<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON APRIL 18, 2000
REGISTRATION NO. 333-31996
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------
PACKARD BIOSCIENCE COMPANY
(Exact name of Registrant as specified in its charter)
<TABLE>
<S> <C> <C>
DELAWARE 3826 06-0676652
(State or other jurisdiction of (Primary Standard Industrial (I.R.S. Employer
incorporation or organization) Classification Code Number) Identification Number)
</TABLE>
800 RESEARCH PARKWAY
MERIDEN, CONNECTICUT 06450
(203) 238-2351
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
BEN D. KAPLAN
VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
PACKARD BIOSCIENCE COMPANY
800 RESEARCH PARKWAY
MERIDEN, CONNECTICUT 06450
(203) 238-2351
(Name, address, including zip code, and telephone number, including area code,
of agent for services)
--------------------------
COPIES TO:
<TABLE>
<S> <C>
ANDREW R. BROWNSTEIN, ESQ. ROHAN S. WEERASINGHE, ESQ.
WACHTELL, LIPTON, ROSEN & KATZ SHEARMAN & STERLING
51 WEST 52ND STREET 599 LEXINGTON AVENUE
NEW YORK, NY 10019-6150 NEW YORK, NY 10022
(212) 403-1000 (212) 848-4000
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this registration statement becomes effective.
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, please check the following box. / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SUCH SECTION 8(A),
MAY DETERMINE.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement on Form S-1 (File No.
333-31996) of Packard BioScience Company (the "Registration Statement") is being
filed for the sole purpose of filing additional exhibits to the Registration
Statement. Accordingly, a prospectus has been omitted from this filing.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated costs and expenses, other than
underwriting discounts and commissions, payable in connection with the sale of
common stock being registered, all of which will be paid by the Registrant:
<TABLE>
<CAPTION>
AMOUNT
----------
<S> <C>
SEC registration fee........................................ $ 65,578
NASD filing fee............................................. 23,500
Nasdaq National Market listing fee.......................... 95,000
Printing and engraving expenses............................. 300,000
Legal fees and expenses..................................... 1,550,000
Accounting fees and expenses................................ 275,000
Blue sky fees and expenses.................................. 5,000
Transfer agent and registrar fees and expenses.............. 40,000
Miscellaneous............................................... 70,922
----------
Total....................................................... $2,425,000
==========
</TABLE>
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Packard BioScience Company (the "Company") is incorporated under the laws of
the State of Delaware. Section 145 of the General Corporation Law of the State
of Delaware ("Section 145") provides that a Delaware corporation may indemnify
any persons who are, or are threatened to be made, parties to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (other than an action by or in the right of such
corporation), by reason of the fact that such person was an officer, director,
employee or agent of such corporation, or is or was serving at the request of
such person was an officer, director, employee or agent of another corporation
or enterprise. The indemnity may include expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such action, suit or proceeding, provided that
such person acted in good faith and in a manner he reasonably believed to be in
or not opposed to the corporation's best interests and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his
conduct was illegal. A Delaware corporation may indemnify any persons who are,
or are threatened to be made, a party to any threatened, pending or completed
action or suit by or in the right of the corporation by reason of the fact that
such person was a director, officer, employee or agent of such corporation, or
is or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees) actually and reasonably incurred by
such person in connection with the defense or settlement of such action or suit
provided such person acted in good faith and in a manner he reasonably believed
to be in or not opposed to the corporation's best interests except that no
indemnification is permitted without judicial approval if the officer or
director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses which
such officer or director has actually and reasonably incurred.
The Company's Certificate of Incorporation and By-Laws provide for the
indemnification of directors and officers of the Company to the fullest extent
permitted by Section 145.
Section 102(b)(7) of the General Corporation Law of the State of Delaware
permits a corporation to provide in its certificate of incorporation that a
director of the corporation shall not be personally
II-1
<PAGE>
liable to the corporation or its stockholders for monetary damages for breach of
fiduciary duties as a director, except for liability (i) for any transaction
from which the director derives an improper personal benefit, (ii) for acts or
omissions not in good faith or that involve intentional misconduct or a knowing
violation of law, (iii) for improper payment of dividends or redemptions of
shares, or (iv) for any breach of a director's duty of loyalty to the company or
its stockholders. The Company's Certificate of Incorporation includes such a
provision. Expenses incurred by any officer or director in defending any such
action, suit or proceeding in advance of its final disposition shall be paid by
the Company upon delivery to the Company of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it shall
ultimately be determined that such director or officer is not entitled to be
indemnified by the Company.
The Purchase Agreements relating to the offering are expected to provide
that the Underwriters are obligated, under certain circumstances, to indemnify
directors, officers and controlling persons of the Company against certain
liabilities, including liabilities under the Securities Act of 1933 (the "1933
Act"). Reference is made to the forms of Purchase Agreements filed as Exhibits
1.1 and 1.2 hereto. In addition, a custody agreement to be entered into by and
among the Company and certain of its stockholders who may sell shares of their
common stock in the offering is expected to provide that, if such sales are
made, such selling stockholders are obligated, under certain circumstances and
subject to certain limitations, to indemnify controlling persons of the Company
against liabilities, including liabilities under the 1933 Act. Reference is made
to the form of Irrevocable Power of Attorney and Custody Agreement filed as
Exhibit 10.21 hereto.
The Company maintains directors and officers liability insurance for the
benefit of its directors and certain of its officers.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
The following is a summary of the transactions by the Registrant during the
past three years involving sales of the Registrant's securities that were not
registered under the Securities Act. Except as otherwise indicated, all share
data reflect a 5 for 1 split of the common stock, par value $.002 per share (the
"Common Stock"), of Packard BioScience Company (the "Company"), effective as of
March 21, 2000.
(A) On March 4, 1997, Stonington Capital Appreciation 1994 Fund, L.P.
("Stonington") acquired approximately 69% of the Common Stock on a fully-diluted
basis, as a result of the following transactions: (a) the acquisition by
Stonington and certain other investors of $54.0 million of Common Stock from
certain continuing stockholders; (b) the acquisition by Stonington of
$17.5 million of common stock from the Company; (c) a tender offer by the
Company to all non-continuing stockholders for $208.6 million; and (d) the
cancellation of all stock options held by the non-continuing stockholders for
$3.3 million. The price per share for the above transactions was $2.225, except
for the option redemption where the price was $2.225 less the exercise price of
such stock options. The Company used the proceeds of the stock offering,
$8.3 million from the exercise of certain options, along with cash on hand and
$190.0 million in proceeds from certain financings to redeem the shares in the
tender offer, purchase certain outstanding options (approximately
$12.9 million) and pay transaction fees and expenses (approximately
$21.5 million), of which $2.6 million was paid to Stonington Partners, Inc., the
management company of Stonington.
(B) Pursuant its Management Stock Incentive Plan, dated as of March 4, 1997,
the Company granted during the past three years an aggregate amount of:
(a) 3,550,000 options entitling their holders to purchase one share of Common
Stock at an exercise price of $2.225 per share (subject to adjustments);
(b) 1,325,000 options at an exercise price of $2.725 per share (subject to
adjustments); (c) 1,150,000 options at an exercise price of $2.792 per share
(subject to adjustments); and (d) 2,126,250 options at an exercise price of
$3.352 (subject to adjustments). In addition, on
II-2
<PAGE>
September 4, 1997 and January 29, May 14 and December 28, 1998, the Company
issued 3,735 shares (at $2.225 per share), 50,000 shares (at $2.225 per share),
125,355 shares (at $2.792 per share) and 7,160 shares (at $2.792 per share),
respectively, to Messrs. Michael Gut, William Ettinger, Edward Fischer and
Ms. Patricia Lobb, under its Employee Stock Ownership Plan.
(C) In connection with the acquisition of BioSignal, Inc. on July 1, 1998,
the Company issued 35,815 shares of Common Stock, valued at $2.792 per share, to
Mr. Michael Dennis, the former CEO of BioSignal, Inc.
(D) In connection with the acquisition of Carl Creative Systems, Inc. on
March 31, 1998, pursuant to a Stock Purchase Agreement, dated as of March 31,
1998, between the Company and Mr. Richard A. Carl, the founder of Carl Creative
Systems, Inc. and current President of CCS Packard, the Company: (a) issued
408,310 shares of Common Stock to Mr. Carl, at a price of $2.792 per share; and
(b) issued 136,105 shares of Common Stock to Mr. Daniel Roark, at a price of
$2.792 per share.
(E) On March 3, 1997, the Company sold 20,000 shares of Common Stock, at a
price of $2.225 per share, to Mr. Ben Kaplan, the Company's current Chief
Financial Officer, for a total price of $44,500.
(F) On June 10, 1997, the Company sold 1,573,030 shares of Common Stock to
affiliates of Robert W. Baird & Co. Incorporated, at a price of $2.225 per
share, for a total price of $3,499,991.75.
(G) In connection with a recapitalization of the Company in March 1997, the
Company issued $150,000,000 of 9 3/8% Senior Subordinated Notes due 2007,
pursuant to an Indenture, dated as of March 4, 1997, between the Company and The
Bank of New York, as trustee, and sold them to Merrill Lynch & Co., BancAmerica
Securities, Inc. and CIBC Wood Gundy Securities Corp. On June 5, 1997, the
Company exchanged the outstanding 9 3/8% Senior Subordinated Notes due 2007 with
an aggregate value of $150,000,000 principal amount for 9 3/8% Senior
Subordinated Notes due 2007, Series B, registered under the Securities Act of
1933.
The sales described in this Item 15 were made, unless otherwise provided, in
reliance upon the exemption from registration set forth in Section 4(2) of the
Securities Act relating to sales by an issuer not involving any public offering.
Except as set forth in (G) above, no underwriters were engaged in connection
with the foregoing issuances of securities, and no commissions or discounts were
paid.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(A) EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- --------------------- -------------
<C> <S>
1.1 Form of U.S. Purchase Agreement+
1.2 Form of International Purchase Agreement+
3.1 Form of Amended and Restated Certificate of Incorporation of
the Registrant+
3.2 Amended and Restated By-Laws of the Registrant+
4.1 Specimen of Common Stock Certificate+
4.2 Stockholders' Agreement, dated as of March 4, 1997, by and
among the Company, Merrill Lynch KECALP L.P. 1994, KECALP
Inc., the Management Investors listed in Schedule 1 thereto,
the Non-Management Investors listed in Schedule 2 thereto
and Stonington Capital Appreciation 1994 Fund, L.P. (the
"Stockholders' Agreement")**
4.3 Amendment No. 1, dated as of June 2, 1997, to the
Stockholders' Agreement***
4.4 Amendment No. 2, dated as of January 23, 1998, to the
Stockholders' Agreement*
4.5 Amendment No. 3, dated as of March 31, 1998, to the
Stockholders' Agreement*
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT TITLE
- --------------------- -------------
<C> <S>
5.1 Opinion of Wachtell, Lipton, Rosen & Katz (including
consent)+
10.1 Indenture, dated as of March 4, 1997, between the Registrant
and The Bank of New York, as Trustee**
10.2 Credit Agreement, dated as of March 4, 1997, by and among
the Company, the Subsidiary Borrowers from time to time
party thereto, the several banks and other financial
institutions or entities from time to time party thereto,
Canadian Imperial Bank of Commerce, as documentation agent,
BancAmerica Securities, Inc. and CIBC Wood Gundy Securities
Corp., each as a co-arranger and a co-syndication agent, and
Bank of America National Trust and Savings Association, as
administrative agent (the "Credit Agreement")**
10.3 Waiver and First Amendment, dated as of November 25, 1997,
to the Credit Agreement***
10.4 Waiver to Credit Agreement and Guarantee and Collateral
Agreement, dated as of February 11, 1998***
10.5 Waiver and Second Amendment, dated as of May 27, 1998, to
the Credit Agreement****
10.6 Third Amendment, dated as of October 8, 1999, to the Credit
Agreement*****
10.7 Waiver, dated as of November 13, 1998, to the Credit
Agreement****
10.8 Fourth Amendment, dated as of February 8, 2000, to the
Credit Agreement*
10.9 Packard BioScience Company 1997 Management Stock Incentive
Plan**
10.10 Canberra Industries, Inc. Stock Option Plan of 1971, as
amended**
10.11 Form of Packard BioScience Company 2000 Stock Incentive
Plan+
10.12 Form of Packard BioScience Company Non-Employee Director
Option Compensation Plan+
10.13 Form of Packard BioScience Company 2000 Employee Stock
Purchase Plan+
10.14 Employment Agreement by and between the Company and
Emery G. Olcott**
10.15 Employment Agreement by and between the Company and
Richard T. McKernan**
10.16 Employment Agreement by and between the Company and George
Serrano**
10.17 Employment Agreement by and between the Company and Staf van
Cauter**
10.18 Employment Agreement by and between the Company and Orren K.
Tench, Jr.**
10.19 Employment Agreement by and between the Company and Ben D.
Kaplan******
10.20 First Amendment to Employment Agreement by and between the
Company and Ben D. Kaplan*
10.21 Form of Irrevocable Power of Attorney and Custody Agreement+
21.1 Subsidiaries of the Registrant*
23.1 Consent of Arthur Andersen LLP*******
23.7 Consent of Wachtell, Lipton, Rosen & Katz (included in
Exhibit No. 5.1)
24.1 Powers of Attorney*******
27.1 Financial Data Schedule*******
</TABLE>
- ------------------------
+ Filed herewith.
* Filed as an exhibit to the Registrant's Form 10-K for the year ended
December 31, 1999.
** Filed as an exhibit to the Registrant's Registration Statement on Form
S-4 (file No. 333-24001).
*** Filed as an exhibit to the Registrant's Form 10-K for the year ended
December 31, 1997.
**** Filed as an exhibit to the Registrant's Form 10-K for the year ended
December 31, 1998.
II-4
<PAGE>
***** Filed as an exhibit to the Registrant's Form 10-Q for the quarter ended
September 30, 1999.
****** Filed as an exhibit to the Registrant's Form 10-Q for the quarter ending
June 30, 1997.
******* Previously filed.
(B) FINANCIAL STATEMENT SCHEDULE
Packard BioScience Company and Subsidiaries Valuation and Qualifying
Accounts and Reserves for the Three Year Period Ended December 31, 1999
(previously filed).
ITEM 17. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) That for purposes of determining any liability under the Securities Act
of 1933, the information omitted from the form of prospectus filed as part of
this Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act of 1933 shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) That for the purpose of determining any liability under the Securities
Act of 1933, each post-effective amendment that contains a form of prospectus
shall be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bonafide offering thereof.
(3) To provide to the underwriters at the closing specified in the
underwriting agreement certificates in such denominations and registered in such
names as required by the underwriters to permit prompt delivery to each
purchaser.
(4) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act of 1933 and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act of 1933 and will be governed by the final adjudication of such
issue.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 2 to Registration Statement (File
No. 333-31996) to be signed on its behalf by the undersigned, thereunto duly
authorized, in The City of New York, State of New York, on the 18th day of
April, 2000.
<TABLE>
<S> <C> <C>
PACKARD BIOSCIENCE COMPANY
By: /s/ BEN D. KAPLAN
-----------------------------------------
Name: Ben D. Kaplan
Title: Vice President and
Chief Financial Officer
</TABLE>
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities indicated on April 18, 2000.
<TABLE>
<CAPTION>
SIGNATURE TITLE
--------- -----
<C> <S>
* Chairman of the Board, Chief Executive Officer
------------------------------------------- and President
Emery G. Olcott
* Vice President and Chief Financial Officer
-------------------------------------------
Ben D. Kaplan
* Corporate Controller
-------------------------------------------
David M. Dean
* Senior Vice President (President Packard
------------------------------------------- Instrument) and Director
Richard T. McKernan
* Vice President (President Canberra Industries)
------------------------------------------- and Director
George Serrano
* Director
-------------------------------------------
Robert F. End
* Director
-------------------------------------------
Bradley J. Hoecker
* Director
-------------------------------------------
Alexis P. Michas
* Director
-------------------------------------------
Peter P. Tong
Director
-------------------------------------------
Robert C. Salisbury
</TABLE>
<TABLE>
<S> <C> <C> <C>
*By: /s/ BEN D. KAPLAN
--------------------------------------
Ben D. Kaplan
(Attorney-in-Fact)
</TABLE>
II-6
<PAGE>
EXHIBIT 1.1
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
9,600,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
Dated: April , 2000
<PAGE>
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
9,600,000 Shares of Common Stock
(Par Value $.002 Per Share)
U.S. PURCHASE AGREEMENT
-----------------------
April , 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
as U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
Ladies and Gentlemen:
Packard BioScience Company, a Delaware corporation (the "COMPANY") and
the persons listed in Schedule B hereto (the "SELLING SHAREHOLDERS") confirm
their respective agreements with Merrill Lynch & Co., Merrill Lynch, Pierce,
Fenner & Smith Incorporated ("MERRILL LYNCH") and each of the other U.S.
Underwriters named in Schedule A hereto (collectively, the "U.S. UNDERWRITERS",
which term shall also include any underwriter substituted as hereinafter
provided in Section 10 hereof), for whom Merrill Lynch, Chase Securities Inc.,
Robert W. Baird & Co. Incorporated, Banc of America Securities LLC, and Thomas
Weisel Partners LLC are acting as representatives (in such capacity, the "U.S.
