued upon exercise of any options or warrants), or securities
convertible into or exercisable or exchangeable for our common
stock, (2) enter into any swap or other derivatives transaction
that transfers to another, in whole or in part, any of the economic
benefits or risks of ownership of our Series A Mandatory
Convertible Preferred Stock, Series B Mandatory Convertible
Preferred Stock or common stock, whether any such transaction
described in clause (1) or (2) above is to be settled by delivery
of common stock or such other securities, in cash or otherwise, or
(3) make any demand for or exercise any right or cause to be filed
a registration statement, including any amendments thereto, with
respect to the registration of any shares of our common stock or
securities convertible into or exercisable or exchangeable for
common stock or any other securities of the Company.
The
restrictions described in the immediately preceding paragraph will
not apply to:
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•
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transactions
relating to shares of our common stock or other securities acquired
in open market transactions after the completion of this offering
or the Concurrent Offering, subject to certain
limitations;
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•
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bona fide gifts
of shares of any class of our capital stock, subject to certain
limitations;
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sales or other
dispositions of shares of any class of our capital stock that are
made exclusively between and among such person or members of such
person’s family, or to any trust for the direct or indirect benefit
of such person or the members of such person’s family, or between
and among affiliates of such person, including its partners (if a
partnership), members (if a limited liability company),
beneficiaries (if a trust), stockholders or other
equityholders;
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•
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transfers or
dispositions of shares of any class of our capital stock or such
other securities by operation of law pursuant to a court or
regulatory agency order or a qualified domestic relations order or
in connection with a divorce settlement or other domestic relations
order, subject to certain limitations;
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transfers or
dispositions of shares of any class of our capital stock or such
other securities by will, other testamentary document or intestate
succession to the legal representative, heir, beneficiary or a
family member of such person, subject to certain
limitations;
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transfers or
dispositions of shares of our common stock or any security
convertible into or exercisable or exchangeable for our common
stock to us pursuant to any contractual arrangement in effect on
the date of the lock-up agreement that provides for the repurchase
of such person’s common stock or such other securities by us or in
connection with the termination of the such person’s employment,
subject to certain limitations;
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the
forfeiture or surrender to us of shares of our common stock to
cover the exercise price of, or tax withholding obligations upon
the vesting, exercise or delivery of, restricted share units,
performance stock units, stock options and other equity based
compensation granted to such person pursuant to any employee equity
incentive plan existing on the date hereof, subject to certain
limitations;
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the
exercise of warrants or the exercise of stock options granted
pursuant to our stock option/incentive plans or otherwise
outstanding on the date of the lock-up agreement, provided that the
restrictions shall apply to shares of our common stock issued upon
such exercise or conversion;
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•
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the
establishment of a trading plan pursuant to Rule 10b5-1 under the
Exchange Act for the transfer of shares of our common stock,
subject to certain limitations;
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•
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sales of our
common stock pursuant to Rule 10b5-1 trading plans existing on the
date of the underwriting agreement, subject to certain
limitations;
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•
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any
demands or requests for, the exercise of any right with respect to,
or the taking of any action in preparation of, the registration by
us under the Securities Act of such party’s shares of our common
stock or other securities, provided that no transfer of such shares
of our common stock registered pursuant to the exercise of any such
right and no registration statement shall be filed under the
Securities Act with respect to any of such person’s shares of our
common stock during the Lock-Up Period; and
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•
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with respect to
one of our directors, the transfer of up to 500,000 shares of
common stock as a bona fide gift to a charitable foundation and, at
the charitable foundation’s discretion, the subsequent sale or
transfer of such shares, subject to certain
limitations.
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Goldman Sachs
& Co. LLC, in its discretion, may release the common stock and
other securities subject to the lock-up agreements described above
in whole or in part at any time.
Price
Stabilization and Short Positions
In
connection with this offering, the underwriters may over-allot
shares of common stock or effect transactions with a view to
supporting the market price of such shares at a level higher than
that which might otherwise prevail. However, stabilization may not
necessarily occur. Any stabilization action may begin on or after
the date on which adequate public disclosure of the final terms of
the offer of the shares is made, and, if begun, may cease at any
time. Any stabilization action or over-allotment must be carried
out in accordance with applicable laws and rules. The underwriters
may purchase and sell shares in the open market, including through
short sales and purchases to cover
positions
created by short sales. Short sales involve the sale by the
underwriters of a greater number of shares than they are required
to purchase in the offering.
The
underwriters have advised us that they also may impose a penalty
bid. This occurs when a particular underwriter repays to the
underwriters a portion of the underwriting discount received by it
because the representatives have repurchased shares sold by or for
the account of such underwriter in stabilizing or short covering
transactions.
These
activities by the underwriters, as well as other purchases by the
underwriters for their own accounts, may stabilize, maintain or
otherwise affect the market price of the shares. As a result, the
price of such shares may be higher than the price that otherwise
might exist in the open market. If these activities are commenced,
they may be discontinued by the underwriters at any time. These
transactions may be effected in the over-the-counter market or
otherwise.
Other
Relationships
The
underwriters and their respective affiliates are full service
financial institutions engaged in various activities, which may
include securities trading, commercial and investment banking,
financial advisory, investment management, investment research,
principal investment, hedging, financing and brokerage activities.
Certain of the underwriters and their respective affiliates have,
from time to time, performed, and may in the future perform,
various financial advisory and investment banking services for us,
including acting as underwriters (including as underwriters in the
April Eurobond Offering) managers, agents, swap providers,
arrangers or issuing and paying agents, for which they received or
will receive customary fees and expenses. For example, certain of
the underwriters or their affiliates are currently serving as
underwriters for the Concurrent Offering of Series B Mandatory
Convertible Preferred Stock. In addition, certain of the
underwriters or their affiliates currently serve as lenders and/or
agents under our credit facilities.
In
addition, in the ordinary course of their business activities, the
underwriters and their affiliates may make or hold a broad array of
investments and actively trade debt and equity securities (or
related derivative securities) and financial instruments (including
bank loans) for their own account and for the accounts of their
customers. Such investments and securities activities may involve
our securities and/or instruments. If any of the underwriters or
their affiliates have a lending relationship with us, certain of
those underwriters or their affiliates routinely hedge, and certain
other of those underwriters or their affiliates may hedge, their
credit exposure to us consistent with their customary risk
management policies. Typically, these underwriters and their
affiliates would hedge such exposure by entering into transactions
which consist of either the purchase of credit default swaps or the
creation of short positions in our securities, including
potentially the shares of common stock offered hereby. Any such
credit default swaps or short positions could adversely affect
future trading prices of the shares of common stock offered hereby.
The underwriters and their affiliates may also make investment
recommendations and/or publish or express independent research
views in respect of such securities or financial instruments and
may hold, or recommend to clients that they acquire, long and/or
short positions in such securities and instruments.
Selling
Restrictions
European
Economic Area and United Kingdom
Each
underwriter has represented and agreed that it has not offered,
sold or otherwise made shares available to and the shares should
not be offered, sold or otherwise made available to any retail
investor in the EEA and the United Kingdom. For the purposes of
this provision, a “retail investor” means a person who is one (or
more) of: (i) a retail client as defined in point (11) of Article
4(1) of MiFID II; or (ii) a customer within the meaning of
Directive (EU) 2016/97 (as amended, the “Insurance Distribution
Directive”), where that customer would not qualify as a
professional client as defined in point (10) of Article 4(1) of
MiFID II.
United
Kingdom
Each
underwriter has represented and agreed that:
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(a)
|
it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated an invitation or inducement
to engage in investment activity (within the meaning of
Section
|
21
of the FSMA) received by it in connection with the issue or sale of
the shares in circumstances in which Section 21(1) of the FSMA does
not apply to the Issuer; and
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(b)
|
it
has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the shares
in, from or otherwise involving the United Kingdom.
|
Canada
The
shares offered may be sold only to purchasers purchasing, or deemed
to be purchasing, as principal that are accredited investors, as
defined in National Instrument 45-106 Prospectus Exemptions or
subsection 73.3(1) of the Securities Act (Ontario), and are
permitted clients, as defined in National Instrument 31-103
Registration Requirements, Exemptions and Ongoing Registrant
Obligations. Any resale of the shares must be made in accordance
with an exemption from, or in a transaction not subject to, the
prospectus requirements of applicable securities laws.
Securities
legislation in certain provinces or territories of Canada may
provide a purchaser with remedies for rescission or damages if this
prospectus supplement and accompanying prospectus (including any
amendment thereto) contains a misrepresentation, provided that the
remedies for rescission or damages are exercised by the purchaser
within the time limit prescribed by the securities legislation of
the purchaser’s province or territory. The purchaser should refer
to any applicable provisions of the securities legislation of the
purchaser’s province or territory for particulars of these rights
or consult with a legal advisor.
Pursuant to
section 3A.3 of National Instrument 33-105 Underwriting Conflicts
(NI 33-105), the underwriters are not required to comply with the
disclosure requirements of NI 33-105 regarding underwriter
conflicts of interest in connection with this
offering.
Hong
Kong
The
shares may not be offered or sold by means of any document other
than (i) in circumstances which do not constitute an offer to
the public within the meaning of the Companies Ordinance (Cap. 32,
Laws of Hong Kong), or (ii) to “professional investors” within
the meaning of the Securities and Futures Ordinance (Cap. 571, Laws
of Hong Kong) and any rules made thereunder, or (iii) in other
circumstances which do not result in the document being a
“prospectus” within the meaning of the Companies Ordinance (Cap.
32, Laws of Hong Kong), and no advertisement, invitation or
document relating to the shares may be issued or may be in the
possession of any person for the purpose of issue (in each case
whether in Hong Kong or elsewhere), which is directed at, or the
contents of which are likely to be accessed or read by, the public
in Hong Kong (except if permitted to do so under the laws of Hong
Kong) other than with respect to shares which are or are intended
to be disposed of only to persons outside Hong Kong or only to
“professional investors” within the meaning of the Securities and
Futures Ordinance (Cap. 571, Laws of Hong Kong) and any rules made
thereunder.
Japan
The
shares have not been and will not be registered under the Financial
Instruments and Exchange Law of Japan (the Securities and Exchange
Law) and each underwriter has agreed that it will not offer or sell
any securities, directly or indirectly, in Japan or to, or for the
benefit of, any resident of Japan (which term as used herein means
any person resident in Japan, including any corporation or other
entity organized under the laws of Japan), or to others for
re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the
registration requirements of, and otherwise in compliance with, the
Financial Instruments and Exchange Law and any other applicable
laws, regulations and ministerial guidelines of Japan.
Singapore
This prospectus
supplement has not been registered as a prospectus with the
Monetary Authority of Singapore. Accordingly, this prospectus
supplement and any other document or material in connection with
the offer or sale, or invitation for subscription or purchase, of
the shares may not be circulated or distributed, nor may the shares
be offered or sold, or be made the subject of an invitation for
subscription or purchase, whether directly or indirectly, to
persons in Singapore other than (i) to an institutional
investor under Section 274 of the Securities and Futures
Act,
Chapter 289 of
Singapore (the “SFA”), (ii) to a relevant person, or any person
pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA or
(iii) otherwise pursuant to, and in accordance with the
conditions of, any other applicable provision of the
SFA.
Where the
shares are subscribed or purchased under Section 275 by a
relevant person which is: (a) a corporation (which is not an
accredited investor) the sole business of which is to hold
investments and the entire share capital of which is owned by one
or more individuals, each of whom is an accredited investor; or
(b) a trust (where the trustee is not an accredited investor)
whose sole purpose is to hold investments and each beneficiary is
an accredited investor, shares, debentures and units of shares and
debentures of that corporation or the beneficiaries’ rights and
interest in that trust shall not be transferable for 6 months after
that corporation or that trust has acquired the shares under
Section 275 except: (1) to an institutional investor
under Section 274 of the SFA or to a relevant person, or any
person pursuant to Section 275(1A), and in accordance with the
conditions, specified in Section 275 of the SFA;
(2) where no consideration is given for the transfer; or
(3) by operation of law.
Solely for the
purposes of its obligations pursuant to Sections 309B(1)(a) and
309B(1)(c) of the SFA, the company has determined, and hereby
notify all relevant persons (as defined in Section 309A of the
SFA) that the shares are “prescribed capital markets products” (as
defined in the Securities and Futures (Capital Markets Products)
Regulations 2018) and Excluded Investment Products (as defined in
MAS Notice SFA 04-N12: Notice on the Sale of Investment Products
and MAS Notice FAA-N16: Notice on Recommendations on Investment
Products).
Korea
The
shares have not been and will not be registered under the Financial
Investments Services and Capital Markets Act of Korea and the
decrees and regulations thereunder (the “FSCMA”). None of the
shares may be offered, sold or delivered directly or indirectly, or
offered or sold to any person for re-offering or resale, directly
or indirectly, in Korea or to any resident of Korea except pursuant
to the applicable laws and regulations of Korea, including the
FSCMA and the Foreign Exchange Transaction Law of Korea and the
decrees and regulations thereunder (the “FETL”). The shares have
not been listed on any of securities exchanges in the world
including, without limitation, the Korea Exchange in Korea.
Furthermore, the purchaser of the shares shall comply with all
applicable regulatory requirements (including but not limited to
requirements under the FETL) in connection with the purchase of the
shares. By the purchase of the shares, the relevant holder thereof
will be deemed to represent and warrant that if it is in Korea or
is a resident of Korea, it purchased the shares pursuant to the
applicable laws and regulations of Korea.
Switzerland
This prospectus
supplement does not constitute an issue prospectus pursuant to
Article 652a or Article 1156 of the Swiss Code of Obligations and
the shares will not be listed on the SIX Swiss Exchange. Therefore,
this prospectus supplement may not comply with the disclosure
standards of the listing rules (including any additional listing
rules or prospectus schemes) of the SIX Swiss Exchange.
Accordingly, the shares may not be offered to the public in or from
Switzerland, but only to a selected and limited circle of investors
who do not subscribe to the shares with a view to distribution. Any
such investors will be individually approached by the underwriters
from time to time.
United Arab
Emirates
The
shares have not been, and are not being, publicly offered, sold,
promoted or advertised in the United Arab Emirates (including the
Abu Dhabi Global Market and the Dubai International Financial
Centre) other than in compliance with the laws, regulations and
rules of the United Arab Emirates, the Abu Dhabi Global Market and
the Dubai International Financial Centre governing the issue,
offering and sale of securities. Further, this prospectus
supplement and the accompanying prospectus do not constitute a
public offer of securities in the United Arab Emirates (including
the Abu Dhabi Global Market and the Dubai International Financial
Centre) and are not intended to be a public offer. This prospectus
supplement and the accompanying prospectus have not been approved
by or filed with the Central Bank of the United Arab Emirates, the
Securities and Commodities Authority, the Financial Services
Regulatory Authority or the Dubai Financial Services
Authority.
Taiwan
The
shares have not been and will not be registered with the Financial
Supervisory Commission of Taiwan pursuant to relevant securities
laws and regulations and may not be sold, issued or offered within
Taiwan through a public offering or in circumstances which
constitutes an offer within the meaning of the Securities and
Exchange Act of Taiwan that requires a registration or approval of
the Financial Supervisory Commission of Taiwan. No person or entity
in Taiwan has been authorized to offer, sell, give advice regarding
or otherwise intermediate the offering and sale of the shares in
Taiwan.
LEGAL
MATTERS
Certain legal
matters in connection with the offering of the common stock will be
passed upon for us by Wilmer Cutler Pickering Hale and Dorr LLP.
Certain legal matters in connection with the offering of the common
stock will be passed upon for the underwriters by Latham &
Watkins LLP.
EXPERTS
Ernst &
Young LLP, independent registered public accounting firm, has
audited our consolidated financial statements and schedule included
in our Annual Report on Form 10-K for the year ended
December 31, 2019, and the effectiveness of our internal
control over financial reporting as of December 31, 2019, as
set forth in their reports, which are incorporated by reference in
this prospectus and elsewhere in the registration statement. Our
financial statements and schedule are incorporated by reference in
reliance on Ernst & Young LLP’s reports, given on their
authority as experts in accounting and auditing.
The
combined financial statements of GE BioPharma as of December 31,
2019 and 2018, and for each of the years in the two-year period
ended December 31, 2019, have been incorporated by reference herein
and in the registration statement in reliance upon the report of
KPMG LLP, independent registered public accounting firm,
incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
PROSPECTUS
Danaher
Corporation
Debt
Securities
Guarantees
Common
Stock
Preferred
Stock
Warrants
Depositary
Shares
Purchase
Contracts
Units
DH Europe
Finance S.à r.l.
Senior Debt
Securities
(fully and
unconditionally guaranteed by Danaher Corporation)
DH Europe
Finance II S.à r.l.
Senior Debt
Securities
(fully and
unconditionally guaranteed by Danaher Corporation)
______________________
We may offer and
sell securities from time to time in one or more offerings. This
prospectus describes the general terms of these securities and the
general manner in which these securities will be offered. We will
provide the specific terms of these securities in supplements to
this prospectus. The prospectus supplements will also describe the
specific manner in which these securities will be offered and may
also supplement, update or amend information contained or
incorporated by reference in this document. You should read this
prospectus and any applicable prospectus supplement that we file
with the Securities and Exchange Commission before you
invest.
We may offer
these securities in amounts, at prices and on terms determined at
the time of offering. The securities may be sold directly to you,
through agents, or through underwriters and dealers. If agents,
underwriters or dealers are used to sell the securities, we will
name them and describe their compensation in a prospectus
supplement.
The common stock
of Danaher Corporation trades on The New York Stock Exchange under
the symbol “DHR”.
______________________
Investing in
these securities involves certain risks. See “Risk Factors”
included in any accompanying prospectus supplement and in the
documents incorporated by reference in this prospectus for a
discussion of the factors you should carefully consider before
deciding to purchase these securities.
______________________
Neither the
Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or
passed upon the adequacy or accuracy of this prospectus. Any
representation to the contrary is a criminal offense.
______________________
The date of
this prospectus is July 9, 2019.
Table of
Contents
ABOUT THIS
PROSPECTUS
This prospectus
is part of a registration statement that we filed with the
Securities and Exchange Commission, which we refer to as the “SEC,”
using a “shelf” registration process. Under this shelf registration
process, Danaher, Danaher International, Danaher International II
and/or selling securityholders may from time to time sell any
combination of the securities described in this prospectus in one
or more offerings. This prospectus provides you with a general
description of the securities we and/or selling securityholders may
offer. Each time Danaher, Danaher International, Danaher
International II or any selling securityholder uses this prospectus
to sell securities, we will provide one or more prospectus
supplements that will contain specific information about the terms
of the offering. The prospectus supplement and/or any related free
writing prospectus may also add, update or change information
contained in this prospectus. You should read this prospectus, any
accompanying prospectus supplement and any other offering material
that we authorize, together with the additional information
described under the heading “Where You Can Find More
Information.”
You
should rely only on the information contained or incorporated by
reference in this prospectus, any accompanying prospectus
supplement or in any related free writing prospectus that we file
with the SEC. We have not authorized anyone to provide you with
different information. This prospectus and the accompanying
prospectus supplement do not constitute an offer to sell or the
solicitation of an offer to buy any securities other than the
securities described in the accompanying prospectus supplement or
an offer to sell or the solicitation of an offer to buy such
securities in any circumstances in which such offer or solicitation
is unlawful.
You
should assume that the information appearing in this prospectus,
any prospectus supplement, the documents incorporated by reference
and any related free writing prospectus is accurate only as of
their respective dates. Our business, financial condition, results
of operations and prospects may have changed materially since those
dates.
Unless the
context otherwise indicates, references in this prospectus to “we,”
“our” and “us” refer, collectively, to Danaher and its consolidated
subsidiaries and/or, where applicable, to Danaher International or
Danaher International II as an issuer of debt securities; the term
“Danaher” refers to Danaher Corporation, a Delaware corporation;
the term “Danaher International” refers to DH Europe Finance S.à
r.l., a private limited liability company duly organized and
existing under the laws of Luxembourg; and the term “Danaher
International II” refers to DH Europe Finance II S.à r.l., a
private limited liability company duly organized and existing under
the laws of Luxembourg.
