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Share Name | Share Symbol | Market | Type |
---|---|---|---|
Becton Dickinson and Company | NYSE:BDX | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
---|---|---|---|---|---|---|---|---|
-0.68 | -0.29% | 230.94 | 232.98 | 229.07 | 232.28 | 1,471,661 | 01:00:00 |
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Item 1.01. | Entry into Material Definitive Agreement. |
The information set forth below with respect to the Becton Finance Offering and the Becton Finance Fifth Supplemental Indenture, each as defined below, is incorporated by reference into this Item 1.01.
Item 2.03. | Creation of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant. |
Euro-denominated Notes Offering
On June 4, 2024, Becton, Dickinson and Company (“BD”) entered into an underwriting agreement (the “BD Euro Underwriting Agreement”) with Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited, as representatives of the underwriters named therein (the “BD Euro Underwriters”), in connection with the offer and sale by BD to the BD Euro Underwriters (the “BD Euro Offering”) of €1,000,000,000 aggregate principal amount of 3.828% Notes due 2032 (the “BD Euro Notes”). On June 7, 2024, BD issued the BD Euro Notes pursuant to the indenture, dated March 1, 1997, between BD and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Indenture”).
BD expects to use the net proceeds from the BD Euro Offering, together with proceeds from the Becton Finance Offering and the BD USD Offering (each as defined below), borrowings under its commercial paper program and cash on hand, (i) to fund the cash consideration payable by BD for the acquisition (the “Acquisition”) of the Critical Care business of Edwards Lifesciences Corporation (“Seller Parent”) and its subsidiaries by BD and/or certain of its subsidiaries, (ii) to pay fees and expenses in respect of the foregoing, and (iii) for general corporate purposes. The BD Euro Offering is not conditioned upon the consummation of the Acquisition, and there can be no assurance that the Acquisition will be consummated.
BD may, at its option, redeem the BD Euro Notes, in whole or in part, at any time and from time to time prior to March 7, 2032 (three months prior to the maturity date of the BD Euro Notes), at a redemption price equal to the greater of (1) 100% of the principal amount of the BD Euro Notes to be redeemed and (2) the sum of the present values of the remaining scheduled payments on the BD Euro Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable comparable government bond rate, plus 25 basis points, plus accrued and unpaid interest, if any, to but excluding the date of redemption.
If, as a result of any change in, or amendment to, the tax laws of the United States, or the official interpretation thereof, BD becomes or, based upon a written opinion of independent counsel selected by BD, will become obligated to pay additional amounts with respect to the BD Euro Notes, BD may at any time at its option redeem, in whole, but not in part, the Euro Notes at 100% of the principal amount plus accrued and unpaid interest to the date of redemption.
If a Change of Control Triggering Event (as defined in the BD Euro Notes) occurs, unless BD has exercised its right to redeem the BD Euro Notes as described above, BD will be required to make an offer to each holder of the outstanding BD Euro Notes to repurchase all or any portion of such holder’s BD Euro Notes at a purchase price of 101% of the principal amount plus accrued and unpaid interest to, but excluding, the date of purchase, subject to the rights of holders of the BD Euro Notes on the relevant record date to receive interest due on the relevant interest payment date.
Each of the following constitutes an event of default under the Indenture with respect to the BD Euro Notes: (1) failure to pay any installment of interest on any security of such series when due and payable, continued for 30 days; (2) failure to pay the principal when due of such series, whether at its stated maturity or otherwise; (3) failure to observe or perform any other covenants, conditions or agreements of BD with respect to such securities for 60 days after BD receives notice of such failure; or (4) certain events of bankruptcy, insolvency or reorganization. If an event of default occurs, the principal amount of the BD Euro Notes may be accelerated pursuant to the Indenture.
The Indenture includes requirements that must be met if BD consolidates or merges with, or sells all or substantially all of BD’s assets to, another entity.
The foregoing summary is qualified in its entirety by reference to the text of the BD Euro Underwriting Agreement, a copy of which is filed as Exhibit 1.1 to this Current Report on Form 8-K, the Indenture, a copy of which is incorporated by reference from Exhibit 4(a) to BD’s Current Report on Form 8-K filed on July 31, 1997, and the Form of 3.828% Notes due 2032, a copy of which is attached as Exhibit 4.1 to this Current Report on Form 8-K.
Subsidiary Notes Offering
On June 4, 2024, Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg (“Becton Finance”) and an indirect, wholly-owned subsidiary of BD, together with BD, entered into an underwriting agreement (the “Becton Finance Underwriting Agreement”) with Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited, as representatives of the underwriters named therein (the “Becton Finance Underwriters”), in connection with the offer and sale by Becton Finance to the Becton Finance Underwriters (the “Becton Finance Offering”) of €800,000,000 aggregate principal amount of 4.029% Notes due 2036 (the “Becton Finance Notes”). On June 7, 2024, the Becton Finance Notes were issued pursuant to the Indenture, dated May 17, 2019, among Becton Finance, as issuer, BD, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Becton Finance Base Indenture”), as amended and supplemented by the Fifth Supplemental Indenture thereto, dated as of June 7, 2024 (the “Becton Finance Fifth Supplemental Indenture” and, together with the Becton Finance Base Indenture, the “Becton Finance Indenture”).
The Becton Finance Notes are fully and unconditionally guaranteed on a senior unsecured basis by BD.
BD expects to use the net proceeds from the Becton Finance Offering, together with proceeds from the BD Euro Offering and the BD USD Offering, borrowings under its commercial paper program and cash on hand, (i) to fund the cash consideration payable by BD for the Acquisition, (ii) to pay fees and expenses in respect of the foregoing, and (iii) for general corporate purposes. The Becton Finance Offering is not conditioned upon the consummation of the Acquisition, and there can be no assurance that the Acquisition will be consummated.
Becton Finance may, at its option, redeem the Becton Finance Notes, in whole or in part, at any time and from time to time prior to March 7, 2036 (three months prior to the maturity date of the Becton Finance Notes) at a redemption price equal to the greater of (a) 100% of the principal amount to be redeemed and (b) the sum of the present values of the remaining scheduled payments on the Becton Finance Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable comparable government bond rate, plus 25 basis points, plus accrued and unpaid interest, to but excluding the date of redemption on the principal balance of the Becton Finance Notes being redeemed. At any time on or after March 7, 2036, the Becton Finance Notes will be redeemable at Becton Finance’s option, in whole or in part, at any time and from time to time at a redemption price equal to 100% of the principal amount of the Becton Finance Notes to be redeemed, plus accrued and unpaid interest hereon to, but excluding, the redemption date.
If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025 and (y) the date that is five business days after any later date to which Seller Parent and BD may agree to extend the “Outside Date” in the Acquisition Agreement (as defined in the Becton Finance Notes) (such later date, the “Special Mandatory Redemption End Date”) or (ii) BD notifies the trustee under the indenture that it will not pursue the consummation of the Acquisition, then Becton Finance will be required to redeem the notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined in the Becton Finance Notes) (subject to the right of holders of the notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date). The proceeds from this offering will not be deposited into an escrow account pending completion of the Acquisition or any Special Mandatory Redemption, nor will Becton Finance be required to grant any security interest or other lien on those proceeds to secure any redemption of the notes.
Becton Finance or, in the case of its guarantee, BD, will, subject to certain exceptions and limitations set forth in the Becton Finance Fifth Supplemental Indenture, pay as additional interest on the Becton Finance Notes such additional amounts as are necessary in order that the net payment by Becton Finance of the principal of and interest on each of the Becton Finance Notes to a holder after withholding or deduction solely with respect to any present or future tax, assessment or other governmental charge imposed by Luxembourg, the United States, or any other jurisdiction in which Becton Finance or BD or, in each case, any successor thereof, may be organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”), will not be less than the amount provided in the Becton Finance Notes to be then due and payable. If, as a result of any change in, or amendment to, the tax laws of a Taxing Jurisdiction, or an official interpretation thereof, Becton Finance becomes or, based upon a written opinion of independent counsel selected by Becton Finance, will become obligated to pay such additional amounts with respect to the Becton Finance Notes, Becton Finance may at any time at its option redeem, in whole, but not in part, the Becton Finance Notes at 100% of the principal amount plus accrued and unpaid interest, if any, to, but excluding, the date of redemption.
If a Change of Control Triggering Event (as defined in the Becton Finance Fifth Supplemental Indenture) occurs, unless Becton Finance has exercised its right to redeem the Becton Finance Notes as described above, Becton Finance will be required to make an offer to each holder of outstanding Becton Finance Notes to repurchase all or any portion (equal to €1,000 or an integral multiple of €1,000 in excess thereof) of that holder’s Becton Finance Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the rights of holders of such Becton Finance Notes on the relevant record date to receive interest due on the relevant interest payment date.
Each of the following constitutes an event of default under the Becton Finance Indenture with respect to the Becton Finance Notes: (1) failure to pay any installment of interest on the Becton Finance Notes when due and payable, continued for 30 days; (2) failure to pay the principal when due of the Becton Finance Notes, whether at stated maturity or otherwise; (3) failure to observe or perform any other covenants, conditions or agreements of Becton Finance or BD with respect to the Becton Finance Notes for 60 days after Becton Finance receives notice of such failure; (4) certain events of bankruptcy, insolvency or reorganization of Becton Finance or BD; or (5) BD’s guarantee ceases to be in full force and effect. If an event of default occurs, the principal amount of the Becton Finance Notes may be accelerated pursuant to the Becton Finance Indenture.
The Becton Finance Indenture includes requirements that must be met if Becton Finance or BD consolidates or merges with, or sells all or substantially all of their respective assets to, another entity. The Becton Finance Indenture also contains certain restrictive covenants with respect to Becton Finance, BD and its restricted subsidiaries, including a limitation on liens, a restriction on sale and leasebacks and a restriction on Becton Finance’s activities that are inconsistent with its designation as a finance subsidiary.
The foregoing summary is qualified in its entirety by reference to the text of the Becton Finance Underwriting Agreement, a copy of which is filed as Exhibit 1.2 to this Current Report on Form 8-K, the Becton Finance Base Indenture, a copy of which is incorporated by reference herein from Exhibit 4.7 to BD’s Post-Effective Amendment to the Registration Statement on Form S-3 filed on May 17, 2019, the Becton Finance Fifth Supplemental Indenture, a copy of which is filed herewith as Exhibit 4.2, and the Form of 4.029% Notes due June 7, 2036, a copy of which is filed as Exhibit 4.3 to this Current Report on Form 8-K.
USD-denominated Notes Offering
On June 4, 2024, Becton, Dickinson and Company (“BD”) entered into an underwriting agreement (the “BD USD Underwriting Agreement”) with Citigroup Global Markets Inc., Barclays Capital Inc., BNP Paribas Securities Corp., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC, as representatives of the underwriters named therein (the “BD USD Underwriters”), in connection with the offer and sale by BD to the BD USD Underwriters (the “BD USD Offering”) of $600,000,000 aggregate principal amount of 5.081% Notes due 2029 (the “BD USD Notes”). On June 7, 2024, BD issued the BD USD Notes pursuant to the Indenture.
BD expects to use the net proceeds from the BD USD Offering, together with proceeds from the BD Euro Offering and the Becton Finance Offering, borrowings under its commercial paper program and cash on hand, (i) to fund the cash consideration payable by BD for the Acquisition, (ii) to pay fees and expenses in respect of the foregoing, and (iii) for general corporate purposes. The BD USD Offering is not conditioned upon the consummation of the Acquisition, and there can be no assurance that the Acquisition will be consummated.
BD may, at its option, redeem the BD USD Notes, in whole or in part, at any time and from time to time prior to (i) May 7, 2029 (one month prior to the maturity date (the “Par Call Date”)) with respect to the BD USD Notes, at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of (a) 100% of the principal amount of the BD USD Notes to be redeemed and (b) (i) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming each series of BD USD Notes matured on its Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (as defined in the BD USD Notes) plus (x) 15 basis points, less (ii) interest accrued to the date of redemption. In each case, the redemption price will also include accrued and unpaid interest thereon to, but excluding, the redemption date.
If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025; and (y) the date that is five business days after any later date to which Seller Parent and BD may agree to extend the “Outside Date” in the Acquisition Agreement (as defined in the BD USD Notes) (such later date, the “Special Mandatory Redemption End Date”) or (ii) BD notifies the trustee under the indenture that it will not pursue the consummation of the Acquisition, then BD will be required to redeem the notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (as defined herein) (subject to the right of holders of the notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date). The proceeds from this offering will not be deposited into an escrow account pending completion of the Acquisition or any Special Mandatory Redemption, nor will Becton Finance be required to grant any security interest or other lien on those proceeds to secure any redemption of the notes.
If a Change of Control Triggering Event (as defined in the BD USD Notes) occurs, unless BD has exercised its right to redeem the BD USD Notes as described above, BD will be required to make an offer to each holder of outstanding BD USD Notes of the applicable series to repurchase all or any portion of that holder’s BD USD Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the rights of holders of such BD USD Notes on the relevant record date to receive interest due on the relevant interest payment date.
Each of the following constitutes an event of default under the Indenture with respect to the BD USD Notes: (1) failure to pay any installment of interest on the BD USD Notes when due and payable, continued for 30 days; (2) failure to pay the principal when due of such notes, whether at its stated maturity or otherwise; (3) failure to observe or perform any other covenants, conditions or agreements of BD with respect to such securities for 60 days after BD receives notice of such failure; or (4) certain events of bankruptcy, insolvency or reorganization. If an event of default occurs, the principal amount of the BD USD Notes may be accelerated pursuant to the Indenture.
The Indenture includes requirements that must be met if BD consolidates or merges with, or sells all or substantially all of BD’s assets to, another entity.
The foregoing summary is qualified in its entirety by reference to the text of the BD USD Underwriting Agreement, a copy of which is filed as Exhibit 1.3 to this Current Report on Form 8-K, the Indenture, a copy of which is incorporated by reference to Exhibit 4(a) to BD’s Current Report on Form 8-K filed on July 31, 1997, the Form of 5.081% Notes due June 7, 2029, a copy of which is Exhibit 4.4 to this Current Report on Form 8-K.
Item 9.01 | Financial Statements and Exhibits. |
1.1 | Underwriting Agreement, dated June 4, 2024, by and among Becton, Dickinson and Company and Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited and the underwriters named therein. |
1.2 | Underwriting Agreement, dated June 4, 2024, by and among Becton Dickinson Euro Finance S.à r.l., Becton, Dickinson and Company and Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited and the other underwriters named therein. |
1.3 | Underwriting Agreement, dated June 4, 2024, by and among Becton, Dickinson and Company and Citigroup Global Markets Inc., Barclays Capital Inc., BNP Paribas Securities Corp., J.P. Morgan Securities LLC and Wells Fargo Securities, as representatives of the underwriters named therein. |
4.1 | Form of 3.828% Notes due June 7, 2032 of Becton, Dickinson and Company. |
4.2 | Fifth Supplemental Indenture, dated as of June 7, 2024, among Becton Dickinson Euro Finance S.à r.l., as issuer, Becton, Dickinson and Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee. |
4.3 | Form of 4.029% Notes due June 7, 2036 of Becton Dickinson Euro Finance S.à r.l. |
4.4 | Form of 5.081% Notes due June 7, 2029 of Becton, Dickinson and Company. |
5.1 | Opinion of Gary DeFazio, Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, relating to the BD Euro Notes. |
5.2 | Opinion of Wachtell, Lipton, Rosen, & Katz, relating to the BD Euro Notes. |
5.3 | Opinion of Gary DeFazio, Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, relating to the Becton Finance Notes. |
5.4 | Opinion of Loyens & Loeff Luxembourg S.à r.l. relating to the Becton Finance Notes. |
5.5 | Opinion of Wachtell, Lipton, Rosen, & Katz, relating to the Becton Finance Notes. |
5.6 | Opinion of Gary DeFazio, Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, relating to the BD USD Notes. |
5.7 | Opinion of Wachtell, Lipton, Rosen, & Katz, relating to the BD USD Notes. |
23.1 | Consent of Gary DeFazio, Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company (included as part of Exhibit 5.1, Exhibit 5.3 and Exhibit 5.6). |
23.2 | Consent of Wachtell, Lipton, Rosen, & Katz (included as part of Exhibit 5.2, Exhibit 5.5 and Exhibit 5.7). |
23.3 | Consent of Loyens & Loeff Luxembourg S.à r.l. (included as part of Exhibit 5.4). |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
BECTON, DICKINSON AND COMPANY
(Registrant)
By: | /s/ Gary DeFazio |
|
Gary DeFazio | ||
Senior Vice President and Corporate Secretary |
Date: June 7, 2024
-6-
Very truly yours,
|
|||
BECTON, DICKINSON AND
COMPANY
|
|||
By:
|
/s/ Christopher DelOrefice |
||
Name:
|
Christopher DelOrefice |
||
Title:
|
Executive Vice President and Chief Financial Officer |
Accepted as of the date hereof:
|
||
CITIGROUP GLOBAL MARKETS LIMITED
|
||
By:
|
/s/ Simi Alabi |
|
Name:
|
Simi Alabi |
|
Title:
|
Delegated Signatory |
BARCLAYS BANK PLC
|
||
By:
|
/s/ James Gutow |
|
Name:
|
James Gutow |
|
Title:
|
Managing Director |
BNP PARIBAS
|
||
By:
|
/s/ Vikas Katyal |
|
Name:
|
Vikas Katyal |
|
Title:
|
Authorised Signatory |
By:
|
/s/ Eric Noyer |
|
Name:
|
Eric Noyer |
|
Title:
|
Authorised Signatory |
J.P. MORGAN SECURITIES PLC
|
||
By:
|
/s/ Robert Chambers |
|
Name:
|
Robert Chambers |
|
Title:
|
Executive Director |
WELLS FARGO SECURITIES INTERNATIONAL LIMITED
|
||
By:
|
/s/ Damon Mahon |
|
Name:
|
Damon Mahon |
|
Title:
|
Managing Director |
MUFG SECURITIES (EUROPE) N.V.
|
||
By:
|
/s/ Cecilia Gejke |
|
Name:
|
Cecilia Gejke |
|
Title:
|
Chief Risk Officer |
SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY
|
||
By:
|
/s/ Pauline Donohoe |
|
Name:
|
Pauline Donohoe |
|
Title:
|
MD, Head of Capital Markets, SIDAC | |
By:
|
/s/ Nicola Vavasour |
|
Name:
|
Nicola Vavasour |
|
Title:
|
CEO, SIDAC |
U.S. BANCORP INVESTMENTS, INC.
|
||
By:
|
/s/ William J. Carney |
|
Name:
|
William J. Carney |
|
Title:
|
Managing Director |
ACADEMY SECURITIES, INC.
|
||
By:
|
/s/ Michael Boyd |
|
Name:
|
Michael Boyd |
|
Title:
|
Chief Compliance Officer |
ING BANK N.V, BELGIAN BRANCH
|
||
By:
|
/s/ William de Vreede |
|
Name:
|
William de Vreede |
|
Title:
|
Global Head Legal Wholesale Banking |
|
By: |
/s/ Kris Devos |
|
Name: |
Kris Devos |
|
Title: |
Global Head of Debt Syndicate |
INTESA SANPAOLO IMI SECURITIES CORP.
|
||
By:
|
/s/ Stean B. Fitzpatrick |
|
Name:
|
Stean B. Fitzpatrick |
|
Title:
|
Managing Director |
LOOP CAPITAL MARKETS LLC
|
||
By:
|
/s/ Omar F. Zaman |
|
Name:
|
Omar F. Zaman |
|
Title:
|
Managing Director |
R. SEELAUS & CO., LLC
|
||
By:
|
/s/ Jim Brucia |
|
Name:
|
Jim Brucia |
|
Title:
|
Managing Director, Co-Head of Capital Markets |
SIEBERT WILLIAMS SHANK & CO., LLC
|
||
By:
|
/s/ M. Nadine Burnett |
|
Name:
|
M. Nadine Burnett |
|
Title:
|
Managing Director |
STANDARD CHARTERED BANK
|
||
By:
|
/s/ Patrick Dupont-Liot |
|
Name:
|
Patrick Dupont-Liot |
|
Title:
|
Managing Director, Debt Capital Markets |
THE TORONTO-DOMINION BANK
|
||
By:
|
/s/ Frances Watson |
|
Name:
|
Frances Watson |
|
Title:
|
Director, Transaction Advisory |
Underwriter
|
Principal Amount of Securities to be Purchased
|
|||
Citigroup Global Markets Limited
|
€
|
252,200,000
|
||
Barclays Bank PLC
|
€
|
89,200,000
|
||
BNP Paribas
|
€
|
89,200,000 | ||
J.P. Morgan Securities plc
|
€
|
89,200,000 | ||
Wells Fargo Securities Limited
|
€
|
89,200,000 | ||
MUFG Securities (Europe) N.V.
|
€
|
85,000,000
|
||
Scotiabank (Ireland) Designated Activity Company
|
€
|
85,000,000
|
||
U.S. Bancorp Investments, Inc.
|
€
|
85,000,000
|
||
Academy Securities, Inc.
|
€
|
17,000,000
|
||
ING Bank N.V, Belgian Branch
|
€
|
17,000,000
|
||
Intesa Sanpaolo IMI Securities Corp.
|
€
|
17,000,000
|
||
Loop Capital Markets LLC
|
€
|
17,000,000
|
||
R. Seelaus & Co., LLC
|
€
|
17,000,000
|
||
Siebert Williams Shank & Co., LLC
|
€
|
17,000,000
|
||
Standard Chartered Bank
|
€
|
17,000,000
|
||
The Toronto-Dominion Bank
|
€
|
17,000,000
|
||
Total
|
€
|
1,000,000,000
|
(a)
|
Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
|
(b) |
Additional Documents Incorporated by Reference: None
|
Very truly yours,
|
||
BECTON DICKINSON EURO
FINANCE S.À R.L.