REPRESENTATIVES"), with respect to (i) the issue and sale by the Company and the
purchase by the U.S. Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.002 per share, of the
Company ("COMMON STOCK") set forth in said Schedule A, and (ii) the grant by the
Company and the Selling Shareholders to the U.S. Underwriters, acting severally
and not jointly, of the option described in Section 2(b) hereof to purchase all
or any part of 1,440,000 additional shares of Common Stock
<PAGE>
to cover over-allotments, if any, of which up to 222,240 shares of Common Stock
may be sold by the Selling Shareholders.
The aforesaid 9,600,000 shares of Common Stock (the "INITIAL U.S.
SECURITIES") to be purchased by the U.S. Underwriters, and all or any part of
the 1,440,000 shares of Common Stock subject to the option described in Section
2(b) (the "U.S. OPTION SECURITIES") are hereinafter called, collectively, the
"U.S. SECURITIES". The U.S. Option Securities are to be sold by the Company and
the Selling Shareholders acting severally and not jointly.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the
"INTERNATIONAL PURCHASE AGREEMENT") providing for the offering by the Company of
an aggregate of 2,400,000 shares of Common Stock (the "INITIAL INTERNATIONAL
SECURITIES") through arrangements with certain underwriters outside the United
States and Canada (the "INTERNATIONAL MANAGERS") for which Merrill Lynch
International, Chase Manhattan International Limited, Robert W. Baird & Co.
Incorporated, Banc of America International Limited, and Thomas Weisel
International Limited are acting as lead managers (the "LEAD MANAGERS"), and the
grant by the Company and the Selling Shareholders to the International Managers,
acting severally and not jointly, of an option to purchase all or any part of up
to 360,000 additional shares of Common Stock solely to cover over-allotments, if
any (the "INTERNATIONAL OPTION SECURITIES" and, together with the U.S. Option
Securities, the "OPTION SECURITIES") of which up to 55,560 shares of Common
Stock may be sold by the Selling Shareholders. The International Option
Securities are to be sold by the Company and the Selling Shareholders acting
severally and not jointly.
The Initial International Securities and the International Option
Securities are hereinafter called the "INTERNATIONAL SECURITIES". It is
understood that the Company is not obligated to sell and the U.S. Underwriters
are not obligated to purchase, any Initial U.S. Securities unless all of the
Initial International Securities are contemporaneously purchased by the
International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "UNDERWRITERS", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"INITIAL SECURITIES", and the U.S. Securities and the International Securities
are hereinafter collectively called the "SECURITIES".
The Underwriters will concurrently enter into an Intersyndicate
Agreement of even date herewith (the "INTERSYNDICATE AGREEMENT") providing for
the coordination of certain transactions among the Underwriters under the
direction of Merrill Lynch (in such capacity, the "GLOBAL COORDINATOR").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as the U.S. Representatives deem
advisable after this Agreement has been executed and delivered.
2
<PAGE>
The Company and the Underwriters agree that up to 1,200,000 shares of
the Initial Securities to be purchased by the Underwriters (the "RESERVED
SECURITIES") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships with the Company, as part of
the distribution of the Securities by the Underwriters, subject to the terms of
this Agreement, the applicable rules, regulations and interpretations of the
National Association of Securities Dealers, Inc. and all other applicable laws,
rules and regulations. To the extent that such Reserved Securities are not
orally confirmed for purchase by such eligible employees and persons having
business relationships with the Company by the end of the first business day
after the date of this Agreement, such Reserved Securities may be offered by the
Underwriters as part of the offering contemplated hereby.
On March 21, 2000, the Company amended its certificate of incorporation
to change the authorized capital stock of the Company to consist of 200,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01
per share, of the Company (the "CHARTER AMENDMENT"), and to convert each
outstanding share of Common Stock into 5 shares of Common Stock (the "STOCK
SPLIT" and, together with the Charter Amendment, the "RECAPITALIZATION").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-31996) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(THE "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of
the 1933 Act Regulations. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "FORM OF U.S. PROSPECTUS") and one relating to the International
Securities (the "FORM OF INTERNATIONAL PROSPECTUS"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption "Underwriting".
The information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION." Each
Form of U.S. Prospectus and Form of International Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information is herein called the "REGISTRATION STATEMENT." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "RULE 462(B) REGISTRATION STATEMENT," and after such filing
the term "REGISTRATION STATEMENT" shall include the Rule 462(b) Registration
Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the "U.S.
PROSPECTUS" and the "INTERNATIONAL PROSPECTUS," respectively,
3
<PAGE>
and collectively, the "PROSPECTUSES." For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus or the International Prospectus or any amendment or supplement to any
of the foregoing shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each U.S. Underwriter as of the date hereof, as of
the Closing Time referred to in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof, and agrees with each U.S.
Underwriter, as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of
the Registration Statement and any Rule 462(b) Registration Statement
has become effective under the 1933 Act and no stop order suspending
the effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and
any request on the part of the Commission for additional information
has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Time (and, if any U.S. Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments
and supplements thereto complied and will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act
Regulations and did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading.
Neither of the Prospectuses nor any amendments or supplements thereto
(including any prospectus wrapper), at the time the Prospectuses or any
amendments or supplements thereto were issued and at the Closing Time
(and, if any U.S. Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material
fact or omitted or will omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; and the Prospectuses, any
preliminary prospectuses and any supplement thereto or prospectus
wrapper prepared in connection therewith, at their respective times of
issuance and at the Closing Time, complied and will comply in all
material respects with any applicable securities laws or regulations of
foreign jurisdictions in which the Prospectuses and such preliminary
prospectuses, as amended or supplemented, if applicable, are
distributed in connection with the offer and sale of Reserved
Securities. The representations and warranties in this subsection shall
not apply to statements in or omissions from the Registration Statement
or the Prospectuses or any amendments or supplements thereto
4
<PAGE>
(including any prospectus wrapper) made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or the Prospectuses or any amendments or
supplements thereto (including any prospectus wrapper).
Each preliminary prospectus and the prospectuses filed as part
of the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424(b), complied when so
filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the
Underwriters for use in connection with this offering was identical to
the electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent otherwise permitted by
Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who
certified the financial statements and supporting schedules included in
the Registration Statement are independent public accountants as
required by the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The financial statements
included in the Registration Statement and the Prospectuses, together
with the related schedule and notes, present fairly the financial
position of the Company and its consolidated subsidiaries at the dates
indicated and the statement of operations, stockholders' equity and
cash flows of the Company and its consolidated subsidiaries for the
periods specified; said financial statements have been prepared in
conformity with United States generally accepted accounting principles
("GAAP") applied on a consistent basis throughout the periods involved
(except as set forth in the notes thereto). The supporting schedule
included in the Registration Statement present fairly in accordance
with GAAP the information required to be stated therein. The selected
financial data and the summary financial information included in the
Prospectuses present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, except as otherwise stated therein or
in any amendment or supplement thereto, (A) there has been no material
adverse change in the condition, financial or otherwise, results of
operation, business affairs or business prospects of the Company and
its subsidiaries considered as one enterprise, whether or not arising
in the ordinary course of business (a "MATERIAL ADVERSE EFFECT"), (B)
there has been no transaction entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which is material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
5
<PAGE>
(v) GOOD STANDING OF THE COMPANY. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Prospectuses and to enter into
and perform its obligations under this Agreement; and the Company is
duly qualified as a foreign corporation to transact business and is in
good standing in each other jurisdiction in which such qualification is
required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to
be in good standing could not reasonably be expected to result in a
Material Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARIES. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "SUBSIDIARY" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect; except as otherwise disclosed in the
Registration Statement (including with respect to the credit agreement
referred to in Exhibit 10.2 to the Registration Statement and the
amendments thereto (the "CREDIT AGREEMENT")) all of the issued and
outstanding capital stock of each such Subsidiary has been duly
authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or
equity; none of the outstanding shares of capital stock of any
Subsidiary was issued in violation of the preemptive or similar rights
of any securityholder of such Subsidiary. All Subsidiaries of the
Company are listed on Exhibit 21 to the Registration Statement.
(vii) CAPITALIZATION. The Company had at the date
indicated, a duly issued, authorized and outstanding capitalization as
set forth in the Prospectuses in the column entitled "Actual" under the
caption "Capitalization" and notes thereto. The shares of issued and
outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other
similar rights of any securityholder of the Company; none of the
outstanding shares of capital stock of the Company was issued in
violation of the preemptive or other similar rights of any
securityholder of the Company with the exception of the issuance by the
Company of an aggregate of 26,500 authorized but unissued shares of
Common Stock (the "ISSUED SHARES") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock
in the aggregate), in March 1987, March 1988 and March 1989
(collectively, the "STOCK ISSUANCES"); with respect to the Issued
Shares, to the Company's knowledge, the holders
6
<PAGE>
of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of
such Common Stock outstanding immediately prior to the Stock Issuances
have, at any time since, threatened to, or notified the Company of
their intent to, exercise preemptive rights as to the Issued Shares or
brought, or threatened to bring, any claim at law or in equity
challenging the Stock Issuances; to the Company's knowledge, none of
the Option Securities was issued in violation of the preemptive or
other similar rights of any securityholder of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement and the
International Purchase Agreement have been duly authorized, executed
and delivered by the Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized by
the Company for issuance and sale to the U.S. Underwriters pursuant to
this Agreement and the International Managers pursuant to the
International Purchase Agreement, respectively, and, when issued and
delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment to the
Company of the consideration set forth herein and the International
Purchase Agreement, respectively, will be validly issued, fully paid
and non-assessable; the Common Stock conforms in all material respects
to all statements relating thereto contained in the Prospectuses and
the description of the Common Stock under the caption "Description of
Capital Stock" summarizes in all material respects the rights set
forth in the instruments defining the same; no holder of the
Securities to be sold by the Company will be subject to personal
liability by reason of being such a holder; and the issuance of the
Securities by the Company is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its subsidiaries is in violation of its charter or by-laws
or in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or
to which any of the property or assets of the Company or any
subsidiary is subject (collectively, "AGREEMENTS AND INSTRUMENTS")
except for such defaults that could not reasonably be expected to
result in a Material Adverse Effect; and the execution, delivery and
performance by the Company of this Agreement and the International
Purchase Agreement and the consummation by it of the transactions
contemplated in this Agreement, the International Purchase Agreement
and in the Registration Statement (including the issuance and sale by
the Company of the Securities and the use by it of the proceeds from
the sale of the Securities as described in the Prospectuses under the
caption "Use of Proceeds") and compliance by the Company with its
obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action,
including (if required) board approval, and do not and will not,
whether with or without the giving of notice or passage of time
7
<PAGE>
or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company or any subsidiary pursuant to, the Agreements
and Instruments (except for such conflicts, breaches, defaults,
Repayment Events, or liens, charges or encumbrances that could not
reasonably be expected to result in a Material Adverse Effect), nor
will such action result in any violation by the Company (A) of the
provisions of the charter or by-laws of the Company or any Subsidiary
or (B) any existing applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any Subsidiary or any of their assets, properties
or operations except, in the case of (B) for such violations that
could not reasonably be expected to result in a Material Adverse
Effect. As used herein, a "REPAYMENT EVENT" means any event or
condition which gives the holder of any note, debenture or other
evidence of indebtedness (or any person acting on such holder's
behalf) the right to require the repurchase, redemption or repayment
of all or a portion of such indebtedness by the Company or any
subsidiary.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or, to the knowledge
of the Company, is imminent, and the Company is not aware of any
existing or imminent labor disturbance by the employees of any of its
or any subsidiary's principal suppliers, manufacturers, customers or
contractors, which, in either case, could reasonably be expected to
result in a Material Adverse Effect.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any subsidiary, which is required to be disclosed in the
Registration Statement (other than as disclosed therein), or which
could reasonably be expected to result in a Material Adverse Effect, or
which could reasonably be expected to materially and adversely affect
the value of the properties or assets of the Company, in the aggregate,
or the consummation of the transactions contemplated in this Agreement
and the International Purchase Agreement or the performance by the
Company of its obligations hereunder or thereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or
any subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the Registration
Statement, including ordinary routine litigation incidental to the
business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or
documents required pursuant to the 1933 Act to be described in the
Registration Statement or the Prospectuses or to be filed as exhibits
thereto which have not been so described and filed as required.
8
<PAGE>
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and
its subsidiaries own or possess, or believe they can acquire on
reasonable terms, adequate patents, patent rights, licenses,
inventions, copyrights, know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures), trademarks, service marks, trade names or other
intellectual property (collectively, "INTELLECTUAL PROPERTY") necessary
to carry on their business as presently conducted (except as the
failure to own, possess or acquire such Intellectual Property could not
reasonably be expected to have a Material Adverse Effect), and, except
as disclosed in the Prospectuses, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect
to any Intellectual Property or of any facts or circumstances which
would render any Intellectual Property invalid or inadequate to protect
the interest of the Company or any of its subsidiaries therein, except
for such infringements, conflicts, invalidities and inadequacies that
could not reasonably be expected to result in a Material Adverse
Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Securities under this Agreement and the International
Purchase Agreement or the consummation by it of the transactions
contemplated by this Agreement and the International Purchase
Agreement, except (i) such as have been already obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common
Stock or under state securities or blue sky laws or (except with
respect to the Reserved Securities) under foreign securities laws,
(ii) such as have been already obtained under the laws and regulations
of jurisdictions outside the United States in which the Reserved
Securities are offered, (iii) which shall have been obtained or made
prior to Closing Time or, if applicable, the Time of Delivery, and
(iv) such as have been already obtained or as may be required under
the laws and regulations of jurisdictions outside the United Staes in
which the Securities (other than the Reserved Securities) are offered.
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and
its subsidiaries possess all material permits, licenses, approvals,
consents and other authorizations (collectively, "GOVERNMENTAL
LICENSES") issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business
presently conducted by them; the Company and its subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply could not reasonably be
expected to result in a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except
when the invalidity of such Governmental Licenses or the failure of
such Governmental Licenses to be in full force and effect could not
reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice
of proceedings relating to the revocation or modification of any such
Governmental Licenses which could reasonably be expected to result in a
Material Adverse Effect.
9
<PAGE>
(xvii) TITLE TO PROPERTY. The Company and its subsidiaries
have good and marketable title to all real and personal properties
owned by them, free and clear of all mortgages, pledges, liens,
security interests, claims, restrictions or encumbrances of any kind
except, in each case, (a) as described in the Prospectuses (including
with respect to the Credit Agreement) or (b) such as are neither
material in amount nor material in relation to the business presently
conducted by the Company and its subsidiaries, considered as one
enterprise; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectuses, are in full force and
effect, and neither the Company nor any subsidiary has any notice of
any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of
the Company or such subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, except
for such claims that could not reasonably be expected to result in a
Material Adverse Effect.
(xviii) INVESTMENT COMPANY ACT. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the
Prospectuses will not be, an "investment company" or an entity
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended (the "1940 ACT") and the
rules and regulations of the Commission thereunder.
(xix) ENVIRONMENTAL LAWS. Except as described in the
Registration Statement or except as could not, singly or in the
aggregate, reasonably be expected to result in a Material Adverse
Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any existing federal, state, local or foreign statute,
law, rule, regulation, ordinance, code, policy or rule of common law or
any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating
to pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land
surface or subsurface strata) or wildlife, including, without
limitation, laws and regulations relating to the release or threatened
release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture,
processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials (collectively, "ENVIRONMENTAL
LAWS"), (B) each of the Company and its subsidiaries has all permits,
authorizations and approvals required under any applicable
Environmental Laws and is in compliance with their requirements, (C)
there are no pending or, to the knowledge of the Company, threatened,
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against
the Company or any of its subsidiaries and (D) there are no events or
circumstances that might reasonably be
10
<PAGE>
expected to form the basis of an order for clean-up or remediation, or
an action, suit or proceeding by any private party or governmental
body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental
Laws.
(xx) REGISTRATION RIGHTS. Except as disclosed in the
Prospectuses, there are no persons with registration rights or other
similar rights to have any securities registered pursuant to the
Registration Statement.
(xxi) YEAR 2000 PROBLEM. Neither the Company nor any of its
Subsidiaries has experienced any disruptions of its operations as a
result of Year 2000 issues, except as could not reasonably be expected
to have a Material Adverse Effect. The Company has no reason to
believe, and does not believe, that the Year 2000 issue will have a
material adverse effect on the general affairs, management, the current
or future consolidated financial position, business prospects,
stockholders' equity or results of operations of the Company and its
subsidiaries or result in any material loss or interference with the
Company's business or operations.
(xxii) INSURANCE. The Company and its subsidiaries carry or
are entitled to the benefits of insurance, with financially sound and
reputable insurers, in such amounts and covering such risks as is
generally maintained by companies of established repute engaged in the
same or similar business, and all such insurance is in full force and
effect.
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS. No
relationship, direct or indirect, exists between or among any of the
Company or any affiliate of the Company, on the one hand, and any
director, officer or stockholder of any of them, on the other hand,
which is required by the 1933 Act or by the 1933 Act Regulations to be
described in the Registration Statement or the Prospectuses which is
not so described or is not described as required.