Pursuant to
Rule 3-10(b) (“Rule 3-10(b)”) of Regulation S-X, this prospectus
does not contain separate financial statements for Danaher
International or Danaher International II since Danaher
International and Danaher International II are both indirect
subsidiaries of Danaher that are 100% owned by Danaher, and Danaher
files consolidated financial information under the Exchange Act.
Each of Danaher International, which was formed on June 2,
2015, and Danaher International II, which was formed on
May 31, 2019, is a “finance subsidiary” of Danaher under Rule
3-10(b) with no independent function other than financing
activities. Danaher will provide a full and unconditional guarantee
of Danaher International’s obligations and Danaher International
II’s obligations under their respective debt securities, and no
other subsidiary of Danaher will guarantee these
obligations.
WHERE YOU
CAN FIND MORE INFORMATION
We
file annual, quarterly and current reports, proxy statements and
other information with the SEC. Our SEC filings are available to
the public over the Internet at the SEC’s website at
http://www.sec.gov. Copies of certain information filed by us with
the SEC are also available on our website at www.danaher.com. Our
website is not a part of this prospectus and is not incorporated by
reference in this prospectus.
As
noted above, this prospectus is part of a registration statement we
filed with the SEC. This prospectus omits some information
contained in the registration statement in accordance with SEC
rules and regulations. You should review the information and
exhibits in the registration statement for further information on
us and our consolidated subsidiaries and the securities we are
offering. Statements in this prospectus concerning any document we
filed as an exhibit to the registration statement or that we
otherwise filed with the SEC are not intended to be comprehensive
and are qualified by reference to these filings. You should review
the complete document to evaluate these statements.
INCORPORATION
BY REFERENCE
The
SEC allows us to incorporate by reference much of the information
we file with the SEC, which means that we can disclose important
information to you by referring you to those publicly available
documents. The information that we incorporate by reference in this
prospectus is considered to be part of this prospectus. Because we
are incorporating by reference future filings with the SEC, this
prospectus is continually updated and those future filings may
modify or supersede some of the information included or
incorporated in this prospectus. This means that you must look at
all of the SEC filings that we incorporate by reference to
determine if any of the statements in this prospectus or in any
document previously incorporated by reference have been modified or
superseded. This prospectus incorporates by reference the documents
listed below filed by Danaher (File No. 001-08089) and any
future filings we make with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”) (in each case, other than those documents or the
portions of those documents not deemed to be filed) until the
offering of the securities under the registration statement is
terminated or completed:
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Annual Report
on Form 10-K for the fiscal year ended December 31, 2018,
including the information specifically incorporated by reference
into the Annual Report on Form 10-K from our definitive proxy
statement for the 2019 Annual Meeting of Stockholders;
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Quarterly
Report on Form 10-Q for the fiscal quarter ended March 29,
2019;
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Current Reports
on Form 8-K filed with the SEC on February 25, 2019 (Item 1.01
only); March 1, 2019; and May 8, 2019; and
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The
description of our common stock contained in our Registration
Statement on Form 8-B filed on November 3, 1986, including any
amendments or reports filed for the purpose of updating such
description.
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You
may request a copy of these filings, at no cost, by writing or
telephoning us at the following address or phone
number:
Danaher
Corporation
2200 Pennsylvania
Avenue, N.W., Suite 800W
Washington, D.C.
20037-1701
Attention:
Investor Relations
(202)
828-0850
Exhibits to the
filings will not be sent, however, unless those exhibits have
specifically been incorporated by reference into such
document.
FORWARD-LOOKING
STATEMENTS
This
prospectus, any applicable prospectus supplement and the
information incorporated by reference in this prospectus and any
applicable prospectus supplement include “forward-looking
statements” within the meaning of the United States federal
securities laws. All statements other than historical factual
information are forward-looking statements, including without
limitation statements regarding: projections of revenue, expenses,
profit, profit margins, tax rates, tax provisions, cash flows,
pension and benefit obligations and funding requirements, our
liquidity position or other projected financial measures;
management’s plans and strategies for future operations, including
statements relating to anticipated operating performance, cost
reductions, restructuring activities, new product and service
developments, competitive strengths or market position,
acquisitions and the integration thereof, divestitures, spin-offs,
split-offs or other distributions (including the anticipated
initial public offering of Danaher’s Dental business), strategic
opportunities, securities offerings, stock repurchases, dividends
and executive compensation; growth, declines and other trends in
markets we sell into; new or modified laws, regulations and
accounting pronouncements; future regulatory approvals; outstanding
claims, legal proceedings, tax audits and assessments and other
contingent liabilities; future foreign currency exchange rates and
fluctuations in those rates; general economic and capital markets
conditions; the anticipated timing of any of the foregoing;
assumptions underlying any of the foregoing; and any other
statements that address events or developments that Danaher intends
or believes will or may occur in the future. Terminology such as
“believe,” “anticipate,” “should,” “could,” “intend,” “will,”
“plan,” “expect,” “estimate,” “project,” “target,” “may,”
“possible,” “potential,” “forecast” and “positioned” and similar
references to future periods are intended to identify
forward-looking statements, although not all forward-looking
statements are accompanied by such words.
Forward-looking
statements are based on assumptions and assessments made by our
management in light of their experience and perceptions of
historical trends, current conditions, expected future developments
and other factors. Forward-looking statements are not guarantees of
future performance and actual results may differ materially from
the results, developments and business decisions contemplated by
our forward-looking statements. Accordingly, you should not place
undue reliance on any such forward-looking statements. Important
factors that could cause actual results to differ materially from
those envisaged in the forward-looking statements include the
following:
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We
may not complete our pending acquisition (the “GE Biopharma
Acquisition”) of the Biopharma Business of GE Life Sciences (the
“GE Biopharma Business”) within the time frame we anticipate or at
all; any regulatory approval of the GE Biopharma Acquisition may be
subject to conditions; and the GE Biopharma Acquisition could
negatively impact our business, financial statements and stock
price.
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We
have outstanding debt, and our debt will increase as a result of
the GE Biopharma Acquisition. Our existing and future indebtedness
may limit our operations and our use of our cash flow and
negatively impact our credit ratings; and any failure to comply
with the covenants that apply to our indebtedness could adversely
affect our liquidity and financial statements.
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We
intend to conduct an initial public offering of shares of our
Dental business in the second half of 2019. Subsequent to the
initial public offering, we intend to distribute our remaining
equity interest in the Dental business in one or more spin-off
and/or split-off transactions, and in addition to or in lieu of
such transactions may sell additional shares of the Dental business
in one or more publicly registered offerings or private placements.
Any or all of these transactions may not be completed on the
currently contemplated timeline or at all and may not achieve the
intended benefits.
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Conditions in
the global economy, the particular markets we serve and the
financial markets may adversely affect our business and financial
statements.
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Significant
developments or uncertainties stemming from the U.S.
administration, including changes in U.S. trade policies, tariffs
and the reaction of other countries thereto, could have an adverse
effect on our business.
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Our
growth could suffer if the markets into which we sell our products
and services decline, do not grow as anticipated or experience
cyclicality.
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We
face intense competition and if we are unable to compete
effectively, we may experience decreased demand and decreased
market share. Even if we compete effectively, we may be required to
reduce prices for our products and services.
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Our
growth depends in part on the timely development and
commercialization, and customer acceptance, of new and enhanced
products and services based on technological
innovation.
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Our
reputation, ability to do business and financial statements may be
impaired by improper conduct by any of our employees, agents or
business partners.
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Certain of our
businesses are subject to extensive regulation by the U.S. Food and
Drug Administration and by comparable agencies of other countries,
as well as laws regulating fraud and abuse in the health care
industry and the privacy and security of health information.
Failure to comply with those regulations could adversely affect our
reputation, ability to do business and financial
statements.
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Our
products are subject to clinical trials, the results of which may
be unexpected, or perceived as unfavorable by the market, and could
have a material adverse effect on our business, financial condition
or results of operations.
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The
health care industry and related industries that we serve have
undergone, and are in the process of undergoing, significant
changes in an effort to reduce costs, which could adversely affect
our financial statements.
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Any
inability to consummate acquisitions at our historical rate and at
appropriate prices and to make appropriate investments that support
our long-term strategy, could negatively impact our growth rate and
stock price.
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Our
acquisition of businesses, investments, joint ventures and
strategic relationships could negatively impact our financial
statements.
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The
indemnification provisions of acquisition agreements by which we
have acquired companies may not fully protect us and as a result we
may face unexpected liabilities.
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Divestitures
and other dispositions could negatively impact our business, and
contingent liabilities from businesses that we have disposed could
adversely affect our financial statements.
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We
could incur significant liability if the anticipated IPO of our
Dental business, any subsequent spin-off and or split-off of, or
sale of additional shares of our Dental business, the 2016 spin-off
of Fortive or the 2015 split-off of our communications business is
determined to be a taxable transaction.
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Potential
indemnification liabilities related to the anticipated IPO of our
Dental business, any subsequent spin-off and or split-off of, or
sale of additional shares of our Dental business, the 2016 spin-off
of Fortive and the 2015 split-off of our communications business
could materially and adversely affect our business and financial
statements.
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A
significant disruption in, or breach in security of, our
information technology systems or violation of data privacy laws
could adversely affect our business, reputation and financial
statements.
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Our
operations, products and services expose us to the risk of
environmental, health and safety liabilities, costs and violations
that could adversely affect our business, reputation and financial
statements.
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Our
businesses are subject to extensive regulation; failure to comply
with those regulations could adversely affect our financial
statements and our business, including our reputation.
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Our
restructuring actions could have long-term adverse effects on our
business.
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We
may be required to recognize impairment charges for our goodwill
and other intangible assets.
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Foreign
currency exchange rates may adversely affect our financial
statements.
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Changes in tax
law relating to multinational corporations could adversely affect
our tax position.
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We
are subject to a variety of litigation and other legal and
regulatory proceedings in the course of our business that could
adversely affect our business and financial
statements.
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If
we do not or cannot adequately protect our intellectual property,
or if third parties infringe our intellectual property rights, we
may suffer competitive injury or expend significant resources
enforcing our rights.
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Third parties
may claim that we are infringing or misappropriating their
intellectual property rights and we could suffer significant
litigation expenses, losses or licensing expenses or be prevented
from selling products or services.
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The
United States government has certain rights to use and disclose
some of the intellectual property that we license and could
exclusively license it to a third party if we fail to achieve
practical application of the intellectual property.
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Defects and
unanticipated use or inadequate disclosure with respect to our
products or services (including software), or allegations thereof,
could adversely affect our business, reputation and financial
statements.
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The
manufacture of many of our products is a highly exacting and
complex process, and if we directly or indirectly encounter
problems manufacturing products, our reputation, business and
financial statements could suffer.
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Adverse changes
in our relationships with, or the financial condition, performance,
purchasing patterns or inventory levels of, key distributors and
other channel partners could adversely affect our financial
statements.
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Certain of our
businesses rely on relationships with collaborative partners and
other third parties for development, supply and marketing of
certain products and potential products, and such collaborative
partners or other third parties could fail to perform
sufficiently.
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Our
financial results are subject to fluctuations in the cost and
availability of commodities that we use in our
operations.
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If
we cannot adjust our manufacturing capacity or the purchases
required for our manufacturing activities to reflect changes in
market conditions and customer demand, our profitability may
suffer. In addition, our reliance upon sole or limited sources of
supply for certain materials, components and services could cause
production interruptions, delays and inefficiencies.
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Changes in laws
or governmental regulations may reduce demand for our products or
services or increase our expenses.
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Work stoppages,
union and works council campaigns and other labor disputes could
adversely impact our productivity and results of
operations.
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International
economic, political, legal, compliance, trade and business factors
could negatively affect our financial statements.
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Significant
developments stemming from the United Kingdom’s decision to exit
the EU could have an adverse effect on our business.
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If
we suffer loss to our facilities, supply chains, distribution
systems or information technology systems due to catastrophe or
other events, our operations could be seriously
harmed.
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Our
defined benefit pension plans are subject to financial market risks
that could adversely affect our financial statements.
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See
the risk factors included in our periodic reports filed with the
Securities and Exchange Commission under the Exchange Act, and in
any applicable prospectus supplement, for a further discussion
regarding reasons that actual results may differ materially from
the results, developments and business decisions contemplated by
our forward-looking statements. Forward-looking statements speak
only as of the date of the report, document, press release,
webcast, call, materials or other communication in which they are
made. Except to the extent required by applicable law, we do not
assume any obligation to update or revise any forward-looking
statement, whether as a result of new information, future events
and developments or otherwise.
DANAHER
CORPORATION
Danaher
Corporation designs, manufactures and markets professional,
medical, industrial and commercial products and services, which are
typically characterized by strong brand names, innovative
technology and major market positions. We are committed to
innovating and developing forward-looking technologies that solve
our customers’ most complex challenges. Danaher’s research and
development, manufacturing, sales, distribution, service and
administrative facilities are located in more than 60 countries.
Our business consists of four segments: Life Sciences; Diagnostics;
Dental; and Environmental & Applied Solutions. Danaher
strives to create shareholder value primarily through three
strategic priorities:
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enhancing its
portfolio in attractive science and technology markets through
strategic capital allocation;
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strengthening
its competitive advantage through consistent application of the
DANAHER BUSINESS SYSTEM (“DBS”) tools; and
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consistently
attracting and retaining exceptional talent.
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Danaher
measures its progress against these strategic priorities over the
long-term based primarily on financial metrics relating to revenue
growth, profitability, cash flow and capital returns.
The
Company’s businesses use a set of growth, lean and leadership tools
and processes, known as the DANAHER BUSINESS SYSTEM, which are
designed to continuously improve business performance in the
critical areas of quality, delivery, cost, growth and innovation.
Within the DBS framework, the Company pursues a number of ongoing
strategic initiatives relating to customer insight generation,
product development and commercialization, global sourcing of
materials and services, manufacturing improvement and sales and
marketing impact.
Danaher
Corporation, originally DMG, Inc., was organized in 1969 as a
Massachusetts real estate investment trust. In 1978 it was
reorganized as a Florida corporation under the name Diversified
Mortgage Investors, Inc. which in a second reorganization in 1980
became a subsidiary of a newly created holding company named DMG,
Inc. DMG, Inc. adopted the name Danaher in 1984 and was
reincorporated as a Delaware corporation in 1986.
Our
common stock is listed on the New York Stock Exchange under the
ticker symbol “DHR.” Our executive offices are located at 2200
Pennsylvania Avenue N.W., Suite 800W, Washington, D.C. 20037, and
our telephone number is (202) 828-0850. For additional information
concerning Danaher, please see “Where You Can Find More
Information.”
DH EUROPE
FINANCE S.à r.l.
DH
Europe Finance S.A. was organized on June 2, 2015 as a public
limited liability company (société
anonyme), under the
laws of Luxembourg, and subsequently converted to a private limited
liability company (société
à responsibilité limitée) on
June 24, 2019. Its registered office is located at 1B
Heienhaff, L-1736 Senningerberg, Grand Duchy of Luxembourg. Danaher
International is registered with the Luxembourg Trade and Companies
Register under number B197.470, is an indirect wholly-owned finance
subsidiary of Danaher Corporation, and conducts no independent
operations other than its financing activities. Danaher
International’s telephone number is +352 27-84-80-58.
DH EUROPE
FINANCE II S.à r.l.
DH
Europe Finance II S.à r.l. was organized on May 31, 2019 as a
private limited liability company (
société à responsibilité limitée ), under the
laws of Luxembourg. Its registered office is located at 1B
Heienhaff, L-1736 Senningerberg Grand Duchy of Luxembourg. Danaher
International is registered with the Luxembourg Trade and Companies
Register under number B 235.237, is an indirect wholly-owned
finance subsidiary of Danaher Corporation, and conducts no
independent operations other than its financing activities. Danaher
International’s telephone number is +352 27-84-80-58.
USE OF
PROCEEDS
We
intend to use the net proceeds from the sale of any securities we
offer under this prospectus for general corporate purposes unless
otherwise indicated in the applicable prospectus supplement.
General corporate purposes may include the acquisition of companies
or businesses, repayment and refinancing of debt, working capital,
share repurchases, payment of dividends and capital expenditures.
We have not determined the amount of net proceeds to be used
specifically for such purposes. As a result, management will retain
broad discretion over the allocation of net proceeds.
DESCRIPTION
OF DANAHER DEBT SECURITIES
This section
describes the general terms and provisions of the debt securities
that Danaher may issue separately, upon exercise of a debt warrant,
in connection with a purchase contract or as part of a unit from
time to time in the form of one or more series of debt securities.
The applicable prospectus supplement and/or free writing prospectus
will describe the specific terms of the debt securities offered
through that prospectus supplement as well as any general terms
described in this section that will not apply to those debt
securities. As used in this section, “debt securities” means the
senior and subordinated debentures, notes, bonds and other
evidences of indebtedness that we issue and a trustee authenticates
and delivers under the applicable indenture. As used in this
“Description of Danaher Debt Securities,” the terms “Danaher,”
“we,” “our” and “us” refer to Danaher Corporation and do not,
unless the context otherwise indicates, include our
subsidiaries.
Senior debt
securities will be issued under an indenture dated
December 11, 2007 between Danaher and The Bank of New York
Mellon Trust Company, N.A., as trustee, as supplemented by a second
supplemental indenture dated July 1, 2019 between Danaher and
The Bank of New York Mellon Trust Company, N.A., as trustee, each
of which has been filed as an exhibit to the registration statement
of which this prospectus is a part and is incorporated by reference
into this prospectus, subject to such amendments or supplemental
indentures as are adopted, from time to time. This indenture and
supplemental indenture are referred to collectively as the “senior
indenture.” Subordinated debt securities will be issued under a
separate indenture to be entered into by us and a trustee or
trustees identified in the prospectus supplement, the form of which
is included as an exhibit to the registration statement of which
this prospectus is a part and is incorporated by reference into
this prospectus. This indenture is referred to as the “subordinated
indenture.” We refer to the indentures described above as the
“indentures” or the “indenture,” as applicable. The following
summaries of certain provisions of the indentures and the debt
securities are not complete and the summaries are subject to the
detailed provisions of the applicable indenture. You should refer
to the applicable indenture for more specific information. In
addition, you should consult the applicable prospectus supplement
and/or free writing prospectus for particular terms of our debt
securities.
The
indentures will not limit the aggregate principal amount of debt
securities that we may issue, and will permit us to issue
securities from time to time in one or more series. The indentures
do not contain any provisions that would limit our ability to incur
indebtedness or that would afford holders of debt securities
protection in the event of a highly leveraged or similar
transaction involving us. However, the senior indenture does
restrict us and our subsidiaries from granting certain security
interests on certain of our or their property or assets unless the
senior debt securities are equally secured. See “—Covenants in the
Senior Indenture” below.
The
debt securities will be unsecured obligations of Danaher. We
currently conduct substantially all of our operations through
subsidiaries, and the holders of debt securities (whether senior or
subordinated debt securities) will be effectively subordinated to
the creditors of our subsidiaries. This means that creditors of our
subsidiaries will have a claim to the assets of our subsidiaries
that is superior to the claim of our creditors, including holders
of our debt securities.
