EXHIBIT 4.1
SUPPLEMENTAL INDENTURE No. 4, dated August 1, 2003 (this "Supplemental
Indenture"), between BAUSCH & LOMB INCORPORATED, a corporation duly organized
and existing under the laws of the State of New York (herein referred to as the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to) having its principal office at Xxx Xxxxxx & Xxxx Xxxxx,
Xxxxxxxxx, Xxx Xxxx 00000 and CITIBANK, N.A., a national banking association
duly organized and existing under the laws of the United States of America, as
trustee (hereinafter referred to as the "Trustee", which term includes any
successor trustee under the Indenture),
RECITALS OF THE COMPANY
The Company and the Trustee have entered into an Indenture, dated September
1, 1991, as amended by Supplemental Indenture No. 1, dated May 13, 1998,
Supplemental Indenture No. 2 dated July 29, 1998 and Supplemental Indenture No.
3, dated November 21, 2002 (collectively, the "Indenture") providing for the
issuance of debt securities, among other things.
For its lawful corporate purposes, the Company desires to create and
authorize a series of 5.90% Senior Notes due 2008 in an aggregate principal
amount of Fifty Million Dollars ($50,000,000) and to provide the terms and
conditions upon which the Notes (as defined herein) are to be executed,
registered, authenticated, issued and delivered. The Company has duly authorized
the execution and delivery of this Supplemental Indenture as provided in Article
Two and Section 901 of the Indenture.
The 5.90% Senior Notes due 2008 and the certificates of authentication to
be borne by the Notes are to be substantially in the form of the Note, attached
as Exhibit A hereto.
All acts and things necessary to make the 5.90% Senior Notes due 2008, when
executed by the Company and authenticated and delivered by or on behalf of the
Trustee as set forth in the Indenture as supplemented by this Supplemental
Indenture, the valid, binding and legal obligations of the Company, have been
done.
NOW, THEREFORE, WITNESSETH:
In order to declare the terms and conditions upon which the Notes are
executed, registered, authenticated, issued and delivered, and in consideration
of the premises, of the purchase and acceptance of such Notes by the holders
thereof, it is mutually agreed, for the equal and proportionate benefit of the
respective holders from time to time of the Notes, as follows:
1. SUPPLEMENTAL INDENTURE. This Supplemental Indenture supplements the
Indenture as set forth herein. Except as expressly supplemented by this
Supplemental Indenture, the Indenture is in all respects ratified and confirmed
and all the terms, provisions and conditions thereof shall be and remain in full
force and effect. All capitalized terms not otherwise defined in this
Supplemental Indenture shall have the meaning assigned thereto in the Indenture.
2. CREATION AND AUTHORIZATION OF NOTES. There is hereby created and
authorized under the Indenture a series of debt securities in the form of fixed
rate promissory notes entitled the "5.90% Senior Notes due 2008." The series of
5.90% Senior Notes due 2008 authorized and to be issued under this Supplemental
Indenture is limited to $50,000,000 aggregate principal amount, in substantially
the form attached hereto as Exhibit A with such
changes as may be agreed to by the Company and the Trustee (the "Notes"). The
execution of the Notes by the Company and the authentication of the Notes by the
Trustee shall be definitive evidence of the approval of any such changes. The
Notes shall be issued initially as a Global Security as provided in the
Indenture. Notes may be authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Notes as provided therein
and in Sections 3.04, 3.05 or 3.06 of the Indenture.
3. MISCELLANEOUS.
(a) The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
Supplemental Indenture.
(b) This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
(c) This Supplemental Indenture and each Note shall be governed by and
construed in accordance with the laws of the State of New York as provided in
Section 112 of the Indenture.
IN WITNESS WHEREOF, Bausch & Lomb Incorporated has caused this Supplemental
Indenture to be signed and delivered and its corporate seal to be affixed
hereunto and the same to be attested, and Trustee has caused this Supplemental
Indenture to be signed and delivered and its corporate seal to be fixed hereunto
and the same to be attested, all as of the day and year first written above.
BAUSCH & LOMB INCORPORATED
By:
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
[CORPORATE SEAL]
ATTEST:
By:
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Name: Xxxx X. Xxxxxx
Title: Secretary
CITIBANK, N.A., AS TRUSTEE
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
[CORPORATE SEAL]
ATTEST:
------------------------------
Name:
Title:
[FACE OF NOTE] EXHIBIT A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE TRANSFERRED TO, OR REGISTERED OR
EXCHANGED FOR SECURITIES REGISTERED IN THE NAME OF, ANY PERSON OTHER THAN THE
DEPOSITARY OR A NOMINEE THEREOF AND NO SUCH TRANSFER MAY BE REGISTERED, EXCEPT
IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE. EVERY SECURITY
AUTHENTICATED AND DELIVERED UPON REGISTRATION OR TRANSFER OF, OR IN EXCHANGE FOR
OR IN LIEU OF, THIS SECURITY SHALL BE A GLOBAL SECURITY SUBJECT TO THE
FOREGOING, EXCEPT IN SUCH LIMITED CIRCUMSTANCES.