(xxiv) COMPLIANCE WITH CUBA ACT. The Company has complied
with, and is and will be in compliance with, the provisions of that
certain Florida act relating to disclosure of doing business with Cuba,
codified as Section 517.075 of the Florida statutes, and the rules and
regulations thereunder, or is exempt therefrom.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder severally and not jointly represents and warrants to each
U.S. Underwriter as of the date hereof, as of the Closing Time, and, if such
Selling Shareholder is selling Option Securities on a Date of Delivery, as of
such Date of Delivery, and agrees with each U.S. Underwriter, as follows:
(i) ACCURATE DISCLOSURE. To the actual knowledge of each Selling
Shareholder, the representations and warranties of the Company
contained in Section 1(a) hereof are
11
<PAGE>
true and correct; such Selling Shareholder has reviewed and is
familiar with the Registration Statement and the Prospectuses and to
such Selling Shareholder's actual knowledge neither the Prospectuses
nor any amendments or supplements thereto (including any prospectus
wrapper) contains any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; such Selling Shareholder is not prompted to sell the
Securities to be sold by such Selling Shareholder hereunder by any
information concerning the Company or any subsidiary of the Company
which is not set forth in the Prospectuses.
(ii) AUTHORIZATION OF AGREEMENTS. Such Selling Shareholder
has the full right, power and authority to enter into this Agreement
and an Irrevocable Power of Attorney and Custody Agreement (the
"IRREVOCABLE POWER OF ATTORNEY AND CUSTODY AGREEMENT") and to sell,
transfer and deliver the Securities to be sold by such Selling
Shareholder hereunder. The execution and delivery of this Agreement
and the Irrevocable Power of Attorney and Custody Agreement and the
sale and delivery of the Securities to be sold by such Selling
Shareholder and the consummation by him of the transactions
contemplated herein and compliance by such Selling Shareholder with
its obligations hereunder do not and will not, whether with or without
the giving of notice or passage of time or both, conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any tax, lien, charge or encumbrance upon the Securities
to be sold by such Selling Shareholder pursuant to any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note,
license, lease or other agreement or instrument to which such Selling
Shareholder is a party or by which such Selling Shareholder may be
bound.
(iii) RIGHT TO TRANSFER SECURITIES. The Securities to be
sold by such Selling Shareholder pursuant to this Agreement and the
International Purchase Agreement are certificated securities in
registered form and are not held in any securities account or by or
through any securities intermediary within the meaning of the Uniform
Commercial Code as in effect in the State of New York (the "NYUCC").
Such Selling Shareholder has, and, at the Closing Time and, if any
Option Securities are purchased, on the Date of Delivery, will have,
full right, power and authority to hold, sell, transfer and deliver
the Securities to be sold by such Selling Shareholder pursuant to this
Agreement and the International Purchase Agreement; and upon the
Underwriters' acquiring possession of such Securities and paying the
purchase price therefor as herein contemplated, the Underwriters will
acquire their respective interests in such Securities (including,
without limitation, all rights that such Selling Shareholder had or
has the power to transfer in such Securities) free of any "adverse
claim" assuming that each Underwriter does not have "notice" of any
"adverse claim" to such Securities (as such terms are defined in
Sections 8-102 and 8-105 of the NYUCC as currently in effect).
Certificates for all of the Option Securities to be sold by such
Selling Shareholder pursuant to this Agreement, in suitable form for
transfer by delivery or accompanied by duly executed instruments of
transfer or assignment in blank, with segnatures guaranteed, have been
placed in custody with the custodian under the Irrevocable Power of
Attorney and Custody Agreement with irrevocable conditional
instructions to deliver such Option Securities to the Underwriters
pursuant to this Agreement.
(iv) DUE EXECUTION OF THE IRREVOCABLE POWER OF ATTORNEY AND
CUSTODY AGREEMENT. Such Selling Shareholder has duly executed and
delivered, in the form
12
<PAGE>
heretofore furnished to the U.S. Representatives, the Irrevocable
Power of Attorney and Custody Agreement with Timothy O. White, Jr. and
William H. Cuddy, or either of them, as attorneys-in-fact (the
"ATTORNEYS-IN-FACT") and the Company, as custodian (the "CUSTODIAN");
the Custodian is authorized to deliver the Securities to be sold by
such Selling Shareholder hereunder and to accept payment therefor; and
each Attorney-in-Fact is authorized to execute and deliver this
Agreement and the certificate referred to in Section 5(g) or that may
be required pursuant to Sections 5(p) and 5(q) on behalf of such
Selling Shareholder, to sell, assign and transfer to the U.S.
Underwriters the Securities to be sold by such Selling Shareholder
hereunder, to determine the purchase price to be paid by the U.S.
Underwriters to such Selling Shareholder, as provided in Section 2(b)
hereof, to authorize the delivery of the Securities to be sold by such
Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection
with this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Shareholder has not
taken, and will not take, directly or indirectly, any action which is
designed to or which has constituted or which might reasonably be
expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale
of the Securities.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or consent,
approval, authorization, order, registration, qualification or decree
of, any court or governmental authority or agency, domestic or
foreign, is necessary or required for the performance by such Selling
Shareholder of its obligations hereunder or in the Irrevocable Power
of Attorney and Custody Agreement, or in connection with the sale and
delivery of the Securities hereunder by such Selling Shareholder or
the consummation by such Selling Shareholders of the transactions
contemplated by this Agreement, except (i) such as may have previously
been made or obtained or as may be required under the 1933 Act or the
1933 Act Regulations or under the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder,
with respect to the Common Stock, or under state securities or blue
sky laws or (except with respect to the Reserved Securities) under
foreign securities laws, (ii) such as have been already obtained under
the laws and regulations of jurisdictions outside the United States in
which the Reserved Securities are offered, (iii) which shall have been
obtained or made prior to Closing Time or, if applicable, the Time of
Delivery, and (iv) such as have been already obtained or as may be
required under the laws and regulations of jurisdiction outside the
United States in which the Securities (other than the Reserved
Securities) are offered.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 180
days from the date of the Prospectuses, such Selling Shareholder will
be subject to the restrictions set forth in Exhibit E hereto and such
Selling Shareholder agrees and consents to the entry of stop transfer
instructions with the Company's transfer agent and registrar against
the transfer of such Selling Shareholder's securities except in
compliance with such restrictions.
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all
of the Securities to be sold by such Selling Shareholder pursuant to
this Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or
13
<PAGE>
assignment in blank with signatures guaranteed, have been placed in
custody with the Custodian with irrevocable conditional instructions
to deliver such Securities to the U.S. Underwriters pursuant to this
Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Stockholder
nor any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common
control with, or has any other association with (within the meaning of
Article I, Section 1(m) of the By-laws of the National Association of
Securities Dealers, Inc.), any member firm of the National Association
of Securities Dealers, Inc.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Global Coordinator, the
U.S. Representatives or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the U.S. Representatives or to
counsel for the U.S. Underwriters pursuant to the terms of this Agreement shall
be deemed a representation and warranty by such Selling Shareholder to the U.S.
Underwriters as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING
(a) INITIAL SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter, severally and not jointly, agrees to
purchase from the Company, at the price per share set forth in SCHEDULE C, the
number of Initial U.S. Securities set forth in SCHEDULE A opposite the name of
such U.S. Underwriter, plus any additional number of Initial U.S. Securities
which such U.S. Underwriter may become obligated to purchase pursuant to the
provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the U.S. Underwriters, severally and not
jointly, to purchase up to an additional 1,440,000 shares of Common Stock, as
set forth in SCHEDULE B, at the price per share set forth in SCHEDULE C. The
option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection with the offering and
distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company and the Selling Shareholders setting forth the number
of U.S. Option Securities as to which the several U.S. Underwriters are then
exercising the option and the time and date of payment and delivery for such
U.S. Option Securities. Any such time and date of delivery for the U.S. Option
Securities (a "DATE OF DELIVERY") shall be determined by the Global Coordinator,
but shall not be later than seven full business days after the exercise of said
option, nor in any event prior to the Closing Time, as hereinafter defined. If
the option is
14
<PAGE>
exercised as to all or any portion of the U.S. Option Securities, each of the
U.S. Underwriters, acting severally and not jointly, will purchase that
proportion of the total number of U.S. Option Securities then being purchased
which the number of Initial U.S. Securities set forth in Schedule A opposite the
name of such U.S. Underwriter bears to the total number of Initial U.S.
Securities, subject in each case to such adjustments as the Global Coordinator
in its discretion shall make to eliminate any sales or purchases of fractional
shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Global Coordinator and the Company (such time and date of payment and delivery
being herein called "CLOSING TIME").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company and the Selling Shareholders by
wire transfer of immediately available funds to a bank account designated by the
Company and the Custodian pursuant to each Selling Shareholder's Irrevocable
Power of Attorney and Custody Agreement, as the case may be, against delivery
through the facilities of The Depository Trust Company to the U.S.
Representatives for the respective accounts of the U.S. Underwriters of
certificates for the U.S. Securities to be purchased by them. It is understood
that each U.S. Underwriter has authorized the U.S. Representatives, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the Initial U.S. Securities and the U.S. Option Securities, if any,
which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Representatives may
request in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Representatives in The City of New
York not later than 10:00 A.M.
15
<PAGE>
(Eastern time) on the business day prior to the Closing Time or the relevant
Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
U.S. Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A, and will notify the Global Coordinator immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will effect the filings necessary
pursuant to and in compliance with Rule 424(b) and will take such steps as
it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)) or any
amendment, supplement or revision to either any prospectus included in the
Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator and counsel for the U.S. Underwriters shall reasonably
object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will, if so requested, furnish to the U.S. Representatives and counsel for
the U.S. Underwriters, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will, if so requested, also furnish to the
U.S. Representatives, without charge, one conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the U.S. Underwriters. The copies of the
Registration Statement and each amendment thereto
16
<PAGE>
furnished to the other U.S. Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to EDGAR, except to the extent otherwise permitted by Regulation
S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus
as such U.S. Underwriter reasonably requested, and the Company hereby
consents to the use of such copies for purposes permitted by the 1933 Act.
The Company will furnish to each U.S. Underwriter, without charge, during
the period when the U.S. Prospectus is required to be delivered under the
1933 Act or the Securities Exchange Act of 1934 (the "1934 ACT"), such
number of copies of the U.S. Prospectus (as amended or supplemented) as
such U.S. Underwriter may reasonably request. The U.S. Prospectus and any
amendments or supplements thereto furnished to the U.S. Underwriters will
be identical to the electronically transmitted copies thereof filed with
the Commission pursuant to EDGAR, except to the extent otherwise permitted
by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
in all material respects with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement, the International Purchase Agreement and in
the Prospectuses. If at any time when a prospectus is required by the 1933
Act to be delivered in connection with sales of the Securities, any event
shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the U.S. Underwriters or for the Company, to
amend the Registration Statement or amend or supplement any Prospectus in
order that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time any such Prospectus is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly, upon becoming aware of such event,
condition or circumstance, prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to
the U.S. Underwriters such number of copies of such amendment or supplement
as the U.S. Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; PROVIDED, HOWEVER,
17
<PAGE>
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market.
(J) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities, including the Reserved Securities, to be sold hereunder
or under the International Purchase Agreement, (B) any shares of Common
Stock issued by the Company upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof and referred to
in the Prospectuses, (C) any shares of Common Stock issued or options to
purchase Common Stock granted pursuant to existing employee benefit plans
of the Company referred to in the Prospectuses or (D) any shares of Common
Stock issued pursuant to any non-employee director stock plan or dividend
reinvestment plan.
18
<PAGE>
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the rules and regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of this Agreement. The Underwriters will
notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer agent
to place a stop transfer restriction upon such securities for such period
of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
(m) COMPLIANCE WITH RULE 463. The Company will include in its periodic
reports filed with the Commission pursuant to the 1934 Act such information
as may be required pursuant to Rule 463 of the 1933 Act Regulation. SECTION
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay all
expenses incident to the performance of its and the Selling Shareholders'
obligations (except as set forth in Section 4(b)) under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus and of the Prospectuses
and any amendments or supplements thereto, (vii) the preparation, printing and
delivery to the Underwriters of copies of the Blue Sky Survey and any supplement
thereto, (viii) the fees and expenses of any transfer agent or registrar for the
Securities, (ix) the filing fees incident to, and the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the review by
the National Association of Securities Dealers, Inc. (the "NASD")
19
<PAGE>
of the terms of the sale of the Securities (x) the fees and expenses incurred in
connection with the inclusion of the Securities in the Nasdaq National Market
and (xi) all costs and expenses of the Underwriters, including reasonable fees
and disbursements of counsel for the Underwriters, in connection with matters
related to the Reserved Securities.
(b) EXPENSES OF THE SELLING SHAREHOLDERS. The Selling Shareholders,
jointly and severally, will pay all expenses related to (i) any stamp duties,
capital duties and stock transfer taxes, if any, payable upon the sale of the
Securities to the U.S. Underwriters, and their transfer between the U.S.
Underwriters pursuant to an agreement between such U.S. Underwriters, and (ii)
the fees and disbursements of their respective counsel if other than Day, Berry
& Howard LLP, and accountants if other than Arthur Andersen LLP.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
U.S. Representatives in accordance with the provisions of Section 5, Section
9(a)(i) or Section 11 hereof, the Company shall reimburse the U.S. Underwriters
for all of their out-of-pocket expenses, including reasonable fees and
disbursements of counsel for the U.S. Underwriters.
SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The obligations
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Shareholder
delivered pursuant to the provisions hereof, to the performance by the Company
and the Selling Shareholders of their respective covenants and other obligations
hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the U.S. Underwriters. A prospectus containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post-effective amendment providing such information shall
have been filed and declared effective in accordance with the requirements
of Rule 430A).
(b) OPINION OF COUNSEL FOR THE COMPANY. At Closing Time, the U.S.
Representatives shall have received the favorable opinion, dated as of
Closing Time, of Wachtell, Lipton, Rosen & Katz, counsel for the Company,
together with the favorable opinion of Timothy O. White, Jr., general
counsel of the Company, in form and substance satisfactory to counsel for
the U.S. Underwriters, together with signed or reproduced
20
<PAGE>
copies of such letters for each of the other U.S. Underwriters, to the
effect set forth in Exhibits A and B hereto, respectively, and to such
further effect as counsel to the U.S. Underwriters may reasonably request.
(c) OPINION OF PATENT COUNSEL FOR THE COMPANY. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters, to the effect set forth in Exhibit C hereto and to
such further effect as counsel to the U.S. Underwriters may reasonably
request.
(d) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. At Closing Time,
the U.S. Representatives shall have received the favorable opinion, dated
as of Closing Time, of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other U.S. Underwriters, to the effect set forth in Exhibit D
hereto and to such further effect as counsel to the U.S. Underwriters may
reasonably request.
(e) OPINION OF COUNSEL FOR THE U.S. UNDERWRITERS. At Closing Time, the
U.S. Representatives shall have received the favorable opinion, dated as of
Closing Time, of Shearman & Sterling, counsel for the U.S. Underwriters,
together with signed or reproduced copies of such letter for each of the
other U.S. Underwriters with respect to the matters set forth in clauses
(i), (ii), (iii), (iv) (solely as to preemptive or other similar rights
arising by operation of law or under the charter or by-laws of the
Company), (v) through (vii), inclusive, (viii), (ix) (solely as to the
information in the Prospectus under "Description of Capital Stock--Common
Stock" and "Material United States Federal Tax Considerations for Non-U.S.
Holders") and the penultimate paragraph of Exhibit A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the U.S.
Representatives. Such counsel may also state that, insofar as such opinion
involves factual matters, they have relied, to the extent they deem proper,
upon certificates of officers of the Company and its subsidiaries and
certificates of public officials.
(f) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"MATERIAL ADVERSE CHANGE"), and the U.S. Representatives shall have
received a certificate of the President or a Vice President of the Company
and of the chief financial
21
<PAGE>
or chief accounting officer of the Company, dated as of Closing Time, to
the effect that (i) there has been no such Material Adverse Change, (ii)
the representations and warranties in Section 1(a) hereof are true and
correct with the same force and effect as though expressly made at and as
of Closing Time, (iii) the Company has complied with all agreements and has
satisfied all conditions on its part to be performed or satisfied under
this Agreement at or prior to Closing Time, and (iv) no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or,
to the best of their knowledge, are contemplated by the Commission.
(g) CERTIFICATE OF SELLING SHAREHOLDERS. At Closing Time, the U.S.
Representatives shall have received a certificate of an Attorney-in-Fact on
behalf of each Selling Shareholder, dated as of Closing Time, to the effect
that (i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with
the same force and effect as though expressly made at and as of Closing
Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and has satisfied all conditions on its part
to be performed or satisfied under this Agreement at or prior to Closing
Time.
(h) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the U.S. Representatives shall have received from Arthur
Andersen LLP a letter dated such date, in form and substance satisfactory
to the U.S. Representatives, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and
the Prospectuses.
(i) BRING-DOWN COMFORT LETTER. At Closing Time, the U.S.