The
applicable prospectus supplement and/or free writing prospectus
will describe the following terms of any series of debt securities
that we may offer:
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the
title and type of the debt securities;
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whether the
debt securities will be senior or subordinated debt securities,
and, with respect to debt securities issued under the subordinated
indenture, as applicable, that the subordination provisions of the
indenture shall apply to the securities of that series or that any
different subordination provisions, including different definitions
of the terms “senior indebtedness” or “existing subordinated
indebtedness,” shall apply to securities of that
series;
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the
initial aggregate principal amount of the debt securities and any
limit on such amount;
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the
person who will receive interest payments on any debt securities if
other than the registered holder;
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the
price or prices at which we will sell the debt
securities;
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the
maturity date or dates of the debt securities and the right, if
any, to extend such date or dates;
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the
rate or rates, which may be fixed or variable, per annum at which
the debt securities will bear interest and the date from which such
interest will accrue;
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the
dates on which interest will be payable and the related record
dates;
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whether any
index, formula or other method will determine payments of
principal, premium or interest and the manner of determining the
amount of such payments;
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the
place or places of payments on the debt securities;
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whether the
debt securities are redeemable;
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any
redemption dates, prices, obligations and restrictions on the debt
securities;
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any
mandatory or optional sinking fund or purchase fund or analogous
provisions;
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the
denominations of the debt securities if other than $1,000 or
multiples of $1,000;
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the
currency of principal and interest payments if other than U.S.
dollars, and the manner of determining the equivalent thereof in
U.S. dollars for any purpose under the indenture;
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if
the principal of or any premium or interest on any debt securities
of any series is payable, at our election or the election of the
holder, in one or more currencies other than that in which such
debt securities are stated to be payable, the currency or
currencies in which such principal, premium or interest shall be
payable and other terms and conditions regarding such
payment;
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the
amount that we will pay the holder if the maturity of the debt
securities is accelerated, if other than their principal
amount;
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the
amount that will be deemed to be the principal amount of the debt
securities as of a particular date before maturity if the principal
amount payable at the stated maturity date will not be able to be
determined on that date;
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the
applicability of the legal defeasance and covenant defeasance
provisions in the applicable indenture;
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if
the debt securities will be issued in the form of one or more
book-entry securities, the name of the depositary or its nominee
and the circumstances under which the book-entry security may be
transferred or exchanged to someone other than the depositary or
its nominee;
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any
provisions granting special rights if certain events
happen;
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any
deletions from, changes in or additions to the events of default or
the covenants specified in the indenture, or to the right of the
trustee or the requisite holders of such securities to declare the
principal amount of such securities due and payable;
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any
trustees, authenticating or paying agents, transfer agents,
registrars or other agents for the debt securities;
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any
conversion or exchange features of the debt
securities;
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whether we will
issue the debt securities as original issue discount securities for
federal income tax purposes;
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any
special tax implications of the debt securities;
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the
terms of payment upon acceleration; and
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any
other material terms of the debt securities not inconsistent with
the provisions of the indenture.
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Debt securities
may bear interest at fixed or floating rates. We may issue our debt
securities at an original issue discount, bearing no interest or
bearing interest at a rate that, at the time of issuance, is below
market rate, to be sold at a substantial discount below their
stated principal amount. Generally speaking, if our debt securities
are issued at an original issue discount and there is an event of
default or acceleration of their maturity, holders will receive an
amount less than the stated principal amount of the debt
securities. Tax and other special considerations applicable to any
series of debt securities, including original issue discount
securities, will be described in the prospectus supplement in which
we offer those debt securities.
We
will have the ability under each indenture to reopen a previously
issued series of debt securities and issue additional debt
securities of that series or establish additional terms of the
series. We are also permitted to issue debt securities with the
same terms as previously issued debt securities.
We
will comply with Section 14(e) under the Exchange Act and any
other tender offer rules under the Exchange Act that may then apply
to any obligation we may have to purchase debt securities at the
option of the holders. Any such obligation applicable to a series
of debt securities will be described in the related prospectus
supplement.
Payment and
Paying Agents
Unless the
applicable prospectus supplement indicates otherwise, payment of
interest on a debt security (other than a bearer debt security) on
any interest payment date will be made to the person in whose name
such debt security is registered at the close of business on the
regular record date for such interest payment.
Generally, we
will pay the principal of, premium, if any, and interest on our
registered debt securities either at the office of the paying agent
designated by us in the applicable prospectus supplement or, if we
elect, we may pay interest by mailing a check to your address as it
appears on our register or by wire transfer to an account
maintained by the person entitled thereto as specified in the
securities register. We may at any time designate additional paying
agents or rescind the designation of any paying agent or approve a
change in the office through which any paying agent acts, except
that we will be required to maintain a paying agent in each place
of payment for the debt securities of a particular
series.
All
moneys paid by us to a paying agent or the trustee, or held, for
the payment of the principal of or any premium or interest on any
debt security which remain unclaimed at the end of two years after
such principal, premium or interest has become due and payable will
be repaid to us, or discharged from trust, and the holder of such
debt security shall thereafter, as an unsecured general creditor,
look only to us for payment thereof, subject to applicable escheat
laws.
Senior Debt
Securities
Senior debt
securities will be issued under the senior indenture. Payment of
the principal of, premium, if any, and interest on senior debt
securities will rank equally with all of our other unsecured and
unsubordinated debt.
Subordinated
Debt Securities
Subordinated
debt securities will be issued under the subordinated indenture.
Subordinated debt securities of a particular series will be
subordinate in right of payment, to the extent and in the manner
set forth in the subordinated indenture and the prospectus
supplement relating to those subordinated debt securities, to the
prior payment of all of our indebtedness that is designated as
senior indebtedness with respect to that series. The definition of
senior indebtedness will include, among other things, senior debt
securities and will be specifically set forth in that prospectus
supplement.
Upon any
payment or distribution of our assets to creditors or upon our
total or partial liquidation or dissolution or in a bankruptcy,
receivership, or similar proceeding relating to us or our property,
holders of senior indebtedness will be entitled to receive payment
in full of the senior indebtedness before holders of subordinated
debt securities will be entitled to receive any payment with
respect to the subordinated debt securities and, until the senior
indebtedness is paid in full, any distribution to which holders of
subordinated debt securities would otherwise be entitled
(other
than securities
of Danaher or any other corporation provided for by a plan of
reorganization or readjustment the payment of which is subordinate,
at the least to the extent provided pursuant to these subordination
provisions, to the payment of all senior indebtedness then
outstanding and to any securities issued in respect thereof under
any such plan of reorganization or readjustment) will be made to
the holders of senior indebtedness, all as described in the
applicable prospectus supplement. In the event of any such
proceeding, after payment in full of all sums owing with respect to
senior indebtedness, the holders of subordinated debt securities,
together with the holders of any of our obligations ranking in
parity with the subordinated debt securities, will be entitled to
be paid from our remaining assets the amounts then due and owing
with respect to such subordinated debt securities and other
obligations, before any payments or distributions will be made on
account of any of our capital stock or other obligations ranking
junior to such subordinated debt securities and other
obligations.
If
we default in the payment of any principal of, premium, if any, or
interest on any senior indebtedness, whether at maturity or at a
date fixed for prepayment or by declaration of acceleration or
otherwise, then, upon written notice of such default to us by the
holders of senior indebtedness or any trustee therefor, unless and
until such default shall have been cured or waived or shall have
ceased to exist, no direct or indirect payment shall be made or
agreed to be made on account of the principal, premium, if any, or
interest on any of the subordinated debt securities, or in respect
of any redemption, repayment, retirement, purchase or other
acquisition of any of the subordinated debt
securities.
By
reason of this subordination, in the event of insolvency, our
creditors who are holders of senior indebtedness or holders of any
indebtedness or preferred stock of our subsidiaries, as well as
certain of our general creditors, may recover more, ratably, than
the holders of the subordinated debt securities.
Events of
Default
Except as may
be provided otherwise in a prospectus supplement, any of the
following events will constitute an event of default for a series
of debt securities under the indenture:
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failure to pay
interest on our debt securities of that series for 30 days past the
applicable due date;
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failure to pay
principal of, or premium, if any, on our debt securities of that
series when due (whether at maturity, upon acceleration or
otherwise);
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failure to
deposit any sinking fund payment on debt securities of that series
when due;
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failure to
perform, or breach of, any other covenant, agreement or warranty
for the benefit of the holders of the debt securities in the
indenture, other than a covenant, agreement or warranty a default
in whose performance or breach is dealt with elsewhere in the
indenture, or which is included in the indenture solely for the
benefit of a different series of our debt securities, which
continues for 90 days after written notice from the trustee or
holders of 25% of the outstanding principal amount of the debt
securities of that series as provided in the
indenture;
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specified
events relating to our bankruptcy, insolvency or reorganization;
and
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any
other event of default with respect to debt securities of that
series established pursuant to the applicable supplemental
indenture.
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An
event of default with respect to one series of debt securities is
not necessarily an event of default for another
series.
If
there is an event of default with respect to a series of our debt
securities, which continues for the requisite amount of time,
either the trustee or holders of at least 25% of the aggregate
principal amount outstanding of that series may declare the
principal amount of all of the debt securities of that series to be
due and payable immediately, except that if an event of default
occurs due to bankruptcy, insolvency or reorganization as provided
in the applicable indenture, then the principal of and interest on
the debt securities shall become due and payable immediately
without any act by the trustee or any holder of debt securities. If
the securities were issued at an original issue discount, less than
the stated principal amount may become payable. However, at any
time after an acceleration with respect to debt
securities of
any series has occurred, but before a judgment or decree based on
such acceleration has been obtained, the holders of a majority in
principal amount of the outstanding debt securities of that series
may, under certain circumstances, rescind and annul such
acceleration.
The
holders of a majority in aggregate principal amount of the
outstanding debt securities of a series may, on behalf of the
holders of all debt securities of that series, waive any past
default or event of default and its consequences for that series,
except (1) a default in the payment of the principal, premium,
or interest with respect to those debt securities or (2) a
default with respect to a provision of the applicable indenture
that cannot be amended without the consent of each holder affected
by the amendment. In case of a waiver of a default, that default
shall cease to exist, and any event of default arising from that
default shall be deemed to have been cured for all purposes. The
holders of a majority in aggregate principal amount outstanding of
the debt securities of any series may also, on behalf of the
holders of all debt securities of that series, waive, with respect
to that series, our compliance with certain restrictive covenants
in the applicable indenture.
If
any event which is, or after notice or lapse of time or both would
become, an event of default (collectively referred to in this
paragraph as a default) occurs and is continuing with respect to
debt securities of a particular series and if it is known to any
specified responsible officer of the trustee, the trustee will mail
to each holder of such debt securities notice of such default
within 90 days after it occurs or, if later, after the trustee
obtains knowledge of such default. Except in the case of default in
the payment of principal, premium, or interest with respect to the
debt securities of that series or in the making of any sinking fund
payment with respect to the debt securities of that series, the
trustee may withhold such notice if and so long as the corporate
trust committee or a committee of specified responsible officers of
the trustee in good faith determines that withholding the notice is
in the interests of the holders of such debt
securities.
A
holder may institute a suit against us for enforcement of such
holder’s rights under the applicable indenture, for the appointment
of a receiver or trustee, or for any other remedy only if the
following conditions are satisfied:
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the
holder gives the trustee written notice of a continuing event of
default with respect to a series of our debt securities held by
that holder;
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holders of at
least 25% of the aggregate principal amount of the outstanding debt
securities of that series make a request, in writing, and offer
reasonable indemnity, to the trustee for the trustee to institute
the requested proceeding;
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the
trustee does not receive direction contrary to the holder’s request
from holders of a majority in aggregate principal amount of the
outstanding debt securities of that series within 60 days following
such notice, request and offer of indemnity under the terms of the
applicable indenture; and
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the
trustee does not institute the requested proceeding within 60 days
following such notice.
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The
indentures will require us to annually deliver to the trustee a
statement as to performance of our obligations under the indentures
and as to any defaults.
A
default in the payment of any of our debt securities, or a default
with respect to our debt securities that causes them to be
accelerated, may give rise to a cross-default under our other
indebtedness.
Satisfaction
and Discharge of the Indentures
An
indenture will generally cease to be of any further effect with
respect to a series of debt securities if:
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we
have delivered to the applicable trustee for cancellation all debt
securities of that series (with certain limited exceptions);
or
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all
debt securities of that series not previously delivered to the
trustee for cancellation have become due and payable, will become
due and payable within one year, or are to be called for redemption
within one year under arrangements satisfactory to the trustee, and
in any such case we have deposited with the trustee as
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trust funds the
entire amount sufficient to pay at maturity or upon redemption all
of the principal, premium and interest due with respect to those
debt securities;
and
if, in either case, we also pay or cause to be paid all other sums
payable under the applicable indenture by us and deliver to the
trustee an officers’ certificate and opinion of counsel stating
that all conditions precedent to the satisfaction and discharge of
the indenture have been complied with.
Legal
Defeasance and Covenant Defeasance
Any
series of our debt securities will be subject to the defeasance and
discharge provisions of the applicable indenture unless otherwise
specified in the applicable prospectus supplement. If those
provisions are applicable, we may elect either:
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legal
defeasance, which will permit us to defease and be discharged from,
subject to limitations, all of our obligations with respect to
those debt securities, including any subordination provisions;
or
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covenant
defeasance, which will permit us to be released from our
obligations to comply with certain covenants relating to those debt
securities as described in the applicable prospectus supplement,
which may include obligations concerning subordination of our
subordinated debt securities.
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If
we exercise our legal defeasance option with respect to a series of
debt securities, payment of those debt securities may not be
accelerated because of an event of default. If we exercise our
covenant defeasance option with respect to a series of debt
securities, payment of those debt securities may not be accelerated
because of an event of default related to the specified
covenants.
Unless
otherwise provided in the applicable prospectus supplement, we may
invoke legal defeasance or covenant defeasance with respect to any
series of our debt securities only if: with respect to debt
securities denominated in U.S. dollars, we irrevocably deposit with
the trustee, in trust, an amount in U.S. dollars, U.S. government
obligations (taking into account payment of principal and interest
thereon in accordance with their terms) or a combination thereof
which will provide money in an amount sufficient to pay, when due
upon maturity or redemption, as the case may be, the principal of,
premium, if any, and interest on those debt
securities;
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with respect to
debt securities denominated in a currency other than U.S. dollars,
we irrevocably deposit with the trustee, in trust, an amount in
such currency, obligations of the foreign government that issued
such currency (taking into account payment of principal, premium
and interest thereon in accordance with their terms) or a
combination thereof which will provide money in an amount
sufficient to pay, when due upon maturity or redemption, as the
case may be, the principal of, premium, if any, and interest on
those debt securities;
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we
deliver to the trustee a certificate from a nationally recognized
firm of independent accountants expressing their opinion that the
payments of principal, premium and interest when due on the
deposited U.S. government obligations or foreign government
obligations, as applicable, plus any deposited money will provide
cash at such times and in such amounts as will be sufficient to pay
the principal, premium, and interest when due with respect to all
the debt securities of that series to maturity or redemption, as
the case may be;
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no
event which is, or after notice or lapse of time would become, an
event of default under the indenture shall have occurred and be
continuing at the time of such deposit or, with regard to any
default relating to our bankruptcy, insolvency or reorganization,
at any time on or prior to the 90th day after such
deposit;
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the
deposit does not cause the trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all
securities under the indenture are in default within the meaning of
such Act);
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the
deposit is not a default under any other agreement binding on
us;
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such deposit
will not result in the trust arising from such deposit constituting
an investment company under the Investment Company Act of 1940, as
amended, unless such trust is registered under, or exempt from,
such Act;
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we
deliver to the trustee an opinion of counsel addressing certain
federal income tax matters relating to the defeasance;
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if
the securities are to be redeemed prior to the stated maturity
(other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given or
provision for such notice satisfactory to the trustee shall have
been made;
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with respect to
any series of subordinated debt securities, at the time of such
deposit, (1) no default in the payment of principal, premium
or interest with respect to any senior indebtedness shall have
occurred and be continuing, (2) no event of default shall have
resulted in any senior indebtedness becoming, and continuing to be,
due and payable prior to the date it would otherwise have become
due and payable (unless payment of such senior indebtedness has
been provided for), and (3) no other event of default shall
have occurred and be continuing which permits the holders thereof
to declare such indebtedness due and payable prior to the date it
would otherwise have become due and payable; and
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we
deliver to the trustee an officers’ certificate and an opinion of
counsel, each stating that all conditions precedent to the
defeasance and discharge of the debt securities of that series as
contemplated by the applicable indenture have been complied
with.
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Modification
and Waiver
We
and the trustee may enter into supplemental indentures for the
purpose of modifying or amending an indenture with the consent of
holders of at least a majority in aggregate principal amount of
each series of our outstanding debt securities affected. However,
unless otherwise provided in the applicable prospectus supplement,
the consent of all of the holders of our debt securities that are
affected thereby is required for any of the following modifications
or amendments:
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to
reduce the percentage in principal amount of debt securities of any
series whose holders must consent to a supplemental indenture, or
consent to any waiver of compliance with certain provisions of the
indenture, or consent to certain defaults under the indenture, in
each case as provided for in the indenture;
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to
reduce the rate of, or change the stated maturity of any
installment of, interest on any debt security;
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to
reduce the principal of or change the stated maturity of principal
of, or any installment of principal of or interest on, any debt
security or reduce the amount of principal of any original issue
discount security that would be due and payable upon declaration of
acceleration of maturity;
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to
reduce the premium payable upon the redemption of any debt
security;
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to
make any debt security, or any premium or interest thereon, payable
in a currency other than that stated in that debt
security;
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to
change any place of payment where any debt security or any premium
or interest thereon is payable;
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to
change the right to convert any debt security in accordance with
its terms;
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to
impair the right to bring a lawsuit for the enforcement of any
payment on or after the stated maturity of any debt security (or in
the case of redemption, on or after the date fixed for
redemption);
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to
modify the provisions of the indenture with respect to
subordination of debt securities in a manner adverse to any
registered holder of a debt security; or
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generally, to
modify any of the above provisions of the indenture or any
provisions providing for the waiver of past defaults or waiver of
compliance with certain covenants, except to increase the
percentage in
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principal
amount of debt securities of any series whose holders must consent
to an amendment or waiver, as applicable, or to provide that
certain other provisions of the indenture cannot be modified or
waived without the consent of the holder of each outstanding debt
security affected by the modification or waiver.
In
addition, we and the trustee with respect to an indenture may enter
into supplemental indentures without the consent of the holders of
debt securities for one or more of the following purposes (in
addition to any other purposes specified in an applicable
prospectus supplement):
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to
evidence that another person has become our successor and that the
successor assumes our covenants, agreements, and obligations in the
indenture and in the debt securities;
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to
surrender any of our rights or powers under the indenture, or to
add to our covenants further covenants for the protection of the
holders of all or any series of debt securities;
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to
add any additional events of default for the benefit of the holders
of all or any series of debt securities;
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to
cure any ambiguity, to correct or supplement any provision in the
indenture that may be defective or inconsistent with any other
provision in the indenture, or to make other provisions in regard
to matters or questions arising under the indenture;
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to
add to or change any of the provisions of the indenture as
necessary to permit or facilitate the issuance of debt securities
in bearer form, registrable or not registrable as to principal, and
with or without interest coupons, or to permit or facilitate the
issuance of debt securities in uncertificated form;
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to
secure the debt securities;
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to
add to, change, or eliminate any of the provisions of the indenture
with respect to one or more series of debt securities, so long as
the addition, change, or elimination not otherwise permitted under
the indenture will (1) neither apply to any debt security of
any series created before the execution of the supplemental
indenture and entitled to the benefit of that provision nor modify
the rights of the holders of that debt security with respect to
that provision or (2) become effective only when there are no
debt securities of that series outstanding;
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to
evidence and provide for the acceptance of appointment by a
successor or separate trustee with respect to the debt securities
of one or more series and to add to or change any of the provisions
of the indenture as necessary to provide for the administration of
the indenture by more than one trustee;
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with respect to
the subordinated indenture, to add to, change or eliminate any of
the subordination provisions in the indenture or change the
definition of “senior indebtedness” in respect of one or more
series of debt securities, provided that any such addition, change
or elimination does not adversely affect the interests of the
holders of outstanding debt securities in any material
respect;
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to
establish the form or terms of debt securities of any series;
and
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to
make provisions with respect to the conversion rights of holders,
including providing for the conversion of debt securities of any
series into any security or securities of ours.
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Certain
Covenants
In
addition to such other covenants, if any, as may be described in
the accompanying prospectus supplement and/or free writing
prospectus and except as may be otherwise set forth in the
accompanying prospectus supplement and/or free writing prospectus,
the indenture will require us, subject to certain limitations
described therein, to, among other things, do the
following:
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deliver to the
trustee all information, documents and reports required to be filed
by us with the SEC under Section 13 or 15(d) of the Exchange
Act, within 15 days after the same is filed with the
SEC;
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deliver to the
trustee annual officers’ certificates with respect to our
compliance with our obligations under the indenture;
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maintain the
existence, rights and franchises of us and our significant
subsidiaries (as defined in Rule 1-02 of Regulation S-X under the
Securities Act), except to the extent our board of directors
determines that the preservation thereof is no longer desirable in
the conduct of our business and that the loss thereof is not
adverse in any material respect to the holders of the debt
securities; and
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pay, and cause
our significant subsidiaries to pay, our and their taxes,
assessments and government levies when due, except to the extent
the same is being contested in good faith by appropriate
proceedings.