|
||
By:
|
/s/ Alessandro Luino |
|
Name: |
Alessandro Luino
|
|
Title: |
Class B Manager
|
BECTON, DICKINSON AND
COMPANY
|
||
By:
|
/s/ Greg Rodetis | |
Name: |
Greg Rodetis
|
|
Title: |
Senior Vice President,
Treasurer and Head of Investor Relations
|
CITIGROUP GLOBAL MARKETS LIMITED
|
||
By:
|
/s/ Simi Alabi |
|
Name: |
Simi Alabi | |
Title: |
Delegated Authority |
BARCLAYS BANK PLC
|
||
By:
|
/s/ James Gutow | |
Name: |
James Gutow | |
Title: |
Managing Director |
BNP PARIBAS
|
||
By:
|
/s/ Vikas Katyal | |
Name: |
Vikas Katyal | |
Title: |
Authorized Signatory |
By:
|
/s/ Eric Noyer | |
Name: |
Eric Noyer | |
Title: |
Authorized Signatory |
J.P. MORGAN SECURITIES PLC
|
||
By:
|
/s/ Robert Chambers | |
Name: |
Robert Chambers | |
Title: |
Executive Director |
WELLS FARGO SECURITIES INTERNATIONAL LIMITED
|
||
By:
|
/s/ Damon Mahon | |
Name: |
Damon Mahon | |
Title: |
Managing Director |
MUFG SECURITIES (EUROPE) N.V.
|
||
By:
|
/s/ Cecilia Gejke | |
Name: |
Cecilia Gejke | |
Title: |
Chief Risk Officer |
SCOTIABANK (IRELAND) DESIGNATED ACTIVITY COMPANY
|
||
By:
|
/s/ Pauline Donohoe | |
Name: |
Pauline Donohoe | |
Title: |
MD, Head of Capital Markets, SIDAC |
By:
|
/s/ Nicola Vavasour | |
Name: |
Nicola Vavasour | |
Title: |
CEO, SIDAC |
U.S. BANCORP INVESTMENTS, INC.
|
||
By:
|
/s/ William J. Carney | |
Name: |
William J. Carney | |
Title: |
Managing Director |
ACADEMY SECURITIES, INC.
|
||
By:
|
/s/ Michael Boyd | |
Name: |
Michael Boyd | |
Title: |
Chief Compliance Officer |
ING BANK N.V., BELGIAN BRANCH
|
||
By:
|
/s/ Kris Devos | |
Name: |
Kris Devos | |
Title: |
Global Head of Debt Syndicate |
By:
|
/s/ William de Vreede | |
Name: |
William de Vreede | |
Title: |
Global Head of Legal Wholesale Banking |
INTESA SANPAOLO IMI SECURITIES CORP.
|
||
By:
|
/s/ Stean B. Fitzpatrick | |
Name: |
Stean B. Fitzpatrick | |
Title: |
Managing Director |
LOOP CAPITAL MARKETS LLC
|
||
By:
|
/s/ Omar F. Zaman | |
Name: |
Omar F. Zaman | |
Title: |
Managing Director
|
R. SEELAUS & CO., LLC
|
||
By:
|
/s/ Jim Brucia | |
Name: |
Jim Brucia | |
Title: |
Managing Director, Co-Head of Capital Markets
|
SIEBERT WILLIAMS SHANK & CO., LLC
|
||
By:
|
/s/ M. Nadine Burnett | |
Name: |
M. Nadine Burnett
|
|
Title: |
Managing Director
|
STANDARD CHARTERED BANK
|
||
By:
|
/s/ Patrick Dupont-Liot | |
Name: |
Patrick Dupont-Liot
|
|
Title: |
Managing Director, Debt Capital Markets
|
THE TORONTO-DOMINION BANK
|
||
By:
|
/s/ Frances Watson | |
Name: |
Frances Watson
|
|
Title: |
Director, Transaction Advisory
|
Underwriter
|
Principal Amount of Securities to be Purchased
|
|||
Citigroup Global Markets Limited
|
€
|
201,760,000
|
||
Barclays Bank PLC
|
€
|
71,360,000
|
||
BNP Paribas
|
€
|
71,360,000
|
||
J.P. Morgan Securities plc
|
€
|
71,360,000
|
||
Wells Fargo Securities Limited
|
€
|
71,360,000
|
||
MUFG Securities (Europe) N.V.
|
€
|
68,000,000
|
||
Scotiabank (Ireland) Designated Activity Company
|
€
|
68,000,000
|
||
U.S. Bancorp Investments, Inc.
|
€
|
68,000,000
|
||
Academy Securities, Inc.
|
€
|
13,600,000
|
||
ING Bank N.V., Belgian Branch
|
€
|
13,600,000
|
||
Intesa Sanpaolo IMI Securities Corp.
|
€
|
13,600,000
|
||
Loop Capital Markets LLC
|
€
|
13,600,000
|
||
R. Seelaus & Co., LLC
|
€
|
13,600,000
|
||
Siebert Williams Shank & Co., LLC
|
€
|
13,600,000
|
||
Standard Chartered Bank
|
€
|
13,600,000
|
||
The Toronto-Dominion Bank
|
€
|
13,600,000
|
||
Total
|
€
|
800,000,000
|
(a)
|
Issuer Free Writing Prospectuses not included in the Pricing Disclosure Package:
|
(b) |
Additional Documents Incorporated by Reference: None
|
Very truly yours,
|
|||
BECTON, DICKINSON AND COMPANY
|
|||
By:
|
/s/ Christopher DelOrefice | ||
Name: |
Christopher DelOrefice
|
||
Title:
|
Executive Vice President and
Chief Financial Officer
|
Accepted as of the date hereof:
|
||
CITIGROUP GLOBAL MARKETS INC.
|
||
By:
|
/s/ Adam D. Bordner |
|
Name:
|
Adam D. Bordner | |
Title:
|
Managing Director |
BARCLAYS CAPITAL INC. | ||
By:
|
/s/ James Gutnow |
|
Name:
|
James Gutnow | |
Title:
|
Managing Director |
BNP PARIBAS SECURITIES CORP. | ||
By:
|
/s/ Christian Stewart |
|
Name:
|
Christian Stewart | |
Title:
|
Managing Director |
J.P. MORGAN SECURITIES LLC | ||
By:
|
/s/ Som Bhattacharyya |
|
Name:
|
Som Bhattacharyya |
|
Title:
|
Executive Director |
WELLS FARGO SECURITIES, LLC
|
||
By:
|
/s/ Carolyn Hurley |
|
Name:
|
Carolyn Hurley | |
Title: |
Managing Director |
Underwriter
|
Principal Amount of
5.081% Notes due
2029 to be Purchased
|
|||
Citigroup Global Markets Inc.
|
$
|
151,320,000
|
||
Barclays Capital Inc.
|
$
|
53,520,000
|
||
BNP Paribas Securities Corp.
|
$
|
53,520,000
|
||
J.P. Morgan Securities LLC
|
$
|
53,520,000
|
||
Wells Fargo Securities, LLC
|
$
|
53,520,000
|
||
MUFG Securities Americas Inc.
|
$
|
51,000,000
|
||
Scotia Capital (USA) Inc.
|
$
|
51,000,000
|
||
U.S. Bancorp Investments, Inc.
|
$
|
51,000,000
|
||
Academy Securities, Inc.
|
$
|
10,200,000
|
||
ING Financial Markets LLC
|
$
|
10,200,000
|
||
Intesa Sanpaolo IMI Securities Corp.
|
$
|
10,200,000
|
||
Loop Capital Markets LLC
|
$
|
10,200,000
|
||
R. Seelaus & Co., LLC
|
$
|
10,200,000
|
||
Siebert Williams Shank & Co., LLC
|
$
|
10,200,000
|
||
Standard Chartered Bank
|
$
|
10,200,000
|
||
TD Securities (USA) LLC
|
$
|
10,200,000
|
||
Total
|
$
|
600,000,000
|
Exhibit 4.1
Unless this certificate is presented by an authorized representative of Euroclear Bank S.A./N.V. (“Euroclear”) and Clearstream Banking, S.A. (“Clearstream” and, together with Euroclear, “Euroclear/Clearstream”), to the Company or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of The Bank of New York Depository (Nominees) Limited or in such other name as is requested by an authorized representative of Euroclear/Clearstream (and any payment is made to The Bank of New York Depository (Nominees) Limited or to such other entity as is requested by an authorized representative of Euroclear/Clearstream), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, The Bank of New York Depository (Nominees) Limited, has an interest herein.
BECTON, DICKINSON AND COMPANY
3.828% Notes due 2032
No. |
CUSIP No.: 075887 CV9
CT4 ISIN No.: XS2839004368
Common Code: 283900436
BECTON, DICKINSON AND COMPANY, a New Jersey corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”) for value received, hereby promises to pay to THE BANK OF NEW YORK DEPOSITORY (NOMINEES) LIMITED, as nominee of The Bank of New York Mellon, London Branch, as common depositary for Euroclear Bank, S.A./N.V. (“Euroclear”) and Clearstream Banking, S.A. (“Clearstream”), or registered assigns, the principal sum of € on June 7, 2032 and to pay interest, on June 7 of each year, commencing June 7, 2025, on said principal sum at the rate of 3.828% per annum, from June 7, 2024 or from the most recent interest payment date to which interest has been paid or provided for, as the case may be, until payment of said principal sum has been made or duly provided for.
The interest so payable on any June 7 shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the Business Day immediately preceding the applicable interest payment date. Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid (or from June 7, 2024, if no interest has been paid), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association. If any interest payment date is not a Business Day, payment of interest will be made on the next day that is a Business Day and no interest will accrue as a result of such delayed payment on amounts payable from and after such interest payment date to the next succeeding Business Day.
“Business Day” means any day that is not a Saturday or Sunday and that is not a day on which banking institutions are authorized or obligated by law or executive order to close in the City of New York or London and on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, operates.
Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of London, England, which shall be initially the corporate trust office of The Bank of New York Mellon, London Branch, located at 160 Queen Victoria Street, London EC4V 4AL.
All payments of interest and principal, including payments made upon any redemption of this Note, will be made in euro; provided, that if on or after June 4, 2024, the euro is unavailable to the Company due to the imposition of exchange controls or other circumstances beyond the Company’s control or if the euro is no longer being used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of this Note will be made in U.S. dollars until the euro is again available to the Company or so used.
The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar exchange rate available on or prior to the second Business Day prior to the relevant payment date, as determined by the Company in its sole discretion. Any payment in respect of this Note so made in U.S. dollars will not constitute an Event of Default with respect to the Notes of this series or under the Indenture governing the Notes.
“euro” and “€” means the lawful currency of the member states of the European Monetary Union that have adopted the euro as their currency.
Reference is made to the further provisions of this Note set forth on the reverse hereof.
Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS HEREOF, Becton, Dickinson and Company has caused this Note to be executed in its name and on its behalf by its duly authorized officers, and has caused its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
BECTON, DICKINSON AND COMPANY as the Company |
|||
By: | |||
Name: | Christopher DelOrefice | ||
Title: | Executive Vice President and Chief Financial Officer |
Attest: |
By: | |||
Name: | Gary DeFazio | ||
Title: | Senior Vice President, Corporate | ||
Secretary and Associate General Counsel |
|||
[Signature Page to Euro Global Note]
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued pursuant to the within-mentioned Indenture.
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | |||
By: | |||
Authorized Officer | |||
[Signature Page to Euro Global Note]
[Reverse of Security]
BECTON, DICKINSON AND COMPANY
3.828% Notes Due 2032
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (herein called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of March 1, 1997 (as amended or supplemented, herein called the “Indenture”), duly executed and delivered by the Company and The Bank of New York Mellon Trust Company, N.A., as successor to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (herein called the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the 3.828% Notes due 2032 (the “Notes”) limited in aggregate principal amount of €1,000,000,000 (except as in the Indenture provided) and issued in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof. The Company may, from time to time, without the consent of the existing holders of the Notes, issue additional notes under the Indenture having the same terms as the Original Notes in all respects, except for issue date, issue price and the initial interest payment date. Any such additional notes shall be consolidated with and form a single series with the Original Notes. Terms defined in the Indenture have the same definitions herein unless otherwise specified. The Notes are governed by the laws of the State of New York. References herein to “Notes” shall include the Original Notes, this Note and any additional notes.
Initially, The Bank of New York Mellon, London Branch will act as Paying Agent. The Bank of New York Mellon Trust Company, N.A. will initially act as Registrar for the Notes. The Company may change any Paying Agent upon notice to the Trustee.
In case an Event of Default, as defined in the Indenture, with respect to the Notes shall have occurred and be continuing, the principal hereof and interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities of any series at any time by the Company and the Trustee with the consent of the holders of a majority in aggregate principal amount of the outstanding Securities of such series, each affected series voting separately. The Indenture also contains provisions permitting the holders of a majority in aggregate principal amount of the outstanding Securities of any series, on behalf of the holders of all the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or such other Note.
Subject to the terms of the Indenture, the Company may elect either (i) to defease and be discharged from any and all obligations with respect to the Notes or (ii) to be released from its obligations with respect to certain covenants applicable to the Notes, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, at the rate and in the coin or currency prescribed herein.
The Notes are redeemable as a whole or in part at the option of the Company at any time and from time to time prior to March 7, 2032, at a redemption price, as determined by the Company, equal to the greater of (1) 100% of the principal amount of the Notes to be redeemed and (2) the sum of the present values of the Remaining Scheduled Payments on the Notes, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate, plus 25 basis points, plus, in each case, accrued and unpaid interest to, but excluding, the redemption date on the principal balance of the Notes being redeemed. At any time on or after March 7, 2032, the Notes will be redeemable at the Company’s option, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date. The Trustee shall not be responsible for calculating the redemption price. For the purposes hereof:
“Remaining Scheduled Payments” means the remaining scheduled payments of the principal and interest on the Notes called for redemption that would be due after the related redemption date but for such redemption up to March 7, 2032; provided, however, that, if such redemption date is not an interest payment date with respect to such Notes, the amount of the next scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
“Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the Comparable Government Bond on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Company.
“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German federal government bond whose maturity is closest to the maturity of the Notes to be redeemed, or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.
Notice of any redemption shall be mailed or otherwise transmitted in accordance with the applicable procedures of Euroclear or Clearstream to the Holders of the applicable Notes or portions thereof called for redemption not less than 10 days and not more than 30 days before the redemption date of the Notes being redeemed. The notice of redemption will state any conditions applicable to a redemption and the amount of the Notes to be redeemed.
Unless the Company defaults on payment of the redemption price, on and after the redemption date, the Notes or any portion of the Notes called for redemption shall stop accruing interest. On or before any redemption date, the Company shall deposit with the Paying Agent or the Trustee money sufficient to pay the accrued interest on the Notes to be redeemed and their redemption price. A partial redemption of Notes may be effected pursuant to the applicable procedures of the depositary or the Paying Agent, and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for such Notes or any integral multiple of €1,000 in excess thereof) of the principal amount of such Notes of a denomination larger than the minimum authorized denomination for such Notes.
Upon the occurrence of a Change of Control Triggering Event, each holder of outstanding Notes shall have the right to require the Company to purchase all or a portion of that holder’s Notes (in integral multiples of €1,000) (a “Change of Control Offer”) at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the rights of holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date. For purposes hereof:
“Change of Control” means the occurrence of any one of the following:
● | the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any Person (including any “person” (as that term is defined in Section 13 (d)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”)) other than to the Company or one of its subsidiaries); |
● | the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is defined in Section 13(d)(3) of the Exchange Act)), other than the Company or one of its subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Company or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or |
● | the adoption of a plan relating to the liquidation or dissolution of the Company. |
Notwithstanding the foregoing, a transaction shall not be considered to be a Change of Control if: (a) the Company becomes a direct or indirect wholly owned subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no Person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the Notes are rated below Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on the date of the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of that Change of Control (which Trigger Period shall be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade and the downgrade would result in a Change of Control Triggering Event). Unless at least two of the Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes shall be deemed to be rated below Investment Grade by the Rating Agencies during that Trigger Period. Notwithstanding the foregoing, no Change of Control Triggering Event shall be deemed to have occurred in connection with (i) any particular Change of Control unless and until such Change of Control has actually been consummated or (ii) any reduction in rating if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, a Change of Control (whether or not the Change of Control shall have occurred at the time of the reduction in rating). In no event shall the Trustee be charged with the responsibility of monitoring the Company’s ratings.
“Fitch” means Fitch Ratings, Inc. and its successors.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company in accordance with the definition of “Rating Agency.”
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Person” means any individual, corporation, partnership, joint venture, association, joint- stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Rating Agency” means each of Fitch, Moody’s and S&P; provided that if any of Fitch, Moody’s or S&P ceases to provide rating services to issuers or investors or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, the Company may appoint a replacement for that Rating Agency.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors. “Voting Stock” of any specified Person as of any date means the capital stock of that Person that is at the time entitled to vote generally in the election of the board of directors of that Person.
Within 30 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, the Company shall send, in accordance with the applicable procedures of Euroclear or Clearstream, a notice to each holder of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date must be no earlier than 30 days nor later than 60 days from the date the notice is sent, other than as may be required by law (the “Change of Control Payment Date”). The notice, if sent prior to the date of consummation of the Change of Control, shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
If holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making such an offer in lieu of the Company as described above, purchases all of the Notes validly tendered and not withdrawn by such holders, the Company or such third party will have the right, upon not less than 10 days nor more than 60 days’ prior notice; provided that such notice is given not more than 30 days following such repurchase pursuant to the Change of Control Offer described above, to redeem all notes that remain outstanding following such purchase on a date specified in such notice (the “Second Change of Control Payment Date”) and at a price in cash equal to 101% of the aggregate principal amount of notes repurchased plus any accrued and unpaid interest on the notes repurchased to, but not including, the Second Change of Control Payment Date.
The Company shall not be required to make a Change of Control Offer with respect to the Notes if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and that third party purchases all Notes properly tendered and not withdrawn under its offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions herein, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions herein by virtue of such conflicts.
Upon the presentment for registration of transfer of this Note at the office or agency of the Company designated for such purpose pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee or any Note registrar, co-registrar, paying agent or authenticating agent, may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment hereof, or an account hereof, and for all other purposes, and the Company, the Trustee and any Note registrar, co-registrar, paying agent and authenticating agent shall not be affected by any notice to the contrary.
Additional Amounts
The Company shall, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts as are necessary in order that the net payment by the Company or a Paying Agent of the principal of and interest on the Notes to a holder who is not a United States Person, after withholding or deduction solely with respect to any present or future tax, assessment or other governmental charge imposed by the United States or a taxing authority in the United States, will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply:
● | to any tax, assessment or other governmental charge that would not have been imposed but for the holder (or the beneficial owner for whose benefit such holder holds the Notes), or a fiduciary, settlor, beneficiary, member or shareholder of the holder, or a person holding a power over an estate or trust administered by a fiduciary holder, being treated as: |
● | being or having been present in, or engaged in a trade or business in, the United States, or having or having had a permanent establishment in the United States; |
● | having a current or former connection with the United States (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen of the United States or treated as being or having been a resident thereof; |
● | being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to avoid United States federal income tax; |
● | being or having been a “10-percent shareholder”, as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the “Code”), or any successor provision, of the Company; or |
● | being 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 or any successor provision; |
● | to any holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company 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; |
● | to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the United States of the holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the United States or any taxing authority therein or by an applicable income tax treaty to which the United States is a party as a precondition to exemption from such tax, assessment or other governmental charge; |
● | to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment; |
● | to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge; |
● | to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the holder of the Notes, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later; |
● | to any tax assessment or other governmental charge required to be withheld or deducted that is imposed on a payment pursuant to sections 1471 through 1474 of the Code (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any Treasury Regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA; |
● | to any tax assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later; |
● | to any tax, assessment or other governmental charge that is imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of section 871(h) or section 881(c) of the Code; |
● | to any tax imposed pursuant to section 871(h)(6) or section 881(c)(6) of the Code (or any amended or successor provisions); or |
● | in the case of any combination of the above bulleted items under this heading “Additional Amounts.” |
Except as specifically provided herein, the Company will not be required to pay additional amounts in respect of any tax, assessment or other governmental charge.
“United States” as used under this heading “Additional Amounts” means the United States of America, any state thereof, and the District of Columbia.
“United States Person” as used under this heading “Additional Amounts” means (i) any individual who is a citizen or resident of the United States for United States federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more united states persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
If, as a result of any change in, or amendment to, the laws of the United States or the official interpretation thereof that is announced or becomes effective on or after June 4, 2024, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts as described above under this heading “Additional Amounts” with respect to the Notes, then the Company may at any time at its option redeem, in whole, but not in part, the Notes on not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest on the Notes to be redeemed to, but excluding, the date fixed for redemption.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to a Change of Control Offer, check the appropriate box below:
☐ | Change of Control Offer €_____ (amount must be in integral multiples of €1,000; the amount accepted shall be such that the principal amount of your Notes remaining outstanding after repurchase shall be equal to €100,000 or an integral multiple of €1,000 in excess thereof.) |
Date: ______________________________________ | Your Signature ______________________________________ |
(Sign exactly as your name appears on the face of this Note) |
Tax I.D. Number: ______________________________________
Signature Guarantee*: ______________________________________
*Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
Exhibit 4.2
BECTON DICKINSON EURO FINANCE S.À R.L.
as Issuer
BECTON, DICKINSON AND COMPANY
as Guarantor
AND
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A.,
as Trustee
FIFTH SUPPLEMENTAL INDENTURE
Dated as of June 7, 2024
4.029% Notes due 2036
TABLE OF CONTENTS
Page | ||
ARTICLE I | ||
Section 1.1 | Definitions | 2 |
Section 1.2 | Terms of the Notes | 5 |
Section 1.3 | Interest | 6 |
Section 1.4 | Guarantee | 7 |
Section 1.5 | Issuance in Euro | 7 |
Section 1.6 | Optional Redemption | 7 |
Section 1.7 | Special Mandatory Redemption | 8 |
Section 1.8 | Offer to Repurchase Upon Change of Control Triggering Event | 9 |
Section 1.9 | Payment of Additional Amounts | 10 |
Section 1.10 | Redemption for Tax Reasons | 12 |
Section 1.11 | Eurosystem Eligibility | 13 |
Section 1.12 | Destroy Option | 13 |
ARTICLE II MISCELLANEOUS |
||
Section 2.1 | Business Day | 13 |
Section 2.2 | Confirmation of Indenture | 13 |
Section 2.3 | Concerning the Trustee | 13 |
Section 2.4 | Governing Law | 13 |
Section 2.5 | Separability | 13 |
Section 2.6 | Duplicate Originals | 14 |
Section 2.7 | No Benefit | 14 |
Exhibit A | FORM OF NOTE |
FIFTH SUPPLEMENTAL INDENTURE (this “Supplemental Indenture”), dated as of June 7, 2024, among Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229 (the “Company”), Becton, Dickinson and Company, a New Jersey corporation (the “Guarantor”), and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”).