CUSIP NO.: PRINCIPAL AMOUNT: $50,000,000
REGISTERED NO.
BAUSCH & LOMB INCORPORATED
5.90% SENIOR NOTE DUE 2008
INTEREST RATE PER ANNUM: From and MATURITY DATE: August 1, 2008. ISSUE PRICE: 99.983% (as a
including August 1, 2003 to the percentage of principal amount)
Maturity Date, 5.90%.
INTEREST PAYMENT DATES: REDEMPTION BY THE COMPANY: The Notes
February 1 and August 1 of each are subject to redemption by the
year, commencing February 1, 2004. Company prior to maturity as
described on the reverse of this Note.
DEPOSITARY: The Depository Trust
Company
Bausch & Lomb Incorporated, a corporation duly organized and existing under
the laws of the State of
New York (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to CEDE & CO., or registered assigns, the
principal sum of U.S. $50,000,000 on the Maturity Date, and to pay interest on
said principal sum at the rate per annum (computed on the basis of a 360-day
year of twelve 30-day months) shown above, semi-annually on each Interest
Payment Date as set forth above from and including the immediately preceding
Interest Payment Date in respect of
which interest has been paid or duly made available for payment to but excluding
the applicable Interest Payment Date or Maturity Date, as the case may be.
The interest payable, and punctually paid or duly provided for, on any
Interest Payment Date will be paid to the Person in whose name this Security is
registered at the close of business on the fifteenth calendar day next preceding
such Interest Payment Date (each such date a "Record Date").
Payment of the principal of (and premium, if any) and any such interest on
this Security will be made at the office or agency of the Company maintained for
that purpose in the Borough of Manhattan, the City of
New York, in such coin or
currency of the United States of America as at that time of payment is a legal
tender for payment of public and private debts. So long as this instrument is
registered in the name of Cede & Co., payments of interest hereon shall be made
in immediately available funds; otherwise payment of interest may be made at the
option of the Company by check or draft mailed to the address of the person
entitled thereto at such address as shall appear on the Security register.
Additional provisions of this Security are contained on the reverse hereof,
and such provisions shall for all purposes have the same effect as though fully
set forth at this place.
This Security shall not be valid or become obligatory for any purpose until
the Certificate of Authentication hereon shall have been signed by an authorized
officer of the Trustee or its duly authorized agent under the Indenture referred
to herein below.
IN WITNESS WHEREOF, BAUSCH & LOMB INCORPORATED has caused this instrument
to be signed by its duly authorized officer, and has caused a facsimile of its
corporate seal to be affixed hereto or imprinted hereon.
Dated: August 1, 2003
BAUSCH & LOMB INCORPORATED
By:
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Name: Xxxx X. Xxxxxxx
Title: Vice President and Treasurer
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities
of the series designated 5.90%
Senior Notes due 2008 as
described in the
within-mentioned Indenture.
CITIBANK, N.A.
as Trustee
By:
------------------------
Authorized Officer
(REVERSE OF NOTE)
BAUSCH & LOMB INCORPORATED
5.90% SENIOR NOTE DUE 2008
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture, dated as of September 1, 1991, as amended by
Supplemental Indenture No. 1, dated May 13, 1998, Supplemental Indenture No. 2
dated July 29, 1998, Supplemental Indenture No. 3, dated November 21, 2002 and
Supplemental Indenture No. 4, dated August 1, 2003 (collectively, the
"Indenture"), between the Company and Citibank, N.A., as Trustee (herein called
the "Trustee", which term includes any successor trustee under the Indenture),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. This Security is one of the series designated on
the face hereof, initially limited in aggregate principal amount to $50,000,000.
All or a portion of the Securities may be redeemed at our option at any
time or from time to time upon not less than 30 days' notice by mail. The
Redemption Price for the Securities to be redeemed on any Redemption Date will
be equal to the greater of the following amounts:
- 100% of the principal amount of the Securities being redeemed on the
Redemption Date; or
- the sum of the present values of the remaining scheduled payments of
principal and interest on the Securities being redeemed on that Redemption
Date (not including any portion of any payments of interest accrued to the
Redemption Date), discounted to the Redemption Date on a semiannual basis
at the Treasury Rate (as defined below), plus 50 basis points, as
determined by the Reference Treasury Dealer (as defined below),
plus, in each case, accrued and unpaid interest on the Securities to the
Redemption Date. Notwithstanding the foregoing, installments of interest on
Securities that are due and payable on Interest Payment Dates falling on or
prior to a Redemption Date will be payable on the Interest Payment Date to the
registered Holders as of the close of business on the record date immediately
preceding the Interest Payment Date. The Redemption Price will be calculated on
the basis of a 360-day year consisting of twelve 30-day months.