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Notice of
Redemption
Notice of any
redemption of debt securities will be mailed at least 15 days but
not more than 60 days before the redemption date to each holder of
debt securities of a series to be redeemed. Any notice may, at our
discretion, be subject to the satisfaction or waiver of one or more
conditions precedent. In that case, such notice shall state the
nature of such condition precedent. If we elect to redeem a portion
but not all of such debt securities, the trustee will select the
debt securities to be redeemed in accordance with a method
determined by Danaher, in such manner as complies with applicable
legal and stock exchange requirements, if any. Interest on such
debt securities or portions of debt securities will cease to accrue
on and after the date fixed for redemption, unless Danaher defaults
in the payment of such redemption price and accrued interest with
respect to any such security or portion thereof.
If
any date of redemption of any security is not a business day, then
payment of principal and interest may be made on the next
succeeding business day with the same force and effect as if made
on the nominal date of redemption and no interest will accrue for
the period after such nominal date.
Covenants in
the Senior Indenture
You
can find the definitions of certain terms used in this description
under the subheading “Certain Definitions.”
Limitation
on Secured Debt
Unless
otherwise provided in the applicable prospectus supplement and/or
free writing prospectus, we will not, and will not permit any
Subsidiary to, create, assume, or guarantee any Secured Debt
without making effective provision for securing the senior debt
securities equally and ratably with such Secured Debt. This
covenant does not apply to debt secured by:
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purchase money
mortgages created to secure payment for the acquisition or
construction of any property including, but not limited to, any
indebtedness incurred by us or a Subsidiary prior to, at the time
of, or within 180 days after the later of the acquisition, the
completion of construction (including any improvements on an
existing property) or the commencement of commercial operation of
such property, which indebtedness is incurred for the purpose of
financing all or any part of the purchase price of such property or
construction or improvements on such property;
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mortgages,
pledges, liens, security interest or encumbrances (collectively
referred to as security interests) on property, or any conditional
sales agreement or any title retention with respect to property,
existing at the time of acquisition thereof, whether or not assumed
by us or a Subsidiary;
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security
interests on property or shares of capital stock or indebtedness of
any corporation or firm existing at the time such corporation or
firm becomes a Subsidiary;
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security
interests in property or shares of capital stock or indebtedness of
a corporation existing at the time such corporation is merged into
or consolidated with us or a Subsidiary or at the time of a sale,
lease, or other disposition of the properties of a corporation or
firm as an entirety or substantially as an entirety to us or a
Subsidiary, provided that no such security interests shall extend
to any other Principal Property of ours or such Subsidiary prior to
such acquisition or to other Principal Property thereafter acquired
other than additions or improvements to the acquired
property;
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security
interests on our property or property of a Subsidiary in favor of
the United States of America or any state thereof, or in favor of
any other country, or any department, agency, instrumentality or
political subdivision thereof (including, without limitation,
security interests to secure indebtedness of the pollution control
or industrial revenue type) in order to permit us or any Subsidiary
to perform a contract or to secure indebtedness incurred for the
purpose of financing all or any part of the purchase price for the
cost of constructing or improving the property subject to such
security interests or which is required by law or regulation as a
condition to the transaction of any business or the exercise of any
privilege, franchise or license;
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security
interests on any property or assets of any Subsidiary to secure
indebtedness owing by it to us or to another
Subsidiary;
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any
mechanics’, materialmen’s, carriers’ or other similar lien arising
in the ordinary course of business, including construction of
facilities, in respect of obligations that are not yet due or that
are being contested in good faith;
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any
security interest for taxes, assessments or government charges or
levies not yet delinquent, or already delinquent, but the validity
of which is being contested in good faith;
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any
security interest arising in connection with legal proceedings
being contested in good faith, including any judgment lien so long
as execution thereof is being stayed;
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landlords’
liens on fixtures located on premises leased by us or a Subsidiary
in the ordinary course of business; or
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any
extension, renewal or replacement, or successive extensions,
renewals or replacements, in whole or in part, of any security
interest referred to in the foregoing bullets.
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Limitation
on Sale and Leaseback Transactions
Unless
otherwise provided in the applicable prospectus supplement and/or
free writing prospectus, the senior indenture provides that we will
not, and will not permit any Subsidiary to, enter any lease longer
than three years (excluding leases of newly acquired, improved or
constructed property) covering any Principal Property of ours or
any Subsidiary that is sold to any other person in connection with
such lease (a “Sale and Leaseback Transaction”), unless
either:
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we
or such Subsidiary would be entitled, without equally and ratably
securing the senior debt securities, to incur Indebtedness secured
by a mortgage on the Principal Property leased pursuant to any of
the bullets referenced above under “—Limitation on Secured Debt,”
or
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an
amount equal to the value of the Principal Property so leased is
applied to the retirement, within 120 days of the effective date of
such arrangement, of indebtedness for borrowed money incurred or
assumed by us or a Subsidiary which is recorded as Funded Debt as
shown on our most recent consolidated balance sheet and which in
the case of such Indebtedness of ours, is not subordinate and
junior in right of payment to the prior payment of the senior debt
securities.
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Exempted
Indebtedness
Notwithstanding
the limitations on Secured Debt and Sale and Leaseback Transactions
described above, we and any one or more Subsidiaries may, without
securing the senior debt securities, issue, assume, or guarantee
Secured Debt or enter into any Sale and Leaseback Transaction which
would otherwise be subject to the foregoing restrictions, provided
that, after giving effect thereto, the aggregate amount of such
Secured Debt then outstanding (not including Secured Debt permitted
under the foregoing exceptions) and the Attributable Debt of Sale
and Leaseback Transactions, other than Sale and Leaseback
Transactions described in either bullet of the preceding paragraph,
at such time does not exceed 15% of Consolidated Net
Assets.
Certain
Definitions
Set
forth below are certain defined terms used in the senior indenture.
Reference is made to the senior indenture for a complete definition
of these terms, as well as any other capitalized terms used herein
for which no definition is provided. Unless otherwise provided in
the applicable prospectus supplement, the following terms will mean
as follows for purposes of covenants that may be applicable to any
particular series of senior debt securities.
The
term “Attributable Debt,” in respect of a Sale and Leaseback
Transaction, means, as of any particular time, the present value
(discounted at the rate of interest implicit in the lease involved
in such Sale and Leaseback Transaction, as determined in good faith
by us) of the obligation of the lessee thereunder for rental
payments (excluding, however, any amounts required to be paid by
such lessee, whether or not designated as rent or additional rent,
on account of maintenance and repairs, insurance, taxes,
assessments, water rates or similar charges or any amounts required
to be paid by such lessee thereunder contingent upon the amount of
sales, maintenance and repairs, insurance, taxes, assessments,
water rates or similar charges) during the remaining term of such
lease (including any period for which such lease has been extended
or may, at the option of the lessor, be extended).
The
term “Consolidated Assets” means the aggregate of all assets of us
and our Subsidiaries (including the value of all existing Sale and
Leaseback Transactions and any assets resulting from the
capitalization of other long-term lease obligations in accordance
with generally accepted accounting principles in the United States
(GAAP)), appearing on the most recent available consolidated
balance sheet of us and our Subsidiaries at their net book values,
after deducting related depreciation, amortization and other
valuation reserves, all prepared in accordance with
GAAP.
The
term “Consolidated Current Liabilities” means the aggregate of the
current liabilities of us and our Subsidiaries appearing on the
most recent available consolidated balance sheet of us and our
Subsidiaries, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of us and
our Subsidiaries issued under a revolving credit or similar
agreement if the obligation issued under such agreement matures by
its terms within twelve months from the date thereof but by the
terms of such agreement such obligation may be renewed or extended
or the amount thereof reborrowed or refunded at our option or the
option of any Subsidiary for a term in excess of twelve months from
the date of determination.
The
term “Consolidated Net Assets” means Consolidated Assets after
deduction of Consolidated Current Liabilities.
The
term “Funded Debt” means all indebtedness for money borrowed having
a maturity of more than twelve months from the date of the most
recent consolidated balance sheet of us and our Subsidiaries or
renewable and extendable beyond twelve months at the option of the
borrower and all obligations in respect of lease rentals which
under GAAP would be required to be accounted for as finance leases
on Danaher’s consolidated balance sheet; provided, however, that
Funded Debt shall not include any of the foregoing to the extent
that such indebtedness or obligations are not required by GAAP to
be shown on our balance sheet.
The
term “Principal Property” means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but
excluding leases and other contract rights which might otherwise be
deemed real property) owned by us or any Subsidiary, whether owned
on the date of the indenture or thereafter, provided each such
plant, warehouse, office building or parcel of real property has a
gross book value (without deduction for any depreciation reserves)
at the date as of which the determination is being made of in
excess of two percent of the Consolidated Net Assets of us and our
Subsidiaries, other than any such plant, warehouse, office building
or parcel of real property or portion thereof which, in the opinion
of our board of directors (evidenced by a certified board
resolution delivered to the trustee), is not of material importance
to the business conducted by us and our Subsidiaries taken as a
whole.
The
term “Secured Debt” means Indebtedness for borrowed money and any
Funded Debt which, in each case, is secured by a security interest
in:
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any
Principal Property, or
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any
shares of capital stock or Indebtedness of any Subsidiary that owns
a Principal Property.
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The
term “Subsidiary” means any corporation or other entity (including,
without limitation, partnerships, joint ventures and associations)
of which at least a majority of the outstanding stock having by the
terms thereof ordinary
voting power
for the election of directors of such corporation or other entity
(irrespective of whether or not at the time the stock of any other
class or classes of such corporation shall have or might have
voting power by reason of the happening of any such contingency) is
at the time directly or indirectly owned by Danaher, or by one or
more Subsidiaries of Danaher, or by Danaher and one or more other
Subsidiaries.
Consolidation,
Merger and Sale of Assets
Unless
otherwise provided in the applicable prospectus supplement, our
indentures prohibit us from consolidating with or merging into
another business entity, or conveying, transferring or leasing our
properties and assets substantially as an entirety to any business
entity, unless:
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the
surviving or acquiring entity is a U.S. corporation, limited
liability company, partnership or trust, and it expressly assumes
our obligations with respect to outstanding debt securities by
executing a supplemental indenture;
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immediately
after giving effect to the transaction, no event of default, or
event which, after notice or lapse of time or both, would become an
event of default, shall have happened and be continuing;
and
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we
have delivered to the trustee an officers’ certificate and an
opinion of counsel, each stating that the consolidation, merger,
conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental
indenture, comply with the indenture and all conditions precedent
relating to such transaction have been complied with.
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Conversion
Rights
We
will describe the terms upon which debt securities may be
convertible into our common stock or other securities in a
prospectus supplement. These terms will include the type of
securities the debt securities are convertible into, the conversion
price or manner of calculation thereof, the conversion period,
provisions as to whether conversion will be at our option or the
option of the holders, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event
of the redemption of the debt securities and any restrictions on
conversion. They may also include provisions adjusting the number
of shares of our common stock or other securities issuable upon
conversion.
Denomination
Normally, we
will denominate and make payments on debt securities in U.S.
dollars. If we issue debt securities denominated, or with payments,
in a foreign or composite currency, a prospectus supplement will
specify the currency or composite currency. Except as may be
provided otherwise in the applicable prospectus supplement and/or
free writing prospectus, we will issue registered securities in
denominations of $1,000 or integral multiples of
$1,000.
Our
Trustee
Unless stated
in the applicable prospectus supplement, (i) the trustee may
also be the trustee under any other indenture for debt securities
and (ii) any trustee or its affiliates may lend money to us
and/or may from time to time have other business arrangements with
us. If and when the trustee becomes a creditor of ours, the trustee
will be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against us.
Governing
Law
The
indentures and the debt securities will be governed by the laws of
the State of New York.
DESCRIPTION
OF DANAHER INTERNATIONAL AND DANAHER INTERNATIONAL II DEBT
SECURITIES
This section
describes the general terms and provisions of the debt securities
that Danaher International or Danaher International II may offer
from time to time in the form of one or more series of debt
securities. The applicable prospectus supplement and/or free
writing prospectus will describe the specific terms of the debt
securities offered through that prospectus supplement, as well as
any general terms described in this section that will not apply to
those debt securities. As used in this section, “debt securities”
means the senior debentures, notes, bonds and other evidences of
indebtedness that Danaher International or Danaher International II
issues and a trustee authenticates and delivers under the
applicable indenture. As used in this “Description of Danaher
International Debt Securities,” the term “Danaher International,”
refers to DH Europe Finance S.à r.l. (formerly known as DH Europe
Finance S.A.) and the term “Danaher International II” refers to DH
Europe Finance S.à r.l. References to an “issuer,” “we,” “our” and
“us” refer to either Danaher International or Danaher International
II, as applicable, and references to “Danaher” refer to Danaher
Corporation and do not, unless the context otherwise indicates,
include Danaher’s subsidiaries.
Debt securities
issued by Danaher International will be issued under an indenture
dated July 8, 2015 by and among Danaher Corporation, as
guarantor, DH Europe Finance S.à r.l. (formerly known as DH Europe
Finance S.A.), as issuer, and the Bank of New York Mellon Trust
Company, N.A., as trustee, as supplemented by a third supplemental
indenture dated July 1, 2019 between DH Europe Finance S.à
r.l. and The Bank of New York Mellon Trust Company, N.A., as
trustee, each of which has been filed as an exhibit to the
registration statement of which this prospectus is a part and is
incorporated by reference into this prospectus, subject to such
amendments or supplemental indentures as are adopted, from time to
time. This indenture is referred to in this section as the “Danaher
International indenture.” Debt securities issued by Danaher
International II will be issued under an indenture to be entered
into by and among Danaher Corporation, as guarantor, DH Europe
Finance II S.à r.l., as issuer, and the Bank of New York Mellon
Trust Company, N.A., as trustee, the form of which has been filed
as an exhibit to the registration statement of which this
prospectus is a part and is incorporated by reference into this
prospectus, subject to such amendments or supplemental indentures
as are adopted, from time to time. This indenture is referred to in
this section as the “Danaher International II indenture.” Each of
the Danaher International indenture and the Danaher International
II indenture is referred to as an “indenture” and collectively as
the “indentures.” The following summaries of certain provisions of
the indentures and the debt securities are not complete and the
summaries are subject to the detailed provisions of the indentures.
You should refer to the applicable indenture for more specific
information. In addition, you should consult the applicable
prospectus supplement and/or free writing prospectus for particular
terms of the debt securities.
The
indentures will not limit the aggregate principal amount of debt
securities that we may issue, and will permit us to issue
securities from time to time in one or more series. The indentures
do not contain any provisions that would limit Danaher’s or either
issuer’s ability to incur indebtedness or that would afford holders
of debt securities protection in the event of a highly leveraged or
similar transaction involving Danaher and/or the applicable issuer.
However, the indentures do restrict Danaher and its subsidiaries,
including the issuers, from granting certain security interests on
certain property or assets of Danaher and/or its subsidiaries
unless the debt securities are equally secured. See “—Covenants in
the Indentures” below.
The
debt securities will be unsecured obligations of Danaher
International or Danaher International II, as applicable, and will
be fully and unconditionally guaranteed by Danaher. Payment of the
principal of, premium, if any, and interest on debt securities will
rank equally with all of the applicable issuer’s other unsecured
and unsubordinated debt. Each of Danaher International and Danaher
International II is a finance subsidiary of Danaher that conducts
no independent operations of its own other than financing
activities, and Danaher is a holding company that conducts
substantially all of its operations through its subsidiaries, and,
as a result, the holders of debt securities will be effectively
subordinated to the creditors of Danaher’s subsidiaries. This means
that all claims of creditors (including trade creditors) of
Danaher’s other subsidiaries will have priority with respect to the
assets of such subsidiaries over Danaher’s claims (and therefore
the claims of its creditors, including holders of debt securities
guaranteed by Danaher).
The
applicable prospectus supplement and/or free writing prospectus
will describe the following terms of any series of debt securities
that Danaher International or Danaher International II may
offer:
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the
title and type of the debt securities;
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any
limit on the aggregate principal amount of the debt
securities;
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the
person who will receive interest payments on any debt securities if
other than the registered holder;
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the
price or prices at which we will sell the debt
securities;
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the
maturity date or dates of the debt securities;
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the
rate or rates, which may be fixed or variable, per annum at which
the debt securities will bear interest and the date from which such
interest will accrue;
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the
dates on which interest will be payable and the related record
dates;
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whether any
index, formula or other method will determine payments of
principal, premium or interest and the manner of determining the
amount of such payments;
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whether the
debt securities will be guaranteed by any person other than Danaher
and, if so, the identity of the person and the terms and conditions
upon which the debt securities will be guaranteed;
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the
place or places of payments on the debt securities;
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whether the
debt securities are redeemable;
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any
redemption dates, prices, obligations and restrictions on the debt
securities;
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any
mandatory or optional sinking fund or purchase fund or analogous
provisions;
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the
denominations of the debt securities if other than $1,000 or
multiples of $1,000;
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the
currency of principal and interest payments if other than U.S.
dollars, and the manner of determining the equivalent thereof in
U.S. dollars for any purpose under the applicable
indenture;
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if
the principal of or any premium or interest on any debt securities
of any series is payable, at our election or the election of the
holder, in one or more currencies other than that in which such
debt securities are stated to be payable, the currency or
currencies in which such principal, premium or interest shall be
payable and other terms and conditions regarding such
payment;
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the
amount that we will pay the holder if the maturity of the debt
securities is accelerated, if other than their principal
amount;
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the
amount that will be deemed to be the principal amount of the debt
securities as of a particular date before maturity if the principal
amount payable at the stated maturity date will not be able to be
determined on that date;
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the
applicability of the legal defeasance and covenant defeasance
provisions in the applicable indenture;
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if
the debt securities will be issued in the form of one or more
book-entry securities, the name of the depositary or its nominee
and the circumstances under which the book-entry security may be
transferred or exchanged to someone other than the depositary or
its nominee;
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any
provisions granting special rights if certain events
happen;
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any
deletions from, changes in or additions to the events of default or
the covenants specified in the applicable indenture, or to the
right of the trustee or the requisite holders of such securities to
declare the principal amount of such securities due and
payable;
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any
trustees, authenticating or paying agents, transfer agents,
registrars or other agents for the debt securities;
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any
conversion or exchange features of the debt
securities;
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whether we will
issue the debt securities as original issue discount securities for
federal income tax purposes;
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any
special tax implications of the debt securities;
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the
terms of payment upon acceleration; and
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any
other material terms of the debt securities not inconsistent with
the provisions of the applicable indenture.
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Debt securities
may bear interest at fixed or floating rates. We may issue debt
securities at an original issue discount, bearing no interest or
bearing interest at a rate that, at the time of issuance, is below
market rate, to be sold at a substantial discount below their
stated principal amount. Generally speaking, if debt securities are
issued at an original issue discount and there is an event of
default or acceleration of their maturity, holders will receive an
amount less than the stated principal amount of the debt
securities. Tax and other special considerations applicable to any
series of debt securities, including original issue discount
securities, will be described in the prospectus supplement in which
we offer those debt securities.
We
will have the ability under the indentures to reopen a previously
issued series of debt securities and issue additional debt
securities of that series or establish additional terms of the
series. We are also permitted to issue debt securities with the
same terms as previously issued debt securities.
We
will comply with Section 14(e) under the Exchange Act and any
other tender offer rules under the Exchange Act that may then apply
to any obligation we may have to purchase debt securities at the
option of the holders. Any such obligation applicable to a series
of debt securities will be described in the related prospectus
supplement.
Guarantee
Danaher will
fully and unconditionally guarantee the due and punctual payment of
principal of and premium, if any, and interest on the debt
securities on a senior unsecured basis, when and as the same become
due and payable, whether on a maturity date, by declaration of
acceleration, upon redemption, repurchase or otherwise, and all
other obligations of Danaher International or Danaher International
II under the applicable indenture.