RECITALS
WHEREAS, the Company, the Guarantor and the Trustee executed and delivered an indenture, dated as of May 17, 2019 (the “Base Indenture” and, as supplemented by this Supplemental Indenture, the “Indenture”), to provide for the issuance by the Company from time to time of its debentures, notes or other evidences of indebtedness to be issued in one or more series, which may be fully and unconditionally guaranteed by the Guarantor;
WHEREAS, the Company has authorized the issuance of €800,000,000 aggregate principal amount of 4.029% Notes due 2036 (the “Notes”);
WHEREAS, each of the Company and the Guarantor desire to enter into this Supplemental Indenture pursuant to Section 9.01 of the Base Indenture to establish the form and terms of the Notes in accordance with Sections 2.01 and 2.03 of the Base Indenture;
WHEREAS, the Guarantor desires to guarantee the Notes (the “Guarantee”) on the terms set forth in Article 10 of the Base Indenture;
WHEREAS, Section 9.01(f) of the Base Indenture permits the Company and the Trustee to enter into an indenture supplemental to the Base Indenture to make any change that does not materially and adversely affect the rights of any Holder of outstanding Securities;
WHEREAS, the changes to the Base Indenture contemplated in this Supplemental Indenture comply with the requirements of Section 9.01(f);
WHEREAS, the entry into this Supplemental Indenture by the parties hereto is in all respects authorized by the provisions of the Base Indenture; and
WHEREAS, all things necessary to make this Supplemental Indenture a valid and legally binding agreement according to its terms have been done.
NOW, THEREFORE, for and in consideration of the foregoing premises and for other good and valuable consideration, the Company, the Guarantor and the Trustee mutually covenant and agree for the equal and proportionate benefit of the respective Holders from time to time of the Notes as follows:
Article I
Section 1.1 Definitions.
(1) Capitalized terms used but not defined in this Supplemental Indenture shall have the meanings ascribed thereto in the Base Indenture.
(2) A term defined anywhere in this Supplemental Indenture has the same meaning throughout.
(3) The singular includes the plural and vice versa.
(4) Headings are for convenience of reference only and do not affect the interpretation.
(5) As used herein, the following defined terms shall have the following meanings with respect to the Notes and this Supplemental Indenture only:
“Acquisition” means the acquisition of the Critical Care business of Seller Parent and its subsidiaries by the Guarantor and/or certain of its subsidiaries.
“Acquisition Agreement” means the Stock and Asset Purchase Agreement, dated June 3, 2024, by and among the Guarantor and Seller Parent, as may be amended or modified or any provision thereof waived from time to time.
“Business Day” means any day that is not a Saturday or Sunday and that is not a day on which banking institutions are authorized or obligated by law or executive order to close in the City of New York or London and on which the Trans-European Automated Real-time Gross Settlement Express Transfer system (the TARGET2 system), or any successor thereto, operates.
“Change of Control” means the occurrence of any one of the following: (i) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Guarantor and its subsidiaries taken as a whole to any Person (including any “person”(as that term is defined in Section 13(d)(3) of the Exchange Act)) other than to the Guarantor or one of its subsidiaries; (ii) the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is used in Section 13(d)(3) of the Exchange Act)), other than the Company or one of its subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Guarantor or other Voting Stock into which the Guarantor’s Voting Stock is reclassified, consolidated, exchanged or changed, measured by voting power rather than number of shares; or (iii) the adoption of a plan relating to the liquidation or dissolution of the Guarantor. Notwithstanding the foregoing, a transaction will not be considered to be a Change of Control if (a) the Guarantor becomes a direct or indirect wholly owned subsidiary of a holding company and (b) (x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Guarantor’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no Person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the Notes are rated below Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on the date of the first public announcement by the Guarantor of any Change of Control (or pending Change of Control) and ending 60 days following consummation of that Change of Control (which Trigger Period will be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade and the downgrade would result in a Change of Control Triggering Event). Unless at least two of the Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes will be deemed to be rated below Investment Grade by the Rating Agencies during that Trigger Period. Notwithstanding the foregoing, no Change of Control Triggering Event will be deemed to have occurred in connection with (i) any particular Change of Control unless and until such Change of Control has actually been consummated or (ii) any reduction in rating if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Company in writing at the Company’s request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, a Change of Control (whether or not the Change of Control shall have occurred at the time of the reduction in rating). In no event shall the Trustee be charged with the responsibility of monitoring the Company’s ratings.
“Clearstream” means Clearstream Banking S.A.
“Code” means the U.S. Internal Revenue Code of 1986, as amended.
“Common Safekeeper” means, with respect to Notes issued in the form of a Global Note in accordance with the New Safekeeping Structure, Clearstream, which is the entity elected by the Paying Agent as Common Safekeeper, or such successor as Clearstream shall designate.
“Common Service Provider” means, with respect to Notes issued in the form of a Global Note in accordance with the New Safekeeping Structure, The Bank of New York Mellon, London Branch, which is the entity appointed by the ICSDs to service the Notes, or such successor as the ICSDs shall designate.
“Comparable Government Bond Rate” means the yield to maturity, expressed as a percentage (rounded to three decimal places, with 0.0005 being rounded upwards), on the third Business Day prior to the date fixed for redemption, of the Comparable Government Bond on the basis of the middle market price of the Comparable Government Bond prevailing at 11:00 a.m. (London time) on such Business Day as determined by an independent investment bank selected by the Company.
“Comparable Government Bond” means, in relation to any Comparable Government Bond Rate calculation, at the discretion of an independent investment bank selected by the Company, a German federal government bond whose maturity is closest to the maturity of the Notes to be redeemed (assuming such notes to be redeemed matured on June 13, 2029 (three months prior to the maturity date of the Notes)), or if such independent investment bank in its discretion determines that such similar bond is not in issue, such other German federal government bond as such independent investment bank may, with the advice of three brokers of, and/or market makers in, German federal government bonds selected by the Company, determine to be appropriate for determining the Comparable Government Bond Rate.
“euro” or “€” means the lawful currency of the member states of the European Monetary Union that have adopted the euro as their currency.
“Euroclear” means Euroclear Bank SA/NV.
“Fitch” means Fitch Ratings, Inc. and its successors.
“Global Note(s)” means one or more permanent, registered securities in global form and includes any Global Note intended to be held under the New Safekeeping Structure and registered in the name of a nominee for the Common Safekeeper.
“ICSD(s)” means Clearstream and/or Euroclear, as the case may be and/or any additional or alternative clearing system approved by the Company (provided that such additional or alternative clearing system must also be authorized to hold a Global Note as eligible collateral for Eurosystem monetary policy and intra-day credit operations) collectively.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Guarantor in accordance with the definition of “Rating Agency.”
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“New Safekeeping Structure” or “NSS” means a structure where a Global Note is registered in the name of a Common Safekeeper (or its nominee) for Euroclear and/or Clearstream and will be deposited on or about the issue date with the Common Safekeeper for Euroclear and/or Clearstream.
“Paying Agent” means The Bank of New York Mellon, London Branch, or any successor thereto.
“Person” means any individual, corporation, partnership, joint venture, association, joint- stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Rating Agency” means each of Fitch, Moody’s and S&P; provided that if any of Fitch, Moody’s or S&P ceases to provide rating services to issuers or investors or fails to make a rating of the Notes publicly available for reasons outside of the Company’s or the Guarantor’s control, the Company may appoint a replacement for that Rating Agency.
“Remaining Scheduled Payments” means the remaining scheduled payments of the principal and interest on the Notes called for redemption that would be due after the related redemption date but for such redemption up to June 13, 2029 (three months prior to the maturity date of the Notes); provided, however, that, if such redemption date is not an interest payment date with respect to such Notes, the amount of the next scheduled interest payment thereon will be reduced by the amount of interest accrued thereon to such redemption date.
“Seller Parent” means Edwards Lifesciences Corporation.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” of any specified Person as of any date means the capital stock of that Person that is at the time entitled to vote generally in the election of the board of directors of that Person.
Section 1.2 Terms of the Notes.
(1) Designation and Principal Amount. The Notes shall be issued by the Company and shall constitute a separate series of Notes having the title “4.029% Notes due 2036,” which is initially limited in aggregate principal amount to €800,000,000.
In the case of a Global Note intended to be held under the New Safekeeping Structure, save for the purposes of determining Notes that are outstanding for consent or voting purposes under the Base Indenture, the Trustee shall rely on the records of the ICSDs in relation to any determination of the principal amount outstanding of such Global Note. For this purpose, “records” means the records that each of the ICSDs holds for its customers which reflect the amount of such customer’s interest in the Notes.
(2) Maturity. The Notes will mature on June 7, 2036.
(3) Authorized Denominations. The Notes will be issued in fully registered form in minimum denominations of €100,000 and integral multiples of €1,000 in excess thereof. The registered Holder of a Note will be treated as its owner for all purposes. Only registered Holders will have rights under the Indenture governing the Notes.
(4) Additional Notes. The Company may, from time to time, without notice to or the consent of the existing Holders of the Notes, issue additional Notes under the Indenture having the same terms as the Notes in all respects, except for issue date, issue price and the initial interest payment date. Any such additional Notes shall be consolidated with and form a single series with the Notes.
(5) Authentication. The Notes will be issued in the form of Global Notes, deposited with, or on behalf of, the Common Safekeeper and registered in the name of a nominee of Clearstream as Common Safekeeper, for credit by the Common Safekeeper to the respective accounts of beneficial owners represented thereby (or such other accounts as they may direct). Holders of beneficial interests in the Notes will not be entitled to receive physical delivery of certificated notes except in certain limited circumstances. The Trustee may authenticate the Notes with manual or electronic signature.
(6) Form of Effectuation Instruction of the Note. The Paying Agent’s form of Effectuation Instructions shall be in substantially the following form:
Issuer: Becton Dickinson Euro Finance S.à r.l.,
Currency and nominal Amount: €800,000,000
ISIN: XS2838924848
Dear Sir/Madam
We hereby instruct you to effectuate the global note.
Dated: June 7, 2024
THE BANK OF NEW YORK MELLON, LONDON BRANCH | ||
As Paying Agent | ||
By: | ||
Authorized Signatory |
(7) Effectuation. No Global Note shall be valid or obligatory for any purposes until it has been effectuated for or on behalf of the Common Safekeeper.
Section 1.3 Interest. The Company or, in the case of the Guarantee, the Guarantor, will make interest payments to the Person in whose name the Notes are registered on the Business Day on which each of Euroclear and Clearstream is open for business preceding the interest payment date of each year. Payments of interest and principal on Notes in global form registered in the name of a nominee of the Common Safekeeper, including payments made upon any redemption of the Notes, will be made in immediately available funds to the ICSDs or to the nominee of the Common Safekeeper, as the case may be, as the registered Holder of the Global Notes. The rights of Holders of beneficial interests of Notes to receive the payments of interest on such Notes are subject to the applicable procedures of the Common Safekeeper. If any interest payment date is not a Business Day, payment of interest will be made on the next day that is a Business Day and no interest will accrue as a result of such delayed payment on amounts payable from and after such interest payment date to the next succeeding Business Day. Interest on the Notes will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid on the Notes (or from June 7, 2024, if no interest has been paid on the Notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTUAL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association. The Notes shall bear interest at a rate of 4.029% per annum.
Section 1.4 Guarantee. The Notes and the Company’s obligations under the Indenture are fully and unconditionally guaranteed by the Guarantor pursuant to Article 10 of the Base Indenture.
Section 1.5 Issuance in Euro. Initial Holders of the Notes will be required to pay for the Notes in euros, and principal, premium, if any, and interest payments on the Notes, including any payments made upon any redemption of the Notes, will be payable in euros. If, on or after June 4, 2024, the euro is unavailable to the Company or, in the case of the Guarantee, the Guarantor, due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or the euro is no longer used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes or the Guarantee will be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantee, the Guarantor, or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar exchange rate available on or prior to the second Business Day prior to the relevant payment date, as determined by the Company, or in the case of the Guarantee, the Guarantor, in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture governing the Notes. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing.
Section 1.6 Optional Redemption.
(1) The Company may, at its option, redeem the Notes, in whole or in part, at any time and from time to time prior to March 7, 2036 (three months prior to the maturity date of the Notes) (the “Par Call Date”) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments on the Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate, plus 25 basis points, plus, in each case, accrued and unpaid interest to, but excluding, the date of redemption on the principal balance of the Notes being redeemed. At any time on or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the date of redemption.
(2) The Trustee shall have no responsibility for calculating any redemption prices under this Section 1.6.
Notice of any redemption shall be mailed or otherwise transmitted in accordance with the applicable procedures of the ICSDs to the Holders of the applicable Notes or portions thereof called for redemption not less than 10 days and not more than 30 days before the redemption date of the Notes being redeemed. The notice of redemption will state any conditions applicable to a redemption and the amount of the Notes to be redeemed. Unless the Company defaults on payment of the redemption price, on and after the redemption date, the Notes or any portion of the Notes called for redemption shall stop accruing interest. On or before any redemption date, the Company shall deposit with the Paying Agent or the Trustee money sufficient to pay the accrued interest on the Notes to be redeemed and their redemption price. A partial redemption of Notes may be effected pursuant to applicable procedures of the ICSDs’ or the Paying Agent and may provide for the selection for redemption of portions (equal to the minimum authorized denomination for such Notes or any integral multiple of €1,000 in excess thereof) of the principal amount of such Notes of a denomination larger than the minimum authorized denomination for such Notes.
Section 1.7 Special Mandatory Redemption.
(1) If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025 and (y) the date that is five Business Days after any later date to which Seller Parent and the Guarantor may agree to extend the “Outside Date” in the Acquisition Agreement (such later date, the “Special Mandatory Redemption End Date”), or (ii) the Guarantor notifies the Trustee under the Indenture that it will not pursue the consummation of the Acquisition (the earlier of the date of delivery of such notice described in this clause (ii) and the Special Mandatory Redemption End Date, a “Special Mandatory Redemption Event”), then the Company shall be required to redeem the Notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (subject to the right of Holders of the Notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”). Unless the Company defaults in payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed.
(2) In the event that the Company becomes obligated to redeem the Notes pursuant to the Special Mandatory Redemption, the Company shall promptly, and in any event not more than five Business Days after the Special Mandatory Redemption Event, deliver notice to the Trustee of the Special Mandatory Redemption and the date upon which the Notes will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth Business Day following the date of such notice unless some longer minimum period may be required by DTC (or any successor depositary), together with a notice of Special Mandatory Redemption for the Trustee to deliver to each registered Holder of Notes. The Trustee will then promptly mail or electronically deliver (or otherwise transmit in accordance with the depositary’s procedures) such notice of Special Mandatory Redemption to each registered Holder of the Notes.
(3) On or before the Special Mandatory Redemption Date, the Company will pay to a Paying Agent for payment to each Holder of the Notes the Special Mandatory Redemption Price for such Holder’s Notes.
(4) Failure to make the Special Mandatory Redemption, if required in accordance with the terms described above, shall constitute an Event of Default with respect to the Notes.
(5) Notwithstanding anything to the contrary provided in the Indenture or the Notes, the Company and the Trustee may, with the consent of the Holders of a majority in principal amount of the outstanding Notes, amend the Indenture and the Notes for the purpose of adding any provisions to or changing or eliminating any provisions set forth in this Section 1.7 or paragraph 6 of the Notes; provided that, notwithstanding the foregoing, no such amendment shall reduce the premium payable upon a Special Mandatory Redemption without the consent of each Holder of a Note affected thereby.
(6) Upon the consummation of the Acquisition, this Section 1.7 and paragraph 6 of the Notes will cease to apply.
Section 1.8 Offer to Repurchase Upon Change of Control Triggering Event. If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem the Notes pursuant to Section 1.6, Section 1.7 or Section 1.10 hereof, the Company will be required to make an offer (the “Change of Control Offer”) to each Holder of outstanding Notes to repurchase all or any portion (equal to €1,000 or an integral multiple of €1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date.
(1) Within 30 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, the Company shall send in accordance with the applicable procedures of Euroclear or Clearstream, a notice to each Holder of Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date must be no earlier than 30 days nor later than 60 days from the date the notice is sent, other than as may be required by law (the “Change of Control Payment Date”). If the notice is sent prior to the date of consummation of the Change of Control, it shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
(2) On the Change of Control Payment Date, the Company will, to the extent lawful:
(a) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer;
(b) deposit with the Trustee or the Paying Agent the required payment for all properly tendered Notes or portions of Notes not validly withdrawn; and
(c) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased.
(3) The Company shall not be required to make a Change of Control Offer with respect to the Notes if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and that third party purchases all Notes properly tendered and not withdrawn under its offer. To the extent that the provisions of any securities laws or regulations conflict with the provisions herein, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached the Company’s obligations under the provisions herein by virtue of such conflicts.
(4) If Holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such notes in a Change of Control Offer and the Company, or any third party making such an offer in lieu of the Company as in Section 1.8(3), purchases all of the Notes validly tendered and not withdrawn by such Holders, the Company or such third party will have the right, upon not less than 10 days’ nor more than 60 days’ prior notice; provided that such notice is given not more than 30 days following such repurchase pursuant to the Change of Control Offer described in this Section 1.8, to redeem all Notes that remain outstanding following such purchase on a date specified in such notice (the “Second Change of Control Payment Date”) and at a price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the Second Change of Control Payment Date.
Section 1.9 Payment of Additional Amounts. The Company or, in the case of the Guarantee, the Guarantor, will, subject to the exceptions and limitations set forth below, pay as additional interest on the Notes such additional amounts as are necessary in order that the net payment by the Company or a Paying Agent of the principal of and interest on each of the Notes to a Holder, after withholding or deduction solely with respect to any present or future tax, assessment or other governmental charge imposed by Luxembourg, the United States or any other jurisdiction in which the Company or the Guarantor or, in each case, any successor thereof (including a continuing Person formed by a consolidation with the Company or Guarantor, into which the Company or Guarantor is merged, or that acquires or leases all or substantially all of the property and assets of the Company or the Guarantor) may be organized, as applicable, or any political subdivision thereof or therein having the power to tax (a “Taxing Jurisdiction”), will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts will not apply:
(1) to any tax, assessment or other governmental charge that would not have been imposed but for the Holder (or the beneficial owner for whose benefit such Holder holds such Note), or a fiduciary, settlor, beneficiary, member or shareholder of the Holder, or a person holding a power over an estate or trust administered by a fiduciary Holder, being treated as:
(a) being or having been present in, or engaged in a trade or business in, the relevant Taxing Jurisdiction, or having or having had a permanent establishment in such Taxing Jurisdiction;
(b) having a current or former connection with the relevant Taxing Jurisdiction (other than a connection arising solely as a result of the ownership of the Notes, the receipt of any payment in respect of the Notes or the enforcement of any rights under the Indenture), including being or having been a citizen of such Taxing Jurisdiction or treated as being or having been a resident thereof;
(c) being or having been a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States federal income tax purposes, a foreign tax exempt organization, or a corporation that has accumulated earnings to avoid United States federal income tax;
(d) being or having been a “10-percent shareholder”, as defined in section 871(h)(3) of the Code, or any successor provision, of the Company or the Guarantor; or
(e) being 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 or any successor provision;
(2) to any Holder that is not the sole beneficial owner of the Notes, or a portion of the Notes, or that is a fiduciary, partnership or limited liability company, but only to the extent that a beneficiary or settlor with respect to the fiduciary, or a beneficial owner or member of the partnership or limited liability company 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;
(3) to any tax, assessment or other governmental charge that would not have been imposed but for the failure of the Holder or any other person to comply with certification, identification or information reporting requirements concerning the nationality, residence, identity or connection with the relevant Taxing Jurisdiction of the Holder or beneficial owner of the Notes, if compliance is required by statute, by regulation of the relevant Taxing Jurisdiction or any taxing authority therein or by an applicable income tax treaty to which the relevant Taxing Jurisdiction is a party as a precondition to exemption from such tax, assessment or other governmental charge;
(4) to any tax, assessment or other governmental charge that is imposed otherwise than by withholding by the Company or a Paying Agent from the payment;
(5) to any estate, inheritance, gift, sales, excise, transfer, wealth, capital gains or personal property tax or similar tax, assessment or other governmental charge;
(6) to any tax, assessment or other governmental charge that would not have been imposed but for the presentation by the Holder of any Note, where presentation is required, for payment on a date more than 30 days after the date on which payment became due and payable or the date on which payment thereof is duly provided for, whichever occurs later;
(7) to any tax assessment or other governmental charge required to be withheld or deducted that is imposed on a payment pursuant to sections 1471 through 1474 of the Code (or any amended or successor version of such sections that is substantively comparable and not materially more onerous to comply with), any Treasury Regulations promulgated thereunder, or any other official interpretations thereof (collectively, “FATCA”), any agreement (including any intergovernmental agreement) entered into in connection therewith, or any law, regulation or other official guidance enacted in any jurisdiction implementing FATCA or an intergovernmental agreement in respect of FATCA;
(8) to any tax assessment or other governmental charge that is imposed or withheld solely by reason of a change in law, regulation, or administrative or judicial interpretation that becomes effective more than 15 days after the payment becomes due or is duly provided for, whichever occurs later;
(9) to any tax, assessment or other governmental charge that is imposed by reason of the failure of the beneficial owner to fulfill the statement requirements of section 871(h) or section 881(c) of the Code;
(10) to any tax imposed pursuant to section 871(h)(6) or section 881(c)(6) of the Code (or any amended or successor provisions);
(11) to any tax imposed pursuant to the Luxembourg law dated 23 December 2005 as amended from time to time; or
(12) in the case of any combination of the above clauses (1) through (11) under this Section 1.9.
Except as specifically provided under this Section 1.9, the Company or the Guarantor will not be required to pay additional amounts in respect of any tax, assessment or other governmental charge.