The Company will mail notice of any redemption at least 30 days, but not
more than 60 days, before the Redemption Date to each Holder of the Securities
to be redeemed. Once notice of redemption is mailed, the Securities call for
redemption will become due and payable on the Redemption Date and at the
applicable Redemption Price, plus accrued and unpaid interest to the Redemption
Date.
"Treasury Rate" means, with respect to any Redemption Date, the rate per
annum equal to the semiannual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue, expressed as
a percentage of its principal amount, equal to the Comparable Treasury Price for
such Redemption Date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Reference Treasury Dealer as having a maturity comparable to the
remaining term of the Securities to be redeemed that would be utilized, at the
time of selection and in accordance with customary financial practice, in
pricing new issues of corporate debt securities of comparable maturity to the
remaining term of the Securities.
"Comparable Treasury Price" means, with respect to any Redemption Date, (A)
the average of the Reference Treasury Dealer Quotations for such Redemption
Date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (B) if the trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of all such Quotations, or (C) if only
one Reference Treasury Dealer Quotation is received, such Quotation.
"Reference Treasury Dealer" means (A) Xxxxxxx Xxxxx Xxxxxx Inc. or its
affiliates which are the Primary Treasury Dealer, and its successors; provided,
however, that if Xxxxxxx Xxxxx Barney Inc. shall cease to be a primary U.S.
Government securities dealer in
New York City (a "Primary Treasury Dealer"), the
Company will substitute therefor another Primary Treasury Dealer; and (B) any
other Primary Treasury Dealer(s) selected by the trustee after consultation with
the Company.
"Reference Treasury Dealer Quotation" means, with respect to each Reference
Treasury Dealer and any Redemption Date, the average, as determined by the
trustee, of the bid and asked prices for the Comparable Treasury Issue,
expressed in each case as a percentage of its principal amount, quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 p.m. (
New York
City time) on the third business day preceding such Redemption Date.
On and after the Redemption Date, interest will cease to accrue on the
Securities or any portion of the Securities called for redemption, unless the
Company defaults in the payment of the Redemption Price and accrued interest. On
or before the Redemption Date, the Company will deposit with a Paying Agent (or
the Trustee) money sufficient to pay the Redemption Price of and accrued
interest on the Securities to be redeemed on that date. If less than all of the
Securities are to be redeemed, the Securities to be redeemed shall be selected
by lot by the Depository Trust Company, in the case of Securities represented by
a Global Security, or by the Trustee by a method the Trustee deems to be fair
and appropriate, in the case of Securities that are not represented by a Global
Security.
In the event of redemption of this Security in part only, a new Security or
Securities of this series and of like tenor for the unredeemed portion hereof
will be issued in the name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect 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 each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority in principal
amount of the Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Security.
No reference herein to the Indenture and no provision of this Security 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
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
This Security is a Global Security and, as provided in Section 305 of the
Indenture shall only be exchangeable pursuant to such Section 305 or Sections
304, 906 and 1107 of the Indenture for Securities registered in the name of, and
no transfer of this Security may be registered to, any Person other than the
Depositary for such Security or its nominee unless: (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as Depositary
for the Security or (B) ceases to be a clearing agency registered under the
Exchange Act; (2) the Company executes and delivers to the Trustee a Company
Order that this Security shall be so exchangeable and the transfer thereof so
registerable; or (3) there shall have occurred and be continuing an Event of
Default with respect to the Securities evidenced by this Security. Upon the
occurrence in respect of this Security of any series of any one or more of the
conditions
specified in clauses (1), (2) or (3) of the preceding sentence or such other
conditions as may be specified as contemplated by Section 301 of the Indenture,
this Security may be exchanged for Securities registered in the names of, and
the transfer of this Security may be registered to, such Persons, (including
Persons other than the Depositary with respect to such series and its nominees)
as such Depositary shall direct. Notwithstanding any other provisions of the
Indenture, any Security authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, this Security shall also be a
Global Security and shall bear the legend specified in Section 205 except for
any Security authenticated and delivered in exchange for, or upon registration
of transfer of, this Security pursuant to the preceding sentence.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this Security is registered as the owner hereof for all
purposes, whether or not this Security be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Securities of this series are not subject to a sinking fund and are not
redeemable at the option of the Holders.
The Indenture contains provisions for defeasance at any time of the entire
indebtedness of this Security or certain restrictive covenants and Events of
Default with respect to this Security, in each case upon compliance with certain
conditions set forth therein.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
This Security shall be governed by and construed in accordance with the
laws of the State of
New York.