Redemption
Upon Changes in Withholding Taxes
Unless
otherwise provided in the applicable prospectus supplement, Danaher
International or Danaher International II may redeem all, but not
less than all, of the debt securities of any series under the
following conditions:
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If
there is an amendment to, or change in, the laws, regulations or
rulings of Luxembourg or the United States, as applicable, or any
political subdivision thereof or therein having the power to tax (a
“Taxing Jurisdiction”), or any change in the application or
official interpretation of such laws, including any action taken
by, or a change in published administrative practice of, a taxing
authority or a holding by a court of competent jurisdiction,
regardless of whether such action, change or holding is with
respect to Danaher International, Danaher International II or
Danaher;
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As
a result of such amendment or change, Danaher International,
Danaher International II or Danaher becomes, or there is a material
probability that Danaher International, Danaher International II or
Danaher will become, obligated to pay Additional Amounts as defined
below in “Payment of Additional Amounts,” on the next payment date
with respect to the debt securities of such series;
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The
obligation to pay Additional Amounts cannot be avoided through
Danaher International’s, Danaher International II’s or Danaher’s
commercially reasonable measures;
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Danaher
International or Danaher International II delivers to the
trustee:
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a
certificate of Danaher International, Danaher International II or
Danaher, as the case may be, stating that the obligation to pay
Additional Amounts cannot be avoided by Danaher International,
Danaher International II or Danaher as the case may be, taking
commercially reasonable measures available to it; and
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a
written opinion of independent tax counsel to Danaher
International, Danaher International II or Danaher, as the case may
be, of recognized standing to the effect that Danaher
International, Danaher International II or Danaher, as the case may
be, has, or there is a material probability that it will become
obligated, to pay Additional Amounts as a result of a change,
amendment, official interpretation or application described above
and that Danaher International, Danaher International II or
Danaher, as the case may be, cannot avoid the payment of such
Additional Amounts by taking commercially reasonable measures
available to it; and
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Following the
delivery of the certificate and opinion described in the previous
bullet point, Danaher International or Danaher International II
provides notice of redemption not less than 15 days, but not more
than 60 days, prior to the date of redemption. The notice of
redemption cannot be given more than 60 days before the earliest
date on which Danaher International, Danaher International II or
Danaher would otherwise be, or there is a material probability that
it would otherwise be, required to pay Additional
Amounts.
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Upon the
occurrence of each of the bullet points above, Danaher
International or Danaher International II may redeem the debt
securities of such series at a redemption price equal to 100% of
the principal amount thereof, together with accrued and unpaid
interest, if any, to the redemption date.
Notice of
Redemption
Notice of any
redemption will be mailed at least 15 days but not more than 60
days before the redemption date to each holder of debt securities
of a series to be redeemed. Any notice may, at our discretion, be
subject to the satisfaction or waiver of one or more conditions
precedent. In that case, such notice shall state the nature of such
condition precedent. If Danaher International or Danaher
International II elects to redeem a portion but not all of such
debt securities, the trustee will select the debt securities to be
redeemed in accordance with a method determined by Danaher
International or Danaher International II, in such manner as
complies with applicable legal and stock exchange requirements, if
any. Interest on such debt securities or portions of debt
securities will cease to accrue on and after the date fixed for
redemption, unless Danaher International or Danaher International
II, as the case may be, defaults in the payment of such redemption
price and accrued interest with respect to any such security or
portion thereof.
If
any date of redemption of any security is not a business day, then
payment of principal and interest may be made on the next
succeeding business day with the same force and effect as if made
on the nominal date of redemption and no interest will accrue for
the period after such nominal date.
Payment of
Additional Amounts
Unless
otherwise required by law, none of Danaher International, Danaher
International II nor Danaher will deduct or withhold from payments
made by Danaher International, Danaher International II or Danaher
under or with respect to the debt securities and the guarantees on
account of any present or future taxes, duties, levies, imposts,
assessments or governmental charges of whatever nature imposed or
levied by or on behalf of any Taxing Jurisdiction (“Taxes”). In the
event that Danaher International, Danaher International II or
Danaher is required to withhold or deduct any amount for or on
account of any Taxes from any payment made under or with respect to
any debt securities or guarantee, as the case may be, Danaher
International, Danaher International II or Danaher, as the case may
be, will pay such additional amounts (“Additional Amounts”) so that
the net amount received by each
holder of debt
securities (including Additional Amounts) after such withholding or
deduction will equal the amount that such holder would have
received if such Taxes had not been required to be withheld or
deducted. Additional Amounts will not be payable with respect to a
payment made to a holder of debt securities or a holder of
beneficial interests in global securities where such holder is
subject to taxation on such payment by a relevant Taxing
Jurisdiction for any reason other than such holder’s mere ownership
of the securities or for or on account of:
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any
Taxes that are imposed or withheld solely because such holder or a
fiduciary, settlor, beneficiary, or member of such holder if such
holder is an estate, trust, partnership, limited liability company
or other fiscally transparent entity, or a person holding a power
over an estate or trust administered by a fiduciary
holder:
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is
or was present or engaged in, or is or was treated as present or
engaged in, a trade or business in the Taxing Jurisdiction or has
or had a permanent establishment in the Taxing
Jurisdiction;
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has
or had any present or former connection (other than the mere fact
of ownership of such securities) with the Taxing Jurisdiction
imposing such taxes, including being or having been a national
citizen or resident thereof, being treated as being or having been
a resident thereof or being or having been physically present
therein;
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with respect to
any withholding taxes imposed by the United States, is or was with
respect to the United States a personal holding company, a passive
foreign investment company, a controlled foreign corporation, a
foreign private foundation or other foreign tax-exempt organization
or corporation that has accumulated earnings to avoid United States
federal income tax;
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actually or
constructively owns or owned 10% or more of the total combined
voting power of all classes of stock of Danaher International or
Danaher within the meaning of section 871(h)(3) of the U.S.
Internal Revenue Code of 1986, as amended (the “Code”);
or
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is
or was a bank receiving payments on an extension of credit made
pursuant to a loan agreement entered into in the ordinary course of
its trade or business within the meaning of section 881(c)(3) of
the Code;
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any
estate, inheritance, gift, sales, transfer, excise, personal
property or similar Taxes imposed with respect to the securities,
except as otherwise provided in the applicable
indenture;
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any
Taxes imposed or withheld solely as a result of the failure of such
holder or any other person to comply with applicable certification,
information, documentation or other reporting requirements
concerning the nationality, residence, identity or connection with
the Taxing Jurisdiction of such holder, if such compliance is
required by statute, regulation, ruling or administrative practice
of the relevant Taxing Jurisdiction or by any applicable tax treaty
to which the relevant Tax Jurisdiction is a party as a precondition
to relief or exemption from such Taxes;
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any
Taxes imposed solely as a result of the presentation of such
securities (where presentation is required) for payment on a date
more than 30 days after the date on which such payment became due
and payable or the date on which payment thereof is duly provided
for, whichever is later, except to the extent that the beneficiary
or holder thereof would have been entitled to the payment of
Additional Amounts had the securities been presented for payment on
any date during such 30-day period;
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with respect to
withholding Taxes imposed by the United States, any such Taxes
imposed by reason of the failure of such holder to fulfill the
statement requirements of sections 871(h) or 881(c) of the
Code;
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any
Taxes that are payable by any method other than withholding or
deduction by Danaher International, Danaher International II or
Danaher or any paying agent from payments in respect of such
securities;
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any
Taxes required to be withheld by any paying agent from any payment
in respect of any securities if such payment can be made without
such withholding by at least one other paying agent;
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any
Taxes required to be deducted or withheld pursuant to the European
Council Directive 2003/48/EC of June 3, 2003, European Council
Directive 2014/48 EU of March 14, 2014, or any other directive
implementing the conclusions of the ECOFIN Council meeting of
November 26 and 27, 2000, on the taxation of savings income in
the form of interest payments (or any amendment thereof), or any
law implementing or complying with, or introduced in order to
conform to, that Directive (or the Luxembourg Law of
December 23, 2005 (as amended));
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any
withholding or deduction for Taxes which would not have been
imposed if the relevant Securities had been presented to another
paying agent in a Member State of the European Union;
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any
withholding or deduction required pursuant to sections 1471 through
1474 of the Code, any regulations or agreements thereunder,
official interpretations thereof or any law, rule, guidance or
administrative practice implementing an intergovernmental agreement
entered into in connection with such sections of the Code;
or
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any
combination of the above conditions.
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Additional
Amounts also will not be payable to any holder of securities or the
holder of a beneficial interest in a global security that is a
fiduciary, partnership, limited liability company or other fiscally
transparent entity, or to such holder that is not the sole holder
of such security or holder of such beneficial interests in such
security, as the case may be. The exception, however, will apply
only to the extent that a beneficiary or settlor with respect to
the fiduciary, or a beneficial owner or member of the partnership,
limited liability company or other fiscally transparent entity
would not have been entitled to the payment of an Additional Amount
had the beneficiary, settlor, beneficial owner or member received
directly its beneficial or distributive share of the
payment.
Each of Danaher
International, Danaher International II and Danaher, as applicable,
also:
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will make such
withholding or deduction of Taxes;
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will remit the
full amount of Taxes so deducted or withheld to the relevant Taxing
Jurisdiction in accordance with all applicable laws;
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will use its
commercially reasonable efforts to obtain from each Taxing
Jurisdiction imposing such Taxes certified copies of tax receipts
evidencing the payment of any Taxes so deducted or withheld;
and
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upon request,
will make available to the holders of the debt securities, within
90 days after the date the payment of any Taxes deducted or
withheld is due pursuant to applicable law, certified copies of tax
receipts evidencing such payment by Danaher International, Danaher
International II or Danaher or if, notwithstanding Danaher
International’s, Danaher International II’s or Danaher’s efforts to
obtain such receipts, the same are not obtainable, other evidence
of such payments.
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At
least 30 days prior to each date on which any payment under or with
respect to the debt securities of a series or guarantees is due and
payable, if Danaher International, Danaher International II or
Danaher will be obligated to pay Additional Amounts with respect to
such payment, Danaher International, Danaher International II or
Danaher will deliver to the trustee an offices’ certificate stating
the fact that such Additional Amounts will be payable, the amounts
so payable and such other information as is necessary to enable the
trustee to pay such Additional Amounts to holders of such debt
securities on the payment date.
In
addition, Danaher International or Danaher International II, as
applicable, will pay any stamp, issue, registration, documentary or
other similar taxes and duties, including interest, penalties and
Additional Amounts with respect thereto, payable in Luxembourg or
the United States or any political subdivision or taxing authority
of or in the foregoing in respect of the creation, issue, offering,
enforcement, redemption or retirement of the debt
securities.
The
foregoing provisions shall survive any termination or the discharge
of each indenture and shall apply to any jurisdiction in which
Danaher International, Danaher International II or Danaher or any
successor to Danaher International, Danaher International II or
Danaher, as the case may be, is organized or is engaged in business
for tax
purposes or any
political subdivisions or taxing authority or agency thereof or
therein (and the term Taxing Jurisdiction shall include such
jurisdictions, political subdivisions, taxing authority or
agency).
Whenever in an
indenture, any debt securities, any guarantee or in this
“Description of Danaher International and Danaher International II
Debt Securities” there is mentioned, in any context, the payment of
principal, premium, if any, redemption price, interest or any other
amount payable under or with respect to any debt securities, such
mention includes the payment of Additional Amounts to the extent
payable in the particular context.
Payment and
Paying Agents
Unless the
applicable prospectus supplement indicates otherwise, payment of
interest on a debt security (other than a bearer debt security) on
any interest payment date will be made to the person in whose name
such debt security is registered at the close of business on the
regular record date for such interest payment.
Generally, we
will pay the principal of, premium, if any, and interest on our
registered debt securities either at the office of the paying agent
designated by us in the applicable prospectus supplement or, if we
elect, we may pay interest by mailing a check to your address as it
appears on our register or by wire transfer to an account
maintained by the person entitled thereto as specified in the
securities register. We may at any time designate additional paying
agents or rescind the designation of any paying agent or approve a
change in the office through which any paying agent acts, except
that we will be required to maintain a paying agent in each place
of payment for the debt securities of a particular
series.
All
moneys paid by us or Danaher to a paying agent or the trustee, or
held, for the payment of the principal of or any premium or
interest on any debt security which remain unclaimed at the end of
two years after such principal, premium or interest has become due
and payable will be repaid to us, or discharged from trust, and the
holder of such debt security shall thereafter, as an unsecured
general creditor, look only to us for payment thereof, subject to
applicable escheat laws.
Events of
Default
Except as may
be provided otherwise in a prospectus supplement, any of the
following events will constitute an event of default for a series
of debt securities under each indenture:
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failure to pay
interest on our debt securities of that series for 30 days past the
applicable due date;
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failure to pay
principal of, or premium, if any, on our debt securities of that
series when due (whether at maturity, upon acceleration or
otherwise);
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failure to
deposit any sinking fund payment on debt securities of that series
when due;
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failure to
perform, or breach of, any other covenant, agreement or warranty
for the benefit of the holders of the debt securities in such
indenture, other than a covenant, agreement or warranty a default
in whose performance or breach is dealt with elsewhere in such
indenture, or which is included in such indenture solely for the
benefit of a different series of our debt securities, which
continues for 90 days after written notice from the trustee or
holders of 25% of the outstanding principal amount of the debt
securities of that series as provided in such
indenture;
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specified
events relating to an issuer’s or Danaher’s bankruptcy, insolvency
or reorganization;
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the
guarantee of the obligations under the debt securities is
determined in a final, non-appealable judgment to be unenforceable
or invalid or such guarantee is asserted in writing by Danaher
International, Danaher International II or Danaher to no longer be
in full force and effect and enforceable in accordance with its
terms; and
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any
other event of default with respect to debt securities of that
series established pursuant to the applicable supplemental
indenture.
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An
event of default with respect to one series of debt securities is
not necessarily an event of default for another
series.
If
there is an event of default with respect to a series of our debt
securities, which continues for the requisite amount of time,
either the trustee or holders of at least 25% of the aggregate
principal amount outstanding of that series may declare the
principal amount of all of the debt securities of that series to be
due and payable immediately, except that if an event of default
occurs due to bankruptcy, insolvency or reorganization as provided
in the applicable indenture, then the principal of and interest on
the debt securities shall become due and payable immediately
without any act by the trustee or any holder of debt securities. If
the securities were issued at an original issue discount, less than
the stated principal amount may become payable. However, at any
time after an acceleration with respect to debt securities of any
series has occurred, but before a judgment or decree based on such
acceleration has been obtained, the holders of a majority in
principal amount of the outstanding debt securities of that series
may, under certain circumstances, rescind and annul such
acceleration.
The
holders of a majority in aggregate principal amount of the
outstanding debt securities of a series may, on behalf of the
holders of all debt securities of that series, waive any past
default or event of default and its consequences for that series,
except (1) a default in the payment of the principal, premium
or interest with respect to those debt securities or (2) a
default with respect to a provision of the indenture that cannot be
amended without the consent of each holder affected by the
amendment. In case of a waiver of a default, that default shall
cease to exist, and any event of default arising from that default
shall be deemed to have been cured for all purposes. The holders of
a majority in aggregate principal amount outstanding of the debt
securities of any series may also, on behalf of the holders of all
debt securities of that series, waive, with respect to that series,
our compliance with certain restrictive covenants in the
indenture.
If
any event which is, or after notice or lapse of time or both would
become, an event of default (collectively referred to in this
paragraph as a default) occurs and is continuing with respect to
debt securities of a particular series and if it is known to any
specified responsible officer of the trustee, the trustee will mail
to each holder of such debt securities notice of such default
within 90 days after it occurs or, if later, after the trustee
obtains knowledge of such default. Except in the case of default in
the payment of principal, premium or interest with respect to the
debt securities of that series or in the making of any sinking fund
payment with respect to the debt securities of that series, the
trustee may withhold such notice if and so long as the corporate
trust committee or a committee of specified responsible officers of
the trustee in good faith determines that withholding the notice is
in the interests of the holders of such debt
securities.
A
holder may institute a suit against us for enforcement of such
holder’s rights under the applicable indenture, for the appointment
of a receiver or trustee, or for any other remedy only if the
following conditions are satisfied:
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the
holder gives the trustee written notice of a continuing event of
default with respect to a series of our debt securities held by
that holder;
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holders of at
least 25% of the aggregate principal amount of the outstanding debt
securities of that series make a request, in writing, and offer
reasonable indemnity, to the trustee for the trustee to institute
the requested proceeding;
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the
trustee does not receive direction contrary to the holder’s request
from holders of a majority in aggregate principal amount of the
outstanding debt securities of that series within 60 days following
such notice, request and offer of indemnity under the terms of such
indenture; and
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the
trustee does not institute the requested proceeding within 60 days
following such notice.
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Each indenture
will require us to annually deliver to the trustee a statement as
to performance of our obligations under such indenture and as to
any defaults.
A
default in the payment of any of our debt securities or under any
related guarantee, or a default with respect to our debt securities
or any related guarantee that causes such debt securities to be
accelerated, may give rise to a cross-default under our other
indebtedness.
Satisfaction and Discharge of the Indentures
Each indenture
will generally cease to be of any further effect with respect to a
series of debt securities and the related guarantees
if:
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we
have delivered to the applicable trustee for cancellation all debt
securities of that series (with certain limited exceptions);
or
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all
debt securities of that series not previously delivered to the
trustee for cancellation have become due and payable, will become
due and payable within one year, or are to be called for redemption
within one year under arrangements satisfactory to the trustee, and
in any such case we have deposited with the trustee as trust funds
(either in United States dollars or U.S. government obligations or
such other currency or foreign government obligations or currency
units in which the debt securities of any series may be payable)
the entire amount sufficient to pay at maturity or upon redemption
all of the principal, premium and interest due with respect to
those debt securities;
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and
if, in either case, an issuer or Danaher also pays or causes to be
paid all other sums payable under the applicable indenture by an
issuer or Danaher and deliver to the trustee an officers’
certificate and opinion of counsel stating that all conditions
precedent to the satisfaction and discharge of the applicable
indenture have been complied with.
Legal
Defeasance and Covenant Defeasance
Any
series of our debt securities will be subject to the defeasance and
discharge provisions of the applicable indenture unless otherwise
specified in the applicable prospectus supplement. If those
provisions are applicable, we may elect either:
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legal
defeasance, which will permit us to defease and be discharged from,
subject to limitations, all of our obligations with respect to
those debt securities and all of Danaher’s obligations in respect
of its guarantee of the debt securities; or
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covenant
defeasance, which will permit us to be released from our
obligations to comply with certain covenants relating to those debt
securities as described in the applicable prospectus
supplement.
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If
the issuer exercises its legal defeasance option with respect to a
series of debt securities, payment of those debt securities may not
be accelerated because of an event of default. If an issuer
exercises its covenant defeasance option with respect to a series
of debt securities, payment of those debt securities may not be
accelerated because of an event of default related to the specified
covenants.