Representatives shall have received from Arthur Andersen LLP a letter,
dated as of Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (i) of this Section 5,
except that the specified date referred to shall be a date not more than
three business days prior to Closing Time.
(j) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(k) AMENDED CHARTER DOCUMENTS. The certificate of incorporation and
by-laws of the Company have been amended as required by the
Recapitalization, and the Recapitalization has been duly authorized and
consummated by the Company.
22
<PAGE>
(l) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) LOCK-UP AGREEMENTS. At the date of this Agreement, the U.S.
Representatives shall have received an agreement substantially in the form
of Exhibit E hereto signed by the persons listed on Schedule D hereto.
(n) DOWNGRADE OF COMPANY'S SECURITIES. Between the date of this
Agreement and the Closing Time or any applicable Date of Delivery (if any),
there shall not have occurred any downgrading, nor shall any notice have
been given to the Company of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
or in the rating outlook for the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(o) PURCHASE OF INITIAL INTERNATIONAL SECURITIES. Contemporaneously
with the purchase by the U.S. Underwriters of the Initial U.S. Securities
under this Agreement, the International Managers shall have purchased the
Initial International Securities under the International Purchase
Agreement.
(p) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event
that the U.S. Underwriters exercise their option provided in Section 2(b)
hereof to purchase all or any portion of the U.S. Option Securities, the
representations and warranties of the Company and the Selling Shareholders
contained herein and the statements in any certificates furnished by the
Company or on behalf of any Selling Shareholder hereunder shall be true and
correct (to the extent set forth herein) as of each Date of Delivery and,
at the relevant Date of Delivery, the U.S. Representatives shall have
received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(f) hereof remains true and correct (to the extent set forth
therein) as of such Date of Delivery.
(ii) CERTIFICATE OF SELLING SHAREHOLDERS. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(g) hereof remains true and correct
(to the extent set forth therein) as of such Date of Delivery.
23
<PAGE>
(iii) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion
of Wachtell, Lipton, Rosen & Katz, counsel for the Company, together
with the favorable opinion of Timothy O. White, Jr., general counsel
of the Company, each in form and substance satisfactory to counsel for
the U.S. Underwriters, dated such Date of Delivery, relating to the
U.S. Option Securities to be purchased on such Date of Delivery, and
otherwise to the same effect as the opinion required by Section 5(b)
hereof.
(iv) OPINION OF PATENT COUNSEL FOR THE COMPANY. The favorable
opinion of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery, and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. The
favorable opinion of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the
U.S. Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery, and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) OPINION OF COUNSEL FOR THE U.S. UNDERWRITERS. The favorable
opinion of Shearman & Sterling, counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to
be purchased on such Date of Delivery, and otherwise to the same
effect as the opinion required by Section 5(e) hereof.
(vii) BRING-DOWN COMFORT LETTER. A letter from Arthur Andersen
LLP, in form and substance satisfactory to the U.S. Representatives
and dated such Date of Delivery, substantially in the same form and
substance as the letter furnished to the U.S. Representatives pursuant
to Section 5(i) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(q) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Shareholders in connection with the
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the U.S. Representatives and counsel for
the U.S. Underwriters.
24
<PAGE>
(r) TERMINATION OF AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of U.S. Option Securities on a Date of Delivery which is after the Closing
Time, the obligations of the several U.S. Underwriters to purchase the
relevant Option Securities, may be terminated by the U.S. Representatives
by notice to the Company at any time at or prior to Closing Time or such
Date of Delivery, as the case may be, and such termination shall be without
liability of any party to any other party except as provided in Section 4
and except that Sections 1, 6, 7 and 8 shall survive any such termination
and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF U.S. UNDERWRITERS. The Company and the Management
Selling Shareholders who are listed as such in SCHEDULE B hereto (the
"MANAGEMENT SELLING SHAREHOLDERS") agree to jointly and severally indemnify and
hold harmless each U.S. Underwriter and each person, if any, who controls any
U.S. Underwriter within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act in the manner set forth in clauses (i), (ii), (iii), (iv) and
(v) of this Section 6(a); PROVIDED, HOWEVER, that none of the Management Selling
Shareholders shall be liable for the payment of an amount, pursuant to this
Section 6, which exceeds the net proceeds received by such Management Selling
Shareholder from the sale of Option Securities sold by such Management Selling
Shareholder pursuant to this Agreement. In addition, the Non-Management Selling
Shareholders who are listed as such in SCHEDULE B hereto (the "NON-MANAGEMENT
SELLING SHAREHOLDERS") agree to severally and not jointly indemnify and hold
harmless each U.S. Underwriter and each person, if any, who controls any U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act in the manner set forth in clauses (i), (ii), (iii) and (iv) of
this Section 6(a); PROVIDED, HOWEVER, that none of the Non-Management Selling
Shareholders shall be liable for the payment of an amount, pursuant to this
Section 6, which exceeds the net proceeds received by such Non-Management
Selling Shareholder from the sale of Option Securities sold by such
Non-Management Selling Shareholder pursuant to this Agreement.
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectuses or
any amendment or supplement thereto (or any prospectus wrapper) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
25
<PAGE>
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
securities laws or regulations of foreign jurisdictions where Reserved
Securities have been offered and (B) any untrue statement or alleged untrue
statement of a material fact included in the supplement or prospectus
wrapper material distributed in foreign jurisdictions in connection with
the sale of the Reserved Securities or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders, as applicable;
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i), (ii) or (iii) above; and
(v) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any claim whatsoever based upon any claim asserted alleging violation of
preemptive rights;
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
U.S. Underwriter through the U.S. Representatives expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information, or any preliminary prospectus or the
Prospectuses or any amendment or supplement thereto (or any prospectus wrapper)
and (b) with respect to any preliminary prospectus to the extent that any such
loss, liability, claim, damage or expense of such U.S. Underwriter results
solely from the fact that such U.S. Underwriter sold Securities to a person as
to whom the Company shall establish that there was not sent by commercially
reasonable means, at or prior to the written confirmation of such sale, a copy
of the U.S.
26
<PAGE>
Prospectus in any case where such delivery is required by the 1933 Act, if the
Company has previously furnished copies thereof in sufficient quantity to such
U.S. Underwriter (in compliance with Section 3(d) hereof) and the loss,
liability, claim, damage or expense of such U.S. Underwriter results from an
untrue statement or omission of a material fact contained in the preliminary
prospectus that was corrected in the U.S. Prospectus; and PROVIDED FURTHER that
the liability of each Selling Shareholder under this indemnity agreement (i)
shall apply only to losses, liability, claims, damages or expenses to the extent
arising out of any untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written information
provided by such Selling Shareholder to the Company expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information or any preliminary prospectus or the U.S.
Prospectus or any amendment or supplement thereto (for any prospectus wrapper)
and (ii) shall not exceed the net proceeds received by such Selling Shareholder.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND THE SELLING
SHAREHOLDERS. Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsections (a)(i) through (iv)
(except that reference in (a)(iv) to Merrill Lynch shall be to the Company and
the Selling Shareholders, as the case may be), of this Section 6, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information, or any preliminary U.S.
prospectus or the U.S. Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such U.S. Underwriter through the U.S. Representatives expressly for
use in the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the U.S. Prospectus (or any amendment or supplement thereto).
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or
27
<PAGE>
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
(ii) does not include a statement as to or an admission of fault, culpability or
a failure to act by or on behalf of any indemnified party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement with respect to such fees and
expenses as contemplated by Section 6(a)(iii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least
30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) INDEMNIFICATION FOR RESERVED SECURITIES. In connection with the
offer and sale of the Reserved Securities, the Company agrees, promptly upon a
request in writing, to indemnify and hold harmless the U.S. Underwriters from
and against any and all losses, liabilities, claims, damages and expenses
incurred by them as a result of the failure of eligible employees and persons
having business relationships with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section 6 shall not affect any agreement or arrangement among the Company
and the Selling Shareholders with respect to indemnification, including without
limitation as set forth in Section 12 of the Irrevocable Power of Attorney and
Custody Agreement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section
6 hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the U.S. Underwriters on the other hand
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in
28
<PAGE>
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the U.S. Underwriters on the
other hand in connection with the statements or omissions, or in connection with
any violation of the nature referred to in Section 6(a)(ii) hereof, which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
The relative benefits received by the Company and the Selling
Shareholders on the one hand and the U.S. Underwriters on the other hand in
connection with the offering of the U.S. Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the U.S. Securities pursuant to this Agreement
(before deducting expenses) received by the Company and the Selling Shareholders
and the total underwriting discount received by the U.S. Underwriters, in each
case as set forth on the cover of the U.S. Prospectus, bear to the aggregate
initial public offering price of the U.S. Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the
one hand and the U.S. Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the U.S. Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission
or any violation of the nature referred to in Section 6(a)(ii)(A) hereof.
The Company, the Selling Shareholders and the U.S. Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the U.S. Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
7 shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the U.S. Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of any such
untrue or alleged untrue statement or omission or alleged omission.
29
<PAGE>
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls a U.S.
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such U.S.
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company or any Selling Shareholder within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act shall have the same rights to contribution as
the Company or such Selling Shareholder, as the case may be. The U.S.
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Initial U.S. Securities set forth
opposite their respective names in Schedule A hereto and not joint. The
Company's and the Management Selling Shareholder's respective obligations to
contribute pursuant to this Section 7 are several in proportion to the number of
Securities set forth opposite their respective names in Schedule B hereto. The
Non-Management Selling Shareholder's respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Securities
set forth opposite their respective names in Schedule B hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or the Selling
Shareholders submitted pursuant hereto shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any U.S.
Underwriter or controlling person, or by or on behalf of the Company or the
Selling Shareholders, and shall survive delivery of the Securities to the U.S.
Underwriters.
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The U.S. Representatives may terminate this
Agreement, by notice to the Company and the Selling Shareholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the U.S. Prospectus, any Material Adverse Change, or (ii) if there has occurred
any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a
prospective change in national or international political, financial or economic
conditions, in each case the effect of which is such as to make it, in the
reasonable judgment of the U.S. Representatives, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the
30
<PAGE>
National Association of Securities Dealers, Inc. or any other governmental
authority, or (iv) if a banking moratorium has been declared by either Federal
or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect. Notwithstanding any other provision of this Agreement to the contrary,
no Selling Shareholder shall have any liability under this Agreement, and this
Agreement shall terminate and have no force and effect with respect to the
Selling Shareholders, if no Option Securities are sold hereunder.
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. If one or
more of the U.S. Underwriters shall fail at Closing Time or a Date of Delivery
to purchase the Securities which it or they are obligated to purchase under this
Agreement (the "DEFAULTED SECURITIES"), the U.S. Representatives shall have the
right, within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of the Defaulted Securities in such amounts as may be
agreed upon and upon the terms herein set forth; if, however, the U.S.
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of U.S. Securities to be purchased on such date, the non-defaulting
U.S. Underwriters shall be obligated, each severally and not jointly, to
purchase the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
U.S. Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after Closing Time, the
obligation of the U.S. Underwriters to purchase and of the Company to sell
the Option Securities to be purchased and sold on such Date of Delivery
shall terminate without liability on the part of any non-defaulting U.S.
Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination
of this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the U.S.
Underwriters to purchase and the Company and the Selling Shareholders to sell
the relevant U.S. Option Securities, as the case may be, either the U.S.
Representatives or the Company and the Selling Shareholders shall have the right
to postpone Closing Time or the relevant Date of Delivery, as the case may be,
for a period not exceeding seven days in order to effect any required changes in
the Registration Statement or Prospectuses
31
<PAGE>
or in any other documents or arrangements. As used herein, the term "U.S.
Underwriter" includes any person substituted for a U.S. Underwriter under this
Section.
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR THE
COMPANY.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Option Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders or the Company do not exercise the right hereby
granted to increase, pro rata or otherwise, the number of Securities to be sold
by them hereunder to the total number to be sold by all Selling Shareholders as
set forth in Schedule B hereto, then the U.S. Underwriters may, at the option of
the U.S. Representatives, by notice from the U.S. Representatives to the Company
and the non-defaulting Selling Shareholders, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section shall relieve any Selling Shareholder so defaulting from liability in
respect of such default.
In the event of a default by any Selling Shareholder as referred to in
this Section, each of the U.S. Representatives, the Company and the
non-defaulting Selling Shareholders shall have the right to postpone Closing
Time or the relevant Date of Delivery for a period not exceeding seven days in
order to effect any required change in the Registration Statement or
Prospectuses or in any other documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery
to sell the number of Securities that it is obligated to sell hereunder, then
this Agreement shall terminate without any liability on the part of any
non-defaulting party; PROVIDED, HOWEVER, that the provisions of Sections 1, 4,
6, 7 and 8 shall remain in full force and effect. No action taken pursuant to
this Section shall relieve the Company from liability in respect of such
default.
SECTION 12. NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representatives at North Tower, World
Financial Center, New York, New York 10281, attention of Equity Capital Markets;
and notices to the Company shall be directed to it at Packard BioScience
Company, 800 Research Parkway, Meriden, Connecticut 06450, attention of Chief
Financial Officer and General Counsel; and notices to the Selling Shareholders
shall be directed to Day, Berry & Howard LLP, attention of William H. Cuddy.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the U.S. Underwriters, the Company and the Selling Shareholders and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the U.S. Underwriters, the Company and the Selling
32
<PAGE>
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the U.S. Underwriters, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein
and the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Attorney-in-Fact for
the Selling Shareholders a counterpart hereof, whereupon this instrument, along
with all counterparts, will become a binding agreement between the U.S.
Underwriters, the Company and the Selling Shareholders in accordance with its
terms.
Very truly yours,
PACKARD BIOSCIENCE COMPANY
By:
--------------------------------------
Name: Ben D. Kaplan
Title: Vice President & Chief
Financial Officer
THE SELLING SHAREHOLDERS
By:
--------------------------------------
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH & CO.
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
CHASE SECURITIES INC.
ROBERT W. BAIRD & CO. INCORPORATED
BANC OF AMERICA SECURITIES LLC
THOMAS WEISEL PARTNERS LLC
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------------
Authorized Signatory
For themselves and as U.S. Representatives of the other U.S. Underwriters named
in Schedule A hereto.
34
<PAGE>
SCHEDULE A
MAXIMUM
NUMBER OF
INITIAL U.S.
NAME OF U.S. UNDERWRITER SECURITIES
------------------------ ------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated..................................
Chase Securities Inc. ..........................
Robert W. Baird & Co. Incorporated..............
Banc of America Securities LLC..................
Thomas Weisel Partners LLC......................
-----------
Total............................................. 9,600,000
============
Sch A-1
<PAGE>
SCHEDULE B
MAXIMUM NUMBER MAXIMUM NUMBER
OF INITIAL U.S. OF U.S. OPTION
SECURITIES SECURITIES*
--------------- ---------------
Packard BioScience Company.............. 9,600,000 1,217,760
--------------- ---------------
Management Selling Shareholders:
Emery G. Olcott...................... 0 60,000
Richard T. McKernan 0 60,000
George Serrano 0 28,000
Non-Management Selling Shareholders:
Orren Tench 0 31,520
Staf van Cauter 0 11,760
Daniel Meert 0 10,560
Eugene Della Vecchia 0 11,520
Michael A. Zebarth 0 8,880
--------- ----------
Selling Shareholders (total) 0 222,240
--------- ----------
Total...................................... 9,600,000 1,440,000
========= =========
________________
* If the option is exercised as to less than the maximum number of U.S.
Option Securities, then the offer to sell by the Company and the Selling
Shareholders shall be that proportion of the total number of U.S. Option
Securities then being offered which the number of U.S. Option Securities
set forth above opposite the Company and each of the Selling Shareholder
bears to the total number of U.S. Option Securities offered.
Sch B-1
<PAGE>
SCHEDULE C
PACKARD BIOSCIENCE COMPANY
9,600,000 Shares of Common Stock
(Par Value $.002 Per Share)
1. The initial public offering price per share for the Securities shall
be ___________.
2. The purchase price per share for the U.S. Securities to be paid by
the several U.S. Underwriters shall be $________, being an amount equal to the
initial public offering price set forth above less $________ per share; provided
that the purchase price per share for any U.S. Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
reduced by an amount per share equal to any dividends or distributions declared
by the Company and payable on the Initial U.S. Securities but not payable on the
U.S. Option Securities.
Sch C-1
<PAGE>
SCHEDULE D
List of persons and entities
subject to lock-up2
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Anderson Troy D.
------------------------------------------ -------------------------
Baird Capital Partners
II Limited Partnership
------------------------------------------ -------------------------
Baldwin Brenda J.
------------------------------------------ -------------------------
BCP II Affiliates
Fund Limited Partnership
------------------------------------------ -------------------------
Belobraydich Michael W.
------------------------------------------ -------------------------
Bernard Shelly R.
------------------------------------------ -------------------------
Bock Warren H.
------------------------------------------ -------------------------
Bosel Manfred
------------------------------------------ -------------------------
Bronson Frazier
------------------------------------------ -------------------------
Bryant W. Michael
------------------------------------------ -------------------------
Burger Paul
------------------------------------------ -------------------------
Burke Jocelyn W.