As used under this Section 1.9 and under Section 1.10, the term “United States” means the United States of America, any state thereof, and the District of Columbia, and the term “United States person” means (i) any individual who is a citizen or resident of the United States for United States federal income tax purposes, (ii) a corporation, partnership or other entity created or organized in or under the laws of the United States, any state thereof or the District of Columbia (other than a partnership that is not treated as a United States person for United States federal income tax purposes), (iii) any estate the income of which is subject to U.S. federal income taxation regardless of its source, or (iv) any trust if a United States court can exercise primary supervision over the administration of the trust and one or more United States persons can control all substantial trust decisions, or if a valid election is in place to treat the trust as a United States person.
Section 1.10 Redemption for Tax Reasons. If, as a result of a Change in Law, the Company becomes or, based upon a written opinion of independent counsel selected by the Company, will become obligated to pay additional amounts pursuant to Section 1.9 hereof with respect to the Notes, then the Company may at any time at the Company’s option redeem, in whole, but not in part, the Notes on not less than 30 nor more than 60 days’ prior notice, at a redemption price equal to 100% of their principal amount, plus accrued and unpaid interest on the Notes to be redeemed to, but excluding, the date fixed for redemption. For purposes of this Section 1.10, “Change in Law” means any change in, or amendment to, the laws of a Taxing Jurisdiction, or an official interpretation thereof that is announced or becomes effective on or after (i) with respect to the United States and Luxembourg as the initial applicable Taxing Jurisdictions, June 4, 2024 or (ii) with respect to any other Taxing Jurisdiction, the date on which such jurisdiction becomes a Taxing Jurisdiction for the Company or the Guarantor, as applicable.
Section 1.11 Eurosystem Eligibility. The Notes are intended to be held in a manner which will allow Eurosystem eligibility. This simply means that the Notes are intended upon issue to be deposited with one of the ICSDs as Common Safekeeper (and registered in the name of a nominee of one of the ICSDs acting as Common Safekeeper) and does not necessarily mean that the Notes will be recognized as eligible collateral for Eurosystem monetary policy and intra-day credit operations by the Eurosystem either upon issue or at any or all times during their life. Such recognition will depend upon the European Central Bank being satisfied that Eurosystem eligibility criteria have been met.
Section 1.12 Destroy Option. In the case of a Global Note intended to be held under the New Safekeeping Structure, the Common Safekeeper may destroy such Global Note in accordance with the normal procedures of the Common Safekeeper upon maturity and final redemption of such Global Note.
Article II
MISCELLANEOUS
Section 2.1 Business Day. If any interest payment date is not a Business Day, payment of interest will be made on the next day that is a Business Day and no interest will accrue as a result of such delayed payment on amounts payable from and after such interest payment date to the next succeeding Business Day.
Section 2.2 Confirmation of Indenture. The Base Indenture, as supplemented and amended by this Supplemental Indenture, is in all respects ratified and confirmed, and the Base Indenture, this Supplemental Indenture and all indentures supplemental thereto shall be read, taken and construed as one and the same instrument.
Section 2.3 Concerning the Trustee. In carrying out its responsibilities hereunder, the Trustee shall have all of the rights, protections and immunities which it possesses under the Indenture. The recitals contained herein and in the Notes (except the Trustee’s certificate of authentication) shall be taken as statements of the Company and not of the Trustee and the Trustee assumes no responsibility for the correctness of the same. Neither the Trustee nor any of its agents (a) makes any representation as to the validity or adequacy of this Supplemental Indenture or the Notes and (b) shall be accountable for the Company’s use or application of the proceeds from the Notes.
Section 2.4 Governing Law. The laws of the State of New York shall govern this Supplemental Indenture, the Notes and the Guarantee. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
Section 2.5 Separability. In case any provision in this Supplemental Indenture or in the Notes shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Section 2.6 Duplicate Originals. The parties hereto may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement. The exchange of copies of this Supplemental Indenture and of signature pages by facsimile or PDF transmission shall constitute effective execution and delivery of this Supplemental Indenture as to the parties hereto and may be used in lieu of the original Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by facsimile or PDF shall be deemed to be their original signatures for all purposes.
Section 2.7 No Benefit. Nothing in this Supplemental Indenture, express or implied, shall give to any Person other than the parties hereto and their successors or assigns, and the Holders, any benefit or legal or equitable rights, remedy or claim under this Supplemental Indenture or the Base Indenture.
[Signatures on Following Page]
IN WITNESS HEREOF, Becton, Dickinson and Company has caused this Supplemental Indenture to be duly executed as of the date first above written.
BECTON DICKINSON EURO FINANCE S.À R.L. | ||
as Issuer | ||
By: | /s/ Alessandro Luino |
|
Name: Alessandro Luino |
||
Title: Class B Manager |
||
BECTON, DICKINSON AND COMPANY | ||
as Guarantor | ||
By: | /s/ Greg Rodetis |
|
Name: Greg Rodetis |
||
Title: Senior Vice President, Treasurer and Head of Investor Relations |
||
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A. | ||
as Trustee | ||
By: | /s/ Ann M. Dolezal |
|
Name: Ann M. Dolezal |
||
Title: Vice President |
EXHIBIT A
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE NOMINEE OF THE ENTITY APPOINTED AS COMMON SAFEKEEPER FOR EUROCLEAR BA K SA/NV (“EUROCLEAR”) AND CLEARSTREAM BANKING S.A. (“CLEARSTREAM”). TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART, TO NOMINEES OF THE COMMON SAFEKEEPER OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
4.029% NOTES DUE 2036
No. |
ISIN No.: XS2838924848
Common Code: 283892484
This certifies that the Person whose name is entered in the Security Register maintained by the Registrar is registered as the Holder of the aggregate principal amount of € of 4.029% Notes Due 2036.
BECTON DICKINSON EURO FINANCE S.à R.L.,
a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229 (the “Company”), for value received, hereby promises to pay to the registered Holder hereof, or registered assigns, the principal sum of € on June 7, 2036 and to pay interest, on June 7 of each year, commencing June 7, 2025, on said principal sum at the rate of 4.029% per annum, from June 7, 2024 or from the most recent interest payment date to which interest has been paid or provided for, as the case may be, until payment of said principal sum has been made or duly provided for. The interest so payable on any June 7 shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the Person in whose name this Note is registered at the close of business on the Business Day on which each of Clearstream and Euroclear is open for business immediately preceding the applicable interest payment date.
Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid (or from June 7, 2024, if no interest has been paid on the Notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTU AL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
Each Holder of this Note, by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee and until it has been effectuated for and on behalf of the Common Safekeeper. The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.02 of the Base Indenture.
Dated:
BECTON DICKINSON EURO FINANCE S.À.R.L, | ||
as Company | ||
By: | ||
Name: | ||
Title: |
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued pursuant to the within-mentioned Indenture.
Date:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., | ||
as Trustee | ||
By: |
EFFECTUATED for and on behalf of EUROCLEARBANK SA/NY, as Common Safekeeper, without recourse, warranty or liability.
Date: [_________]
EUROCLEAR BANK SA/NV, | ||
as Common Safekeeper | ||
By: | ||
Authorized Signatory |
Becton Dickinson Euro Finance S.à r.l.
4.029% Notes Due 2036
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (the “Securities”) of Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229 (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture for the Company’s unsecured debt securities, dated as of May 17, 2019 (the “Base Indenture”), duly executed and delivered by and among the Company, Becton, Dickinson and Company, a New Jersey corporation (the “Guarantor” or “BD”), and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), as supplemented by the Fifth Supplemental Indenture, dated as of June 7, 2024 (the “Supplemental Indenture”), among the Company, the Guarantor and the Trustee. The Notes are subject to a Paying Agency Agreement, dated as of June 7, 2024 (the “Paying Agency Agreement”), among the Company, the Guarantor and The Bank of New York Mellon, London Branch, as Paying Agent (the “Paying Agent”). The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” The Notes may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as provided in the Indenture. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to €800,000,000 (except as provided in the Indenture). Terms defined in the Indenture have the same definitions herein unless otherwise specified.
1. | Method of Payment. Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of London, England, which shall be initially the corporate trust office of The Bank of New York Mellon, London Branch, located at 160 Queen Victoria Street, London EC4Y 4AL. |
2. | Paying Agent and Registrar. Initially, The Bank of New York Mellon, London Branch will act as Paying Agent. The Bank of New York Mellon Trust Company, N.A. will initially act as Registrar for the Notes. The Company may change any Paying Agent upon notice to the Trustee. |
3. | Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“TIA”) as in effect on the date the Indenture is qualified. The Notes are subject to all such terms, and holders of such Notes are referred to the Indenture and TIA for a statement of such terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail. The Notes are senior unsecured obligations of the Company. |
4. | Issuance in Euro. Initial Holders of the Notes will be required to pay for the Notes in euros, and principal, premium, if any, and interest payments on the Notes, including any payments made upon any redemption of the Notes, will be payable in euros. If, on or after June 4, 2024, the euro is unavailable to the Company or, in the case of the Guarantee, the Guarantor, due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or the euro is no longer used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes or the Guarantee will be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantee, the Guarantor, or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar exchange rate available on or prior to the second Business Day prior to the relevant payment date, as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture governing the Notes. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. |
5. | Optional Redemption. The Company may, at its option, redeem the Notes, in whole or in part, at any time and from time to time prior to March 7, 2036 (three months prior to the maturity date (the “Par Call Date”)) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments on the Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate, plus 25 basis points, plus accrued and unpaid interest to, but excluding the date of redemption on the principal balance of the Notes being redeemed. The Trustee shall have no responsibility for calculating the redemption price. At any time on or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the date of redemption on the principal balance of the Notes being redeemed. |
6. | Special Mandatory Redemption. If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025 and (y) the date that is five Business Days after any later date to which Seller Parent and BD may agree to extend the “Outside Date” in the Acquisition Agreement (such later date, the “Special Mandatory Redemption End Date”) or (ii) BD notifies the trustee under the indenture that it will not pursue the consummation of the Acquisition (the earlier of the date of delivery of such notice described in this clause (ii) and the Special Mandatory Redemption End Date, a “Special Mandatory Redemption Event”), then the Issuer will be required to redeem the Notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (subject to the right of holders of the Notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”). Unless the Issuer defaults in payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed. |
In the event that the Issuer becomes obligated to redeem the Notes pursuant to the Special Mandatory Redemption, the Issuer will promptly, and in any event not more than five Business Days after the Special Mandatory Redemption Event, deliver notice to the trustee of the Special Mandatory Redemption and the date upon which the Notes will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth Business Day following the date of such notice unless some longer minimum period may be required by DTC (or any successor depositary), together with a notice of Special Mandatory Redemption for the trustee to deliver to each registered holder of notes. The trustee will then promptly mail or electronically deliver (or otherwise transmit in accordance with the depositary’s procedures) such notice of Special Mandatory Redemption to each registered holder of the Notes.
On or before the Special Mandatory Redemption Date, the Issuer will pay to a Paying Agent for payment to each Holder of the Notes the Special Mandatory Redemption Price for such Holder’s notes.
Failure to make the Special Mandatory Redemption, if required in accordance with the terms described above, will constitute an Event of Default with respect to the Notes.
Upon the consummation of the Acquisition, the foregoing provisions regarding Special Mandatory Redemption will cease to apply.
For purposes of the foregoing, the following definitions apply:
“Acquisition” means the acquisition of the Critical Care business of Seller Parent and its subsidiaries by BD and/or certain of its subsidiaries.
“Acquisition Agreement” means the Stock and Asset Purchase Agreement, dated June 3, 2024, by and among BD and Seller Parent, as may be amended or modified or any provision thereof waived from time to time.
“Seller Parent” means Edwards Lifesciences Corporation.
Notwithstanding anything to the contrary provided herein or in the Indenture, the Issuer and the Trustee may, with the consent of the holders of a majority in principal amount of the outstanding notes, amend the indenture and the Notes for the purpose of adding any provisions to or changing or eliminating any provisions set forth under this heading “Special Mandatory Redemption;” provided that, notwithstanding the foregoing, no such amendment will reduce the premium payable upon a Special Mandatory Redemption without the consent of each holder of a note affected thereby.
7. | Offer to Repurchase Upon Change of Control Triggering Event. If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem such Notes under Section 1.6 or Section 1.9 of the Indenture, the Company will be required to make an offer to each Holder of outstanding Notes to repurchase all or any portion (equal to €1,000 or an integral multiple of €1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to but excluding, the date of purchase, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date. On the Change of Control Payment Date, the Company will, to the extent lawful, (a) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (b) deposit with the Trustee or the Paying Agent the required payment for all properly tendered Notes or portions of Notes not validly withdrawn; and (c) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. |
8. | Transfers; Exchanges. Upon the presentment for registration of transfer of this Note at the office or agency of the Company or the Guarantor designated for such purpose pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. |
Prior to due presentment for registration of transfer of this Note, the Company, the Guarantor, the Trustee or any Registrar, Paying Agent or Authenticating Agent, may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing here on), for the purpose of receiving payment hereof, or an account hereof, and for all other purposes, and the Company, the Guarantor, the Trustee and any Registrar, Paying Agent and Authenticating Agent shall not be affected by any notice to the contrary.
9. | Payment of Additional Amounts and Redemption for Tax Reasons. The provisions of Sections 1.8 and 1.9 of the Supplemental Indenture shall apply to the Notes. Whenever the payment of the principal of or interest or any other amounts on, or in respect of, this Note is mentioned, in any context, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment of Additional Amounts in any provision of this series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made. |
10. | Denominations, Transfer, Exchange. The Notes are in registered form without coupons in the denominations of €100,000 or any integral multiple of €1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Notes may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the Registrar) at the office or agency of the Company or the Guarantor designated for such purpose (or otherwise in accordance with applicable procedures of Euroclear and Clearstream). No service charge shall be made for any registration of transfer or exchange, but a Holder of such Notes may be required to pay any applicable taxes or other governmental charges. |
11. | Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for all purposes. Only registered holders will have rights under the Indenture governing the Notes. |
12. | Repayment to the Company. Subject to the terms of the Indenture, any funds deposited with the Trustee or Paying Agent, or then held by the Company, in trust for the payment of the principal of and any interest on any Security of any series and remaining unclaimed for two years after such principal and any interest has become due and payable shall be paid to the Company upon written request by the Company, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. |
13. | Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of any series at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the outstanding Securities of such series, each series voting separately. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the outstanding Securities, on behalf of the Holders of all the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. |
14. | Defaults and Remedies. In case an Event of Default, as defined in the Indenture, with respect to the Notes shall have occurred and be continuing, the principal hereof and interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
15. | Trustee, Paying Agent and Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, or any Paying Agent or Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Registrar. |
16. | No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer, director or employee, as such, of the Company, the Guarantor or of any of either of their respective successors, either directly or through the Company or the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such personal liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. |
17. | Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein. |
18. | Authentication. This ate shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof and until this Note has been effectuated for and on behalf of the Common Safekeeper. |
19. | Guarantee. This Note is fully and unconditionally guaranteed by the Guarantor, as provided in Article 10 of the Base Indenture and Section 1.4 of the Supplemental Indenture. |
20. | Governing Law. The laws of the State of New York shall govern the Base Indenture, the Supplemental Indenture and this Note. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded. |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Vote purchased by the Company pursuant to a Change of Control Offer, check the box:
☐ | Change of Control Offer |
If you want to elect to have only part of this Note purchased by the Company pursuant to a Change of Control Offer, state the amount: €__________
Date: | Your Signature: | |
(Sign exactly as your name appears on the face of this Note) |
Tax I.D. Number: | ||
Signature Guarantee*: |
*Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
GUARANTEE
For value received, Becton, Dickinson and Company hereby fully and unconditionally guarantees to the holder of this Note and to the Trustee and its successors and assigns (1) the full and actual payment when due, whether at stated maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under Article 10 of the Indenture (including obligations to the Trustee) and this Note, whether for payment of principal of, or interest on or premium, if any, on, this Note and all other monetary obligations of the Company under Article 10 of the Indenture and this Note and (2) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under Article 10 of the Indenture and this Note. This Guarantee will not become effective until the Trustee or Authenticating Agent duly executes the certificate of authentication on this Note and until this Note has been effectuated for and on behalf of the Common Safekeeper. This Guarantee shall be governed by the laws of the State of New York. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
Dated: | ||
BECTON, DICKINSON AND COMPANY | ||
By: | ||
Name: | ||
Title: |
Exhibit 4.3
THIS NOTE IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE NOMINEE OF THE ENTITY APPOINTED AS COMMON SAFEKEEPER FOR EUROCLEAR BA K SA/NV (“EUROCLEAR”) AND CLEARSTREAM BANKING S.A. (“CLEARSTREAM”). TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, AND NOT IN PART, TO NOMINEES OF THE COMMON SAFEKEEPER OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
4.029% NOTES DUE 2036
No. |
ISIN No.: XS2838924848
Common Code: 283892484
This certifies that the Person whose name is entered in the Security Register maintained by the Registrar is registered as the Holder of the aggregate principal amount of € of 4.029% Notes Due 2036.
BECTON DICKINSON EURO FINANCE S.à R.L.,
a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229 (the “Company”), for value received, hereby promises to pay to the registered Holder hereof, or registered assigns, the principal sum of € on June 7, 2036 and to pay interest, on June 7 of each year, commencing June 7, 2025, on said principal sum at the rate of 4.029% per annum, from June 7, 2024 or from the most recent interest payment date to which interest has been paid or provided for, as the case may be, until payment of said principal sum has been made or duly provided for. The interest so payable on any June 7 shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the Person in whose name this Note is registered at the close of business on the Business Day on which each of Clearstream and Euroclear is open for business immediately preceding the applicable interest payment date.
Interest will be computed on the basis of the actual number of days in the period for which interest is being calculated and the actual number of days from and including the last date on which interest was paid (or from June 7, 2024, if no interest has been paid on the Notes), to but excluding the next scheduled interest payment date. This payment convention is referred to as ACTU AL/ACTUAL (ICMA) as defined in the rulebook of the International Capital Market Association.
Each Holder of this Note, by accepting the same, agrees to and shall be bound by the provisions hereof and of the Indenture described herein, and authorizes and directs the Trustee described herein on such Holder’s behalf to be bound by such provisions. Each Holder hereby waives all notice of the acceptance of the provisions contained herein and in the Indenture and waives reliance by such holder upon said provisions.
This Note shall not be entitled to any benefit under the Indenture, or be valid or become obligatory for any purpose, until the certificate of authentication hereon shall have been signed by or on behalf of the Trustee and until it has been effectuated for and on behalf of the Common Safekeeper. The provisions of this Note are continued on the reverse side hereof, and such continued provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be signed in accordance with Section 2.02 of the Base Indenture.
Dated:
BECTON DICKINSON EURO FINANCE S.À.R.L, as Company |
||
By: | ||
Name: | ||
Title: |
CERTIFICATE OF AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued pursuant to the within-mentioned Indenture.
Date:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee |
||
By: |
EFFECTUATED for and on behalf of EUROCLEARBANK SA/NY, as Common Safekeeper, without recourse, warranty or liability.
Date: [_________]
EUROCLEAR BANK SA/NV, as Common Safekeeper |
||
By: | ||
Authorized Signatory |
Becton Dickinson Euro Finance S.à r.l.
4.029% Notes Due 2036
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness (the “Securities”) of Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg, having its registered office at 412 F route d’Esch, L-1471 Luxembourg and registered with the Luxembourg Trade and Companies Register under number B234229 (the “Company”), issued or to be issued in one or more series under and pursuant to an Indenture for the Company’s unsecured debt securities, dated as of May 17, 2019 (the “Base Indenture”), duly executed and delivered by and among the Company, Becton, Dickinson and Company, a New Jersey corporation (the “Guarantor” or “BD”), and The Bank of New York Mellon Trust Company, N.A. (the “Trustee”), as supplemented by the Fifth Supplemental Indenture, dated as of June 7, 2024 (the “Supplemental Indenture”), among the Company, the Guarantor and the Trustee. The Notes are subject to a Paying Agency Agreement, dated as of June 7, 2024 (the “Paying Agency Agreement”), among the Company, the Guarantor and The Bank of New York Mellon, London Branch, as Paying Agent (the “Paying Agent”). The Base Indenture as supplemented and amended by the Supplemental Indenture is referred to herein as the “Indenture.” The Notes may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as provided in the Indenture. This Note is one of the series designated on the face hereof, initially limited in aggregate principal amount to €800,000,000 (except as provided in the Indenture). Terms defined in the Indenture have the same definitions herein unless otherwise specified.