Unless
otherwise provided in the applicable prospectus supplement, an
issuer may invoke legal defeasance or covenant defeasance with
respect to any series of its debt securities only if:
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with respect to
debt securities denominated in U.S. dollars, the issuer irrevocably
deposits with the trustee, in trust, an amount in U.S. dollars,
U.S. government obligations (taking into account payment of
principal and interest thereon in accordance with their terms) or a
combination thereof which will provide money in an amount
sufficient to pay, when due upon maturity or redemption, as the
case may be, the principal of, premium, if any, and interest on
those debt securities;
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with respect to
debt securities denominated in a currency other than U.S. dollars,
the issuer irrevocably deposits with the trustee, in trust, an
amount in such currency, obligations of the foreign government that
issued such currency (taking into account payment of principal,
premium and interest thereon in accordance with their terms) or a
combination thereof which will provide money in an amount
sufficient to pay, when due upon maturity or redemption, as the
case may be, the principal of, premium, if any, and interest on
those debt securities;
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the
issuer delivers to the trustee a certificate from a nationally
recognized firm of independent accountants expressing their opinion
that the payments of principal, premium and interest when due on
the deposited U.S. government obligations or foreign government
obligations, as applicable, plus any deposited money
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will provide
cash at such times and in such amounts as will be sufficient to pay
the principal, premium, and interest when due with respect to all
the debt securities of that series to maturity or redemption, as
the case may be;
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no
event which is, or after notice or lapse of time would become, an
event of default under the applicable indenture shall have occurred
and be continuing at the time of such deposit or, with regard to
any default relating to the issuer’s bankruptcy, insolvency or
reorganization, at any time on or prior to the 90th day after such
deposit;
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the
deposit does not cause the trustee to have a conflicting interest
within the meaning of the Trust Indenture Act (assuming all
securities under the applicable indenture are in default within the
meaning of such Act);
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the
deposit is not a default under any other agreement binding on the
issuer;
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such deposit
will not result in the trust arising from such deposit constituting
an investment company under the Investment Company Act of 1940, as
amended, unless such trust is registered under, or exempt from,
such Act;
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we
deliver to the trustee an opinion of counsel that the deposit and
related defeasance will not cause the holders and beneficial owners
of the debt securities of that series to recognize gain or loss for
federal income tax purposes. If we elect legal defeasance, that
opinion of counsel must be based upon a ruling from the U.S.
Internal Revenue Service or a change in law to that
effect;
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if
the securities are to be redeemed prior to the stated maturity
(other than from mandatory sinking fund payments or analogous
payments), notice of such redemption shall have been duly given or
provision for such notice satisfactory to the trustee shall have
been made; and
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we
deliver to the trustee an officers’ certificate and an opinion of
counsel, each stating that all conditions precedent to the
defeasance and discharge of the debt securities of that series as
contemplated by the applicable indenture have been complied
with.
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Modification
and Waiver
An
issuer and the trustee may enter into supplemental indentures for
the purpose of modifying or amending its indenture with the consent
of holders of at least a majority in aggregate principal amount of
each series of its outstanding debt securities affected. However,
unless otherwise provided in the applicable prospectus supplement,
the consent of all of the holders of the debt securities that are
affected thereby is required for any of the following modifications
or amendments:
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to
reduce the percentage in principal amount of debt securities of any
series whose holders must consent to a supplemental indenture, or
consent to any waiver of compliance with certain provisions of the
indenture, or consent to certain defaults under the indenture, in
each case as provided for in the applicable indenture;
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to
reduce the rate of, or change the stated maturity of any
installment of, interest on any debt security;
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to
reduce the principal of or change the stated maturity of principal
of, or any installment of principal of or interest on, any debt
security or reduce the amount of principal of any original issue
discount security that would be due and payable upon declaration of
acceleration of maturity;
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to
reduce the premium payable upon the redemption of any debt
security;
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to
make any debt security, or any premium or interest thereon, payable
in a currency other than that stated in that debt
security;
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to
change any place of payment where any debt security or any premium
or interest thereon is payable;
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to
change the right to convert any debt security in accordance with
its terms;
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to
impair the right to bring a lawsuit for the enforcement of any
payment on or after the stated maturity of any debt security (or in
the case of redemption, on or after the date fixed for
redemption);
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to
release Danaher from its obligations in respect of the guarantee of
any series of debt security; or
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generally, to
modify any of the above provisions of the indenture or any
provisions providing for the waiver of past defaults or waiver of
compliance with certain covenants, except to increase the
percentage in principal amount of debt securities of any series
whose holders must consent to an amendment or waiver, as
applicable, or to provide that certain other provisions of the
applicable indenture cannot be modified or waived without the
consent of the holder of each outstanding debt security affected by
the modification or waiver.
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In
addition, each issuer and the trustee with respect to its indenture
may enter into supplemental indentures without the consent of the
holders of debt securities for one or more of the following
purposes (in addition to any other purposes specified in an
applicable prospectus supplement):
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to
evidence that another person has become such issuer’s successor and
that the successor assumes such issuer’s covenants, agreements, and
obligations in the applicable indenture and in the debt
securities;
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to
surrender any of such issuer’s rights or powers under the
indenture, or to add to such issuer’s covenants further covenants
for the protection of the holders of all or any series of debt
securities;
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to
add any additional events of default for the benefit of the holders
of all or any series of debt securities;
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to
cure any ambiguity, to correct or supplement any provision in the
applicable indenture or in any supplemental indenture that may be
defective or inconsistent with any other provision in the indenture
or any supplemental indenture, or to make other provisions in
regard to matters or questions arising under the applicable
indenture;
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to
conform the applicable indenture or any supplemental indenture to
the description of the debt securities set forth in any prospectus
or prospectus supplement related to such series of debt
securities;
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to
add to or change any of the provisions of the applicable indenture
as necessary to permit or facilitate the issuance of debt
securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of debt securities in uncertificated
form;
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to
secure the debt securities or any guarantees;
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to
add to, change, or eliminate any of the provisions of the
applicable indenture with respect to one or more series of debt
securities, so long as the addition, change, or elimination not
otherwise permitted under the indenture will (1) neither apply
to any debt security of any series created before the execution of
the supplemental indenture and entitled to the benefit of that
provision nor modify the rights of the holders of that debt
security with respect to that provision or (2) become
effective only when there are no debt securities of that series
outstanding;
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to
evidence and provide for the acceptance of appointment by a
successor or separate trustee with respect to the debt securities
of one or more series and to add to or change any of the provisions
of the applicable indenture as necessary to provide for the
administration of the applicable indenture by more than one
trustee;
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to
establish the form or terms of debt securities of any series;
and
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to
make provisions with respect to the conversion rights of holders,
including providing for the conversion of debt securities of any
series into any security or securities of ours.
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Certain
Covenants
In
addition to such other covenants, if any, as may be described in
the accompanying prospectus supplement and/or free writing
prospectus and except as may be otherwise set forth in the
accompanying prospectus supplement and/or free writing prospectus,
the applicable indenture will require the issuer and/or Danaher, as
the case may be, subject to certain limitations described therein,
to, among other things, do the following:
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deliver to the
trustee all information, documents and reports required to be filed
by an issuer or Danaher, as the case may be, with the SEC under
Section 13 or 15(d) of the Exchange Act, within 15 days after
the same is filed with the SEC;
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deliver to the
trustee annual officers’ certificates with respect to compliance
with the issuer’s obligations under the applicable
indenture;
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preserve and
keep in full force and effect Danaher, Danaher International and
Danaher International II’s corporate existences; and
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pay, and cause
Danaher’s significant subsidiaries (as defined in Rule 1-02 of
Regulation S-X under the Securities Act) to pay, the issuer’s,
Danaher’s and their taxes, assessments and government levies when
due, except to the extent the same is being contested in good faith
by appropriate proceedings.
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Documents filed
by an issuer or Danaher with the SEC via the EDGAR system will be
deemed to be filed with the trustee and transmitted to holders of
the Series B Mandatory Convertible Preferred Stock as of the time
such documents are filed via the EDGAR system.
Covenants in
the Indentures
You
can find the definitions of certain terms used in this description
under the subheading “Certain Definitions.”
Limitation
on Secured Debt
Unless
otherwise provided in the applicable prospectus supplement and/or
free writing prospectus, Danaher 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 debt
securities equally and ratably with such Secured Debt. This
covenant does not apply to debt secured by:
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purchase money
mortgages created to secure payment for the acquisition or
construction of any property including, but not limited to, any
indebtedness incurred by Danaher or any of its Subsidiaries prior
to, at the time of, or within 180 days after the later of the
acquisition, the completion of construction (including any
improvements on an existing property) or the commencement of
commercial operation of such property, which indebtedness is
incurred for the purpose of financing all or any part of the
purchase price of such property or construction or improvements on
such property;
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mortgages,
pledges, liens, security interest or encumbrances (collectively
referred to as security interests) on property, or any conditional
sales agreement or any title retention with respect to property,
existing at the time of acquisition thereof, whether or not assumed
by Danaher or any of its Subsidiaries;
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security
interests on property or shares of capital stock or indebtedness of
any corporation or firm existing at the time such corporation or
firm becomes a Subsidiary;
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security
interests in property or shares of capital stock or indebtedness of
a corporation existing at the time such corporation is merged into
or consolidated with Danaher or any of its Subsidiaries or at the
time of a sale, lease, or other disposition of the properties of a
corporation or firm as an entirety or substantially as an entirety
to Danaher or any of its Subsidiaries, provided that no such
security interests shall extend to any other Principal Property of
Danaher or such Subsidiary prior to such acquisition or to other
Principal Property thereafter acquired other than additions or
improvements to the acquired property;
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security
interests on Danaher’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 Danaher 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
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security
interests on any property or assets of any Subsidiary to secure
indebtedness owing by it to Danaher or to another
Subsidiary;
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any
mechanics’, materialmen’s, carriers’ or other similar lien arising
in the ordinary course of business, including construction of
facilities, in respect of obligations that are not yet due or that
are being contested in good faith;
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any
security interest for taxes, assessments or government charges or
levies not yet delinquent, or already delinquent, but the validity
of which is being contested in good faith;
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any
security interest arising in connection with legal proceedings
being contested in good faith, including any judgment lien so long
as execution thereof is being stayed;
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landlords’
liens on fixtures located on premises leased by Danaher or any of
its Subsidiaries in the ordinary course of business;
or
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any
extension, renewal or replacement, or successive extensions,
renewals or replacements, in whole or in part, of any security
interest referred to in the foregoing bullets.
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Limitation
on Sale and Leaseback Transactions
Unless
otherwise provided in the applicable prospectus supplement and/or
free writing prospectus, the senior indenture provides that Danaher
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 Danaher or any of its Subsidiaries that is sold to any other
person in connection with such lease (a “Sale and Leaseback
Transaction”), unless either:
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Danaher or such
Subsidiary would be entitled, without equally and ratably securing
the debt securities, to incur Indebtedness secured by a mortgage on
the Principal Property leased pursuant to any of the bullets
referenced above under “—Limitation on Secured Debt,”
or
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an
amount equal to the value of the Principal Property so leased is
applied to the retirement, within 120 days of the effective date of
such arrangement, of indebtedness for borrowed money incurred or
assumed by Danaher or any of its Subsidiaries which is recorded as
Funded Debt as shown on Danaher’s most recent consolidated balance
sheet and which in the case of such Indebtedness of ours or
Danaher, is not subordinate and junior in right of payment to the
prior payment of the debt securities or guarantees, as
applicable.
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Exempted
Indebtedness
Notwithstanding
the limitations on Secured Debt and Sale and Leaseback Transactions
described above, Danaher and any one or more of its Subsidiaries
may, without securing the debt securities, issue, assume, or
guarantee Secured Debt or enter into any Sale and Leaseback
Transaction which would otherwise be subject to the foregoing
restrictions,
provided that, after
giving effect thereto, the aggregate amount of such Secured Debt
then outstanding (not including Secured Debt permitted under the
foregoing exceptions) and the Attributable Debt of Sale and
Leaseback Transactions, other than Sale and Leaseback Transactions
described in either bullet of the preceding paragraph, at such time
does not exceed 15% of Consolidated Net Assets.
Business
Activities
Neither Danaher
International nor Danaher International II will engage in any
activities or take any action that would be inconsistent with the
definition of “finance subsidiary” within the meaning of Rule 3-10
of Regulation S-X under the Securities Act.
Certain
Definitions
Set
forth below are certain defined terms used in the indentures.
Reference is made to the applicable indenture for a complete
definition of these terms, as well as any other capitalized terms
used herein for which no definition is provided. Unless otherwise
provided in the applicable prospectus supplement, the following
terms will mean as follows for purposes of covenants that may be
applicable to any particular series of debt
securities.
The
term “Attributable Debt,” in respect of a Sale and Leaseback
Transaction, means, as of any particular time, the present value
(discounted at the rate of interest implicit in the lease involved
in such Sale and Leaseback Transaction, as determined in good faith
by Danaher) 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).
The
term “Consolidated Assets” means the aggregate of all assets of
Danaher 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 generally accepted accounting principles in the United States
(GAAP)), appearing on the most recent available consolidated
balance sheet of Danaher and its Subsidiaries at their net book
values, after deducting related depreciation, amortization and
other valuation reserves, all prepared in accordance with
GAAP.
The
term “Consolidated Current Liabilities” means the aggregate of the
current liabilities of Danaher and its Subsidiaries appearing on
the most recent available consolidated balance sheet of Danaher and
its Subsidiaries, all in accordance with GAAP. In no event shall
Consolidated Current Liabilities include any obligation of Danaher
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 Danaher’s option or
the option of any of its Subsidiaries for a term in excess of
twelve months from the date of determination.
The
term “Consolidated Net Assets” means Consolidated Assets after
deduction of Consolidated Current Liabilities.
The
term “Funded Debt” means all indebtedness for money borrowed having
a maturity of more than twelve months from the date of the most
recent consolidated balance sheet of Danaher 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 required to be accounted for as finance leases
on Danaher’s consolidated balance sheet;
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
Danaher’s balance sheet.
The
term “Principal Property” means any manufacturing plant, warehouse,
office building or parcel of real property (including fixtures but
excluding leases and other contract rights which might otherwise be
deemed real property) owned by Danaher or any of its Subsidiaries,
whether owned on the date of the indenture or thereafter,
provided each such
plant, warehouse, office building or parcel of real property has a
gross book value (without deduction for any depreciation reserves)
at the date as of which the determination is being made of in
excess of two percent of the Consolidated Net Assets of Danaher and
its Subsidiaries, other than any such plant, warehouse, office
building or parcel of real property or portion thereof which, in
the opinion of Danaher’s board of directors (evidenced by a
certified board resolution delivered to the trustee), is not of
material importance to the business conducted by Danaher and its
Subsidiaries taken as a whole.
The
term “Secured Debt” means Indebtedness for borrowed money and any
Funded Debt which, in each case, is secured by a security interest
in:
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any
Principal Property, or
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any
shares of capital stock or Indebtedness of any Subsidiary that owns
a Principal Property.
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The
term “Subsidiary” means any corporation or other entity (including,
without limitation, partnerships, joint ventures and associations)
of which at least a majority of the outstanding stock having by the
terms thereof ordinary voting power for the election of directors
of such corporation or other entity (irrespective of whether or not
at the time the stock of any other class or classes of such
corporation shall have or might have voting power by reason of the
happening of any such contingency) is at the time directly or
indirectly owned by Danaher, or by one or more Subsidiaries of
Danaher, or by Danaher and one or more other Subsidiaries. Each of
Danaher International and Danaher International II constitutes a
“Subsidiary” under the indentures.
Consolidation,
Merger and Sale of Assets
If
the conditions below are met, Danaher International, Danaher
International II and Danaher, as the case may be, may consolidate
with or merge into another business entity, or convey, transfer or
lease Danaher International’s, Danaher International II’s or
Danaher’s properties and assets, as the case may be, substantially
as an entirety to any entity.
Danaher
International or Danaher International II may engage in a
consolidation, merger or transfer or lease of assets as an entirety
only if:
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the
surviving or acquiring entity is (1) Danaher or (2) a
corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States
or any member country of the European Union, directly or indirectly
wholly-owned by Danaher, and, in each case such acquiring entity
expressly assumes Danaher International’s or Danaher International
II’s obligations with respect to each series of its respective
outstanding debt securities by executing a supplemental
indenture;
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immediately
after giving effect to the transaction, no event of default, or
event which, after notice or lapse of time or both, would become an
event of default, shall have happened and be continuing;
and
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Danaher
International or Danaher International II, as the case may be, has
delivered to the trustee an officers’ certificate and an opinion of
counsel, each stating that the consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture,
comply with the applicable indenture and all conditions precedent
relating to such transaction have been complied with.
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In
addition, Danaher may engage in a consolidation, merger or transfer
or lease of assets as an entirety only if:
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the
surviving or acquiring entity is a corporation, limited liability
company, partnership or trust organized and validly existing under
the laws of the United States that expressly assumes Danaher’s
guarantee obligations with respect to each series of Danaher
International’s outstanding debt securities by executing a
supplemental indenture;
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immediately
after giving effect to the transaction, no event of default, or
event which, after notice or lapse of time or both, would become an
event of default, shall have happened and be continuing;
and
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Danaher has
delivered to the trustee an officers’ certificate and an opinion of
counsel, each stating that the consolidation, merger, conveyance,
transfer or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture,
comply with the indenture and all conditions precedent relating to
such transaction have been complied with.
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Conversion
Rights
We
will describe the terms upon which debt securities may be
convertible into Danaher’s common stock or other securities in a
prospectus supplement. These terms will include the type of
securities the debt securities are convertible into, the conversion
price or manner of calculation thereof, the conversion period,
provisions as to whether conversion will be at our option or the
option of the holders, the events requiring an adjustment of the
conversion price and provisions affecting conversion in the event
of the redemption of the debt securities and any restrictions on
conversion. They may also include provisions adjusting the number
of shares of Danaher common stock or other securities issuable upon
conversion.
Denomination
If
we issue debt securities denominated, or with payments, in a
foreign or composite currency, a prospectus supplement will specify
the currency or composite currency other than U.S. dollars. Except
as may be provided otherwise in the applicable prospectus
supplement and/or free writing prospectus, we will issue registered
securities in denominations of $1,000 or integral multiples of
$1,000.
Our
Trustee
Unless stated
in the applicable prospectus supplement, (i) the trustee may
also be the trustee under any other indenture for debt securities
and (ii) any trustee or its affiliates may lend money to an
issuer and/or Danaher may from time to time have other business
arrangements with the issuers and/or Danaher. If and when the
trustee becomes a creditor of an issuer or Danaher, the trustee
will be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against an issuer or
guarantor.
Governing
Law
The
indentures, the debt securities and any related guarantees will be
governed by the laws of the State of New York. For the avoidance of
doubt, the applicability of Articles 86 to 94-8 of the Luxembourg
law dated 10 August 1915 on commercial companies, as amended,
shall be excluded.
DESCRIPTION
OF CAPITAL STOCK
General
The
following summary description of our capital stock is based on the
provisions of the Delaware General Corporation Law (the “DGCL”) and
our Restated Certificate of Incorporation and Amended and Restated
By-Laws, each as amended and restated through the date of this
prospectus. This description is a summary description and is
qualified in its entirety by reference to the terms of the Restated
Certificate of Incorporation and Amended and Restated By-Laws. See
“Where You Can Find More Information.” As used in this “Description
of Capital Stock,” the terms “Danaher,” “we,” “our” and “us” refer
to Danaher Corporation and do not, unless the context otherwise
indicates, include our subsidiaries.
As
of July 1, 2019, our authorized capital stock consisted of
2,000,000,000 shares of common stock, par value $0.01 per share,
and 15,000,000 shares of preferred stock, without par value. As of
April 12, 2019, we had 715,933,649 shares of our common stock
outstanding and no shares of preferred stock
outstanding.
Common
Stock
Each
stockholder of record of our common stock is entitled to one vote
for each share held on every matter properly submitted to the
stockholders for their vote, including the election of directors.
Holders of our common stock do not have cumulative voting rights.
After satisfaction of the dividend rights of holders of preferred
stock, holders of common stock are entitled ratably to any dividend
declared by the board of directors out of funds legally available
for this purpose. Upon our liquidation, dissolution or winding up,
the holders of our common stock are entitled to receive ratably our
net assets available, if any, after the payment of all debts and
other liabilities and subject to the prior rights of any
outstanding preferred stock. Holders of our common stock have no
redemption or conversion rights, no sinking fund provisions and no
preemptive right to subscribe for or purchase additional shares of
any class of our capital stock. The outstanding shares of our
common stock are fully paid and nonassessable, and any shares of
common stock issued in an offering pursuant to this prospectus and
any shares of common stock issuable upon the exercise of common
stock warrants or conversion or exchange of debt securities which
are convertible into or exchangeable for our common stock, or in
connection with the obligations of a holder of purchase contracts
to purchase our common stock, when issued in accordance with their
terms will be fully paid and nonassessable. The rights, preferences
and privileges of holders of common stock are subject to, and may
be adversely affected by, the rights of the holders of shares of
any series of preferred stock that we may designate and issue in
the future. Computershare Trust Company, N.A. serves as the
registrar and transfer agent for Danaher’s common stock. The common
stock of Danaher is listed on The New York Stock Exchange under the
trading symbol “DHR”.