------------------------------------------ -------------------------
Burns David
------------------------------------------ -------------------------
Bursens Marc
------------------------------------------ -------------------------
Campagnuolo Benjamin
------------------------------------------ -------------------------
Carl Richard A.
------------------------------------------ -------------------------
Carter-Allen Kelly S.
------------------------------------------ -------------------------
Catalano III Michael A.
------------------------------------------ -------------------------
Catalano Jr. Michael A.
------------------------------------------ -------------------------
Chapman Jeffrey A.
------------------------------------------ -------------------------
Charland Andrea
------------------------------------------ -------------------------
Charland Michael J.
------------------------------------------ -------------------------
Chelsky Daniel
------------------------------------------ -------------------------
Christodoulou Apostolos
------------------------------------------ -------------------------
Cohen Rafael Z.
------------------------------------------ -------------------------
Colaresi James F.
------------------------------------------ -------------------------
Darken Jr Lawrence S.
------------------------------------------ -------------------------
Davidson Dorothy R.
------------------------------------------ -------------------------
Dean David M.
------------------------------------------ -------------------------
DeBaerdemaeker Luc
------------------------------------------ -------------------------
Della Vecchia Eugene
------------------------------------------ -------------------------
Duebendorfer Juerg
------------------------------------------ -------------------------
East Larry V.
------------------------------------------ -------------------------
Eichem II Charles E.
------------------------------------------ -------------------------
Elands Jack
------------------------------------------ -------------------------
Elsishans Jr. Carl J.
------------------------------------------ -------------------------
-------------
2 The lock-up by these persons and entities cover at least 85% of the
issued and outstanding shares of Common Stock of the Company, giving
effect to the exercise of outstanding options to purchase shares of
Common Stock of the Company.
Sch D-2
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
End Robert F.
------------------------------------------ -------------------------
Englert David F.
------------------------------------------ -------------------------
Fisher Edward G.
------------------------------------------ -------------------------
Fleissner John G.
------------------------------------------ -------------------------
Frei Hans Rudolph
------------------------------------------ -------------------------
Fulbright Richard S.
------------------------------------------ -------------------------
Gallagher Brian
------------------------------------------ -------------------------
Hall David L.
------------------------------------------ -------------------------
Hall Nance
------------------------------------------ -------------------------
Harazin Richard R.
------------------------------------------ -------------------------
Heinze Karl R.
------------------------------------------ -------------------------
Hering Paul
------------------------------------------ -------------------------
Hill Donald W.
------------------------------------------ -------------------------
Hinshaw Steve M.
------------------------------------------ -------------------------
Hoecker Bradley J.
------------------------------------------ -------------------------
Houchins Brandon A.
------------------------------------------ -------------------------
Huckins Robert J.
------------------------------------------ -------------------------
Hurst Mark E.
------------------------------------------ -------------------------
Jones Donald K.
------------------------------------------ -------------------------
Kadner Steven P.
------------------------------------------ -------------------------
Kaplan Ben D.
------------------------------------------ -------------------------
Koskelo Markku
------------------------------------------ -------------------------
Krug Robert E.
------------------------------------------ -------------------------
Kuhn Roberta
------------------------------------------ -------------------------
Kuwashima Susumu
------------------------------------------ -------------------------
Laforge Michael A.
------------------------------------------ -------------------------
Laskos Steven C.
------------------------------------------ -------------------------
Le Saec Marcel
------------------------------------------ -------------------------
Lee Darren M.
------------------------------------------ -------------------------
Li Mary
------------------------------------------ -------------------------
Little Tony
------------------------------------------ -------------------------
Magny France
------------------------------------------ -------------------------
McElroy Robert D.
------------------------------------------ -------------------------
Sch D-3
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
McKernan Brendan
------------------------------------------ -------------------------
McKernan Kevin
------------------------------------------ -------------------------
McKernan Melissa
------------------------------------------ -------------------------
McKernan Patricia G.
------------------------------------------ -------------------------
McKernan Richard B.
------------------------------------------ -------------------------
McKernan Richard T.
------------------------------------------ -------------------------
McKernan Virginia
------------------------------------------ -------------------------
McKernan Family Trust
------------------------------------------ -------------------------
Meert Daniel
------------------------------------------ -------------------------
Menard Luc
------------------------------------------ -------------------------
Meredith David R.
------------------------------------------ -------------------------
Merrill Lynch KECALP Int'l
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1994
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1997
------------------------------------------ -------------------------
Michas Alexis
------------------------------------------ -------------------------
Montgomery George G.
------------------------------------------ -------------------------
Morrison Douglas A.
------------------------------------------ -------------------------
Murray James
------------------------------------------ -------------------------
Mylymuk Michale J.
------------------------------------------ -------------------------
Nacht Arthur F.
------------------------------------------ -------------------------
Olcott Barbara
------------------------------------------ -------------------------
Olcott Charles W.
------------------------------------------ -------------------------
Olcott Emery G.
------------------------------------------ -------------------------
Olcott Timothy S.
------------------------------------------ -------------------------
Olcott Jr. Emery G.
------------------------------------------ -------------------------
Papen Roeland
------------------------------------------ -------------------------
Pearce Gibson
------------------------------------------ -------------------------
Plested Graham
------------------------------------------ -------------------------
Proulx Robert
------------------------------------------ -------------------------
Pyle William D.
------------------------------------------ -------------------------
Richardson Wayne G.
------------------------------------------ -------------------------
Rieveschl David C.
------------------------------------------ -------------------------
Rossi Ferdinando
------------------------------------------ -------------------------
Rotando Lynn
------------------------------------------ -------------------------
Sch D-4
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Salisbury Robert C.
------------------------------------------ -------------------------
Schaich Steven R.
------------------------------------------ -------------------------
Schmeizl Mark A.
------------------------------------------ -------------------------
Seabourne William J.
------------------------------------------ -------------------------
Seely Jr Ernest C.
------------------------------------------ -------------------------
Serralunga Michel
------------------------------------------ -------------------------
Serrano George
------------------------------------------ -------------------------
Shepard Randy L.
------------------------------------------ -------------------------
Sielaff Willard A.
------------------------------------------ -------------------------
Smalling John P.
------------------------------------------ -------------------------
Smith David H.
------------------------------------------ -------------------------
SOWA Trading Co. Inc.
------------------------------------------ -------------------------
Spallone Martin C.
------------------------------------------ -------------------------
Special Patrick E.
------------------------------------------ -------------------------
Stangl Rainer
------------------------------------------ -------------------------
Stevenson Chase
------------------------------------------ -------------------------
Stone Richard A.
------------------------------------------ -------------------------
Stonington Capital Appreciation 1994 Fund
------------------------------------------ -------------------------
Swanson Drew E.
------------------------------------------ -------------------------
Tamburro John G.
------------------------------------------ -------------------------
Tench Orren K.
------------------------------------------ -------------------------
Tong Peter P.
------------------------------------------ -------------------------
Toritzin Oleg
------------------------------------------ -------------------------
Toyo Corporation
------------------------------------------ -------------------------
Upham Loraine E.
------------------------------------------ -------------------------
Van Cauter Staf C.
------------------------------------------ -------------------------
Vermilye Ronald M.
------------------------------------------ -------------------------
Verplancke Jan
------------------------------------------ -------------------------
Villani Marcel F.
------------------------------------------ -------------------------
Wang Changjin
------------------------------------------ -------------------------
Webb Robert G.
------------------------------------------ -------------------------
West Leon
------------------------------------------ -------------------------
Wherlock Charles Michael
------------------------------------------ -------------------------
White Robert M.
------------------------------------------ -------------------------
White Sally Ann
------------------------------------------ -------------------------
White Jr. Timothy O.
------------------------------------------ -------------------------
Sch D-5
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
White Sr. Timothy O.
------------------------------------------ -------------------------
White, TRUST Melissa
------------------------------------------ -------------------------
White, TRUST Timothy O.
------------------------------------------ -------------------------
Woodard Robert C.
------------------------------------------ -------------------------
Yocum Kenneth M.
------------------------------------------ -------------------------
Young Brian M.
------------------------------------------ -------------------------
Young Harry M.
------------------------------------------ -------------------------
Zebarth Michael A.
------------------------------------------ -------------------------
Ziegler Michael R.
------------------------------------------ -------------------------
Zukosky Patrick A.
------------------------------------------ -------------------------
Sch D-6
<PAGE>
EXHIBIT A
FORM OF OPINION OF WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
will be subject to personal liability by reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive or,
to the knowledge of such counsel, other similar rights, of any securityholder of
the Company.
(v) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectuses pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of their
respective effective or issue dates (except, in each case, for the financial
statements, related notes and schedules and other financial data included
therein or omitted therefrom, as to which we express no opinion) complied as to
form in all material respects with the requirements of the 1933 Act and the 1933
Act Regulations.
A-1
<PAGE>
(viii) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory requirements,
with any applicable requirements of the charter and by-laws of the Company.
(ix) The information in the Prospectuses under "Related Party
Transactions-Stockholders' Agreement," "Description of Capital Stock-Common
Stock", and "Material United States Federal Tax Considerations for Non-U.S.
Holders", to the extent that it purports to summarize legal matters or the
Company's charter and by-laws fairly summarizes the legal matters described
therein in all material respects.
(x) The Recapitalization has been duly authorized and validly
consummated by the Company.
(xi) The Company is not an "investment company" or an entity
"controlled" by an "investment company," within the meaning of the 1940 Act and
the rules and regulations of the Commission thereunder.
With respect to the matters covered in paragraph (vii) above, our
opinion is based on participation in the preparation of the Registration
Statement and Prospectuses and any amendment or supplement thereto, and in
discussions with officers and other representatives of the Company and its
independent public accountants (including discussions in which representatives
of the Underwriters and their counsel participated) but is without independent
check or verification. We have participated in the preparation of the
Registration Statement and Prospectuses and in conferences with officers and
other representatives of the Company, representatives of the independent public
accountants for the Company and with representatives of the Underwriters and
their counsel at which the contents of the Registration Statement, the
Prospectuses and related matters were discussed. In connection with the opinions
expressed herein and the participation referenced above, we have not verified
and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses (other than as set forth in paragraph (ix) above).
We confirm, however, that in the course of such participation, review and
discussions, no facts have come to our attention to lead us to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for the financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which we express no opinion), at the time the Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectuses or any
amendment or supplement thereto (except for the financial statements and related
notes and schedule, and other financial data included therein or omitted
therefrom, as to which we express no opinion), at the time the Prospectuses were
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or include an untrue statement or a material fact or
omitted or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-2
<PAGE>
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials. Such
opinion shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
A-3
<PAGE>
EXHIBIT B
FORM OF OPINION OF TIMOTHY O. WHITE
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing could not reasonably be expected to result in a Material
Adverse Effect.
(iv) The Company had at the date indicated a duly authorized, issued and
outstanding capitalization as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" and notes thereto; the
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other similar
rights of any securityholder of the Company; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company with the exception of the
issuance by the Company of an aggregate of 26,500 authorized but unissued shares
of Common Stock (the "Issued Shares") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock in the
aggregate), in March 1987, March 1988 and March 1989 (collectively, the "Stock
Issuances"); with respect to the Issued Shares, to the Company's knowledge, the
holders of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of such Common
Stock outstanding immediately prior to the Stock Issuances have, at any time
since, threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to bring,
any claim at law or in equity challenging the Stock Issuances; and to my actual
knowledge, none of the Option Securities was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively,
B-1
<PAGE>
and, when issued and delivered by the Company pursuant to the U.S. Purchase
Agreement and the International Purchase Agreement, respectively, against
payment of the consideration set forth in the U.S. Purchase Agreement and the
International Purchase Agreement, will be validly issued and fully paid and
non-assessable and no holder of the Securities is or will be subject to personal
liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the preemptive
rights of any securityholder of the Company or other similar rights pursuant to
agreements or instruments to which the Company is a party.
(vii) Each Subsidiary has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing could not
reasonably be expected to result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement (including with respect to the
Credit Agreement), all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of (a) Packard Instrument Company or CCS Packard, Inc.
was issued in violation of the preemptive rights of any securityholder of such
Subsidiary or other similar rights pursuant to agreements or instruments to
which such Subsidiary is a party and (b) any Subsidiary (other than Packard
Instrument Company and CCS Packard, Inc.) was issued, after such entity became a
Subsidiary of the Company, in violation of the preemptive rights of any
securityholder of such Subsidiary or other similar rights pursuant to agreements
or instruments to which such Subsidiary is a party.
(viii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by the Company.
(ix) To the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(x) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements and with any
applicable requirements of the charter and by-laws of the Company.
(xi) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), which (a) could reasonably be
expected to result in a Material Adverse Effect, or (b) could reasonably be
expected to materially and adversely affect the value of the properties or
assets of the Company, in the aggregate, or the
B-2
<PAGE>
consummation of the transactions contemplated in the U.S. Purchase Agreement and
International Purchase Agreement or the performance by the Company of its
obligations thereunder.
(xii) The information in the Prospectuses under "Related Party
Transactions," "Description of Capital Stock", "Description of Indebtedness,"
"Business--Properties","Business--Legal Proceedings", "Risk Factors-Changes in
environmental regulations could increase the costs of manufacturing our products
or providing our services, or otherwise adversely affect the demand for our
products or services," "Business-Environmental Matters", and "Business-
Regulation" and in the Registration Statement under Items 14 and 15, to the
extent that it purports to summarize legal matters, the Company's charter and
by-laws or legal proceedings fairly summarizes the legal matters described
therein.
(xiii) To the best of my knowledge, there are no statutes or
regulations that are required to be described in the Prospectuses that are not
described as required.
(xiv) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required pursuant to the 1933 Act to be described or referred to in
the Prospectuses or filed as exhibits to the Registration Statement, which have
not been so described or filed.
(xv) To the best of my knowledge, neither the Company nor any subsidiary
is in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xvi) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase Agreement
or the consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder, with respect to the Common Stock or under foreign
or state securities or blue sky laws, (ii) such as have been already obtained or
as may be required under the laws and regulations of jurisdictions outside the
United States in which the Securities and the Reserved Securities are offered
and (iii) which shall have been obtained or made prior to the Closing Time or,
if applicable, the Time of Delivery.
(xvii) The execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase Agreement and in the
Registration Statement (with respect to the
B-3
<PAGE>
issuance and sale of the Securities and the use of the proceeds from the sale
of the Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under this
Agreement and the International Purchase Agreement have been duly authorized
by all necessary corporate action, including (if required) board approval,
and do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or default
or Repayment Event (as defined below) under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any subsidiary pursuant to, any contract indenture, mortgage,
deed of trust, loan or credit agreement, note, lease or any other agreement
or instrument to which the Company or any of its subsidiaries is a party or
by which it or any of them is bound (collectively, "the AGREEMENT AND
INSTRUMENTS") (except for such conflicts, breaches, defaults or Repayment
Events or liens, charges or encumbrances that could not reasonably be
expected to result in a Material Adverse Effect), nor will such action result
in any violation of (A) the provisions of the charter or by-laws of the
Company or any Subsidiary, (B) any existing applicable domestic law, statute,
rule, regulation, judgment, order, writ or decree of any domestic government,
government instrumentality or court having jurisdiction over the Company or
any Subsidiary or any of their assets, properties or operations, except, in
the case of (B), for such violations that could not reasonably be expected to
result in a Material Adverse Effect or (C) to the best of my knowledge, any
existing applicable foreign law, statute, rule, regulation, judgment, order,
writ or decree of any foreign government, government instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of their assets
properties or operations except for such violations that could not reasonably
be expected to result in a Material Adverse Effect.
(xviii) To the best of my knowledge, there are no persons with
registration rights or other similar rights to have any securities registered
pursuant to the Registration Statement.
(xix) The Recapitalization has been duly authorized and validly
consummated by the Company.
Nothing has come to my attention that would lead me to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which I express no opinion), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectuses or any
amendment or supplement thereto (except for financial statements, related notes
and schedule, and other financial data included therein or omitted therefrom, as
to which I express no opinion), at the time the Prospectuses were issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
B-4
<PAGE>
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper, on
certificates of responsible officers of the Company and public officials
(including with respect to the Stock Issuances) and, in the case of the opinion
set forth in clause (iv), on the books and records of the Company. Such opinion
shall not state that it is to be governed or qualified by, or that it is
otherwise subject to, any treatise, written policy or other document relating to
legal opinions, including, without limitation, the Legal Opinion Accord of the
ABA Section of Business Law (1991).