1. | Method of Payment. Payment of the principal of and interest on this Note will be made at the office or agency of the Company maintained for that purpose in the City of London, England, which shall be initially the corporate trust office of The Bank of New York Mellon, London Branch, located at 160 Queen Victoria Street, London EC4Y 4AL. |
2. | Paying Agent and Registrar. Initially, The Bank of New York Mellon, London Branch will act as Paying Agent. The Bank of New York Mellon Trust Company, N.A. will initially act as Registrar for the Notes. The Company may change any Paying Agent upon notice to the Trustee. |
3. | Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939, as amended (“TIA”) as in effect on the date the Indenture is qualified. The Notes are subject to all such terms, and holders of such Notes are referred to the Indenture and TIA for a statement of such terms. In the event of a conflict between the terms of the Notes and the terms of the Indenture, the terms of the Indenture shall prevail. The Notes are senior unsecured obligations of the Company. |
4. | Issuance in Euro. Initial Holders of the Notes will be required to pay for the Notes in euros, and principal, premium, if any, and interest payments on the Notes, including any payments made upon any redemption of the Notes, will be payable in euros. If, on or after June 4, 2024, the euro is unavailable to the Company or, in the case of the Guarantee, the Guarantor, due to the imposition of exchange controls or other circumstances beyond the Company’s or the Guarantor’s control or the euro is no longer used by the then member states of the European Monetary Union that have adopted the euro as their currency or for the settlement of transactions by public institutions within the international banking community, then all payments in respect of the Notes or the Guarantee will be made in U.S. dollars until the euro is again available to the Company or, in the case of the Guarantee, the Guarantor, or so used. The amount payable on any date in euro will be converted into U.S. dollars at the rate mandated by the U.S. Federal Reserve Board as of the close of business on the second Business Day prior to the relevant payment date or, in the event the U.S. Federal Reserve Board has not mandated a rate of conversion, on the basis of the most recent euro/U.S. dollar exchange rate available on or prior to the second Business Day prior to the relevant payment date, as determined by the Company in its sole discretion. Any payment in respect of the Notes so made in U.S. dollars will not constitute an Event of Default under the Notes or the Indenture governing the Notes. Neither the Trustee nor the Paying Agent shall have any responsibility for any calculation or conversion in connection with the foregoing. |
5. | Optional Redemption. The Company may, at its option, redeem the Notes, in whole or in part, at any time and from time to time prior to March 7, 2036 (three months prior to the maturity date (the “Par Call Date”)) at a redemption price, as determined by the Company, equal to the greater of (i) 100% of the principal amount of the Notes to be redeemed and (ii) the sum of the present values of the Remaining Scheduled Payments on the Notes being redeemed, discounting such payments to the redemption date on an annual basis (ACTUAL/ACTUAL (ICMA)) at the applicable Comparable Government Bond Rate, plus 25 basis points, plus accrued and unpaid interest to, but excluding the date of redemption on the principal balance of the Notes being redeemed. The Trustee shall have no responsibility for calculating the redemption price. At any time on or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest to, but excluding, the date of redemption on the principal balance of the Notes being redeemed. |
6. | Special Mandatory Redemption. If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025 and (y) the date that is five Business Days after any later date to which Seller Parent and BD may agree to extend the “Outside Date” in the Acquisition Agreement (such later date, the “Special Mandatory Redemption End Date”) or (ii) BD notifies the trustee under the indenture that it will not pursue the consummation of the Acquisition (the earlier of the date of delivery of such notice described in this clause (ii) and the Special Mandatory Redemption End Date, a “Special Mandatory Redemption Event”), then the Issuer will be required to redeem the Notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (subject to the right of holders of the Notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”). Unless the Issuer defaults in payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed. |
In the event that the Issuer becomes obligated to redeem the Notes pursuant to the Special Mandatory Redemption, the Issuer will promptly, and in any event not more than five Business Days after the Special Mandatory Redemption Event, deliver notice to the trustee of the Special Mandatory Redemption and the date upon which the Notes will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth Business Day following the date of such notice unless some longer minimum period may be required by DTC (or any successor depositary), together with a notice of Special Mandatory Redemption for the trustee to deliver to each registered holder of notes. The trustee will then promptly mail or electronically deliver (or otherwise transmit in accordance with the depositary’s procedures) such notice of Special Mandatory Redemption to each registered holder of the Notes.
On or before the Special Mandatory Redemption Date, the Issuer will pay to a Paying Agent for payment to each Holder of the Notes the Special Mandatory Redemption Price for such Holder’s notes.
Failure to make the Special Mandatory Redemption, if required in accordance with the terms described above, will constitute an Event of Default with respect to the Notes.
Upon the consummation of the Acquisition, the foregoing provisions regarding Special Mandatory Redemption will cease to apply.
For purposes of the foregoing, the following definitions apply:
“Acquisition” means the acquisition of the Critical Care business of Seller Parent and its subsidiaries by BD and/or certain of its subsidiaries.
“Acquisition Agreement” means the Stock and Asset Purchase Agreement, dated June 3, 2024, by and among BD and Seller Parent, as may be amended or modified or any provision thereof waived from time to time.
“Seller Parent” means Edwards Lifesciences Corporation.
Notwithstanding anything to the contrary provided herein or in the Indenture, the Issuer and the Trustee may, with the consent of the holders of a majority in principal amount of the outstanding notes, amend the indenture and the Notes for the purpose of adding any provisions to or changing or eliminating any provisions set forth under this heading “Special Mandatory Redemption;” provided that, notwithstanding the foregoing, no such amendment will reduce the premium payable upon a Special Mandatory Redemption without the consent of each holder of a note affected thereby.
7. | Offer to Repurchase Upon Change of Control Triggering Event. If a Change of Control Triggering Event occurs, unless the Company has exercised its right to redeem such Notes under Section 1.6 or Section 1.9 of the Indenture, the Company will be required to make an offer to each Holder of outstanding Notes to repurchase all or any portion (equal to €1,000 or an integral multiple of €1,000 in excess thereof) of that Holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to but excluding, the date of purchase, subject to the rights of Holders of the Notes on the relevant record date to receive interest due on the relevant interest payment date. On the Change of Control Payment Date, the Company will, to the extent lawful, (a) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer; (b) deposit with the Trustee or the Paying Agent the required payment for all properly tendered Notes or portions of Notes not validly withdrawn; and (c) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an Officer’s Certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. |
8. | Transfers; Exchanges. Upon the presentment for registration of transfer of this Note at the office or agency of the Company or the Guarantor designated for such purpose pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith. |
Prior to due presentment for registration of transfer of this Note, the Company, the Guarantor, the Trustee or any Registrar, Paying Agent or Authenticating Agent, may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing here on), for the purpose of receiving payment hereof, or an account hereof, and for all other purposes, and the Company, the Guarantor, the Trustee and any Registrar, Paying Agent and Authenticating Agent shall not be affected by any notice to the contrary.
9. | Payment of Additional Amounts and Redemption for Tax Reasons. The provisions of Sections 1.8 and 1.9 of the Supplemental Indenture shall apply to the Notes. Whenever the payment of the principal of or interest or any other amounts on, or in respect of, this Note is mentioned, in any context, such mention shall be deemed to include mention of the payment of Additional Amounts to the extent that, in such context, Additional Amounts are, were or would be payable in respect thereof pursuant to the terms of the Indenture, and express mention of the payment of Additional Amounts in any provision of this series of Notes shall not be construed as excluding the payment of Additional Amounts in those provisions where such express mention is not made. |
10. | Denominations, Transfer, Exchange. The Notes are in registered form without coupons in the denominations of €100,000 or any integral multiple of €1,000 in excess thereof. The transfer of Notes may be registered and Notes may be exchanged as provided in the Indenture. The Notes may be presented for exchange or for registration of transfer (duly endorsed or with the form of transfer endorsed thereon duly executed if so required by the Company or the Registrar) at the office or agency of the Company or the Guarantor designated for such purpose (or otherwise in accordance with applicable procedures of Euroclear and Clearstream). No service charge shall be made for any registration of transfer or exchange, but a Holder of such Notes may be required to pay any applicable taxes or other governmental charges. |
11. | Persons Deemed Owners. The registered Holder of a Note will be treated as its owner for all purposes. Only registered holders will have rights under the Indenture governing the Notes. |
12. | Repayment to the Company. Subject to the terms of the Indenture, any funds deposited with the Trustee or Paying Agent, or then held by the Company, in trust for the payment of the principal of and any interest on any Security of any series and remaining unclaimed for two years after such principal and any interest has become due and payable shall be paid to the Company upon written request by the Company, or (if then held by the Company) shall be discharged from such trust; and the Holder of such Security shall thereafter, as an unsecured general creditor, look only to the Company for payment thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money, and all liability of the Company as trustee thereof, shall thereupon cease. |
13. | Amendments, Supplements and Waivers. The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the Guarantor and the rights of the Holders of the Securities of any series at any time by the Company, the Guarantor and the Trustee with the consent of the Holders of a majority in aggregate principal amount of the outstanding Securities of such series, each series voting separately. The Indenture also contains provisions permitting the Holders of a majority in aggregate principal amount of the outstanding Securities, on behalf of the Holders of all the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the Holder of this Security shall be conclusive and binding upon such Holder and upon all future Holders of this Security and of any Security issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof, whether or not notation of such consent or waiver is made upon this Security. |
14. | Defaults and Remedies. In case an Event of Default, as defined in the Indenture, with respect to the Notes shall have occurred and be continuing, the principal hereof and interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture. |
15. | Trustee, Paying Agent and Registrar May Hold Securities. The Trustee, subject to certain limitations imposed by the TIA, or any Paying Agent or Registrar, in its individual or any other capacity, may become the owner or pledgee of Securities with the same rights it would have if it were not Trustee, Paying Agent or Registrar. |
16. | No Recourse Against Others. No recourse under or upon any obligation, covenant or agreement contained in this Indenture, in any Security, or because of any indebtedness evidenced thereby, shall be had against any incorporator, as such or against any past, present or future stockholder, officer, director or employee, as such, of the Company, the Guarantor or of any of either of their respective successors, either directly or through the Company or the Guarantor or any successor, under any rule of law, statute or constitutional provision or by the enforcement of any assessment or by any legal or equitable proceeding or otherwise, all such personal liability being expressly waived and released by the acceptance of the Securities by the Holders thereof and as part of the consideration for the issue of the Securities. |
17. | Discharge of Indenture. The Indenture contains certain provisions pertaining to discharge and defeasance, which provisions shall for all purposes have the same effect as if set forth herein. |
18. | Authentication. This ate shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee under the Indenture referred to on the reverse hereof and until this Note has been effectuated for and on behalf of the Common Safekeeper. |
19. | Guarantee. This Note is fully and unconditionally guaranteed by the Guarantor, as provided in Article 10 of the Base Indenture and Section 1.4 of the Supplemental Indenture. |
20. | Governing Law. The laws of the State of New York shall govern the Base Indenture, the Supplemental Indenture and this Note. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded. |
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Vote purchased by the Company pursuant to a Change of Control Offer, check the box:
☐ Change of Control Offer
If you want to elect to have only part of this Note purchased by the Company pursuant to a Change of Control Offer, state the amount: €__________
Date: __________________________ | Your Signature: _________________________ |
(Sign exactly as your name appears on the face of this Note) |
Tax I.D. Number:
Signature Guarantee*: _______________________
*Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
GUARANTEE
For value received, Becton, Dickinson and Company hereby fully and unconditionally guarantees to the holder of this Note and to the Trustee and its successors and assigns (1) the full and actual payment when due, whether at stated maturity, by acceleration, by redemption or otherwise, of all obligations of the Company under Article 10 of the Indenture (including obligations to the Trustee) and this Note, whether for payment of principal of, or interest on or premium, if any, on, this Note and all other monetary obligations of the Company under Article 10 of the Indenture and this Note and (2) the full and punctual performance within applicable grace periods of all other obligations of the Company whether for fees, expenses, indemnification or otherwise under Article 10 of the Indenture and this Note. This Guarantee will not become effective until the Trustee or Authenticating Agent duly executes the certificate of authentication on this Note and until this Note has been effectuated for and on behalf of the Common Safekeeper. This Guarantee shall be governed by the laws of the State of New York. The provisions of articles 470-1 to 470-19 (inclusive) of the Luxembourg law of 10 August 1915 on commercial companies, as amended, are expressly excluded.
Dated:
BECTON, DICKINSON AND COMPANY
By: |
Name:
Title:
Exhibit 4.4
Unless this certificate is presented by an authorized representative of The Depository Trust Company, a New York corporation (“DTC”), to the Company or its agent for registration of transfer, exchange, or payment, and any certificate issued is registered in the name of Cede & Co. or in such other name as is requested by an authorized representative of DTC (and any payment is made to Cede & Co. or to such other entity as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest herein.
BECTON, DICKINSON AND COMPANY
5.081% Notes due June 7, 2029
CUSIP No. 075887 CU1
No. |
BECTON, DICKINSON AND COMPANY, a New Jersey corporation (such corporation, and its successors and assigns under the Indenture hereinafter referred to, being herein called the “Company”) for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $ on June 7, 2029 and to pay interest, on June 7 and December 7 of each year, commencing December 7, 2024, on said principal sum at the rate of 5.081% per annum, from June 7, 2024 or from the most recent interest payment date to which interest has been paid or provided for, as the case may be, until payment of said principal sum has been made or duly provided for; provided, however, that payment of interest may be made at the option of the Company (i) by check mailed to the address of the person entitled thereto as such address shall appear on the register of Notes or (ii) by transfer in immediately available funds to an account maintained by the person entitled thereto as specified in the register of Notes. The interest so payable on any June 7 or December 7 shall, subject to certain exceptions provided in the Indenture referred to on the reverse hereof, be paid to the person in whose name this Note is registered at the close of business on the May 23 or November 22 immediately preceding the applicable interest payment date.
Reference is made to the further provisions of this Note set forth on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Note shall not be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been manually or electronically signed by the Trustee under the Indenture referred to on the reverse hereof.
IN WITNESS HEREOF, Becton, Dickinson and Company has caused this Note to be executed in its name and on its behalf by its duly authorized officers, and has caused its corporate seal to be affixed hereunto or imprinted hereon.
Dated:
BECTON, DICKINSON AND COMPANY, as the Company | ||
By: | ||
Name: | ||
Title: |
Attest: | ||
By: | ||
Name: | ||
Title: |
[Signature Page to USD Global Note No. 1]
TRUSTEE’S
CERTIFICATE OF
AUTHENTICATION
This Note is one of the Securities of the series referred to herein issued pursuant to the within-mentioned Indenture.
Dated:
THE BANK OF NEW YORK MELLON TRUST COMPANY, N.A., as Trustee | ||
By: | ||
Authorized Officer |
[Signature Page to USD Global Note No. 1]
[Reverse of Security]
BECTON, DICKINSON AND COMPANY
5.081% Notes due June 7, 2029
This Note is one of a duly authorized issue of debentures, notes or other evidences of indebtedness of the Company (herein called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of March 1, 1997 (as amended or supplemented, herein called the “Indenture”), duly executed and delivered by the Company and The Bank of New York Mellon Trust Company, N.A., as successor to JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as Trustee (herein called the “Trustee”), to which the Indenture and all indentures supplemental thereto reference is hereby made for a statement of the respective rights, limitations of rights, duties, obligations and immunities thereunder of the Company, the Trustee and the holders of the Securities. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may bear interest (if any) at different rates, may be subject to different redemption provisions (if any), may be subject to different sinking, purchase or analogous funds (if any) and may otherwise vary as in the Indenture provided. This Note is one of a series designated as the 5.081% Notes due June 7, 2029 (the “Notes”) limited in aggregate principal amount to $600,000,000 (except as in the Indenture provided). The Company may, from time to time, without the consent of the existing holders of the Notes, issue additional notes under the Indenture having the same terms as the Notes in all respects, except for issue date, issue price and the initial interest payment date. Any such additional notes shall be consolidated with and form a single series with the Notes. Terms defined in the Indenture have the same definitions herein unless otherwise specified.
In case an Event of Default, as defined in the Indenture, with respect to the Notes shall have occurred and be continuing, the principal hereof and interest hereon may be declared, and upon such declaration shall become, due and payable, in the manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the holders of the Securities of any series at any time by the Company and the Trustee with the consent of the holders of a majority in aggregate principal amount of the outstanding Securities of such series, each affected series voting separately. The Indenture also contains provisions permitting the holders of a majority in aggregate principal amount of the outstanding Securities of any series, on behalf of the holders of all the Securities of such series, to waive certain past defaults under the Indenture and their consequences. Any such consent or waiver by or on behalf of the holder of this Note shall be conclusive and binding upon such holder and upon all future holders of this Note and of any Note issued upon the registration of transfer hereof or in exchange hereof or in lieu hereof whether or not notation of such consent or waiver is made upon this Note or such other Note.
Subject to the terms of the Indenture, the Company may elect either (i) to defease and be discharged from any and all obligations with respect to the Notes or (ii) to be released from its obligations with respect to certain covenants applicable to the Notes, upon compliance by the Company with certain conditions set forth therein, which provisions apply to this Note.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay the principal of and interest on this Note at the place, at the respective times, at the rate and in the coin or currency prescribed herein.
The Company may, at its option, redeem the Notes, in whole or in part, at any time and from time to time, prior to May 7, 2029 (one month prior to the maturity date (the “Par Call Date”)) at a redemption price (expressed as a percentage of principal amount and rounded to three decimal places) equal to the greater of: (1) 100% of the principal amount of the Notes to be redeemed and (2) (a) the sum of the present values of the remaining scheduled payments of principal and interest thereon discounted to the redemption date (assuming the Notes matured on the Par Call Date) on a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate plus 15 basis points less (b) interest accrued to the date of redemption, in each case, plus, accrued and unpaid interest thereon to, but excluding, the redemption date. At any time on or after the Par Call Date, the Company may redeem the Notes, in whole or in part, at any time and from time to time, at a redemption price equal to 100% of the principal amount of the Notes to be redeemed, plus accrued and unpaid interest thereon to, but excluding, the redemption date. For the purposes hereof:
“Treasury Rate” means, with respect to any redemption date, the yield determined by the Company in accordance with the following two paragraphs.
The Treasury Rate shall be determined by the Company after 4:15 p.m., New York City time (or after such time as yields on U.S. government securities are posted daily by the Board of Governors of the Federal Reserve System), on the third business day preceding the redemption date based upon the yield or yields for the most recent day that appear after such time on such day in the most recent statistical release published by the Board of Governors of the Federal Reserve System designated as “Selected Interest Rates (Daily) - H.15” (or any successor designation or publication) (“H.15”) under the caption “U.S. government securities–Treasury constant maturities–Nominal” (or any successor caption or heading) (“H.15 TCM”). In determining the Treasury Rate, the Company shall select, as applicable: (1) the yield for the Treasury constant maturity on H.15 exactly equal to the period from the redemption date to the Par Call Date (the “Remaining Life”); or (2) if there is no such Treasury constant maturity on H.15 exactly equal to the Remaining Life, the two yields – one yield corresponding to the Treasury constant maturity on H.15 immediately shorter than and one yield corresponding to the Treasury constant maturity on H.15 immediately longer than the Remaining Life – and shall interpolate to the Par Call Date on a straight-line basis (using the actual number of days) using such yields and rounding the result to three decimal places; or (3) if there is no such Treasury constant maturity on H.15 shorter than or longer than the Remaining Life, the yield for the single Treasury constant maturity on H.15 closest to the Remaining Life. For purposes of this paragraph, the applicable Treasury constant maturity or maturities on H.15 shall be deemed to have a maturity date equal to the relevant number of months or years, as applicable, of such Treasury constant maturity from the redemption date.
If on the third business day preceding the redemption date H.15 TCM is no longer published, the Company shall calculate the Treasury Rate based on the rate per annum equal to the semi-annual equivalent yield to maturity at 11:00 a.m., New York City time, on the second business day preceding such redemption date of the United States Treasury security maturing on, or with a maturity that is closest to, the Par Call Date, as applicable. If there is no United States Treasury security maturing on the Par Call Date but there are two or more United States Treasury securities with a maturity date equally distant from the Par Call Date, one with a maturity date preceding the Par Call Date and one with a maturity date following the Par Call Date, the Company shall select the United States Treasury security with a maturity date preceding the Par Call Date. If there are two or more United States Treasury securities maturing on the Par Call Date or two or more United States Treasury securities meeting the criteria of the preceding sentence, the Company shall select from among these two or more United States Treasury securities the United States Treasury security that is trading closest to par based upon the average of the bid and asked prices for such United States Treasury securities at 11:00 a.m., New York City time. In determining the Treasury Rate in accordance with the terms of this paragraph, the semi-annual yield to maturity of the applicable United States Treasury security shall be based upon the average of the bid and asked prices (expressed as a percentage of principal amount) at 11:00 a.m., New York City time, of such United States Treasury security, and rounded to three decimal places.
The Company’s actions and determinations in determining the redemption price shall be conclusive and binding for all purposes, absent manifest error.
Notice of any redemption described above will be mailed or electronically delivered (or otherwise transmitted in accordance with the depositary’s procedures) at least 10 days but not more than 60 days before the redemption date to each holder of the Notes to be redeemed. The notice of redemption will state any conditions applicable to a redemption and the amount of the Notes to be redeemed.
In the case of a partial redemption, selection of the Notes for redemption will be made pro rata or by lot, or otherwise in accordance with applicable procedures of the relevant depositary. No Notes of a principal amount of $2,000 or less will be redeemed in part. If any Note is to be redeemed in part only, the notice of redemption that relates to the Note will state the portion of the principal amount of the Note to be redeemed. A new Note in a principal amount equal to the unredeemed portion of the Note will be issued in the name of the holder of the Note upon surrender for cancellation of the original Note. For so long as the Notes are held by DTC, Clearstream Banking S.A. or Euroclear Bank SA/NV (or another depositary), the redemption of the Notes shall be done in accordance with the policies and procedures of the depositary.
Unless the Company defaults in payment of the redemption price, on and after the redemption date interest will cease to accrue on the Notes or portions thereof called for redemption. On and after the redemption date, the Notes or any portion of the Notes called for redemption will stop accruing interest. On or before any redemption date, the Company will deposit with the paying agent or the Trustee money sufficient to pay the accrued interest on the Notes to be redeemed and their redemption price. If less than all of the Notes are redeemed, such Notes shall be redeemed in accordance with the procedures of DTC. The Trustee shall not be responsible for determining the redemption price.
If (i) the Acquisition is not consummated on or before the later of (x) June 3, 2025; and (y) the date that is five business days after any later date to which Seller Parent and Company may agree to extend the “Outside Date” in the Acquisition Agreement (such later date, the “Special Mandatory Redemption End Date”) or (ii) the Company notifies the Trustee under the Indenture that it will not pursue the consummation of the Acquisition, the Company shall be required to redeem the Notes (the “Special Mandatory Redemption”) at a special mandatory redemption price equal to 101% of the aggregate principal amount of the Notes, plus accrued and unpaid interest, if any, to, but excluding, the Special Mandatory Redemption Date (subject to the right of holders of the Notes of record on the relevant record date to receive interest due on an interest payment date falling prior to the Special Mandatory Redemption Date) (the “Special Mandatory Redemption Price”). Unless the Company defaults in the payment of the Special Mandatory Redemption Price, on and after such Special Mandatory Redemption Date, interest will cease to accrue on the Notes to be redeemed.
In the event that the Company becomes obligated to redeem the Notes pursuant to the Special Mandatory Redemption, the Company shall promptly, and in any event not more than five business days after the Special Mandatory Redemption Event, deliver notice to the Trustee of the Special Mandatory Redemption and the date upon which the Notes will be redeemed (the “Special Mandatory Redemption Date”), which date shall be no later than the tenth business day following the date of such notice unless some longer minimum period may be required by DTC (or any successor depositary), together with a notice of Special Mandatory Redemption for the Trustee to deliver to each registered holder of Notes. The Trustee shall then promptly mail or electronically deliver (or otherwise transmit in accordance with the depositary’s procedures) such notice of Special Mandatory Redemption to each registered holder of the Notes.