Preferred
Stock
We
are authorized to issue “blank check” preferred stock, which may be
issued in one or more series upon authorization of our board of
directors. Our board of directors is authorized to fix the
designation of the series, the number of authorized shares of the
series, dividend rights and terms, conversion rights, voting
rights, redemption rights and terms, liquidation preferences and
any other rights, powers, preferences and limitations applicable to
each series of preferred stock. The authorized shares of our
preferred stock are available for issuance without further action
by our stockholders, unless such action is required by applicable
law or the rules of any stock exchange on which our securities may
be listed. If the approval of our stockholders is not required for
the issuance of shares of our preferred stock, our board may
determine not to seek stockholder approval. The specific terms of
any series of preferred stock will be described in the prospectus
supplement relating to that series of preferred stock and may
differ from the terms described below.
A
series of our preferred stock could, depending on the terms of such
series, impede the completion of a merger, tender offer or other
takeover attempt. Our board of directors will make any
determination to issue such shares based upon its judgment as to
the best interests of our stockholders. Our directors, in so
acting, could issue preferred stock having terms that could
discourage an acquisition attempt through which an acquirer may be
able to change the composition of our board of directors, including
a tender offer or other transaction that some, or a majority, of
our stockholders might believe to be in their best interests or in
which stockholders might receive a premium for their stock over the
then-current market price of the stock.
The
preferred stock has the terms described below unless otherwise
provided in the prospectus supplement relating to a particular
series of preferred stock. You should read the prospectus
supplement relating to the particular series of preferred stock
being offered for specific terms, including:
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the
designation and stated value per share of the preferred stock and
the number of shares offered;
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the
amount of liquidation preference per share;
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the
price at which the preferred stock will be issued;
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the
dividend rate, or method of calculation of dividends, the dates on
which dividends will be payable, whether dividends will be
cumulative or noncumulative and, if cumulative, the dates from
which dividends will commence to accumulate;
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any
redemption or sinking fund provisions;
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if
other than the currency of the United States, the currency or
currencies including composite currencies in which the preferred
stock is denominated and/or in which payments will or may be
payable;
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any
conversion provisions;
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whether we have
elected to offer depositary shares as described under “Description
of Depositary Shares;” and
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any
other rights, preferences, privileges, limitations and restrictions
on the preferred stock.
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The
preferred stock will, when issued, be fully paid and nonassessable.
Unless otherwise specified in the prospectus supplement, each
series of preferred stock will rank equally as to dividends and
liquidation rights in all respects with each other series of
preferred stock. The rights of holders of shares of each series of
preferred stock will be subordinate to those of our general
creditors.
As
described under “Description of Depositary Shares,” we may, at our
option, with respect to any series of preferred stock, elect to
offer fractional interests in shares of preferred stock, and
provide for the issuance of depositary receipts representing
depositary shares, each of which will represent a fractional
interest in a share of the series of preferred stock. The
fractional interest will be specified in the prospectus supplement
relating to a particular series of preferred stock.
Rank . Unless
otherwise specified in the prospectus supplement, the preferred
stock will, with respect to dividend rights and rights upon our
liquidation, dissolution or winding up of its affairs,
rank:
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senior to our
common stock and to all equity securities ranking junior to such
preferred stock with respect to dividend rights or rights upon our
liquidation, dissolution or winding up of our affairs;
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on
a parity with all equity securities issued by us, the terms of
which specifically provide that such equity securities rank on a
parity with the preferred stock with respect to dividend rights or
rights upon our liquidation, dissolution or winding up of our
affairs; and
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junior to all
equity securities issued by us, the terms of which specifically
provide that such equity securities rank senior to the preferred
stock with respect to dividend rights or rights upon our
liquidation, dissolution or winding up of our affairs.
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The
term “equity securities” does not include convertible debt
securities.
Dividends . Holders of
the preferred stock of each series will be entitled to receive,
when, as and if declared by our board of directors, cash dividends
at such rates and on such dates described in the prospectus
supplement. Different series of preferred stock may be entitled to
dividends at different rates or based on different methods of
calculation. The dividend rate may be fixed or variable or both.
Dividends will be payable to the holders of record as they
appear
on
our stock books on record dates fixed by our board of directors, as
specified in the applicable prospectus supplement.
Dividends on
any series of preferred stock may be cumulative or noncumulative,
as described in the applicable prospectus supplement. If our board
of directors does not declare a dividend payable on a dividend
payment date on any series of noncumulative preferred stock, then
the holders of that noncumulative preferred stock will have no
right to receive a dividend for that dividend payment date, and we
will have no obligation to pay the dividend accrued for that
period, whether or not dividends on that series are declared
payable on any future dividend payment dates. Dividends on any
series of cumulative preferred stock will accrue from the date we
initially issue shares of such series or such other date specified
in the applicable prospectus supplement.
No
dividends may be declared or paid or funds set apart for the
payment of any dividends on any parity securities unless full
dividends have been paid or set apart for payment on the preferred
stock. If full dividends are not paid, the preferred stock will
share dividends pro rata with the parity securities.
No
dividends may be declared or paid or funds set apart for the
payment of dividends on any junior securities unless full dividends
for all dividend periods terminating on or prior to the date of the
declaration or payment will have been paid or declared and a sum
sufficient for the payment set apart for payment on the preferred
stock.
Liquidation Preference . Upon any
voluntary or involuntary liquidation, dissolution or winding up of
our affairs, then, before we make any distribution or payment to
the holders of any common stock or any other class or series of our
capital stock ranking junior to the preferred stock in the
distribution of assets upon any liquidation, dissolution or winding
up of our affairs, the holders of each series of preferred stock
shall be entitled to receive out of assets legally available for
distribution to stockholders, liquidating distributions in the
amount of the liquidation preference per share set forth in the
prospectus supplement, plus any accrued and unpaid dividends
thereon. Such dividends will not include any accumulation in
respect of unpaid noncumulative dividends for prior dividend
periods. Unless otherwise specified in the prospectus supplement,
after payment of the full amount of their liquidating
distributions, the holders of preferred stock will have no right or
claim to any of our remaining assets. Upon any such voluntary or
involuntary liquidation, dissolution or winding up, if our
available assets are insufficient to pay the amount of the
liquidating distributions on all outstanding preferred stock and
the corresponding amounts payable on all other classes or series of
our capital stock ranking on parity with the preferred stock and
all other such classes or series of shares of capital stock ranking
on parity with the preferred stock in the distribution of assets,
then the holders of the preferred stock and all other such classes
or series of capital stock will share ratably in any such
distribution of assets in proportion to the full liquidating
distributions to which they would otherwise be
entitled.
Upon any such
liquidation, dissolution or winding up and if we have made
liquidating distributions in full to all holders of preferred
stock, we will distribute our remaining assets among the holders of
any other classes or series of capital stock ranking junior to the
preferred stock according to their respective rights and
preferences and, in each case, according to their respective number
of shares. For such purposes, our consolidation or merger with or
into any other corporation, trust or entity, or the sale, lease or
conveyance of all or substantially all of our property or assets
will not be deemed to constitute a liquidation, dissolution or
winding up of our affairs.
Redemption . If so
provided in the applicable prospectus supplement, the preferred
stock will be subject to mandatory redemption or redemption at our
option, as a whole or in part, in each case upon the terms, at the
times and at the redemption prices set forth in such prospectus
supplement.
The
prospectus supplement relating to a series of preferred stock that
is subject to mandatory redemption will specify the number of
shares of preferred stock that shall be redeemed by us in each year
commencing after a
date to be
specified, at a redemption price per share to be specified,
together with an amount equal to all accrued and unpaid dividends
thereon to the date of redemption. Unless the shares have a
cumulative dividend, such accrued dividends will not include any
accumulation in respect of unpaid dividends for prior dividend
periods. We may pay the redemption price in cash or other property,
as specified in the applicable prospectus supplement. If the
redemption price for preferred stock of any series is payable only
from the net proceeds of the issuance of shares of our capital
stock, the terms of such preferred stock may provide that, if no
such shares of our capital stock shall have been issued or to the
extent the net proceeds from any issuance are insufficient to pay
in full the aggregate
redemption
price then due, such preferred stock shall automatically and
mandatorily be converted into the applicable shares of our capital
stock pursuant to conversion provisions specified in the applicable
prospectus supplement. Notwithstanding the foregoing, we will not
redeem any preferred stock of a series unless:
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if
that series of preferred stock has a cumulative dividend, we have
declared and paid or contemporaneously declare and pay or set aside
funds to pay full cumulative dividends on the preferred stock for
all past dividend periods and the then current dividend period;
or
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if
such series of preferred stock does not have a cumulative dividend,
we have declared and paid or contemporaneously declare and pay or
set aside funds to pay full dividends for the then current dividend
period.
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We
will not acquire any preferred stock of a series
unless:
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if
that series of preferred stock has a cumulative dividend, we have
declared and paid or contemporaneously declare and pay or set aside
funds to pay full cumulative dividends on all outstanding shares of
such series of preferred stock for all past dividend periods and
the then current dividend period; or
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if
that series of preferred stock does not have a cumulative dividend,
we have declared and paid or contemporaneously declare and pay or
set aside funds to pay full dividends on the preferred stock of
such series for the then current dividend period.
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However, at any
time we may purchase or acquire preferred stock of that series
(1) pursuant to a purchase or exchange offer made on the same
terms to holders of all outstanding preferred stock of such series
or (2) by conversion into or exchange for shares of our
capital stock ranking junior to the preferred stock of such series
as to dividends and upon liquidation.
If
fewer than all of the outstanding shares of preferred stock of any
series are to be redeemed, we will determine the number of shares
that may be redeemed pro rata from the holders of record of such
shares in proportion to the number of such shares held or for which
redemption is requested by such holder or by any other equitable
manner that we determine. Such determination will reflect
adjustments to avoid redemption of fractional shares.
Unless
otherwise specified in the prospectus supplement, we will mail
notice of redemption at least 30 days but not more than 60 days
before the redemption date to each holder of record of preferred
stock to be redeemed at the address shown on our stock transfer
books. Each notice shall state:
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the
number of shares and series of preferred stock to be
redeemed;
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the
place or places where certificates for such preferred stock are to
be surrendered for payment of the redemption price;
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that dividends
on the shares to be redeemed will cease to accrue on such
redemption date;
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the
date on which the holder’s conversion rights, if any, as to such
shares shall terminate; and
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the
specific number of shares to be redeemed from each such holder if
fewer than all the shares of any series are to be
redeemed.
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If
notice of redemption has been given and we have set aside the funds
necessary for such redemption in trust for the benefit of the
holders of any shares called for redemption, then from and after
the redemption date, dividends will cease to accrue on such shares,
and all rights of the holders of such shares will terminate, except
the right to receive the redemption price.
Voting Rights . Holders of
preferred stock will not have any voting rights, except as required
by law or as indicated in the applicable prospectus
supplement.
Unless
otherwise provided for under the terms of any series of preferred
stock, no consent or vote of the holders of shares of preferred
stock or any series thereof shall be required for any amendment to
our Restated Certificate of Incorporation that would increase the
number of authorized shares of preferred stock or the number of
authorized shares of any series thereof or decrease the number of
authorized shares of preferred stock or the number of authorized
shares of any series thereof (but not below the number of
authorized shares of preferred stock or such series, as the case
may be, then outstanding).
Conversion Rights . The terms and
conditions, if any, upon which any series of preferred stock is
convertible into our common stock will be set forth in the
applicable prospectus supplement relating thereto. Such terms will
include the number of shares of common stock into which the shares
of preferred stock are convertible, the conversion price, rate or
manner of calculation thereof, the conversion period, provisions as
to whether conversion will be at our option or at the option of the
holders of the preferred stock, the events requiring an adjustment
of the conversion price and provisions affecting conversion in the
event of the redemption.
Transfer Agent and Registrar . The transfer
agent and registrar for the preferred stock will be set forth in
the applicable prospectus supplement.
Limitation
on Directors’ Liability
Our
Restated Certificate of Incorporation provides that a member of the
board of directors will not be personally liable to us or our
stockholders for monetary damages for breaches of their legal
duties to us or our stockholders as a director, except for
liability:
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for
any breach of the director’s legal duty to act in the best
interests of us and our stockholders;
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for
acts or omissions by the director with dishonest intentions or
which involve intentional misconduct or an intentional violation of
the law;
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for
declaring dividends or authorizing the purchase or redemption of
shares in violation of Delaware law; or
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for
transactions where the director derived an improper personal
benefit.
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Our
Restated Certificate of Incorporation also allows us to indemnify
directors and officers to the fullest extent authorized by Delaware
law.
Section 203
of the Delaware General Corporation Law
Section 203
of the General Corporation Law of the State of Delaware, which we
refer to as the DGCL, is applicable to us. Section 203 of the
DGCL restricts some types of transactions and business combinations
between a corporation and a 15% stockholder. A 15% stockholder is
generally considered by Section 203 to be a person owning 15%
or more of the corporation’s outstanding voting stock.
Section 203 refers to a 15% stockholder as an “interested
stockholder.” Section 203 restricts these transactions for a
period of three years from the date the stockholder acquires 15% or
more of our outstanding voting stock. With some exceptions, unless
the transaction is approved by the board of directors and the
holders of at least two-thirds of the outstanding voting stock of
the corporation, Section 203 prohibits significant business
transactions such as:
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a
merger with, disposition of significant assets to or receipt of
disproportionate financial benefits by the interested stockholder,
and
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any
other transaction that would increase the interested stockholder’s
proportionate ownership of any class or series of our capital
stock.
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The
shares held by the interested stockholder are not counted as
outstanding when calculating the two-thirds of the outstanding
voting stock needed for approval.
The
prohibition against these transactions does not apply
if:
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prior to the
time that any stockholder became an interested stockholder, the
board of directors approved either the business combination or the
transaction in which such stockholder acquired 15% or more of our
outstanding voting stock, or
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the
interested stockholder owns at least 85% of our outstanding voting
stock as a result of a transaction in which such stockholder
acquired 15% or more of our outstanding voting stock. Shares held
by persons who are both directors and officers or by some types of
employee stock plans are not counted as outstanding when making
this calculation.
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Advance
Notice Bylaw Provisions
Our
Amended and Restated By-Laws establish advance notice procedures
with respect to stockholder proposals and the nomination of
candidates for election as directors, other than proposals and
nominations made by or at the direction of the Company’s Board of
Directors, Chairman of the Board and/or President. These
provisions, together with Section 203 of the DGCL, could have
the effect of delaying, deferring or preventing a change in control
or the removal of existing management, of deterring potential
acquirors from making an offer to our stockholders and of limiting
any opportunity to realize premiums over prevailing market prices
for our common stock in connection therewith. This could be the
case notwithstanding that a majority of our stockholders might
benefit from such a change in control or offer.
DESCRIPTION
OF WARRANTS
We
may issue warrants to purchase debt securities, preferred stock,
depositary shares or common stock. We may offer warrants separately
or together with one or more additional warrants, debt securities,
preferred stock, depositary shares or common stock, or any
combination of those securities in the form of units, as described
in the applicable prospectus supplement. As used in this
“Description of Warrants,” the terms “Danaher,” “we,” “our” and
“us” refer to Danaher Corporation and do not, unless the context
otherwise indicates, include our subsidiaries.
If
we issue warrants as part of a unit, the accompanying prospectus
supplement will specify whether those warrants may be separated
from the other securities in the unit prior to the expiration date
of the warrants. The applicable prospectus supplement will also
describe the following terms of any warrants:
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the
specific designation and aggregate number of, and the offering
price at which we will issue, the warrants;
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the
currency or currency units in which the offering price, if any, and
the exercise price are payable;
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the
date on which the right to exercise the warrants will begin and the
date on which that right will expire or, if you may not
continuously exercise the warrants throughout that period, the
specific date or dates on which you may exercise the
warrants;
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whether the
warrants are to be sold separately or with other securities as
parts of units;
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whether the
warrants will be issued in definitive or global form or in any
combination of these forms, although, in any case, the form of a
warrant included in a unit will correspond to the form of the unit
and of any security included in that unit;
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any
applicable material U.S. federal income tax
consequences;
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the
identity of the warrant agent for the warrants and of any other
depositaries, execution or paying agents, transfer agents,
registrars or other agents;
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the
proposed listing, if any, of the warrants or any securities
purchasable upon exercise of the warrants on any securities
exchange;
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the
designation and terms of any equity securities purchasable upon
exercise of the warrants;
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the
designation, aggregate principal amount, currency and terms of any
debt securities that may be purchased upon exercise of the
warrants;
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if
applicable, the designation and terms of the debt securities,
preferred stock, depositary shares or common stock with which the
warrants are issued and, the number of warrants issued with each
security;
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if
applicable, the date from and after which any warrants issued as
part of a unit and the related debt securities, preferred stock,
depositary shares or common stock will be separately
transferable;
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the
number of shares of preferred stock, the number of depositary
shares or the number of shares of common stock purchasable upon
exercise of a warrant and the price at which those shares may be
purchased;
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if
applicable, the minimum or maximum amount of the warrants that may
be exercised at any one time;
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information
with respect to book-entry procedures, if any;
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the
antidilution provisions of, and other provisions for changes to or
adjustment in the exercise price of, the warrants, if
any;
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any
redemption or call provisions; and
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any
additional terms of the warrants, including terms, procedures and
limitations relating to the exchange or exercise of the
warrants.
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DESCRIPTION
OF DEPOSITARY SHARES
General
We
may, at our option, elect to offer fractional shares of preferred
stock, which we call depositary shares, rather than full shares of
preferred stock. If we do, we will issue to the public receipts,
called depositary receipts, for depositary shares, each of which
will represent a fraction, to be described in the applicable
prospectus supplement, of a share of a particular series of
preferred stock. As used in this “Description of Depositary
Shares,” the terms “Danaher,” “we,” “our” and “us” refer to Danaher
Corporation and do not, unless the context otherwise indicates,
include our subsidiaries.
Unless
otherwise provided in the prospectus supplement, each owner of a
depositary share will be entitled, in proportion to the applicable
fractional interest in a share of preferred stock represented by
the depositary share, to all the rights and preferences of the
preferred stock represented by the depositary share. Those rights
include dividend, voting, redemption, conversion and liquidation
rights.
The
shares of preferred stock underlying the depositary shares will be
deposited with a bank or trust company selected by us to act as
depositary under a deposit agreement between us, the depositary and
the holders of the depositary receipts. The depositary will be the
transfer agent, registrar and dividend disbursing agent for the
depositary shares.
The
depositary shares will be evidenced by depositary receipts issued
pursuant to the deposit agreement. Holders of depositary receipts
agree to be bound by the deposit agreement, which requires holders
to take certain actions such as filing proof of residence and
paying certain charges.
The
description of terms of the depositary shares contained in this
prospectus is a summary. You should refer to the applicable
prospectus summary, form of the deposit agreement, our Restated
Certificate of Incorporation and the certificate of designation for
the applicable series of preferred stock that are, or will be,
filed with the SEC.
Dividends
and Other Distributions
The
depositary will distribute all cash dividends or other cash
distributions, if any, received in respect of the preferred stock
underlying the depositary shares to the record holders of
depositary shares in proportion to the numbers of depositary shares
owned by those holders on the relevant record date. The relevant
record date for depositary shares will be the same date as the
record date for the underlying preferred stock.
If
there is a distribution other than in cash, the depositary will
distribute property (including securities) received by it to the
record holders of depositary shares, unless the depositary
determines that it is not feasible to make the distribution. If
this occurs, the depositary may, with our approval, adopt another
method for the distribution, including selling the property and
distributing the net proceeds from the sale to the
holders.
Liquidation
Preference
If
a series of preferred stock underlying the depositary shares has a
liquidation preference, in the event of the voluntary or
involuntary liquidation, dissolution or winding up of us, holders
of depositary shares will be entitled to receive the fraction of
the liquidation preference accorded each share of the applicable
series of preferred stock, as set forth in the applicable
prospectus supplement.