B-5
<PAGE>
EXHIBIT C
FORM OF OPINION OF JENKENS & GILCHRIST
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The statements and descriptions made in the Prospectuses under the
captions "Risk Factors-If we are unable to effectively protect our intellectual
property, we may be unable to prevent third parties from using our technology,
which could impair our ability to compete effectively in the market," "Risk
Factors-Our products could infringe on the intellectual property rights of
others, causing costly litigation and seriously harming our business" and
"Business-Intellectual Property" to the extent that they constitute matters of
law or legal conclusions, have been reviewed by us and fairly present the
information disclosed therein in all material respects and nothing has come to
our attention which leads us to believe that (A) the information set forth in
the Registration Statement, or any amendment thereto, under the captions
referred to above as of the time the Registration Statement became effective
under the Securities Act, and as of the Closing Time or any Delivery Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the information set forth in the Prospectuses, or in any
supplement thereto, under the captions referred to above as of their issue dates
and as of such Closing Time or any Delivery Date, contained an untrue statement
of a material fact or omitted to state a material fact, necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) Such counsel has no knowledge of any pending or threatened legal or
governmental proceeding relating to patents or proprietary know-how owned or
used by the Company or any of its subsidiaries, to which the Company or any of
its subsidiaries is a party except as disclosed in the Registration Statement,
which, if adversely decided, would have a material adverse effect on the
business, financial condition or results of operations of the Company or any of
its subsidiaries, taken as a whole.
(iii) Such counsel has no knowledge of any infringement or alleged
infringement by the Company or any of its subsidiaries of issued patent rights
of others, except as disclosed in the Registration Statement, which would have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
C-1
<PAGE>
EXHIBIT D
FORM OF OPINION OF DAY, BERRY & HOWARD LLP
TO BE DELIVERED PURSUANT TO SECTION 5(e)
(i) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, (other than the issuance of the order
of the Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state or foreign
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by each
Selling Shareholder of its obligations under the U.S. Purchase Agreement and
International Purchase Agreement or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the offer, sale or delivery of the
Option Securities to be sold by the Selling Shareholders.
(ii) Each Irrevocable Power of Attorney and Custody Agreement has been
duly executed and delivered by the respective Selling Shareholder named therein
and constitutes the legal, valid and binding agreement of such Selling
Shareholder.
(iii) The U.S. Purchase Agreement and the International Purchase
Agreement have been duly authorized, executed and delivered by or on behalf of
each Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Option Securities to be sold by the Selling
Shareholders on behalf of the Selling Shareholders in accordance with the terms
of the U.S. Purchase Agreement and the International Purchase Agreement.
(v) The execution, delivery and performance by the Selling
Shareholders of the U.S. Purchase Agreement, the International Purchase
Agreement, the Irrevocable Power of Attorney and Custody Agreement and the sale
and delivery by the Selling Shareholders of the Option Securities to be sold by
the Selling Shareholders and the consummation of the transactions by the Selling
Shareholders contemplated in the U.S. Purchase Agreement, in the International
Purchase Agreement, and in the Registration Statement and compliance by the
Selling Shareholders with their obligations under the U.S. Purchase Agreement
and International Purchase Agreement have been duly authorized by all necessary
action on the part of the Selling Shareholders and (A) do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the Option
Securities to be sold by the Selling Shareholders or any property or assets of
the Selling Shareholders pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which any Selling Shareholder is a party or by which it may be
bound, or to which any of the property or assets of any Selling Shareholder may
be subject, nor (B) will such action result in any violation of any law,
administrative regulation, judgment or order of any governmental agency or body
or any administrative or court decree having jurisdiction over such Selling
D-1
<PAGE>
Shareholder or any of its properties.
(vi) Each Selling Shareholder has full right, power and authority to sell,
transfer and deliver such Option Securities pursuant to the Purchase Agreements.
Assuming that (i) the certificate or certificates representing the Option
Securities to be held by such Selling Shareholder pursuant to the Purchase
Agreements have been effectively indorsed in blank in accordance with NYUCC
Article 8 and (ii) the Underwriters are without notice of any adverse claim to
the Option Securities, then, upon the Underwriters' acquiring possession of such
certificate or certificates for the Option Securities and paying the purchase
price therefor pursuant to the Purchase Agreements, each Underwriter will be a
"protected purchaser" of the Option Securities to be purchased by it (within the
meaning of Section 8-303 of the NYUCC) and will acquire its interest in such
Option Securities (including, without limitation, all rights that such Selling
Shareholder had or has the power to transfer in such Secutities) free of any
adverse claim.
In rendering such opinion, such counsel may rely as to matters of fact
(but not as to legal conclusions), to the extent they deem proper on
certificates of the Selling Shareholders and of responsible officers of the
Company and public officials. Such counsel may also rely on opinions of other
counsel, to the extent they deem proper, as to matters governed by the laws of a
jurisdiction in which such counsel are not admitted to practice law.
D-2
<PAGE>
Exhibit E
April , 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
MERRILL LYNCH INTERNATIONAL
Chase Manhattan International Limited
Robert W. Baird & Co. Incorporated
Bank of America International Limited
Thomas Weisel International Limited
as Lead Manager of the several International Managers
to be named in the within-mentioned International Purchase Agreement
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Re: Proposed Public Offering by Packard BioScience Company
------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of
Packard BioScience Company, a Delaware corporation (the "COMPANY"), understands
that Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MERRILL LYNCH") and Chase Securities Inc., Robert W. Baird & Co. Incorporated,
Banc of America Securities LLC, and Thomas Weisel Partners LLC (the "U.S.
UNDERWRITERS") propose to enter into a U.S. Purchase Agreement (the "U.S.
PURCHASE AGREEMENT") with the Company and the persons listed in Schedule B to
the U.S.
E-1
<PAGE>
Purchase Agreement (the "SELLING SHAREHOLDERS") providing for the public
offering of shares (the "SECURITIES") of the Company's common stock, par value
$.002 per share (the "COMMON STOCK"). The undersigned also understands that the
Company and the Selling Shareholders propose to concurrently enter into an
agreement with certain international underwriters (the "INTERNATIONAL MANAGERS"
and, together with the U.S. Underwriters, the "UNDERWRITERS") for the offering
of the Common Stock outside the United States and Canada (the "INTERNATIONAL
PURCHASE AGREEMENT" and, together with the U.S. Purchase Agreement, the
"PURCHASE AGREEMENTS"). In recognition of the benefit that such an offering will
confer upon the undersigned as a stockholder [and an officer and/or director] of
the Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and subject to the next paragraph
of this agreement, the undersigned agrees with each of the Underwriters that,
during a period of 180 days from the date of the Purchase Agreements, the
undersigned will not, without the prior written consent of Merrill Lynch,
directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant for the sale of, or otherwise dispose of or
transfer any shares of the Company's Common Stock or any securities convertible
into or exchangeable or exercisable for Common Stock, whether now owned or
hereafter acquired by the undersigned or with respect to which the undersigned
has or hereafter acquires the power of disposition, or file any registration
statement under the Securities Act of 1933, as amended, with respect to any of
the foregoing or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequence of ownership of the Common Stock, whether any such swap or
transaction is to be settled by delivery of Common Stock or other securities, in
cash or otherwise.
The foregoing paragraph shall not apply to (A) Securities (i)
transferred as a bona fide gift or gifts, provided that the donee or donees
thereof agree to be bound in writing by the restrictions set forth in this
agreement, (ii) transferred to any trust for the direct or indirect benefit of
any stockholder or the immediate family of such stockholder, provided that the
trustee of trust agrees to be bound in writing by the restrictions set forth
herein, and provided further that any such transfer shall not involve a
disposition for value, (iii) sold by the stockholder but only if and to the
extent that such Securities have been acquired by such stockholder (x) pursuant
to the Purchase Agreements or (y) in the open market after completion of the
offering of the Securities by the Underwriters, or (iv) if the transfer of such
Securities occurs by operation of law, such as rules of intestate succession or
statutes governing the effects of a merger, provided that the transferee
executes an agreement stating that the transferee is receiving and holding the
shares subject to the provisions of this agreement, and (B) any sales of any
Securities to the Underwriters pursuant to the Purchase Agreements. For purposes
of this paragraph "immediate family" shall mean any relationship by blood,
marriage or adoption, not more remote than first cousin.
Very truly yours,
Signature: __________________________
Print Name: _________________________
E-2
<PAGE>
TABLE OF CONTENTS
U.S. PURCHASE AGREEMENT........................................................1
SECTION 1. Representations and Warranties.................................4
(a) Representations and Warranties by the Company..................4
(i) Compliance with Registration Requirements............4
(ii) Independent Accountants..............................5
(iii) Financial Statements.................................5
(iv) No Material Adverse Change in Business...............5
(v) Good Standing of the Company.........................6
(vi) Good Standing of Subsidiaries........................6
(vii) Capitalization.......................................6
(viii) Authorization of Agreement...........................7
(ix) Authorization and Description of Securities..........7
(x) Absence of Defaults and Conflicts....................7
(xi) Absence of Labor Dispute.............................8
(xii) Absence of Proceedings...............................8
(xiii) Accuracy of Exhibits.................................8
(xiv) Possession of Intellectual Property..................9
(xv) Absence of Further Requirements......................9
(xvi) Possession of Licenses and Permits...................9
(xvii) Title to Property...................................10
(xviii) Investment Company Act..............................10
(xix) Environmental Laws..................................10
(xx) Registration Rights.................................11
(xxi) Year 2000 Problem...................................11
(xxii) Insurance...........................................11
(xxiii) Relationships with Directors and Stockholders.......11
(xxiv) Compliance with Cuba Act............................11
(b) Representations and Warranties by the Selling Shareholders....11
(i) Accurate Disclosure.................................11
(ii) Authorization of Agreements.........................12
(iii) Good and Marketable Title...........................12
(iv) Due Execution of Irrevocable Power of Attorney and
Custody Agreement...................................12
(v) Absence of Manipulation.............................13
(vi) Absence of Further Requirements.....................13
(vii) Restriction on Sale of Securities...................13
(viii) Certificates Suitable for Transfer..................13
(ix) No Association with NASD............................14
(c) Officer's Certificates........................................14
i
<PAGE>
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing...............14
(a) Initial Securities............................................14
(b) Option Securities.............................................14
(c) Payment.......................................................15
(d) Denominations; Registration...................................15
SECTION 3. Covenants of the Company......................................16
(a) Compliance with Securities Regulations and Commission
Requests......................................................16
(b) Filing of Amendments..........................................16
(c) Delivery of Registration Statements...........................16
(d) Delivery of Prospectuses......................................17
(e) Continued Compliance with Securities Laws.....................17
(f) Blue Sky Qualifications.......................................17
(g) Rule 158......................................................18
(h) Use of Proceeds...............................................18
(i) Listing.......................................................18
(j) Restriction on Sale of Securities.............................18
(k) Reporting Requirements........................................18
(l) Compliance with NASD Rules....................................19
(m) Compliance with Rule 463......................................19
SECTION 4. Payment of Expenses...........................................19
(a) Expenses......................................................19
(b) Expenses of the Selling Shareholders..........................20
(c) Termination of Agreement......................................20
SECTION 5. Conditions of U.S. Underwriters' Obligations..................20
(a) Effectiveness of Registration Statement.......................20
(b) Opinion of Counsel for Company................................20
(c) Opinion of Patent Counsel for Company.........................21
(d) Opinion of Counsel for Selling Shareholders...................21
(e) Opinion of Counsel for U.S. Underwriters......................21
(f) Officers' Certificate.........................................21
(g) Certificate of Selling Shareholders...........................22
(h) Accountants' Comfort Letter...................................22
(i) Bring-down Comfort Letter.....................................22
(j) Approval of Listing...........................................22
(k) Amended Charter Documents.....................................22
(l) No Objection..................................................22
(m) Lock-up Agreements............................................23
(n) Downgrade of Company's Securities.............................23
(o) Purchase of Initial International Securities..................23
(p) Conditions to Purchase of U.S. Option Securities..............23
(q) Additional Documents..........................................24
(r) Termination of Agreement......................................24
ii
<PAGE>
SECTION 6. Indemnification...............................................25
(a) Indemnification of U.S. Underwriters..........................25
(b) Indemnification of Company, Directors, Officers and Selling
Shareholders..................................................27
(c) Actions Against Parties; Notification.........................27
(d) Settlement Without Consent if Failure to Reimburse............28
(e) Indemnification for Reserved Securities.......................28
(f) Other Agreements with Respect to Indemnification..............28
SECTION 7. Contribution..................................................28
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery......................................................30
SECTION 9. Termination of Agreement......................................30
(a) Termination; General..........................................30
(b) Liabilities...................................................30
SECTION 10.Default by One or More of the U.S. Underwriters...............31
SECTION 11.Default by One or More of the Selling Shareholders or
the Company...................................................31
SECTION 12.Notices.......................................................32
SECTION 13.Parties.......................................................32
SECTION 14.GOVERNING LAW AND TIME........................................33
SECTION 15.Effect of Headings............................................33
SCHEDULES
Schedule A - List of U.S. Underwriters..............................Sch A-1
Schedule B - List of Selling Shareholders...........................Sch B-1
Schedule C - Pricing Information....................................Sch C-1
Schedule D - List of Persons and Entities Subject to Lock-up........Sch D-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel........................A-1
Exhibit B - Form of Opinion of Timothy O. White.........................B-1
Exhibit C - Form of Opinion of Patent Counsel for the Company...........C-1
Exhibit D - Form of Opinion of Selling Shareholders' Counsel........... D-1
Exhibit E - Form of Lock-up Letter..................................... E-1
iii
<PAGE>
EXHIBIT 1.2
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
2,400,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
Dated: April , 2000
<PAGE>
PACKARD BIOSCIENCE COMPANY
(a Delaware corporation)
2,400,000 Shares of Common Stock
(Par Value $.002 Per Share)
INTERNATIONAL PURCHASE AGREEMENT
--------------------------------
April , 2000
MERRILL LYNCH INTERNATIONAL
Chase Manhattan International Limited
Robert W. Baird & Co. Incorporated
Bank of America International Limited
Thomas Weisel International Limited
as Lead Managers of the several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Packard BioScience Company, a Delaware corporation (the "COMPANY"), and the
persons listed in Schedule B hereto (the "SELLING SHAREHOLDERS") confirm their
respective agreements with Merrill Lynch International ("MERRILL LYNCH") and
each of the other international underwriters named in Schedule A hereto
(collectively, the "INTERNATIONAL MANAGERS", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
Merrill Lynch and Chase Manhattan International Limited, Robert W. Baird & Co.
Incorporated, Bank of America Limited, and Thomas Weisel International Limited
are acting as representatives (in such capacity, the "LEAD MANAGERS"), with
respect to (i) the issue and sale by the Company and the purchase by the
International Managers, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $.002 per share, of the Company
("COMMON STOCK") set forth in said Schedule A, and (ii) the grant by the Company
and the Selling Shareholders to the International Managers, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 360,000 additional shares of Common Stock to cover over-allotments,
if any, of which up to 55,560 shares of Common Stock may be sold by the Selling
Shareholders.
<PAGE>
The aforesaid 2,400,000 shares of Common Stock (the "INITIAL INTERNATIONAL
SECURITIES") to be purchased by the International Managers, all or any part of
the 360,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "INTERNATIONAL OPTION SECURITIES"), are hereinafter called,
collectively, the "INTERNATIONAL SECURITIES". The International Option
Securities are to be sold by the Company and the Selling Shareholders acting
severally and not jointly.
It is understood that the Company and the Selling Shareholders are
concurrently entering into an agreement dated the date hereof (the "U.S.
PURCHASE AGREEMENT") providing for the offering by the Company of an aggregate
of 9,600,000 shares of Common Stock (the "INITIAL U.S. SECURITIES") through
arrangements with certain underwriters in the United States and Canada (the
"U.S. UNDERWRITERS") for which Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Chase Securities Inc., Robert W. Baird & Co. Incorporated, Banc
of America Securities LLC, and Thomas Weisel Partners LLC are acting as
representatives (the "U.S. REPRESENTATIVES"), and the grant by the Company and
the Selling Shareholders to the U.S. Underwriters, acting severally and not
jointly, of an option to purchase all or any part of up to 1,440,000 additional
shares of Common Stock solely to cover over-allotments, if any (the "U.S. OPTION
SECURITIES" and, together with the International Option Securities, the "OPTION
SECURITIES"), of which up to 222,240 shares of Common Stock may be sold by the
Selling Shareholders. The U.S. Option Securities are to be sold by the Company
and the Selling Shareholders acting severally and not jointly.
The Initial U.S. Securities and the U.S. Option Securities are hereinafter
called the "U.S. SECURITIES". It is understood that the Company is not
obligated to sell and the International Managers are not obligated to purchase,
any Initial International Securities unless all of the Initial U.S. Securities
are contemporaneously purchased by the U.S. Underwriters.
The International Managers and the U.S. Underwriters are hereinafter
collectively called the "UNDERWRITERS", the Initial International Securities and
the Initial U.S. Securities are hereinafter collectively called the "INITIAL
SECURITIES", and the International Securities and the U.S. Securities are
hereinafter collectively called the "SECURITIES".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "INTERSYNDICATE AGREEMENT") providing for the
coordination of certain transactions among the Underwriters under the direction
of Merrill Lynch (in such capacity, the "GLOBAL COORDINATOR").
The Company understands that the International Managers propose to make a
public offering of the International Securities as soon as the Lead Managers
deem advisable after this Agreement has been executed and delivered.