On or before the Special Mandatory Redemption Date, the Company shall pay to a paying agent for payment to each holder of the Notes the Special Mandatory Redemption Price for such holder’s Notes.
Failure to make the Special Mandatory Redemption, if required in accordance with the terms described above, will constitute an Event of Default with respect to the Notes.
Upon the consummation of the Acquisition, the foregoing provisions regarding Special Mandatory Redemption will cease to apply.
For purposes of the foregoing discussion, the following definitions apply:
“Acquisition” means the acquisition of the Critical Care business of Seller Parent and its subsidiaries by the Company and/or certain of the Company’s subsidiaries.
“Acquisition Agreement” means the Stock and Asset Purchase Agreement, dated June 3, 2024, by and among the Company and Seller Parent, as may be amended or modified or any provision thereof waived from time to time.
“Seller Parent” means Edwards Lifesciences Corporation.
Notwithstanding anything to the contrary provided herein or in the Indenture, the Company and the Trustee may, with the consent of the holders of a majority in principal amount of the outstanding Notes, amend the Indenture and the Notes for the purpose of adding any provisions to or changing or eliminating any provisions related to the Special Mandatory Redemption; provided that, notwithstanding the foregoing, no such amendment shall reduce the premium payable upon a Special Mandatory Redemption without the consent of each holder of a Note affected thereby.
If a Change of Control Triggering Event occurs, unless the Notes have been earlier redeemed, the Company shall be required to make an offer (a “Change of Control Offer”) to each holder of outstanding Notes to repurchase all or any portion (equal to $1,000 or an integral multiple of $1,000 in excess thereof) of that holder’s Notes at a purchase price equal to 101% of the principal amount thereof plus accrued and unpaid interest, if any, to, but excluding, the date of purchase (the “Change of Control Payment”), subject to the rights of holders of Notes on the relevant record date to receive interest due on the relevant interest payment date.
For the purposes hereof:
“Change of Control” means the occurrence of any one of the following:
(i) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the assets of the Company and its subsidiaries taken as a whole to any Person (including any “person” (as that term is defined in Section 13(d)(3) of the Securities Exchange Act of 1934 (the “Exchange Act”))) other than to the Company or one of its subsidiaries;
(ii) the consummation of any transaction (including without limitation, any merger or consolidation) the result of which is that any Person (including any “person” (as that term is defined in Section 13(d)(3) of the Exchange Act)), other than the Company or one of its subsidiaries, becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or indirectly, of more than 50% of the outstanding Voting Stock of the Company or other Voting Stock into which the Company’s Voting Stock is reclassified, consolidated, exchange or changed, measured by voting power rather than number of shares; or
(iii) the adoption of a plan relating to the liquidation or dissolution of the Company. Notwithstanding the foregoing, a transaction shall not be considered to be a Change of Control if: (a) the Company becomes a direct or indirect wholly-owned subsidiary of a holding company and (b)(x) immediately following that transaction, the direct or indirect holders of the Voting Stock of the holding company are substantially the same as the holders of the Company’s Voting Stock immediately prior to that transaction or (y) immediately following that transaction, no Person is the beneficial owner, directly or indirectly, of more than 50% of the Voting Stock of such holding company.
“Change of Control Triggering Event” means the Notes are rated below Investment Grade by each of the Rating Agencies on any date during the period (the “Trigger Period”) commencing on the date of the first public announcement by the Company of any Change of Control (or pending Change of Control) and ending 60 days following consummation of that Change of Control (which Trigger Period shall be extended following consummation of a Change of Control for so long as any of the Rating Agencies has publicly announced that it is considering a possible ratings downgrade and the downgrade would result in a Change of Control Triggering Event). Unless at least two Rating Agencies are providing a rating for the Notes at the commencement of any Trigger Period, the Notes shall be deemed to be rated below Investment Grade by the Rating Agencies during that Trigger Period. Notwithstanding the foregoing, no Change of Control Triggering Event shall be deemed to have occurred in connection with (i) any particular Change of Control unless and until such Change of Control has actually been consummated or (ii) any reduction in rating if the Rating Agencies making the reduction in rating to which this definition would otherwise apply do not announce or publicly confirm or inform the Trustee in writing at its request that the reduction was the result, in whole or in part, of any event or circumstance comprised of or arising as a result of, or in respect of, a Change of Control (whether or not the Change of Control shall have occurred at the time of the reduction in rating). In no event shall the Trustee be charged with the responsibility of monitoring the Company’s ratings.
“Fitch” means Fitch Ratings, Inc. and its successors.
“Investment Grade” means a rating of Baa3 or better by Moody’s (or its equivalent under any successor rating category of Moody’s); and a rating of BBB- or better by S&P (or its equivalent under any successor rating category of S&P); and a rating of BBB- or better by Fitch (or its equivalent under any successor rating category of Fitch) or the equivalent investment grade credit rating from any additional Rating Agency or Rating Agencies selected by the Company in accordance with the definition of “Rating Agency.”
“Moody’s” means Moody’s Investors Service, Inc., a subsidiary of Moody’s Corporation, and its successors.
“Person” means any individual, corporation, partnership, joint venture, association, joint- stock company, trust, unincorporated organization, limited liability company or government or other entity.
“Rating Agency” means each of Fitch, Moody’s and S&P; provided, that if any of Fitch, Moody’s or S&P ceases to provide rating services to issuers or investors or fails to make a rating of the Notes publicly available for reasons outside of the Company’s control, the Company may appoint a replacement for that Rating Agency.
“S&P” means S&P Global Ratings, a division of S&P Global Inc., and its successors.
“Voting Stock” of any specified Person as of any date means the capital stock of that Person that is at the time entitled to vote generally in the election of the board of directors of that Person.
Within 30 days following the date upon which the Change of Control Triggering Event has occurred, or at the Company’s option, prior to any Change of Control but after the public announcement of the pending Change of Control, the Company shall send, in accordance with DTC procedures or otherwise, a notice to each holder of the Notes, with a copy to the Trustee, describing the transaction or transactions that constitute or may constitute the Change of Control Triggering Event and offering to repurchase the Notes on the date specified in the notice, which date must be no earlier than 30 days nor later than 60 days from the date the notice is sent, other than as may be required by law (the “Change of Control Payment Date”). If the notice is sent prior to the date of consummation of the Change of Control, it shall state that the Change of Control Offer is conditioned on the Change of Control being consummated on or prior to the Change of Control Payment Date.
If holders of Notes elect to have Notes purchased pursuant to a Change of Control Offer, they must surrender their Notes, with the form entitled “Option of Holder to Elect Purchase” on the reverse of this Note completed, to the Trustee at the address specified in the notice, or transfer their Notes to the Trustee by book-entry transfer pursuant to the applicable procedures of the Trustee, prior to the close of business on the third Business Day prior to the Change of Control Payment Date. On or prior to 12:00 p.m., New York City time, on the Business Day immediately preceding the Change of Control Payment Date, the Company shall, to the extent lawful, deposit with the paying agent or the Trustee an amount equal to the Change of Control Payment in respect of all the Notes or portions of the Notes properly tendered.
On the Change of Control Payment Date, the Company shall, to the extent lawful, (i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of Control Offer, (ii) deposit with the Trustee or a paying agent the required payment for all properly tendered Notes or portions of Notes not validly withdrawn, and (iii) deliver or cause to be delivered to the Trustee the Notes properly accepted, together with an officer’s certificate stating the aggregate principal amount of Notes or portions of Notes being repurchased. The paying agent or the Trustee, as applicable, shall promptly deliver to each holder of the Notes properly tendered the Change of Control Payment for such Notes, and the Trustee shall promptly authenticate and mail (or cause to be transferred by book entry) to each holder of the Notes a new Note equal in principal amount to any unpurchased portion of the Notes surrendered, if any; provided that each new Note shall be in a minimum principal amount equal to $1,000 and integral multiples of $1,000 in excess thereof.
The Company shall not be required to make a Change of Control Offer if a third party makes such an offer in the manner, at the times and otherwise in compliance with the requirements for such an offer made by the Company and that third party purchases all Notes properly tendered and not withdrawn under its offer.
If holders of not less than 90% in aggregate principal amount of the outstanding Notes validly tender and do not withdraw such Notes in a Change of Control Offer and the Company, or any third party making such an offer in lieu of the Company as set forth above, purchases all of the Notes validly tendered and not withdrawn by such holders, the Company or such third party shall have the right, upon not less than 10 days nor more than 60 days’ prior notice, provided that such notice is given not more than 30 days following such repurchase pursuant to the Change of Control Offer as set forth above, to redeem all Notes that remain outstanding following such purchase on a date specified in such notice (the “Second Change of Control Payment Date”) and at a price in cash equal to 101% of the aggregate principal amount of Notes repurchased plus any accrued and unpaid interest on the Notes repurchased to, but not including, the Second Change of Control Payment Date.
To the extent that the provisions of any securities laws or regulations conflict with the provisions herein, the Company shall comply with the applicable securities laws and regulations and shall not be deemed to have breached its obligations under the provisions herein by virtue of such conflicts.
Upon the presentment for registration of transfer of this Note at the office or agency of the Company designated for such purpose pursuant to the Indenture, a new Note or Notes of authorized denominations for an equal aggregate principal amount shall be issued to the transferee in exchange therefor, subject to the limitations provided in the Indenture, without charge except for any tax or other governmental charge imposed in connection therewith.
Prior to due presentment for registration of transfer of this Note, the Company, the Trustee or any Note registrar, co-registrar, paying agent or authenticating agent, may deem and treat the registered holder hereof as the absolute owner of this Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or other writing hereon), for the purpose of receiving payment hereof, or an account hereof, and for all other purposes, and the Company, the Trustee and any Note registrar, co-registrar, paying agent and authenticating agent shall not be affected by any notice to the contrary.
The Trustee agrees to accept and act upon instructions or directions given pursuant to the Indenture and sent using e-mail, secure electronic transmission or other similar electronic methods, provided, however, that the Trustee shall have received an incumbency certificate listing persons designated to give such instructions or directions and containing specimen signatures of such designated persons, which such incumbency certificate shall be amended and replaced whenever a person is to be added or deleted from the listing. If the Company elects to give the Trustee e-mail instructions or instructions by a similar electronic method and the Trustee in its discretion elects to act upon such instructions, the Trustee’s reasonable understanding of such instructions shall be deemed controlling. The Trustee shall not be liable for any losses, costs or expenses arising directly or indirectly from the Trustee’s good faith reliance upon and compliance with such instructions notwithstanding such instructions conflict or are inconsistent with a subsequent written instruction. The Company agrees to assume all risks arising out of the use of such electronic methods to submit instructions and directions to the Trustee, including without limitation the risk of the Trustee acting on unauthorized instructions, and the risk of interception and misuse by third parties.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Note purchased by the Company pursuant to a Change of Control Offer, check the appropriate box below:
[ ] Change of Control Offer
If you want to elect to have only part of this Note purchased by the Company pursuant to a Change of Control Offer, state the amount you elect to have purchased:
$ _______(equal to $1,000 or an integral multiple of $1,000 in excess thereof)
Date: | Your Signature: | |
(Sign exactly as your name appears on the face of this Note) |
Tax Identification No.: | ||
Signature Guarantee*: |
* Participant in a recognized Signature Guarantee Medallion Program (or other signature guarantor acceptable to the Trustee).
Exhibit 5.1
June 7, 2024
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, NJ 07417-1880
Ladies and Gentlemen:
I am Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, a New Jersey corporation (the “Company”), and have been requested to furnish this opinion in connection with the Registration Statement on Form S-3 (Registration No. 333-279084) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”), relating to the issuance by the Company of its €1,000,000,000 aggregate principal amount of 3.828% Notes due 2032 (the “Notes”). The Notes are being offered and sold pursuant to a Prospectus, dated May 2, 2024 (which forms a part of and is included in the Registration Statement), as supplemented by the Prospectus Supplement, dated June 4, 2024 (together, the “Prospectus”), filed with the Commission on June 6, 2024 pursuant to Rule 424(b)(2) under the Act, and an Underwriting Agreement, dated June 4, 2024 (the “Underwriting Agreement”), among the Company and the representatives of the several underwriters named therein (the “Underwriters”).
In connection with the furnishing of this opinion, I have examined (a) copies of the Registration Statement and of the Prospectus; (b) a copy of the Indenture, dated as of March 1, 1997 (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A. (as successor to JP Morgan Chase Bank), as trustee (the “Trustee”); (c) an executed copy of the Underwriting Agreement, relating to the sale by the Company to the Underwriters of the Notes; and (d) the global certificate evidencing the Notes executed by the Company and registered in the name of The Bank of New York Depository (Nominees) Limited, delivered by the Company to the Trustee for authentication and delivery.
I also have examined such corporate records of the Company, such agreements and instruments, such certificates of public officials, such certificates of other officers of the Company and other persons, such questions of law and such other documents as I have deemed necessary as a basis for the opinions hereinafter expressed.
In such examination, except with respect to documents executed by officers of the Company in my presence, I have assumed the genuineness of all signatures, including electronic signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or certified or photocopied copies and the authenticity of the originals of such latter documents. I also have assumed that the Indenture is the valid and legally binding obligation of the Company and the Trustee.
Based on the foregoing, I am of the opinion that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus.
(ii) The Company has the corporate power and authority to execute, deliver and perform all of its obligations under the Underwriting Agreement, the Indenture and the Notes.
(iii) The Underwriting Agreement, the Indenture and the Notes have been duly authorized, executed and delivered by the Company.
I am a member of the Bar of the State of New Jersey. The foregoing opinion is limited to the laws of the State of New Jersey.
I hereby consent to the filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed on the date hereof. In addition, I consent to the reference to me under the caption “Legal Matters” in the Prospectus.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without my prior written consent.
Very truly yours, | |
/s/ Gary DeFazio |
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Gary DeFazio | |
Senior Vice President, Corporate Secretary and Associate General Counsel |
[Signature Page to Associate General Counsel’s Exhibit 5 Opinion (EUR)]
Exhibit 5.2
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MARTIN LIPTON HERBERT M. WACHTELL EDWARD D. HERLIHY DANIEL A. NEFF STEVEN A. ROSENBLUM JOHN F. SAVARESE SCOTT K. CHARLES JODI J. SCHWARTZ ADAM O. EMMERICH RALPH M. LEVENE RICHARD G. MASON ROBIN PANOVKA DAVID A. KATZ ILENE KNABLE GOTTS TREVOR S. NORWITZ ANDREW J. NUSSBAUM RACHELLE SILVERBERG STEVEN A. COHEN DEBORAH L. PAUL DAVID C. KARP RICHARD K. KIM JOSHUA R. CAMMAKER
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MARK GORDON JEANNEMARIE O’BRIEN WAYNE M. CARLIN STEPHEN R. DiPRIMA NICHOLAS G. DEMMO IGOR KIRMAN JONATHAN M. MOSES T. EIKO STANGE WILLIAM SAVITT GREGORY E. OSTLING DAVID B. ANDERS ADAM J. SHAPIRO NELSON O. FITTS JOSHUA M. HOLMES DAVID E. SHAPIRO DAMIAN G. DIDDEN IAN BOCZKO MATTHEW M. GUEST DAVID E. KAHAN DAVID K. LAM BENJAMIN M. ROTH JOSHUA A. FELTMAN
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51 WEST 52ND STREET NEW YORK, N.Y. 10019-6150 TELEPHONE: (212) 403-1000 FACSIMILE: (212) 403-2000
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ELAINE P. GOLIN EMIL A. KLEINHAUS KARESSA L. CAIN RONALD C. CHEN BRADLEY R. WILSON GRAHAM W. MELI GREGORY E. PESSIN CARRIE M. REILLY MARK F. VEBLEN SARAH K. EDDY VICTOR GOLDFELD RANDALL W. JACKSON BRANDON C. PRICE KEVIN S. SCHWARTZ MICHAEL S. BENN ALISON ZIESKE PREISS TIJANA J. DVORNIC JENNA E. LEVINE RYAN A. McLEOD ANITHA REDDY JOHN L. ROBINSON JOHN R. SOBOLEWSKI |
STEVEN WINTER EMILY D. JOHNSON JACOB A. KLING RAAJ S. NARAYAN VIKTOR SAPEZHNIKOV MICHAEL J. SCHOBEL ELINA TETELBAUM ERICA E. AHO LAUREN M. KOFKE ZACHARY S. PODOLSKY RACHEL B. REISBERG MARK A. STAGLIANO CYNTHIA FERNANDEZ LUMERMANN CHRISTINA C. MA NOAH B. YAVITZ BENJAMIN S. ARFA NATHANIEL D. CULLERTON ERIC M. FEINSTEIN ADAM L. GOODMAN STEVEN R. GREEN MENG LU |
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GEORGE A. KATZ (1965–1989) JAMES H. FOGELSON (1967–1991) LEONARD M. ROSEN (1965–2014)
OF COUNSEL |
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ANDREW R. BROWNSTEIN MICHAEL H. BYOWITZ KENNETH B. FORREST BEN M. GERMANA SELWYN B. GOLDBERG PETER C. HEIN JB KELLY JOSEPH D. LARSON LAWRENCE S. MAKOW PHILIP MINDLIN THEODORE N. MIRVIS DAVID S. NEILL |
ERIC S. ROBINSON ERIC M. ROSOF MICHAEL J. SEGAL WON S. SHIN DAVID M. SILK ROSEMARY SPAZIANI ELLIOTT V. STEIN LEO E. STRINE, JR.* PAUL VIZCARRONDO, JR. JEFFREY M. WINTNER AMY R. WOLF MARC WOLINSKY |
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* ADMITTED IN DELAWARE
COUNSEL |
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DAVID M. ADLERSTEIN SUMITA AHUJA FRANCO CASTELLI ANDREW J.H. CHEUNG PAMELA EHRENKRANZ ALINE R. FLODR KATHRYN GETTLES-ATWA ADAM M. GOGOLAK |
ANGELA K. HERRING MARK A. KOENIG CARMEN X.W. LU J. AUSTIN LYONS ALICIA C. McCARTHY JUSTIN R. ORR NEIL M. SNYDER JEFFREY A. WATIKER |
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey
Ladies and Gentlemen:
We have acted as special counsel to Becton, Dickinson and Company, a New Jersey corporation (the “Company”), in connection with the issuance and sale by the Company of €1,000,000,000 3.828% senior notes due 2032 (the “Notes”). The Notes were sold pursuant to an Underwriting Agreement, dated June 4, 2024, by and among the Company and Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited for themselves and as representatives of the several Underwriters named therein (the “Underwriting Agreement”). The Notes are to be issued under that certain Indenture, dated as of March 1, 1997, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor-in-interest to JPMorgan Chase Bank, N.A., as trustee (the “Trustee”) (the “Indenture”).
Becton, Dickinson and Company
June 7, 2024
Page 2
We have examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of the Company and public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter, including (a) the registration statement on Form S-3ASR (File No. 333-279084), filed with the Securities and Exchange Commission (the “Commission”) on May 2, 2024 (the “Registration Statement”), but excluding the documents incorporated therein; (b) the base prospectus, dated May 2, 2024, included in the Registration Statement, but excluding the documents incorporated therein; (c) the preliminary prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the “Act”), but excluding the documents incorporated by reference therein; (d) the final term sheet dated June 4, 2024, as filed with the Commission pursuant to Rule 433 under the Act; (e) the prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Act, but excluding the documents incorporated by reference therein; (f) a copy of the Restated Certificate of Incorporation of the Company and a copy of the Bylaws of the Company, each as set forth in the certificate of the Secretary of the Company, dated the date hereof; (g) the Indenture; (h) a copy of the Global Note, dated as of June 7, 2024; (i) an executed copy of the Underwriting Agreement; (j) resolutions of the Board of Directors of the Company relating to the issuance of the Notes; and (k) such other corporate records, certificates and other documents and such matters of law, in each case, as we have deemed necessary or appropriate. In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (iv) all Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus Supplement; and (v) the Underwriting Agreement has been duly authorized and validly executed and delivered by the Underwriters. We have assumed that the terms of the Notes have been established so as not to, and that the execution and delivery by the parties thereto and the performance of such parties’ obligations under the Notes will not, breach, contravene, violate, conflict with or constitute a default under (1) any law, rule or regulation to which any party thereto is subject (excepting the laws of the State of New York and the federal securities laws of the United States of America as such laws apply to the Company); (2) any judicial or regulatory order or decree of any governmental authority; or (3) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority. We also have assumed that the Indenture and the Notes are the valid and legally binding obligation of the Trustee. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others. We have further assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed, electronic or photostatic copies, and the authenticity of the originals of such copies.
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York and the federal securities laws of the United States of America, in each case as in effect on the date hereof.
Becton, Dickinson and Company
June 7, 2024
Page 3
Based upon the foregoing, and subject to the assumptions, limitations, qualifications, exceptions and comments set forth in this letter, we advise you that, in our opinion, the Notes, when duly executed, authenticated, issued, delivered and paid for in accordance with the terms of the Indenture and the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinion set forth above is subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States; and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provisions contained in the Notes and the Indenture. We express no opinion as to the ability of another court, federal or state, to accept jurisdiction and/or venue in the event the chosen court is unavailable for any reason, including, without limitation, natural disaster, act of God, human health or safety reasons or otherwise (including a pandemic).
Becton, Dickinson and Company
June 7, 2024
Page 4
This letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent to the filing of a copy of this letter as an exhibit to the Company’s Current Report on Form 8-K, filed on June 7, 2024, and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Validity of the Securities.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours, | |
/s/ Wachtell, Lipton, Rosen & Katz |
GEP/kga/bjn
Exhibit 5.3
June 7, 2024
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, NJ 07417-1880
Ladies and Gentlemen:
I am Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, a New Jersey corporation (the “Company”), and have been requested to furnish this opinion in connection with the Registration Statement on Form S-3 (Registration Nos. 333-279084 and 333-279084-01) (the “Registration Statement”) filed by the Company and Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg (“Becton Finance”), with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”), relating to the issuance by Becton Finance of its €800,000,000 aggregate principal amount of 4.029% Notes due 2036 (the “Notes”). The Indenture (as defined below) provides that the Notes are to be guaranteed by the Company (such guarantee, together with the Notes, the “Securities”). The Securities are being offered and sold pursuant to a Prospectus, dated May 2, 2024 (which forms a part of and is included in the Registration Statement), as supplemented by the Prospectus Supplement, dated June 4, 2024 (together, the “Prospectus”), filed with the Commission on June 6, 2024 pursuant to Rule 424(b)(2) under the Act, and an Underwriting Agreement, dated June 4, 2024 (the “Underwriting Agreement”), among the Company and the representatives of the several underwriters named therein (the “Underwriters”).