Withdrawal
of Stock
Unless the
related depositary shares have been previously called for
redemption, upon surrender of the depositary receipts at the office
of the depositary, the holder of the depositary shares will be
entitled to delivery, at the office
of
the depositary to or upon his or her order, of the number of whole
shares of the preferred stock and any money or other property
represented by the depositary shares. If the depositary receipts
delivered by the holder evidence a number of depositary shares in
excess of the number of depositary shares representing the number
of whole shares of preferred stock to be withdrawn, the depositary
will deliver to the holder at the same time a new
depositary
receipt
evidencing the excess number of depositary shares. In no event will
the depositary deliver fractional shares of preferred stock upon
surrender of depositary receipts. Holders of preferred stock thus
withdrawn may not thereafter deposit those shares under the deposit
agreement or receive depositary receipts evidencing depositary
shares therefor.
Redemption
of Depositary Shares
Whenever we
redeem shares of preferred stock held by the depositary, the
depositary will redeem as of the same redemption date the number of
depositary shares representing shares of the preferred stock so
redeemed, so long as we have paid in full to the depositary the
redemption price of the preferred stock to be redeemed plus an
amount equal to any accumulated and unpaid dividends on the
preferred stock to the date fixed for redemption. The redemption
price per depositary share will be equal to the redemption price
and any other amounts per share payable on the preferred stock
multiplied by the fraction of a share of preferred stock
represented by one depositary share. If less than all the
depositary shares are to be redeemed, the depositary shares to be
redeemed will be selected by lot or pro rata or by any other
equitable method as may be determined by the
depositary.
After the date
fixed for redemption, depositary shares called for redemption will
no longer be deemed to be outstanding and all rights of the holders
of depositary shares will cease, except the right to receive the
monies payable upon redemption and any money or other property to
which the holders of the depositary shares were entitled upon
redemption upon surrender to the depositary of the depositary
receipts evidencing the depositary shares.
Voting the
Preferred Stock
Upon receipt of
notice of any meeting at which the holders of the preferred stock
are entitled to vote, the depositary will mail the information
contained in the notice of meeting to the record holders of the
depositary receipts relating to that preferred stock. The record
date for the depositary receipts relating to the preferred stock
will be the same date as the record date for the preferred stock.
Each record holder of the depositary shares on the record date will
be entitled to instruct the depositary as to the exercise of the
voting rights pertaining to the number of shares of preferred stock
represented by that holder’s depositary shares. The depositary will
endeavor, insofar as practicable, to vote the number of shares of
preferred stock represented by the depositary shares in accordance
with those instructions, and we will agree to take all action that
may be deemed necessary by the depositary in order to enable the
depositary to do so. The depositary will not vote any shares of
preferred stock except to the extent it receives specific
instructions from the holders of depositary shares representing
that number of shares of preferred stock.
Charges of
Depositary
We
will pay all transfer and other taxes and governmental charges
arising solely from the existence of the depositary arrangements.
We will pay charges of the depositary in connection with the
initial deposit of the preferred stock and any redemption of the
preferred stock. Holders of depositary receipts will pay transfer,
income and other taxes and governmental charges and such other
charges (including those in connection with the receipt and
distribution of dividends, the sale or exercise of rights, the
withdrawal of the preferred stock and the transferring, splitting
or grouping of depositary receipts) as are expressly provided in
the deposit agreement to be for their accounts. If these charges
have not been paid by the holders of depositary receipts, the
depositary may refuse to transfer depositary shares, withhold
dividends and distributions and sell the depositary shares
evidenced by the depositary receipt.
Amendment
and Termination of the Deposit Agreement
The
form of depositary receipt evidencing the depositary shares and any
provision of the deposit agreement may be amended by agreement
between us and the depositary. However, any amendment that
materially and adversely alters the rights of the holders of
depositary shares, other than fee changes, will not be effective
unless the amendment has been approved by the holders of a majority
of the outstanding depositary shares. The deposit agreement may be
terminated by the depositary or us only if:
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all
outstanding depositary shares have been redeemed; or
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there has been
a final distribution of the preferred stock in connection with our
dissolution and such distribution has been made to all the holders
of depositary shares.
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Resignation
and Removal of Depositary
The
depositary may resign at any time by delivering to us notice of its
election to do so, and we may remove the depositary at any time.
Any resignation or removal of the depositary will take effect upon
our appointment of a successor depositary and its acceptance of
such appointment. The successor depositary must be appointed within
60 days after delivery of the notice of resignation or removal and
must be a bank or trust company having its principal office in the
United States and having the requisite combined capital and surplus
as set forth in the applicable agreement.
Notices
The
depositary will forward to holders of depositary receipts all
notices, reports and other communications, including proxy
solicitation materials received from us, that are delivered to the
depositary and that we are required to furnish to the holders of
the preferred stock. In addition, the depositary will make
available for inspection by holders of depositary receipts at the
principal office of the depositary, and at such other places as it
may from time to time deem advisable, any reports and
communications we deliver to the depositary as the holder of
preferred stock.
Limitation
of Liability
Neither we nor
the depositary will be liable if either we or it is prevented or
delayed by law or any circumstance beyond its control in performing
its obligations. Our obligations and those of the depositary will
be limited to performance in good faith of our and their duties
thereunder. We and the depositary will not be obligated to
prosecute or defend any legal proceeding in respect of any
depositary shares or preferred stock unless satisfactory indemnity
is furnished. We and the depositary may rely upon written advice of
counsel or accountants, on information provided by persons
presenting preferred stock for deposit, holders of depositary
receipts or other persons believed to be competent to give such
information and on documents believed to be genuine and to have
been signed or presented by the proper party or
parties.
DESCRIPTION
OF PURCHASE CONTRACTS AND UNITS
We
may issue purchase contracts, including contracts obligating
holders to purchase from or sell to us, and obligating us to sell
to or purchase from the holders, a specified number of shares of
our common stock, preferred stock or depositary shares at a future
date or dates, which we refer to in this prospectus as purchase
contracts. As used in this “Description of Purchase Contracts and
Units,” the terms “Danaher,” “we,” “our” and “us” refer to Danaher
Corporation and do not, unless the context otherwise indicates,
include our subsidiaries.
The
price per share of common stock, preferred stock or depositary
shares and the number of shares of each may be fixed at the time
the purchase contracts are issued or may be determined by reference
to a specific formula set forth in the purchase contracts. The
purchase contracts may be issued separately or as part of units
consisting of one or more purchase contracts and beneficial
interests in debt securities or any other securities described in
the applicable prospectus supplement or any combination of the
foregoing, securing the holders’ obligations to purchase the common
stock, preferred stock or depositary shares under the purchase
contracts.
The
purchase contracts may require us to make periodic payments to the
holders of the units or vice versa, and these payments may be
unsecured or prefunded on some basis. The purchase contracts may
require holders to secure their obligations under those contracts
in a specified manner, including pledging their interest in another
purchase contract.
The
applicable prospectus supplement will describe the terms of the
purchase contracts and units, including, if applicable, collateral
or depositary arrangements.
FORMS OF
SECURITIES
Each debt
security, depositary share, purchase contract, unit and warrant
will be represented either by a certificate issued in definitive
form to a particular investor or by one or more global securities
representing the entire issuance of securities. Unless the
applicable prospectus supplement provides otherwise, certificated
securities in definitive form and global securities will be issued
in registered form. Definitive securities name you or your nominee
as the owner of the security, and in order to transfer or exchange
these securities or to receive payments other than interest or
other interim payments, you or your nominee must physically deliver
the securities to the trustee, registrar, paying agent or other
agent, as applicable. Global securities name a depositary or its
nominee as the owner of the debt securities, depositary shares,
purchase contracts, units or warrants represented by these global
securities. The depositary maintains a computerized system that
will reflect each investor’s beneficial ownership of the securities
through an account maintained by the investor with its
broker/dealer, bank, trust company or other representative, as we
explain more fully below.
Registered
Global Securities
We
may issue the debt securities, depositary shares, purchase
contracts, units and warrants in the form of one or more fully
registered global securities that will be deposited with a
depositary or its nominee identified in the applicable prospectus
supplement and registered in the name of that depositary or
nominee. In those cases, one or more registered global securities
will be issued in a denomination or aggregate denominations equal
to the portion of the aggregate principal or face amount of the
securities to be represented by registered global securities.
Unless and until it is exchanged in whole for securities in
definitive registered form, a registered global security may not be
transferred except as a whole by and among the depositary for the
registered global security, the nominees of the depositary or any
successors of the depositary or those nominees.
If
not described below, any specific terms of the depositary
arrangement with respect to any securities to be represented by a
registered global security will be described in the prospectus
supplement relating to those securities. We anticipate that the
following provisions will apply to all depositary
arrangements.
Ownership of
beneficial interests in a registered global security will be
limited to persons, called participants, that have accounts with
the depositary or persons that may hold interests through
participants. Upon the issuance of a registered global security,
the depositary will credit, on its book-entry registration and
transfer system, the participants’ accounts with the respective
principal or face amounts of the securities beneficially owned by
the
participants.
Any dealers, underwriters or agents participating in the
distribution of the securities will designate the accounts to be
credited. Ownership of beneficial interests in a registered global
security will be shown on, and the transfer of ownership interests
will be effected only through, records maintained by the
depositary, with respect to interests of participants, and on the
records of participants, with respect to interests of persons
holding through participants. The laws of some states may require
that some purchasers of securities take physical delivery of these
securities in definitive form. These laws may impair your ability
to own, transfer or pledge beneficial interests in registered
global securities.
So
long as the depositary, or its nominee, is the registered owner of
a registered global security, that depositary or its nominee, as
the case may be, will be considered the sole owner or holder of the
securities represented by the registered global security for all
purposes under the applicable indenture, deposit agreement,
purchase contract, unit agreement or warrant agreement. Except as
described below, owners of beneficial interests in a registered
global security will not be entitled to have the securities
represented by the registered global security registered in their
names, will not receive or be entitled to receive physical delivery
of the securities in definitive form and will not be considered the
owners or holders of the securities under the applicable indenture,
deposit agreement, purchase contract, unit agreement or warrant
agreement. Accordingly, each person owning a beneficial interest in
a registered global security must rely on the procedures of the
depositary for that registered global security and, if that person
is not a participant, on the procedures of the participant through
which the person owns its interest, to exercise any rights of a
holder under the applicable indenture, deposit agreement, purchase
contract, unit agreement or warrant agreement. We understand that
under existing industry practices, if we request any action of
holders or if an owner of a beneficial interest in a registered
global security desires to give or take any action that a holder is
entitled to give or take under the applicable indenture, deposit
agreement, purchase contract, unit agreement or warrant agreement,
the depositary for the registered global security would authorize
the participants holding the relevant beneficial interests to give
or take that action, and the participants would authorize
beneficial owners owning through them to give or take that action
or would otherwise act upon the instructions of beneficial owners
holding through them.
Principal,
premium, if any, and interest payments on debt securities, and any
payments to holders with respect to depositary shares, warrants,
purchase agreements or units, represented by a registered global
security registered in the name of a depositary or its nominee will
be made to the depositary or its nominee, as the case may be, as
the registered owner of the registered global security. None of us,
the trustees, the warrant agents, the unit agents or any other
agent of ours, agent of the trustees or agent of the warrant agents
or unit agents will have any responsibility or liability for any
aspect of the records relating to payments made on account of
beneficial ownership interests in the registered global security or
for maintaining, supervising or reviewing any records relating to
those beneficial ownership interests.
We
expect that the depositary for any of the securities represented by
a registered global security, upon receipt of any payment to
holders of principal, premium, interest or other distribution of
underlying securities or other property on that registered global
security, will immediately credit participants’ accounts in amounts
proportionate to their respective beneficial interests in that
registered global security as shown on the records of the
depositary. We also expect that payments by participants to owners
of beneficial interests in a registered global security held
through participants will be governed by standing customer
instructions and customary practices, as is now the case with the
securities held for the accounts of customers in bearer form or
registered in “street name,” and will be the responsibility of
those participants.
If
the depositary for any of the securities represented by a
registered global security is at any time unwilling or unable to
continue as depositary or ceases to be a clearing agency registered
under the Exchange Act, and a successor depositary registered as a
clearing agency under the Exchange Act is not appointed by us
within 90 days, we will issue securities in definitive form in
exchange for the registered global security that had been held by
the depositary. Any securities issued in definitive form in
exchange for a registered global security will be registered in the
name or names that the depositary gives to the relevant trustee,
warrant agent, unit agent or other relevant agent of ours or
theirs. It is expected that the depositary’s instructions will be
based upon directions received by the depositary from participants
with respect to ownership of beneficial interests in the registered
global security that had been held by the depositary.
PLAN OF
DISTRIBUTION
We
may sell securities:
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directly to
purchasers; or
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through a
combination of any of these methods of sale.
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In
addition, we may issue the securities as a dividend or distribution
or in a subscription rights offering to our existing security
holders.
We
may directly solicit offers to purchase securities, or agents may
be designated to solicit such offers. We will, in the prospectus
supplement relating to such offering, name any agent that could be
viewed as an underwriter under the Securities Act, and describe any
commissions that we must pay. Any such agent will be acting on a
best efforts basis for the period of its appointment or, if
indicated in the applicable prospectus supplement, on a firm
commitment basis. This prospectus may be used in connection with
any offering of our securities through any of these methods or
other methods described in the applicable prospectus
supplement.
The
distribution of the securities may be effected from time to time in
one or more transactions:
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at
a fixed price, or prices, which may be changed from time to
time;
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at
market prices prevailing at the time of sale;
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at
prices related to such prevailing market prices; or
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Each prospectus
supplement will describe the method of distribution of the
securities and any applicable restrictions.
The
prospectus supplement with respect to the securities of a
particular series will describe the terms of the offering of the
securities, including the following:
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the
name of the agent or any underwriters;
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the
public offering or purchase price and the proceeds, if any, we will
receive from the sale of the securities;
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any
discounts and commissions to be allowed, re-allowed or paid to the
agent or underwriters;
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all
other items constituting underwriting compensation;
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any
discounts and commissions to be allowed, re-allowed or paid to
dealers; and
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any
exchanges on which the securities will be listed.
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If
any underwriters or agents are utilized in the sale of the
securities in respect of which this prospectus is delivered, we
will enter into an underwriting agreement or other agreement with
them at the time of sale to them, and we will set forth in the
prospectus supplement relating to such offering the names of the
underwriters or agents and the terms of the related agreement with
them.
If
a dealer is utilized in the sale of the securities in respect of
which the prospectus is delivered, we will sell such securities to
the dealer, as principal. The dealer may then resell such
securities to the public at varying prices to be determined by such
dealer at the time of resale.
If
we offer securities in a subscription rights offering to our
existing security holders, we may enter into a standby underwriting
agreement with dealers, acting as standby underwriters. We may pay
the standby underwriters a commitment fee for the securities they
commit to purchase on a standby basis. If we do not enter into a
standby underwriting arrangement, we may retain a dealer-manager to
manage a subscription rights offering for us.
Remarketing
firms, agents, underwriters, dealers and other persons may be
entitled under agreements which they may enter into with us to
indemnification by us against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, have
borrowing relationships with, engage in other transactions with,
and/or perform services, including investment banking services, for
us or one or more of our respective affiliates in the ordinary
course of business.
If
so indicated in the applicable prospectus supplement, we will
authorize underwriters or other persons acting as our agents to
solicit offers by certain institutions to purchase securities from
us pursuant to delayed delivery contracts providing for payment and
delivery on the date stated in the prospectus supplement. Each
contract will be for an amount not less than, and the aggregate
amount of securities sold pursuant to such contracts shall not be
less nor more than, the respective amounts stated in the prospectus
supplement. Institutions with whom the contracts, when authorized,
may be made include commercial and savings banks, insurance
companies, pension funds, investment companies, educational and
charitable institutions and other institutions, but shall in all
cases be subject to our approval. Delayed delivery contracts will
not be subject to any conditions except that:
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the
purchase by an institution of the securities covered under that
contract shall not at the time of delivery be prohibited under the
laws of the jurisdiction to which that institution is subject;
and
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if
the securities are also being sold to underwriters acting as
principals for their own account, the underwriters shall have
purchased such securities not sold for delayed delivery. The
underwriters and other persons acting as our agents will not have
any responsibility in respect of the validity or performance of
delayed delivery contracts.
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Certain agents,
underwriters and dealers, and their associates and affiliates may
be customers of, have borrowing relationships with, engage in other
transactions with, and/or perform services, including investment
banking services, for us or one or more of our respective
affiliates in the ordinary course of business.
In
order to facilitate the offering of the securities, any
underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the securities or any other
securities the prices of which may be used to determine payments on
such securities. Specifically, any underwriters may overallot in
connection with the offering, creating a short position for their
own accounts. In addition, to cover overallotments or to stabilize
the price of the securities or of any such other securities, the
underwriters may bid for, and purchase, the securities or any such
other securities in the open market. Finally, in any offering of
the securities through a syndicate of underwriters, the
underwriting syndicate may reclaim selling concessions allowed to
an underwriter or a dealer for distributing the securities in the
offering if the syndicate repurchases previously distributed
securities in transactions to cover syndicate short positions, in
stabilization transactions or otherwise. Any of these activities
may stabilize or maintain the market price of the securities above
independent market levels. Any such underwriters are not required
to engage in these activities and may end any of these activities
at any time.
Under Rule
15c6-1 of the Exchange Act, trades in the secondary market
generally are required to settle in two business days, unless the
parties to any such trade expressly agree otherwise. The applicable
prospectus supplement may provide that the original issue date for
your securities may be more than two scheduled business days after
the trade date for your securities. Accordingly, in such a case, if
you wish to trade securities on any date prior to the second
business day before the original issue date for your securities,
you will be required, by virtue of the fact that your securities
initially are expected to settle in more than two scheduled
business days after the trade date for your securities, to make
alternative settlement arrangements to prevent a failed
settlement.
The
securities may be new issues of securities and may have no
established trading market. The securities may or may not be listed
on a national securities exchange. We can make no assurance as to
the liquidity of or the existence of trading markets for any of the
securities.
Sales by
Selling Securityholders
Selling
securityholders may use this prospectus in connection with resales
of securities. The applicable prospectus supplement will identify
the selling securityholders and the terms of the securities.
Selling securityholders may be deemed to be underwriters in
connection with the securities they resell and any profits on the
sales may be deemed to be underwriting discounts and commissions
under the Securities Act. The selling securityholders will receive
all the proceeds from the sale of the securities. We will not
receive any proceeds from sales by selling
securityholders.
LEGAL
MATTERS
Unless the
applicable prospectus supplement indicates otherwise, the validity
of the securities in respect of which this prospectus is being
delivered will be passed upon for Danaher Corporation by James F.
O’Reilly, our Vice President, Associate General Counsel and
Secretary, for Danaher International and Danaher International II
by DLA Piper Luxembourg as to matters of Luxembourg law, and for
any underwriters or agents by counsel named in the applicable
prospectus supplement. Mr. O’Reilly is paid a salary by Danaher, is
a participant in various employee benefit plans and incentive plans
offered by us and owns or has rights to acquire an aggregate of
less than 0.01% of Danaher’s common stock.
EXPERTS
Ernst &
Young LLP, independent registered public accounting firm, has
audited our consolidated financial statements and schedule included
in our Annual Report on Form 10-K for the year ended December 31,
2018, and the effectiveness of our internal control over financial
reporting as of December 31, 2018, as set forth in their reports,
which are incorporated by reference in this prospectus and
elsewhere in the registration statement. The financial statements
and schedule audited by Ernst & Young LLP have been
incorporated by reference in reliance on their report given on
their authority as experts in accounting and auditing.
9,509,203
Shares
DANAHER
CORPORATION
Common
Stock
PROSPECTUS
SUPPLEMENT
May 7,
2020
Joint Book-Running Managers
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Goldman
Sachs & Co. LLC
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J.P.
Morgan
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Citigroup
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Evercore
ISI
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Credit
Suisse
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Co-Managers
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BTIG
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COMMERZBANK
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Mizuho
Securities
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MUFG
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Raymond
James
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RBC Capital
Markets
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Scotiabank
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SMBC
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TD
Securities
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Wells Fargo
Securities
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