The Company and the Underwriters agree that up to 1,200,000 shares of the
Initial Securities to be purchased by the Underwriters (the "RESERVED
SECURITIES") shall be reserved for sale by the Underwriters to certain eligible
employees and persons having business relationships
2
<PAGE>
with the Company, as part of the distribution of the Securities by the
Underwriters, subject to the terms of this Agreement, the applicable rules,
regulations and interpretations of the National Association of Securities
Dealers, Inc. and all other applicable laws, rules and regulations. To the
extent that such Reserved Securities are not orally confirmed for purchase by
such eligible employees and persons having business relationships with the
Company by the end of the first business day after the date of this Agreement,
such Reserved Securities may be offered by the Underwriters as part of the
offering contemplated hereby.
On March 21, 2000, the Company amended its certificate of incorporation to
change the authorized capital stock of the Company to consist of 200,000,000
shares of Common Stock and 1,000,000 shares of preferred stock, par value $.01
per share, of the Company (the "CHARTER AMENDMENT"), and to convert each
outstanding share of Common Stock into 5 shares of Common Stock (the "STOCK
SPLIT" and, together with the Charter Amendment, the "RECAPITALIZATION").
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement on Form S-1 (No. 333-31996) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 ACT"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will
prepare and file a prospectus in accordance with the provisions of Rule 430A
("RULE 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 ACT REGULATIONS") and paragraph (b) of Rule 424 ("RULE 424(B)") of
the 1933 Act Regulations. Two forms of prospectus are to be used in connection
with the offering and sale of the Securities: one relating to the U.S.
Securities (the "FORM OF U.S. PROSPECTUS") and one relating to the International
Securities (the "FORM OF INTERNATIONAL PROSPECTUS"). The Form of International
Prospectus is identical to the Form of U.S. Prospectus, except for the front
cover and back cover pages and the information under the caption "UNDERWRITING."
The information included in any such prospectus that was omitted from such
registration statement at the time it became effective but that is deemed to be
part of such registration statement at the time it became effective (a) pursuant
to paragraph (b) of Rule 430A is referred to as "RULE 430A INFORMATION". Each
Form of International Prospectus and Form of U.S. Prospectus used before such
registration statement became effective, and any prospectus that omitted the
Rule 430A Information, that was used after such effectiveness and prior to the
execution and delivery of this Agreement, is herein called a "PRELIMINARY
PROSPECTUS." Such registration statement, including the exhibits thereto and
schedules thereto at the time it became effective and including the Rule 430A
Information is herein called the "REGISTRATION STATEMENT." Any registration
statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the "RULE 462(B) REGISTRATION STATEMENT," and after such filing
the term "REGISTRATION STATEMENT" shall include the Rule 462(b) Registration
Statement. The final Form of International Prospectus and the final Form of U.S.
Prospectus in the forms first furnished to the Underwriters for use in
connection with the offering of the Securities are herein called the
"INTERNATIONAL PROSPECTUS" and the "U.S. PROSPECTUS," respectively, and
collectively, the "PROSPECTUSES." For purposes of this Agreement, all references
to the Registration Statement, any preliminary prospectus, the International
Prospectus, the U.S. Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include
3
<PAGE>
the copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("EDGAR").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each International Manager as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each International
Manager, as follows:
(i) Compliance with Registration Requirements . Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of the
Company, are contemplated by the Commission, and any request on the part of
the Commission for additional information has been complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any International Option
Securities are purchased, at the Date of Delivery), the Registration
Statement, the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects with
the requirements of the 1933 Act and the 1933 Act Regulations and did not
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein not misleading. Neither of the Prospectuses nor any
amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectuses or any amendments or supplements thereto were
issued and at the Closing Time (and, if any International Option Securities
are purchased, at the Date of Delivery), included or will include an untrue
statement of a material fact or omitted or will omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; and the
Prospectuses, any preliminary prospectuses and any supplement thereto or
prospectus wrapper prepared in connection therewith, at their respective
times of issuance and at the Closing Time, complied and will comply in all
material respects with any applicable securities laws or regulations of
foreign jurisdictions in which the Prospectuses and such preliminary
prospectuses, as amended or supplemented, if applicable, are distributed in
connection with the offer and sale of Reserved Securities. The
representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the
Prospectuses or any amendments or supplements thereto (including any
prospectus wrapper) made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter through
the
4
<PAGE>
Lead Managers expressly for use in the Registration Statement or the
Prospectuses or any amendments or supplements thereto (including any
prospectus wrapper).
Each preliminary prospectus and the prospectuses filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424(b), complied when so filed in all
material respects with the 1933 Act Regulations and each preliminary
prospectus and the Prospectuses delivered to the Underwriters for use in
connection with this offering was identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR,
except to the extent otherwise permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedule and notes, present fairly the financial position of the Company
and its consolidated subsidiaries at the dates indicated and the statement
of operations, stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements have been prepared in conformity with United States generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as set forth in the notes
thereto). The supporting schedule included in the Registration Statement
present fairly in accordance with GAAP the information required to be
stated therein. The selected financial data and the summary financial
information included in the Prospectuses present fairly the information
shown therein and have been compiled on a basis consistent with that of
the audited financial statements included in the Registration Statement.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein or in any amendment or
supplement thereto, (A) there has been no material adverse change in the
condition, financial or otherwise, results of operation, business affairs
or business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"MATERIAL ADVERSE EFFECT"), (B) there has been no transaction entered into
by the Company or any of its subsidiaries, other than those in the ordinary
course of business, which is material with respect to the Company and its
subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly organized
and is validly existing as a corporation in good standing under the laws of
the State of
5
<PAGE>
Delaware and has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the Prospectuses
and to enter into and perform its obligations under this Agreement; and the
Company is duly qualified as a foreign corporation to transact business and
is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or
the conduct of business, except where the failure so to qualify or to be in
good standing could not reasonably be expected to result in a Material
Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARIES. Each "significant subsidiary" of
the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each
a "SUBSIDIARY" and, collectively, the "SUBSIDIARIES") has been duly
organized and is validly existing as a corporation in good standing under
the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and to conduct its
business as described in the Prospectuses and is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of
the ownership or leasing of property or the conduct of business, except
where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the
Registration Statement, (including with respect to the credit agreement
referred to in Exhibit 10.2 to the Registration Statement and the
amendments thereto (the "CREDIT AGREEMENT")), all of the issued and
outstanding capital stock of each such Subsidiary has been duly authorized
and validly issued, is fully paid and non-assessable and is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the
outstanding shares of capital stock of any Subsidiary was issued in
violation of the preemptive or similar rights of any securityholder of such
Subsidiary. All Subsidiaries of the Company are listed on Exhibit 21 to the
Registration Statement.
(vii) CAPITALIZATION. The Company had at the date indicated, a duly
issued, authorized and outstanding capitalization as set forth in the
Prospectuses in the column entitled "Actual" under the caption
"Capitalization" and notes thereto. The shares of issued and outstanding
capital stock of the Company have been duly authorized and validly issued
and are fully paid and non-assessable; none of the Initial Securities was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company; none of the outstanding shares of capital
stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company with the exception of
the issuance by the Company of an aggregate of 26,500 authorized but
unissued shares of Common Stock (the "ISSUED SHARES") in three separate
issuances (the equivalent of 465,000 shares of the presently outstanding
Common Stock in the aggregate), in March 1987, March 1988 and March 1989
(collectively, the "STOCK ISSUANCES"); with respect to the Issued Shares,
to the Company's knowledge, the holders of then-outstanding Common Stock
did not seek to exercise, and neither such holders nor any successor,
transferee or purchaser for value of such Common Stock outstanding
6
<PAGE>
immediately prior to the Stock Issuances have, at any time since,
threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to
bring, any claim at law or in equity challenging the Stock Issuances; to
the Company's knowledge none of the Option Securities was issued in
violation of the preemptive or other similar rights of any securityholder
of the Company.
(viii) AUTHORIZATION OF AGREEMENT. This Agreement and the U.S.
Purchase Agreement have been duly authorized, executed and delivered by the
Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities to be
purchased by the International Managers and the U.S. Underwriters from the
Company have been duly authorized by the Company for issuance and sale to
the International Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement, respectively, and,
when issued and delivered by the Company pursuant to this Agreement and the
U.S. Purchase Agreement, respectively, against payment to the Company of
the consideration set forth herein and the U.S. Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable; the
Common Stock conforms in all material respects to all statements relating
thereto contained in the Prospectuses and the description of the Common
Stock under the caption "Description of Capital Stock" summarizes in all
material respects the rights set forth in the instruments defining the
same; no holder of the Securities to be sold by the Company will be subject
to personal liability by reason of being such a holder; and the issuance of
the Securities by the Company is not subject to the preemptive or other
similar rights of any securityholder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any of
its subsidiaries is in violation of its charter or by-laws or in default in
the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "AGREEMENTS AND
INSTRUMENTS") except for such defaults that could not reasonably be
expected to result in a Material Adverse Effect; and the execution,
delivery and performance by the Company of this Agreement and the U.S.
Purchase Agreement and the consummation by it of the transactions
contemplated in this Agreement, the U.S. Purchase Agreement and in the
Registration Statement (including the issuance and sale by the Company of
the Securities and the use by it of the proceeds from the sale of the
Securities as described in the Prospectuses under the caption "Use of
Proceeds") and compliance by the Company with its obligations under this
Agreement and the U.S. Purchase Agreement have been duly authorized by all
necessary corporate action, including (if required) board approval, and do
not and will not, whether with or without the giving of notice or passage
of time or both, conflict with or constitute a breach of, or default or
Repayment Event (as defined below) under, or result in the creation or
7
<PAGE>
imposition of any lien, charge or encumbrance upon any property or assets
of the Company or any subsidiary pursuant to, the Agreements and
Instruments (except for such conflicts, breaches, defaults, Repayment
Events, or liens, charges or encumbrances that could not reasonably be
expected to result in a Material Adverse Effect), nor will such action
result in any violation by the Company (A) of the provisions of the charter
or by-laws of the Company or any Subsidiary or (B) any existing applicable
law, statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of their
assets, properties or operations except, in the case of (B) for such
violations that could not reasonably be expected to result in a Material
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees of
the Company or any subsidiary exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any subsidiary's principal
suppliers, manufacturers, customers or contractors, which, in either case,
could reasonably be expected to result in a Material Adverse Effect.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which could reasonably be expected to
result in a Material Adverse Effect, or which could reasonably be expected
to materially and adversely affect the value of the properties or assets of
the Company, in the aggregate, or the consummation of the transactions
contemplated in this Agreement and the U.S. Purchase Agreement or the
performance by the Company of its obligations hereunder or thereunder; the
aggregate of all pending legal or governmental proceedings to which the
Company or any subsidiary is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statement, including ordinary routine litigation incidental to
the business, could not reasonably be expected to result in a Material
Adverse Effect.
(xiii) ACCURACY OF EXHIBITS. There are no contracts or documents
required pursuant to the 1933 Act to be described in the Registration
Statement or the Prospectuses or to be filed as exhibits thereto which have
not been so described and filed as required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and its
subsidiaries own or possess, or believe they can acquire on reasonable
terms, adequate patents, patent
8
<PAGE>
rights, licenses, inventions, copyrights, know-how (including trade secrets
and other unpatented and/or unpatentable proprietary or confidential
information, systems or procedures), trademarks, service marks, trade names
or other intellectual property (collectively, "INTELLECTUAL PROPERTY")
necessary to carry on their business as presently conducted (except as the
failure to own, possess or acquire such Intellectual Property could not
reasonably be expected to have a Material Adverse Effect), and, except as
disclosed in the Prospectuses, neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any
infringement of or conflict with asserted rights of others with respect to
any Intellectual Property or of any facts or circumstances which would
render any Intellectual Property invalid or inadequate to protect the
interest of the Company or any of its subsidiaries therein, except for such
infringements, conflicts, invalidities and inadequacies that could not
reasonably be expected to result in a Material Adverse Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of
the Securities under this Agreement and the U.S. Purchase Agreement or the
consummation by it of the transactions contemplated by this Agreement and
the U.S. Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
under the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common Stock
or under state securities or blue sky laws or (except with respect to the
Reserved Securities) under foreign securities laws, (ii) such as have been
already obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered, (iii) which
shall have been obtained or made prior to Closing Time or, if applicable,
the Time of Delivery and (iv) such as have been already obtained or as may
be required under the laws and regulations of jurisdictions outside the
United States in which the Securities (other then the Reserved Securities)
are offered.
(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess all material permits, licenses, approvals, consents
and other authorizations (collectively, "GOVERNMENTAL LICENSES") issued by
the appropriate federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business presently conducted by them; the
Company and its subsidiaries are in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so
to comply could not reasonably be expected to result in a Material Adverse
Effect; all of the Governmental Licenses are valid and in full force and
effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect could
not reasonably be expected to result in a Material Adverse Effect; and
neither the Company nor any of its subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such
Governmental Licenses which could reasonably be expected to result in a
Material Adverse Effect.
9
<PAGE>
(xvii) TITLE TO PROPERTY. The Company and its subsidiaries have good
and marketable title to all real and personal properties owned by them,
free and clear of all mortgages, pledges, liens, security interests,
claims, restrictions or encumbrances of any kind except, in each case, (a)
as described in the Prospectuses (including with respect to the Credit
Agreement) or (b) such as are neither material in amount nor material in
relation to the business presently conducted by the Company and its
subsidiaries, considered as one enterprise; and all of the leases and
subleases material to the business of the Company and its subsidiaries,
considered as one enterprise, and under which the Company or any of its
subsidiaries holds properties described in the Prospectuses, are in full
force and effect, and neither the Company nor any subsidiary has any notice
of any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any subsidiary under any of the leases or
subleases mentioned above, or affecting or questioning the rights of the
Company or such subsidiary to the continued possession of the leased or
subleased premises under any such lease or sublease, except for such claims
that could not reasonably be expected to result in a Material Adverse
Effect.
(xviii) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended (the "1940 ACT") and the rules and regulations of the
Commission thereunder.
(xix) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement or except as could not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (A) neither the Company
nor any of its subsidiaries is in violation of any existing federal, state,
local or foreign statute, law, rule, regulation, ordinance, code, policy or
rule of common law or any judicial or administrative interpretation
thereof, including any judicial or administrative order, consent, decree or
judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or
threatened release of chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, petroleum or petroleum products
(collectively, "HAZARDOUS MATERIALS") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, "ENVIRONMENTAL LAWS"), (B) each of the
Company and its subsidiaries has all permits, authorizations and approvals
required under any applicable Environmental Laws and is in compliance with
their requirements, (C) there are no pending or, to the knowledge of the
Company, threatened, administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of noncompliance or
violation, investigation or proceedings relating to any Environmental Law
against the Company or any of its
10
<PAGE>
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any of its
subsidiaries relating to Hazardous Materials or any Environmental Laws.
(xx) REGISTRATION RIGHTS. Except as disclosed in the Prospectuses,
there are no persons with registration rights or other similar rights to
have any securities registered pursuant to the Registration Statement.
(xxi) YEAR 2000 PROBLEM. Neither the Company nor any of its
Subsidiaries has experienced any disruptions of its operations as a result
of Year 2000 issues, except as could not reasonably be expected to have a
Material Adverse Effect. The Company has no reason to believe, and does not
believe, that the Year 2000 issue will have a material adverse effect on
the general affairs, management, the current or future consolidated
financial position, business prospects, stockholders' equity or results of
operations of the Company and its subsidiaries or result in any material
loss or interference with the Company's business or operations.
(xxii) INSURANCE. The Company and its subsidiaries carry or are
entitled to the benefits of insurance, with financially sound and reputable
insurers, in such amounts and covering such risks as is generally
maintained by companies of established repute engaged in the same or
similar business, and all such insurance is in full force and effect.
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS. No
relationship, direct or indirect, exists between or among any of the
Company or any affiliate of the Company, on the one hand, and any director,
officer or stockholder of any of them, on the other hand, which is required
by the 1933 Act or by the 1933 Act Regulations to be described in the
Registration Statement or the Prospectuses which is not so described or is
not described as required.
(xxiv) COMPLIANCE WITH CUBA ACT. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as Section
517.075 of the Florida statutes, and the rules and regulations thereunder,
or is exempt therefrom.
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS. Each
Selling Shareholder severally and not jointly represents and warrants to each
International Manager as of the date hereof, as of the Closing Time, and, if
such Selling Shareholder is selling Option Securities on a Date of Delivery, as
of such Date of Delivery, and agrees with each International Manager, as
follows:
11
<PAGE>
(i) ACCURATE DISCLOSURE. To the actual knowledge of each Selling
Shareholder, the representations and warranties of the Company contained in
Section 1(a) hereof are true and correct; such Selling Shareholder has
reviewed and is familiar with the Registration Statement and the
Prospectuses and to such Selling Shareholder's actual knowledge neither the
Prospectuses nor any amendments or supplements thereto (including any
prospectus wrapper) contains any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; such Selling Shareholder is not prompted to sell the Securities
to be sold by such Selling Shareholder hereunder by any information
concerning the Company or any subsidiary of the Company which is not set
forth in the Prospectuses.