In connection with the furnishing of this opinion, I have examined (a) copies of the Registration Statement and of the Prospectus; (b) a copy of the Indenture, dated as of May 17, 2019 (the “Base Indenture”), among Becton Finance, as issuer, the Company, as guarantor, and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”); including Article 10 thereof containing the guaranty obligations of the Company (the “Guarantee”), as amended and supplemented by the Fifth Supplemental Indenture thereto, dated as of June 7, 2024 (the “Fifth Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), among Becton Finance, the Company and the Trustee; and (c) an executed copy of the Underwriting Agreement.
I also have examined such corporate records of the Company, such agreements and instruments, such certificates of public officials, such certificates of other officers of the Company and other persons, such questions of law and such other documents as I have deemed necessary as a basis for the opinions hereinafter expressed.
In such examination, except with respect to documents executed by officers of the Company in my presence, I have assumed the genuineness of all signatures, including electronic signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or certified or photocopied copies and the authenticity of the originals of such latter documents. I also have assumed that the Indenture is the valid and legally binding obligation of Becton Finance and the Trustee.
Based on the foregoing, I am of the opinion that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus.
(ii) The Underwriting Agreement and the Indenture have been duly authorized, executed and delivered by the Company.
(iii) The issue of the Guarantee and the compliance by the Company with all of the provisions of the Indenture applicable thereto, and the consummation of the transactions therein contemplated, will not conflict with or result in a breach or violation of any statute or any order, rule or regulation known to me of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties.
I am a member of the Bar of the State of New Jersey. The foregoing opinion is limited to the laws of the State of New Jersey.
I hereby consent to the filing of this opinion as Exhibit 5.3 to the Company’s Current Report on Form 8-K filed on the date hereof. In addition, I consent to the reference to me under the caption “Legal Matters” in the Prospectus.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without my prior written consent.
Very truly yours, | |
/s/ Gary DeFazio | |
Gary DeFazio | |
Senior Vice President, Corporate Secretary | |
and Associate General Counsel |
[Signature Page to Associate General Counsel’s Exhibit 5 Opinion (Sarl) (EUR)]
Exhibit 5.4
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office address |
18-20, rue Edward Steichen |
|
L-2540 LUXEMBOURG | |||
telephone | +352 466 230 208 | ||
fax | +352 466 234 | ||
internet | loyensloeff.lu |
dated 07 June 2024
Subject to opinion committee approval
To: the Addressees
re | Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion |
reference | 70112148 |
Luxembourg, 7 June 2024
1 | INTRODUCTION |
We have acted as special legal counsel on certain matters of Luxembourg law to the Company. We render this opinion letter regarding the Opinion Documents.
2 | DEFINITIONS |
2.1 | Capitalised terms used but not (otherwise) defined herein are used as defined in the Schedules to this opinion letter. |
2.2 | In this opinion letter: |
Act means the United States Securities Act of 1933.
Addressees means the addressees of this opinion letter, listed in Schedule 1 (Addressees).
Base Indenture means the indenture dated 17 May 2019, governed by the laws of the State of New York, entered into by and between, amongst others, the Company as issuer, Becton, Dickinson and Company as guarantor and The Bank of New York Mellon Company N.A. as trustee, as amended from time to time, and pursuant to which the Notes are issued.
Companies Law means the Luxembourg law on commercial companies, dated 10 August 1915.
All services are provided by LOYENS & LOEFF LUXEMBOURG SARL, a private limited liability company (société à responsabilité limitée) having its registered office at 18-20, rue Edward Steichen, L-2540 Luxembourg, Luxembourg, registered with the Luxembourg Register of Commerce and Companies Luxembourg (Registre de Commerce et des Sociétés, Luxembourg) under number B 174.248. All its services are governed by its General Terms and Conditions, which include a limitation of liability, the applicability of Luxembourg law and the competence of the Luxembourg courts. These General Terms and Conditions may be consulted via loyensloeff.lu.
amsterdam | ● | brussels | ● | luxembourg | ● | rotterdam | ● | hong kong | ||
london | ● | new york | ● | paris | ● | singapore | ● | tokyo | ● | zurich |
Company means Becton Dickinson Euro Finance S.à r.l., with registered address at 412F, route d’Esch, L-1471 Luxembourg, Luxembourg and registered with the RCS under number B234229.
Current Report on Form 8-K means the report filed with the SEC pursuant to the Act.
Guarantor means Becton, Dickinson and Company, a New Jersey corporation.
Indenture means the Supplemental Indenture together with the Base Indenture.
Insolvency Proceedings means bankruptcy (faillite), suspension of payments (sursis de paiements), insolvency, liquidation, dissolution, reorganisation, restructuring, any proceedings and measures under the Luxembourg law of 7 August 2023 on business preservation and modernisation of bankruptcy law, administrative dissolution without liquidation procedure (procédure de dissolution administrative sans liquidation), the appointment of a temporary administrator (administrateur provisoire), and any similar Luxembourg or non-Luxembourg proceedings, regimes or officers relating to, or affecting, the rights of creditors generally.
Insolvency Regulation means the Regulation (EU) No 2015/848 on insolvency proceedings.
Luxembourg means the Grand Duchy of Luxembourg.
Notes means the EUR 800,000,000 4.029% notes due 2036, issued by the Company, as further described in the Prospectus and Prospectus Supplement.
Offering Document means the document listed under paragraph 1 (Offering Document) of Schedule 2 (Reviewed Documents).
Opinion Documents means the documents listed under paragraph 2 (Opinion Documents) of Schedule 2 (Reviewed Documents).
Prospectus means the prospectus dated 2 May 2024, with regard to the offering of notes by the Company, as supplemented from time to time, which forms part of the Registration Statement.
Prospectus Supplement means the prospectus supplement dated 4 June 2024 with regard to the offering of the Notes and supplementing the Prospectus.
Registration Statement means the registration statement filed by the Company on Form S-3 (File No. 333-279084) with the Securities and Exchange Commission, which includes the Prospectus.
RCS means the Luxembourg Register of Commerce and Companies.
Relevant Date means the date of the Resolutions, the date of the Offering Document, the date of the Opinion Documents and the date of this opinion letter, as the case may be.
SEC means the United States Securities and Exchange Commission.
3 | SCOPE OF INQUIRY |
3.1 | For the purpose of rendering this opinion letter, we have only examined and relied upon electronically transmitted copies of (i) the executed or enacted Opinion Documents, (ii) the Offering Document, and (iii) the documents listed in paragraph 3 (Organisational Documents) of Schedule 2 (Reviewed Documents). |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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3.2 | We have not reviewed any documents incorporated by reference or referred to in the Opinion Documents (unless included as an Opinion Document) and therefore our opinions do not extend to such documents. |
4 | NATURE OF OPINION |
4.1 | We only express an opinion on matters of Luxembourg law in force on the date of this opinion letter, excluding unpublished case law. We undertake no obligation to update it or to advise of any changes in such laws or case law, their construction or application. |
4.2 | Except as expressly stated in this opinion letter, we do not express an opinion on public international law or on the rules of, or promulgated under, any treaty or by any treaty organisation or European law (save for rules implemented into Luxembourg law or directly applicable in Luxembourg), on regulatory and tax matters (including EMIR, AIFMD, MiFID II, MiFIR, SFTR, SFDR the Securitisation Regulation and DAC 6 (including, in each case, their respective EU and national delegated or implementing legislation or regulation)), as well as on transfer pricing, competition, GDPR, accounting or administrative law, sanction laws and regulations or as to the consequences thereof. |
4.3 | Our opinion letter is strictly limited to the matters stated herein. We do not express any opinion on matters of fact, on the commercial and other non-legal aspects of the transactions contemplated by the Opinion Documents and on any representations, warranties or other information included in the Opinion Documents and any other document examined in connection with this opinion letter, except as expressly stated in this opinion letter. We have made no investigation in the Luxembourg register of beneficial owners. |
4.4 | We express no opinion in respect of the validity and enforceability of the Opinion Documents and the creation, validity and perfection of any security interest thereunder. |
4.5 | We express no opinion with respect to the Offering Document nor as regards the accuracy, truth or completeness of the information contained therein except as expressly stated in this opinion letter. |
4.6 | In this opinion letter Luxembourg legal concepts are sometimes expressed in English terms and not in their original French or German terms. The concepts concerned may not be identical to the concepts described by the same English term as they exist under the laws of other jurisdictions. In addition, for the purpose of different areas of Luxembourg law, for instance tax law, a term may have a different meaning than for the purpose of other areas of Luxembourg law. The meaning to be attributed to the concepts described by the English terms shall be the meaning to be attributed to the equivalent Luxembourg concepts under the relevant area of Luxembourg law. |
4.7 | This opinion letter may only be relied upon under the express condition that any issue of interpretation or liability arising hereunder will be governed by Luxembourg law and be brought exclusively before the courts of the district of Luxembourg-City. |
4.8 | This opinion letter is issued by LOYENS & LOEFF LUXEMBOURG SARL and may only be relied upon under the express condition that any liability of LOYENS & LOEFF LUXEMBOURG SARL is limited to the amount paid out under its professional liability insurance policies. Only LOYENS & LOEFF LUXEMBOURG SARL can be held liable in connection with this opinion letter. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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5 | OPINIONS |
The opinions expressed in this paragraph 5 (Opinions) should be read in conjunction with the assumptions set out in Schedule 3 (Assumptions) and the qualifications set out in Schedule 4 (Qualifications). On the basis of these assumptions and subject to these qualifications and any factual matters or information not disclosed to us in the course of our investigation, we are of the opinion that as at the date of this opinion letter:
5.1 | Corporate status |
The Company has been incorporated and is existing as a société à responsabilité limitée (private limited liability company) for an unlimited duration.
5.2 | Corporate power |
The Company has the corporate power to execute the Opinion Documents and to issue the Notes.
5.3 | Due authorisation |
The execution by the Company of the Opinion Documents has been duly authorised by all requisite corporate action on the part of the Company.
5.4 | Due execution |
The Opinion Documents have been duly executed by the Company.
6 | ADDRESSEES |
6.1 | This opinion letter is addressed to you and may only be relied upon by you in connection with the transactions to which the Opinion Documents relate and may not be disclosed to and relied upon by any other person without our prior written consent. |
6.2 | We hereby consent to the filing of this opinion as Exhibit 5 to the Current Report of Form 8-K. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC thereunder. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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Yours faithfully,
LOYENS & LOEFF LUXEMBOURG SARL
/s/ Anne-Marie Nicolas | /s/ Noémi Gémesi | ||
Anne-Marie Nicolas1 | Noémi Gémesi2 | ||
Avocat à la Cour | Avocat à la Cour |
1 Acting as representative (mandataire) of LOYENS & LOEFF LUXEMBOURG SARL.
2 Acting as representative (mandataire) of LOYENS & LOEFF LUXEMBOURG SARL.
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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Schedule 1
addressees
(1) | Becton, Dickinson and Company |
1, Becton Drive
Franklin Lakes,
New Jersey 07417-1880
United States of America
(2) | Becton Dickinson Euro Finance S.à r.l. |
412F, route d’Esch
L-1471 Luxembourg
Grand Duchy of Luxembourg
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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Schedule 2
REVIEWED DOCUMENTS
1 | Offering Document |
The Prospectus Supplement.
2 | OPINION DOCUMENTs |
2.1 | The supplemental indenture, dated 7 June 2024, governed by the laws of the State of New York, entered into by and between, the Company as issuer, the Guarantor as such and The Bank of New York Mellon Trust Company N.A. as trustee, pursuant to which the Notes are issued (the Supplemental Indenture). |
2.2 | The underwriting agreement, dated 4 June 2024, governed by the laws of the State of New York, entered into by and between, amongst others, the Company as issuer, the Guarantor as such and the underwriters party thereto. |
2.3 | One global note representing the Notes, governed by the laws of the State of New York, dated 7 June 2024, issued by the Company (the Global Note). |
3 | ORGANISATIONAL DOCUMENTS |
3.1 | RCS Documents |
3.1.1 | An excerpt pertaining to the Company delivered by the RCS dated 7 June 2024 (the Excerpt). |
3.1.2 | A certificate of absence of a judicial decision or administrative dissolution without liquidation procedure (certificat de non inscription d’une décision judiciaire ou de procédure de dissolution administrative sans liquidation), pertaining to the Company, delivered by the insolvency register (Registre de l’insolvabilité) (Reginsol) held and maintained by the RCS, dated 7 June 2024, with respect to the situation of the Company as at 6 June 2024 (the RCS Certificate). |
3.2 | Corporate Documents |
The deed of incorporation of the Company dated 23 April 2019 (the Deed of Incorporation), containing the original articles of association of the Company (the Articles).
3.3 | Resolutions |
The minutes of the meeting of the board of managers of the Company dated 3 June 2024 in relation to the Offering Document and the Opinion Documents (the Resolutions).
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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Schedule 3
ASSUMPTIONS
The opinions in this opinion letter are subject to the following assumptions:
1 | DOCUMENTS |
1.1 | All original documents are authentic, all signatures (whether handwritten or electronic) are genuine and were inserted or agreed to be inserted by the relevant individual, and all copies are complete and conform to the originals. |
1.2 | The information contained and the statements made in the Excerpt, the RCS Certificate and the Resolutions are true, accurate and complete at the Relevant Date. |
2 | INCORPORATION, EXISTENCE, CORPORATE POWER |
2.1 | There were no defects in the incorporation process of the Company (not appearing on the face of the Deed of Incorporation). The Articles are in full force and effect on the Relevant Date. |
2.2 | The Company has its central administration (administration centrale) and its centre of main interest (as described in the Insolvency Regulation) in Luxembourg and does not have an establishment (as described in the Insolvency Regulation) outside Luxembourg. |
2.3 | The Company complies with and adheres to all laws and regulations on the domiciliation of companies. |
2.4 | The Company (a) is not, and will not, as a result of its entry into the Opinion Documents or the performance of its obligations thereunder, be in a state of cessation of payments (cessation des paiements), or be deemed to be in such state, and has not lost, and will not, as a result of its entry into the Opinion Documents or the performance of its obligations thereunder, lose its creditworthiness (ébranlement de crédit), or be deemed to have lost such creditworthiness and no party to the Opinion Documents is aware, or may be reasonably expected to have been aware, of such circumstances, (b) does not meet the criteria to be subject to any Insolvency Proceedings and (c) is not, and will not be as a result of its entry into the Opinion Documents or the performance of its obligations thereunder, subject to any Insolvency Proceedings. |
2.5 | The issue of the Notes, the execution, entry into and performance by the Company of the Opinion Documents, and the transactions in connection therewith are (a) in its corporate interest, (b) with the intent of pursuing profit (but lucratif) and (c) serving the corporate object of the Company. |
3 | AUTHORISATIONS |
3.1 | The Resolutions (a) correctly reflect the resolutions adopted by the board of managers of the Company, (b) have been validly adopted, with due observance of the Articles and any applicable by-laws and (c) are in full force and effect. |
3.2 | The Company is not under any contractual obligation to obtain the consent, approval, co-operation, permission or otherwise of any third party or person in connection with the execution of, entry into, and performance of its obligations under, the Opinion Documents and the issuance of the Notes. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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4 | EXECUTION |
4.1 | The Opinion Documents have been signed on behalf of the Company by the persons authorised to that effect. |
4.2 | To the extent any of the Opinion Documents has been executed by way of electronic signatures, such signatures satisfy the conditions under article 1322-1 of the Luxembourg Civil Code and under the Regulation (EU) No 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (the eIDAS Regulation). |
4.3 | All individuals who signed the documents listed in Schedule 2 (Reviewed Documents) have legal capacity and power under all relevant laws and regulations to do so. |
5 | REGULATORY |
The Company does not carry out any activity in the financial sector or in the insurance sector on a professional basis (as referred to in the Luxembourg law dated 5 April 1993 on the financial sector, and the Luxembourg Law dated 7 December 2015 on the insurance sector) nor any activity requiring a business licence under the Luxembourg law dated 2 September 2011 governing the access to the professions of skilled craftsman, tradesman, manufacturer, as well as to certain liberal professions.
6 | ISSUE OF NOTES |
6.1 | The Notes will only be offered pursuant to an exemption from the requirement to draw up a prospectus in accordance with the Prospectus Regulation (EU) 2017/1129 and the relevant implementing measures in any Member State (including the Luxembourg law of 16 July 2019 on prospectuses for securities, the Prospectus Law) or the Notes will only be offered in circumstances which do not constitute an offer of securities to the public within the meaning of the Prospectus Regulation (EU) 2017/1129 and relevant implementing measures in any Member State (including the Prospectus Law). |
6.2 | The Notes will not be listed on any market including the Euro MTF Market operated by the Luxembourg Stock Exchange. |
6.3 | The Notes are issued in registered form only. |
6.4 | The Global Note will be executed, authenticated, effectuated or held under the Safekeeping Structure, as the case may be, and delivered, and the Notes will be subscribed, paid for, issued and registered in accordance with the terms of the Opinion Documents. |
7 | MISCELLANEOUS |
7.1 | Each transaction entered into pursuant to, or in connection with, the Opinion Documents both together and individually) is based on genuine legal and economic considerations and each payment and transfer made by, on behalf of, or in favour of, the Company is made at arm’s length. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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7.2 | Each party to the Opinion Documents entered into and will perform its obligations under the Opinion Documents to which it is a party in good faith, for the purpose of carrying out its business and without any intention to defraud or deprive of any legal benefit any other party (including third party creditors) or to circumvent any mandatory law, regulation of any jurisdiction or contractual arrangements. |
7.3 | There are no provisions in the laws of any jurisdiction (other than Luxembourg) or in the documents mentioned in the Opinion Documents, which would adversely affect, or otherwise have any negative impact on this opinion letter. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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Schedule 4
Qualifications
The opinions in this opinion letter are subject to the following qualifications:
1 | INSOLVENCY |
This opinion letter is subject to all limitations resulting from the application of Luxembourg public policy rules, overriding statutes and mandatory laws as well as to all limitations by reasons of Insolvency Proceedings.
2 | ACCURACY OF INFORMATION |
2.1 | Corporate documents of, and court orders affecting, the Company may not be available at the RCS forthwith upon their execution and filing and there may be a delay in the filing and publication of the documents or notices related thereto. We express no opinion as to the consequences of any failure by the Company to comply with its filing, notification, reporting and publication obligations. |
2.2 | Documents relating to a Luxembourg company the publication of which is required by law will only be valid towards third parties from the day of their publication with the Electronic Register of Companies and Associations (Recueil Electronique des Sociétés et Associations), unless the company proves that the relevant third parties had prior knowledge thereof. Third parties may however rely upon such documents which have not yet been published. For 15 days following their publication, such documents will not be valid towards third parties who prove the impossibility for them to have knowledge thereof. |
2.3 | The Articles, the Excerpt and the RCS Certificate do not constitute conclusive evidence whether or not a winding-up, administration petition or order has been presented or made, a receiver has been appointed, an arrangement with creditors has been proposed or approved or any other Insolvency Proceedings have commenced. |
3 | INCORPORATION, EXISTENCE AND CORPORATE POWER |
Our opinion that the Company exists is based on the Corporate Documents, the Excerpt and the RCS Certificate (which confirms that no judicial decision or administrative dissolution without liquidation procedure (procédure de dissolution administrative sans liquidation) pertaining to the Company have been registered with the RCS, in accordance with article 13, paragraphs 4 to 12, 16 and 17 of the law of 19 December 2002 on the Trade and Companies Register and the accounting and annual accounts of companies).
4 | POWERS OF ATTORNEY |
Under Luxembourg law, each power of attorney, mandate or appointment of agent (including the appointment made for security purposes included in the Opinion Documents), whether or not irrevocable, may terminate by virtue of law without notice upon the occurrence of Insolvency Proceedings and may be revoked despite being expressed to be irrevocable.
5 | ENFORCEABILITY |
The opinions expressed herein may be affected by general principles and defences under Luxembourg law, such as the principles of reasonableness and fairness, good faith, abuse of rights, modification on grounds of unforeseen circumstances, limitations by criminal law, undue influence, force majeure, the right to suspend performance as long as the other party is in default in respect of its obligations, the right to set-off and the right to dissolve a transaction upon default by the other party.
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
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6 | MISCELLANEOUS |
6.1 | An electronic signature satisfying the provisions of article 1322-1 of the Luxembourg Civil Code or constituting a ‘qualified electronic signature’ within the meaning of the eIDAS Regulation, has equivalent effect to a handwritten signature, and is, except in certain limited cases, valid for the purpose of the execution of an agreement under private seal (acte sous seing privé). An electronic signature, which does not satisfy the above conditions, will not be considered as equivalent to a handwritten signature, but it shall not be denied legal effect and admissibility as evidence in legal proceedings. However, such electronic signature does not benefit from the presumption of equivalence and is not binding upon Luxembourg court, which has full discretion to accept such signature as evidence. We express no opinion as to the legal qualification of any signature in electronic form. |
6.2 | A Luxembourg company may only enter into transactions which are in its corporate interest. The question of whether or not a transaction is in a company’s corporate interest, is largely dependent on factual considerations and the responsibility for such assessment is that of the board of directors or managers of the relevant company. If any such transaction is subsequently held to be contrary to a company’s corporate interest, it could be held to be null and void. |
6.3 | We express no opinion on general defences under Luxembourg law, such as duress, deceit (dol) or mistake (erreur). |
6.4 | The registration of the Opinion Documents (and any documents in connection therewith) with the Registration, Estates and VAT Department (Administration de l’enregistrement, des domaines et de la TVA) in Luxembourg is required in case the Opinion Documents (and any documents in connection therewith) are (i) attached to a deed which itself must be registered (acte obligatoirement enregistrable) or (ii) deposited with a notary (déposé au rang des minutes d’un notaire). Even if registration is not required by law, the Opinion Documents (and any documents in connection therewith) can be registered (présenté à l’enregistrement). In that case, registration duties will apply in the form of a fixed amount or an ad valorem amount depending on the nature of the document. Luxembourg courts or other Luxembourg authorities may require that the Opinion Documents (and any documents in connection therewith) are translated into French, German or Luxembourgish. |
Luxembourg law legal opinion – Becton Dickinson Euro Finance S.à r.l. – Exhibit 5 opinion
12
Exhibit 5.5
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MARTIN LIPTON HERBERT M. WACHTELL EDWARD D. HERLIHY DANIEL A. NEFF STEVEN A. ROSENBLUM JOHN F. SAVARESE SCOTT K. CHARLES JODI J. SCHWARTZ ADAM O. EMMERICH RALPH M. LEVENE RICHARD G. MASON ROBIN PANOVKA DAVID A. KATZ ILENE KNABLE GOTTS TREVOR S. NORWITZ ANDREW J. NUSSBAUM RACHELLE SILVERBERG STEVEN A. COHEN DEBORAH L. PAUL DAVID C. KARP RICHARD K. KIM JOSHUA R. CAMMAKER |
MARK GORDON JEANNEMARIE O’BRIEN WAYNE M. CARLIN STEPHEN R. DiPRIMA NICHOLAS G. DEMMO IGOR KIRMAN JONATHAN M. MOSES T. EIKO STANGE WILLIAM SAVITT GREGORY E. OSTLING DAVID B. ANDERS ADAM J. SHAPIRO NELSON O. FITTS JOSHUA M. HOLMES DAVID E. SHAPIRO DAMIAN G. DIDDEN IAN BOCZKO MATTHEW M. GUEST DAVID E. KAHAN DAVID K. LAM BENJAMIN M. ROTH JOSHUA A. FELTMAN |
51 WEST 52ND STREET NEW YORK, N.Y. 10019-6150 TELEPHONE: (212) 403-1000 FACSIMILE: (212) 403-2000 GEORGE A. KATZ (1965–1989) JAMES H. FOGELSON (1967–1991) LEONARD M. ROSEN (1965–2014) OF COUNSEL |
ELAINE P. GOLIN EMIL A. KLEINHAUS KARESSA L. CAIN RONALD C. CHEN BRADLEY R. WILSON GRAHAM W. MELI GREGORY E. PESSIN CARRIE M. REILLY MARK F. VEBLEN SARAH K. EDDY VICTOR GOLDFELD RANDALL W. JACKSON BRANDON C. PRICE KEVIN S. SCHWARTZ MICHAEL S. BENN ALISON ZIESKE PREISS TIJANA J. DVORNIC JENNA E. LEVINE RYAN A. McLEOD ANITHA REDDY JOHN L. ROBINSON JOHN R. SOBOLEWSKI |
STEVEN WINTER EMILY D. JOHNSON JACOB A. KLING RAAJ S. NARAYAN VIKTOR SAPEZHNIKOV MICHAEL J. SCHOBEL ELINA TETELBAUM ERICA E. AHO LAUREN M. KOFKE ZACHARY S. PODOLSKY RACHEL B. REISBERG MARK A. STAGLIANO CYNTHIA FERNANDEZ LUMERMANN CHRISTINA C. MA NOAH B. YAVITZ BENJAMIN S. ARFA NATHANIEL D. CULLERTON ERIC M. FEINSTEIN ADAM L. GOODMAN STEVEN R. GREEN MENG LU |
|
ANDREW R. BROWNSTEIN MICHAEL H. BYOWITZ KENNETH B. FORREST BEN M. GERMANA SELWYN B. GOLDBERG PETER C. HEIN JB KELLY JOSEPH D. LARSON LAWRENCE S. MAKOW PHILIP MINDLIN THEODORE N. MIRVIS DAVID S. NEILL |
ERIC S. ROBINSON ERIC M. ROSOF MICHAEL J. SEGAL WON S. SHIN DAVID M. SILK ROSEMARY SPAZIANI ELLIOTT V. STEIN LEO E. STRINE, JR.* PAUL VIZCARRONDO, JR. JEFFREY M. WINTNER AMY R. WOLF MARC WOLINSKY |
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* ADMITTED IN DELAWARE COUNSEL |
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DAVID M. ADLERSTEIN SUMITA AHUJA FRANCO CASTELLI ANDREW J.H. CHEUNG PAMELA EHRENKRANZ ALINE R. FLODR KATHRYN GETTLES-ATWA ADAM M. GOGOLAK |
ANGELA K. HERRING MARK A. KOENIG CARMEN X.W. LU J. AUSTIN LYONS ALICIA C. McCARTHY JUSTIN R. ORR NEIL M. SNYDER JEFFREY A. WATIKER |
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey
Ladies and Gentlemen:
We have acted as special counsel to Becton, Dickinson and Company, a New Jersey corporation (the “Company”), in connection with the issuance and sale by Becton Dickinson Euro Finance S.à r.l., a private limited liability company (société à responsabilité limitée) incorporated under the laws of the Grand Duchy of Luxembourg (“Becton Finance”) of €800,000,000 4.029% senior notes due 2036 (the “Securities”). The Securities were sold pursuant to an Underwriting Agreement, dated June 4, 2024, by and among the Company and Citigroup Global Markets Limited, Barclays Bank PLC, BNP Paribas, J.P. Morgan Securities plc and Wells Fargo Securities International Limited for themselves and as representatives of the several Underwriters named therein (the “Underwriting Agreement”). The Securities are to be issued under that certain Indenture, dated as of May 17, 2019, between Becton Finance, the Company and The Bank of New York Mellon Trust Company, N.A., as successor-in-interest to JPMorgan Chase Bank, N.A., as trustee (the “Trustee”) (the “Base Indenture”), as amended and supplemented by the Fifth Supplemental Indenture thereto, dated as of June 7, 2024 (together with the Base Indenture, the “Indenture”).
Becton, Dickinson and Company
June 7, 2024
Page 2
We have examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of the Company and public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter, including (a) the registration statement on Form S-3ASR (File Nos. 333-279084 and 333-279084-01), filed with the Securities and Exchange Commission (the “Commission”) on May 2, 2024 (the “Registration Statement”), but excluding the documents incorporated therein; (b) the base prospectus, dated May 2, 2024, included in the Registration Statement, but excluding the documents incorporated therein; (c) the preliminary prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the “Act”), but excluding the documents incorporated by reference therein; (d) the final term sheet dated June 4, 2024, as filed with the Commission pursuant to Rule 433 under the Act; (e) the prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Act, but excluding the documents incorporated by reference therein; (f) a copy of the Restated Certificate of Incorporation of the Company and a copy of the Bylaws of the Company, each as set forth in the certificate of the Secretary of the Company, dated the date hereof, and the Articles of Association of the Issuer; (g) the Indenture; (h) a copy of the Global Note, dated as of June 7, 2024; (i) an executed copy of the Underwriting Agreement; (j) the notations of guarantee to the Indenture executed and delivered by the Company (the “Guarantee”); (k) resolutions of the Board of Directors of the Company and resolutions of the Board of Directors of Becton Finance relating to the issuance of the Securities; and (l) such other corporate records, certificates and other documents and such matters of law, in each case, as we have deemed necessary or appropriate. In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (iv) all Securities will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus Supplement; and (v) the Underwriting Agreement has been duly authorized and validly executed and delivered by the Underwriters. We have assumed that the terms of the Securities have been established so as not to, and that the execution and delivery by the parties thereto and the performance of such parties’ obligations under the Securities will not, breach, contravene, violate, conflict with or constitute a default under (1) any law, rule or regulation to which any party thereto is subject (excepting the laws of the State of New York and the federal securities laws of the United States of America as such laws apply to the Company); (2) any judicial or regulatory order or decree of any governmental authority; or (3) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority. We also have assumed that the Indenture and the Securities are the valid and legally binding obligation of the Trustee. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others. We have further assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed, electronic or photostatic copies, and the authenticity of the originals of such copies.
Becton, Dickinson and Company
June 7, 2024
Page 3
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York and the federal securities laws of the United States of America, in each case as in effect on the date hereof.
Based upon the foregoing, and subject to the assumptions, limitations, qualifications, exceptions and comments set forth in this letter, we advise you that, in our opinion, the Securities, when duly executed, authenticated, issued, delivered and paid for in accordance with the terms of the Indenture and the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinion set forth above is subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States; and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provisions contained in the Securities and the Indenture. We express no opinion as to the ability of another court, federal or state, to accept jurisdiction and/or venue in the event the chosen court is unavailable for any reason, including, without limitation, natural disaster, act of God, human health or safety reasons or otherwise (including a pandemic).
Becton, Dickinson and Company
June 7, 2024
Page 4
This letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent to the filing of a copy of this letter as an exhibit to the Company’s Current Report on Form 8-K, filed on June 7, 2024, and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Validity of the Securities.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours, | |
/s/ Wachtell, Lipton, Rosen & Katz
|
GEP/kga/bjn
Exhibit 5.6
June 7, 2024
Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, NJ 07417-1880
Ladies and Gentlemen:
I am Senior Vice President, Corporate Secretary and Associate General Counsel of Becton, Dickinson and Company, a New Jersey corporation (the “Company”), and have been requested to furnish this opinion in connection with the Registration Statement on Form S-3 (Registration No. 333-279084) (the “Registration Statement”) filed by the Company with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933 (the “Act”), relating to the issuance by the Company of its $600,000,000 aggregate principal amount of 5.081% Notes due 2029 (the “Notes”). The Notes are being offered and sold pursuant to a Prospectus, dated May 2, 2024 (which forms a part of and is included in the Registration Statement), as supplemented by the Prospectus Supplement, dated June 4, 2024 (together, the “Prospectus”), filed with the Commission on June 6, 2024 pursuant to Rule 424(b)(2) under the Act, and an Underwriting Agreement, dated June 4, 2024 (the “Underwriting Agreement”), among the Company and the representatives of the several underwriters named therein (the “Underwriters”).
In connection with the furnishing of this opinion, I have examined:
(a) copies of the Registration Statement and of the Prospectus;
(b) a copy of the Indenture, dated as of March 1, 1997 (the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A. (as successor to JP Morgan Chase Bank), as trustee (the “Trustee”);
(c) an executed copy of the Underwriting Agreement, relating to the sale by the Company to the Underwriters of the Notes; and
(d) the global certificates evidencing the Notes executed by the Company and registered in the name of Cede & Co., delivered by the Company to the Trustee for authentication and delivery.
I also have examined such corporate records of the Company, such agreements and instruments, such certificates of public officials, such certificates of other officers of the Company and other persons, such questions of law and such other documents as I have deemed necessary as a basis for the opinions hereinafter expressed.
In such examination, except with respect to documents executed by officers of the Company in my presence, I have assumed the genuineness of all signatures, including electronic signatures, the legal capacity of natural persons, the authenticity of all documents submitted to me as originals, the conformity to original documents of all documents submitted to me as duplicates or certified or photocopied copies and the authenticity of the originals of such latter documents. I also have assumed that the Indenture is the valid and legally binding obligation of the Trustee.
Based on the foregoing, I am of the opinion that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of New Jersey, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus.
(ii) The Company has the corporate power and authority to execute, deliver and perform all of its obligations under the Underwriting Agreement, the Indenture and the Notes.
(iii) The Underwriting Agreement, the Indenture and the Notes have been duly authorized, executed and delivered by the Company.
I am a member of the Bar of the State of New Jersey. The foregoing opinion is limited to the laws of the State of New Jersey.
I hereby consent to the filing of this opinion as Exhibit 5.6 to the Company’s Current Report on Form 8-K filed on the date hereof. In addition, I consent to the reference to me under the caption “Legal Matters” in the Prospectus.
This opinion is rendered solely to you in connection with the above matter. This opinion may not be relied upon by you for any other purpose or relied upon by or furnished to any other person without my prior written consent.
Very truly yours, | |
/s/ Gary DeFazio | |
Gary DeFazio | |
Senior Vice President, Corporate Secretary and Associate General Counsel |
[Signature Page to Associate General Counsel’s Exhibit 5 Opinion (USD)]
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MARTIN LIPTON HERBERT M. WACHTELL EDWARD D. HERLIHY DANIEL A. NEFF STEVEN A. ROSENBLUM JOHN F. SAVARESE SCOTT K. CHARLES JODI J. SCHWARTZ ADAM O. EMMERICH RALPH M. LEVENE RICHARD G. MASON ROBIN PANOVKA DAVID A. KATZ ILENE KNABLE GOTTS TREVOR S. NORWITZ ANDREW J. NUSSBAUM RACHELLE SILVERBERG STEVEN A. COHEN DEBORAH L. PAUL DAVID C. KARP RICHARD K. KIM JOSHUA R. CAMMAKER |
MARK GORDON JEANNEMARIE O’BRIEN WAYNE M. CARLIN STEPHEN R. DiPRIMA NICHOLAS G. DEMMO IGOR KIRMAN JONATHAN M. MOSES T. EIKO STANGE WILLIAM SAVITT GREGORY E. OSTLING DAVID B. ANDERS ADAM J. SHAPIRO NELSON O. FITTS JOSHUA M. HOLMES DAVID E. SHAPIRO DAMIAN G. DIDDEN IAN BOCZKO MATTHEW M. GUEST DAVID E. KAHAN DAVID K. LAM BENJAMIN M. ROTH JOSHUA A. FELTMAN |
51 WEST 52ND STREET NEW YORK, N.Y. 10019-6150 TELEPHONE: (212) 403-1000 FACSIMILE: (212) 403-2000 |
ELAINE P. GOLIN EMIL A. KLEINHAUS KARESSA L. CAIN RONALD C. CHEN BRADLEY R. WILSON GRAHAM W. MELI GREGORY E. PESSIN CARRIE M. REILLY MARK F. VEBLEN SARAH K. EDDY VICTOR GOLDFELD RANDALL W. JACKSON BRANDON C. PRICE KEVIN S. SCHWARTZ MICHAEL S. BENN ALISON ZIESKE PREISS TIJANA J. DVORNIC JENNA E. LEVINE RYAN A. McLEOD ANITHA REDDY JOHN L. ROBINSON JOHN R. SOBOLEWSKI |
STEVEN WINTER EMILY D. JOHNSON JACOB A. KLING RAAJ S. NARAYAN VIKTOR SAPEZHNIKOV MICHAEL J. SCHOBEL ELINA TETELBAUM ERICA E. AHO LAUREN M. KOFKE ZACHARY S. PODOLSKY RACHEL B. REISBERG MARK A. STAGLIANO CYNTHIA FERNANDEZ LUMERMANN CHRISTINA C. MA NOAH B. YAVITZ BENJAMIN S. ARFA NATHANIEL D. CULLERTON ERIC M. FEINSTEIN ADAM L. GOODMAN STEVEN R. GREEN MENG LU |
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GEORGE A. KATZ (1965–1989) JAMES H. FOGELSON (1967–1991) LEONARD M. ROSEN (1965–2014) OF COUNSEL |
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ANDREW R. BROWNSTEIN MICHAEL H. BYOWITZ KENNETH B. FORREST BEN M. GERMANA SELWYN B. GOLDBERG PETER C. HEIN JB KELLY JOSEPH D. LARSON LAWRENCE S. MAKOW PHILIP MINDLIN THEODORE N. MIRVIS DAVID S. NEILL |
ERIC S. ROBINSON ERIC M. ROSOF MICHAEL J. SEGAL WON S. SHIN DAVID M. SILK ROSEMARY SPAZIANI ELLIOTT V. STEIN LEO E. STRINE, JR.* PAUL VIZCARRONDO, JR. JEFFREY M. WINTNER AMY R. WOLF MARC WOLINSKY |
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* ADMITTED IN DELAWARE COUNSEL |
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DAVID M. ADLERSTEIN SUMITA AHUJA FRANCO CASTELLI ANDREW J.H. CHEUNG PAMELA EHRENKRANZ ALINE R. FLODR KATHRYN GETTLES-ATWA ADAM M. GOGOLAK |
ANGELA K. HERRING MARK A. KOENIG CARMEN X.W. LU J. AUSTIN LYONS ALICIA C. McCARTHY JUSTIN R. ORR NEIL M. SNYDER JEFFREY A. WATIKER |
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Becton, Dickinson and Company
1 Becton Drive
Franklin Lakes, New Jersey
Ladies and Gentlemen:
We have acted as special counsel to Becton, Dickinson and Company, a New Jersey corporation (the “Company”), in connection with the issuance and sale by the Company of $600,000,000 5.081% senior notes due 2029 (the “Notes”). The Notes were sold pursuant to an Underwriting Agreement, dated June 4, 2024, by and among the Company and Citigroup Global Markets Inc., Barclays Capital Inc., BNP Paribas Securities Corp., J.P. Morgan Securities LLC and Wells Fargo Securities, LLC for themselves and as representatives of the several Underwriters named therein (the “Underwriting Agreement”). The Notes are to be issued under that certain Indenture, dated as of March 1, 1997, between the Company and The Bank of New York Mellon Trust Company, N.A., as successor-in-interest to JPMorgan Chase Bank, N.A., as trustee (the “Trustee”) (the “Indenture”).
Becton, Dickinson and Company
June 7, 2024
Page 2
We have examined and relied on originals or copies certified or otherwise identified to our satisfaction of such documents, corporate records, certificates of the Company and public officials and other instruments as we have deemed necessary or appropriate for the purposes of this letter, including (a) the registration statement on Form S-3ASR (File No. 333-279084), filed with the Securities and Exchange Commission (the “Commission”) on May 2, 2024 (the “Registration Statement”), but excluding the documents incorporated therein; (b) the base prospectus, dated May 2, 2024, included in the Registration Statement, but excluding the documents incorporated therein; (c) the preliminary prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Securities Act of 1933, as amended (the “Act”), but excluding the documents incorporated by reference therein; (d) the final term sheet dated June 4, 2024, as filed with the Commission pursuant to Rule 433 under the Act; (e) the prospectus supplement, dated June 4, 2024, as filed with the Commission pursuant to Rule 424(b)(2) under the Act, but excluding the documents incorporated by reference therein; (f) a copy of the Restated Certificate of Incorporation of the Company and a copy of the Bylaws of the Company, each as set forth in the certificate of the Secretary of the Company, dated the date hereof; (g) the Indenture; (h) copies the Global Notes, dated as of June 7, 2024; (i) an executed copy of the Underwriting Agreement; (j) resolutions of the Board of Directors of the Company relating to the issuance of the Notes; and (k) such other corporate records, certificates and other documents and such matters of law, in each case, as we have deemed necessary or appropriate. In such examination, we have assumed (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the agreements, records, documents, instruments and certificates we have reviewed; (iv) all Notes will be issued and sold in compliance with applicable federal and state securities laws and in the manner stated in the Registration Statement and the Prospectus Supplement; and (v) the Underwriting Agreement has been duly authorized and validly executed and delivered by the Underwriters. We have assumed that the terms of the Notes have been established so as not to, and that the execution and delivery by the parties thereto and the performance of such parties’ obligations under the Notes will not, breach, contravene, violate, conflict with or constitute a default under (1) any law, rule or regulation to which any party thereto is subject (excepting the laws of the State of New York and the federal securities laws of the United States of America as such laws apply to the Company); (2) any judicial or regulatory order or decree of any governmental authority; or (3) any consent, approval, license, authorization or validation of, or filing, recording or registration with any governmental authority. We also have assumed that the Indenture and the Notes are the valid and legally binding obligation of the Trustee. As to any facts material to the opinion expressed herein that we did not independently establish or verify, we have relied upon statements and representations of officers and other representatives of the Company and others. We have further assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified, facsimile, conformed, electronic or photostatic copies, and the authenticity of the originals of such copies.
We are members of the Bar of the State of New York, and we have not considered, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of New York and the federal securities laws of the United States of America, in each case as in effect on the date hereof.
Becton, Dickinson and Company
June 7, 2024
Page 3
Based upon the foregoing, and subject to the assumptions, limitations, qualifications, exceptions and comments set forth in this letter, we advise you that, in our opinion, the Notes, when duly executed, authenticated, issued, delivered and paid for in accordance with the terms of the Indenture and the Underwriting Agreement, will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The opinion set forth above is subject to the effects of (a) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting the enforcement of creditors’ rights generally; (b) general equitable principles (whether considered in a proceeding in equity or at law); (c) an implied covenant of good faith and fair dealing; (d) provisions of law that require that a judgment for money damages rendered by a court in the United States be expressed only in United States dollars; (e) limitations by any governmental authority that limit, delay or prohibit the making of payments outside the United States; and (f) generally applicable laws that (i) provide for the enforcement of oral waivers or modifications where a material change of position in reliance thereon has occurred or provide that a course of performance may operate as a waiver, (ii) limit the availability of a remedy under certain circumstances where another remedy has been elected, (iii) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct, (iv) may, where less than all of a contract may be unenforceable, limit the enforceability of the balance of the contract to circumstances in which the unenforceable portion is not an essential part of the agreed-upon exchange, (v) may limit the enforceability of provisions providing for compounded interest, imposing increased interest rates or late payment charges upon delinquency in payment or default or providing for liquidated damages or for premiums upon acceleration, or (vi) limit the waiver of rights under usury laws. Furthermore, the manner in which any particular issue relating to the opinions would be treated in any actual court case would depend in part on facts and circumstances particular to the case and would also depend on how the court involved chose to exercise the wide discretionary authority generally available to it. We express no opinion as to the effect of Section 210(p) of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as amended.
We express no opinion as to whether, or the extent to which, the laws of any particular jurisdiction apply to the subject matter hereof, including, without limitation, the enforceability of the governing law provisions contained in the Notes and the Indenture. We express no opinion as to the ability of another court, federal or state, to accept jurisdiction and/or venue in the event the chosen court is unavailable for any reason, including, without limitation, natural disaster, act of God, human health or safety reasons or otherwise (including a pandemic).
Becton, Dickinson and Company
June 7, 2024
Page 4
This letter speaks only as of its date and is delivered in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act. We hereby consent to the filing of a copy of this letter as an exhibit to the Company’s Current Report on Form 8-K, filed on June 7, 2024, and to the use of our name in the prospectus forming a part of the Registration Statement under the caption “Validity of the Securities.” In giving this consent, we do not thereby admit that we are within the category of persons whose consent is required under Section 7 of the Act.
Very truly yours, | |
/s/ Wachtell, Lipton, Rosen & Katz |
GEP/kga/bjn
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