(ii) AUTHORIZATION OF AGREEMENTS. Such Selling Shareholder has the
full right, power and authority to enter into this Agreement and an
Irrevocable Power of Attorney and Custody Agreement (the "IRREVOCABLE POWER
OF ATTORNEY AND CUSTODY AGREEMENT") and to sell, transfer and deliver the
Securities to be sold by such Selling Shareholder hereunder. The execution
and delivery of this Agreement and the Irrevocable Power of Attorney and
Custody Agreement and the sale and delivery of the Securities to be sold by
such Selling Shareholder and the consummation by him of the transactions
contemplated herein and compliance by such Selling Shareholder with its
obligations hereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a
breach of, or default under, or result in the creation or imposition of any
tax, lien, charge or encumbrance upon the Securities to be sold by such
Selling Shareholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other agreement or
instrument to which such Selling Shareholder is a party or by which such
Selling Shareholder may be bound.
(iii) RIGHT TO TRANSFER SECURITIES. The Securities to be sold by such
Selling Shareholder pursuant to this Agreement and the U.S. Purchase
Agreement are certificated securities in registered form and are not held
in any securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in the State
of New York (the "NYUCC"). Such Selling Shareholder has, and, at the
Closing Time and, if any Option Securities are purchased, on the Date of
Delivery, will have, full right, power and authority to hold, sell,
transfer and deliver the Securities to be sold by such Selling Shareholder
pursuant to this Agreement and the International Purchase Agreement; and
upon the Underwriters' acquiring possession of such Securities and paying
the purchase price therefor as herein contemplated, the Underwriters will
acquire their respective interests in such Securities (including, without
limitation, all rights that such Selling Shareholder had or has the power
to transfer in such Securities) free of any "adverse claim" assuming that
each Underwriter does not have "notice" of any "adverse claim" to such
Securities (as such terms are defined in Sections 8-102 and 8-105 of the
NYUCC as currently in effect). Certificates for all of the Option
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank, with signatures
guaranteed, have been placed in custody with the custodian under the
Irrevocable Power of Attorney and Custody Agreement with irrevocable
conditional instructions to deliver such Option Securities to the
Underwriters pursuant to this Agreement.
12
<PAGE>
(iv) DUE EXECUTION OF THE IRREVOCABLE POWER OF ATTORNEY AND CUSTODY
AGREEMENT. Such Selling Shareholder has duly executed and delivered, in the
form heretofore furnished to the Lead Managers, the Irrevocable Power of
Attorney and Custody Agreement with Timothy O. White, Jr. and William H.
Cuddy, or either of them, as attorneys-in-fact (the "ATTORNEYS-IN-FACT")
and the Company, as custodian (the "CUSTODIAN"); the Custodian is
authorized to deliver the Securities to be sold by such Selling Shareholder
hereunder and to accept payment therefor; and each Attorney-in-Fact is
authorized to execute and deliver this Agreement and the certificate
referred to in Section 5(g) or that may be required pursuant to Sections
5(p) and 5(q) on behalf of such Selling Shareholder, to sell, assign and
transfer to the International Managers the Securities to be sold by such
Selling Shareholder hereunder, to determine the purchase price to be paid
by the International Managers to such Selling Shareholder, as provided in
Section 2(b) hereof, to authorize the delivery of the Securities to be sold
by such Selling Shareholder hereunder, to accept payment therefor, and
otherwise to act on behalf of such Selling Shareholder in connection with
this Agreement.
(v) ABSENCE OF MANIPULATION. Such Selling Shareholder has not taken,
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(vi) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or consent,
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by such Selling Shareholder of
its obligations hereunder or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the sale and delivery of the
Securities hereunder by such Selling Shareholder or the consummation by
such Selling Shareholders of the transactions contemplated by this
Agreement, except (i) such as may have previously been made or obtained or
as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the Commission thereunder, with respect to the Common Stock,
or under state securities or blue sky laws or (except with respect to the
Reserved Securities) under foreign securities laws, (ii) such as have been
already obtained under the laws and regulations of jurisdictions outside
the United States in which the Reserved Securities are offered, (iii) which
shall have been obtained or made prior to Closing Time or, if applicable,
the Time of Delivery, and (iv) such as have been already obtained or as may
be required under the laws and regulations of jurisdictions outside the
United States in which the Securities (other than the Reserved Securities)
are offered.
(vii) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, such Selling Shareholder will be subject
to the restrictions set forth in EXHIBIT E hereto and such Selling
Shareholder agrees and consents to the entry of stop transfer instructions
with the Company's transfer agent and registrar against the transfer of
such Selling Shareholder's securities except in compliance with such
restrictions.
13
<PAGE>
(viii) CERTIFICATES SUITABLE FOR TRANSFER. Certificates for all of the
Securities to be sold by such Selling Shareholder pursuant to this
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with the Custodian with irrevocable
conditional instructions to deliver such Securities to the International
Mangers pursuant to this Agreement.
(ix) NO ASSOCIATION WITH NASD. Neither such Selling Stockholder nor
any of its affiliates directly, or indirectly through one or more
intermediaries, controls, or is controlled by, or is under common control
with, or has any other association with (within the meaning of Article I,
Section 1(m) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities
Dealers, Inc.
(c) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the Lead
Managers or to counsel for the International Managers shall be deemed a
representation and warranty by the Company to each International Manager as to
the matters covered thereby and any certificate signed by or on behalf of the
Selling Shareholders as such and delivered to the Lead Managers or to counsel
for International Managers pursuant to the terms of this Agreement shall be
deemed a representation and warranty by such Selling Shareholder to the
International Managers as to the matters covered thereby.
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each International Manager, severally and not jointly,
and each International Manager, severally and not jointly, agrees to purchase
from the Company, at the price per share set forth in Schedule C, the number of
Initial International Securities set forth in Schedule A opposite the name of
such International Manager, plus any additional number of Initial International
Securities which such International Manager may become obligated to purchase
pursuant to the provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company and the Selling Shareholders, acting severally and not
jointly, hereby grant an option to the International Managers, severally and not
jointly, to purchase up to an additional 360,000 shares of Common Stock, as set
forth in Schedule B at the price per share set forth in Schedule C. The option
hereby granted will expire 30 days after the date hereof and may be exercised in
whole or in part from time to time only for the purpose of covering
over-allotments which may be made in connection
14
<PAGE>
with the offering and distribution of the Initial International Securities upon
notice by the Global Coordinator to the Company and the Selling Shareholders
setting forth the number of International Option Securities as to which the
several International Managers are then exercising the option and the time and
date of payment and delivery for such International Option Securities. Any such
time and date of delivery for the International Option Securities (a "DATE OF
DELIVERY") shall be determined by the Global Coordinator, but shall not be later
than seven full business days after the exercise of said option, nor in any
event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the International Option Securities, each
of the International Managers, acting severally and not jointly, will purchase
that proportion of the total number of International Option Securities then
being purchased which the number of Initial International Securities set forth
in Schedule A opposite the name of such International Manager bears to the total
number of Initial International Securities, subject in each case to such
adjustments as the Global Coordinator in its discretion shall make to eliminate
any sales or purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of
Shearman & Sterling, 599 Lexington Avenue, New York, New York, or at such other
place as shall be agreed upon by the Global Coordinator and the Company, at 9:00
A.M. (Eastern time) on the third (fourth, if the pricing occurs after 4:30 P.M.
(Eastern time) on any given day) business day after the date hereof (unless
postponed in accordance with the provisions of Section 10), or such other time
not later than ten business days after such date as shall be agreed upon by the
Global Coordinator and the Company (such time and date of payment and delivery
being herein called "CLOSING TIME").
In addition, in the event that any or all of the International Option
Securities are purchased by the International Managers, payment of the purchase
price for, and delivery of certificates for, such International Option
Securities shall be made at the above-mentioned offices, or at such other place
as shall be agreed upon by the Global Coordinator and the Company, on each Date
of Delivery as specified in the notice from the Global Coordinator to the
Company.
Payment shall be made to the Company and the Selling Shareholders by wire
transfer of immediately available funds to a bank account designated by the
Company and the Custodian pursuant to each Selling Shareholder's Irrevocable
Power of Attorney and Custody Agreement, as the case may be, against delivery
through the facilities of The Depository Trust Company to the Lead Managers for
the respective accounts of the International Managers of certificates for the
International Securities to be purchased by them. It is understood that each
International Manager has authorized the Lead Managers, for its account, to
accept delivery of, receipt for, and make payment of the purchase price for, the
Initial International Securities and the International Option Securities, if
any, which it has agreed to purchase. Merrill Lynch, individually and not as
representative of the International Managers, may (but shall not be obligated
to) make payment of the purchase price for the Initial International Securities
or the International Option Securities, if any, to be purchased by any
International Manager whose funds
15
<PAGE>
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such International Manager
from its obligations hereunder.
(c) DENOMINATIONS; REGISTRATION. Certificates for the Initial International
Securities and the International Option Securities, if any, shall be in such
denominations and registered in such names as the Lead Managers may request in
writing at least one full business day before the Closing Time or the relevant
Date of Delivery, as the case may be. The certificates for the Initial
International Securities and the International Option Securities, if any, will
be made available for examination and packaging by the Lead Managers in The City
of New York not later than 10:00 A.M. (Eastern time) on the business day prior
to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each
International Manager as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS.
The Company, subject to Section 3(b), will comply with the requirements of
Rule 430A and will notify the Global Coordinator immediately, and confirm
the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment
or supplement to the Prospectuses or for additional information, and (iv)
of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of
the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for
any of such purposes. The Company will effect the filings necessary
pursuant to and in compliance Rule 424(b) and will take such steps as it
deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b)), or any
amendment, supplement or revision to either any prospectus included in the
Registration Statement at the time it became effective or to the
Prospectuses, will furnish the Global Coordinator with copies of any such
documents a reasonable amount of time prior to such proposed filing or use,
as the case may be, and will not file or use any such document to which the
Global Coordinator and counsel for the International Managers shall
reasonably object.
16
<PAGE>
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or
will, if so requested furnish to the Lead Managers and counsel for the
International Managers, without charge, signed copies of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith) and signed copies of all consents and
certificates of experts, and will, if so requested, also furnish to the
Lead Managers, without charge, one conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without
exhibits) for each of the International Managers. The copies of the
Registration Statement and each amendment thereto furnished to the other
International Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the
extent otherwise permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each
International Manager, without charge, as many copies of each preliminary
prospectus as such International Manager reasonably requested, and the
Company hereby consents to the use of such copies for purposes permitted by
the 1933 Act. The Company will furnish to each International Manager,
without charge, during the period when the International Prospectus is
required to be delivered under the 1933 Act or the Securities Exchange Act
of 1934 (the "1934 Act"), such number of copies of the International
Prospectus (as amended or supplemented) as such International Manager may
reasonably request. The International Prospectus and any amendments or
supplements thereto furnished to the International Managers will be
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent otherwise permitted by
Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
in all material respects with the 1933 Act and the 1933 Act Regulations so
as to permit the completion of the distribution of the Securities as
contemplated in this Agreement, the U.S. Purchase Agreement and in the
Prospectuses. If at any time when a prospectus is required by the 1933 Act
to be delivered in connection with sales of the Securities, any event shall
occur or condition shall exist as a result of which it is necessary, in the
opinion of counsel for the International Managers or for the Company, to
amend the Registration Statement or amend or supplement any Prospectus in
order that the Prospectuses will not include any untrue statements of a
material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances
existing at the time any such Prospectus is delivered to a purchaser, or if
it shall be necessary, in the opinion of such counsel, at any such time to
amend the Registration Statement or amend or supplement any Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly, upon becoming aware of such event,
condition or circumstance, prepare and file with the Commission, subject to
Section 3(b), such amendment or supplement as may be necessary to correct
such statement or omission or to make the Registration Statement or the
Prospectuses comply with such requirements, and the Company will furnish to
the
17
<PAGE>
International Managers such number of copies of such amendment or
supplement as the International Managers may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the International Managers, to qualify the Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions (domestic or foreign) as the Global Coordinator may
designate and to maintain such qualifications in effect for a period of not
less than one year from the later of the effective date of the Registration
Statement and any Rule 462(b) Registration Statement; PROVIDED, HOWEVER,
that the Company shall not be obligated to file any general consent to
service of process or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each jurisdiction in which the
Securities have been so qualified, the Company will file such statements
and reports as may be required by the laws of such jurisdiction to continue
such qualification in effect for a period of not less than one year from
the effective date of the Registration Statement and any Rule 462(b)
Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the
purposes of, and to provide the benefits contemplated by, the last
paragraph of Section 11(a) of the 1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by
it from the sale of the Securities in the manner specified in the
Prospectuses under "Use of Proceeds".
(i) LISTING. The Company will use its best efforts to effect and
maintain the quotation of the Securities on the Nasdaq National Market and
will file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days
from the date of the Prospectuses, the Company will not, without the prior
written consent of the Global Coordinator, (i) directly or indirectly,
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or file any registration statement under the
1933 Act with respect to any of the foregoing or (ii) enter into any swap
or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i)
or (ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to
(A) the Securities, including the Reserved Securities,
18
<PAGE>
to be sold hereunder or under the U.S. Purchase Agreement, (B) any shares
of Common Stock issued by the Company upon the exercise of an option or
warrant or the conversion of a security outstanding on the date hereof and
referred to in the Prospectuses, (C) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to existing employee
benefit plans of the Company referred to in the Prospectuses or (D) any
shares of Common Stock issued pursuant to any non-employee director stock
plan or dividend reinvestment plan.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934
Act, will file all documents required to be filed with the Commission
pursuant to the 1934 Act within the time periods required by the 1934 Act
and the rules and regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD
rules from sale, transfer, assignment, pledge or hypothecation for a period
of three months following the date of this Agreement. The Underwriters will
notify the Company as to which persons will need to be so restricted. At
the request of the Underwriters, the Company will direct the transfer agent
to place a stop transfer restriction upon such securities for such period
of time. Should the Company release, or seek to release, from such
restrictions any of the Reserved Securities, the Company agrees to
reimburse the Underwriters for any reasonable expenses (including, without
limitation, legal expenses) they incur in connection with such release.
(m) COMPLIANCE WITH RULE 463. The Company will include in its periodic
reports filed with the Commission pursuant to the 1934 Act such information
as may be required pursuant to Rule 463 of the 1933 Act Regulation.
SECTION 4. PAYMENT OF EXPENSES. (a) EXPENSES. The Company will pay all
expenses incident to the performance of its and the Selling Shareholders'
obligations (except as set forth in Section 4(b)) under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities
19
<PAGE>
under securities laws in accordance with the provisions of Section 3(f) hereof,
including filing fees and the reasonable fees and disbursements of counsel for
the Underwriters in connection therewith and in connection with the preparation
of the Blue Sky Survey and any supplement thereto, (vi) the printing and
delivery to the Underwriters of copies of each preliminary prospectus, and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to, and the
reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review by the National Association of Securities Dealers, Inc. (the
"NASD") of the terms of the sale of the Securities (x) the fees and expenses
incurred in connection with the inclusion of the Securities in the Nasdaq
National Market and (xi) all costs and expenses of the Underwriters, including
reasonable fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities.
(b) EXPENSES OF THE SELLING SHAREHOLDERS. The Selling Shareholders, jointly
and severally, will pay all expenses related to (i) any stamp duties, capital
duties and stock transfer taxes, if any, payable upon the sale of the Securities
to the International Managers, and their transfer between the International
Managers pursuant to an agreement between such International Managers, and (ii)
the fees and disbursements of their respective counsel if other than Day, Berry
& Howard LLP,. and accountants if other than Arthur Andersen LLP.
(c) TERMINATION OF AGREEMENT. If this Agreement is terminated by the Lead
Managers in accordance with the provisions of Section 5, Section 9(a)(i) or
Section 11 hereof, the Company shall reimburse the International Managers for
all of their out-of-pocket expenses, including reasonable fees and disbursements
of counsel for the International Managers.
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The
obligations of the several International Managers hereunder are subject to the
accuracy of the representations and warranties of the Company and the Selling
Shareholders contained in Section 1 hereof or in certificates of any officer of
the Company or any subsidiary of the Company or on behalf of any Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Shareholders of their respective covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration
Statement, including any Rule 462(b) Registration Statement, shall have
become effective and at Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the International Managers. A prospectus containing the Rule
430A Information shall have been filed with the Commission in accordance
with Rule 424(b) (or a post-effective
20
<PAGE>
amendment providing such information shall have been filed and declared
effective in accordance with the requirements of Rule 430A).
(b) OPINION OF COUNSEL FOR THE COMPANY. At Closing Time, the Lead
Managers shall have received the favorable opinion, dated as of Closing
Time, of Wachtell, Lipton, Rosen & Katz, counsel for the Company, together
with the favorable opinion of Timothy O. White, Jr., general counsel of the
Company, in form and substance satisfactory to counsel for the
International Managers, together with signed or reproduced copies of such
letters for each of the other International Managers to the effect set
forth in Exhibits A and B hereto, respectively, and to such further effect
as counsel to the International Managers may reasonably request.
(c) OPINION OF PATENT COUNSEL FOR THE COMPANY. At Closing Time, the
Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for the International Mangers,
together with signed or reproduced copies of such letter for each of the
other International Managers to the effect set forth in Exhibit C hereto
and to such further effect as counsel to the International Managers may
reasonably request.
(d) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. At Closing Time,
the Lead Managers shall have received the favorable opinion, dated as of
Closing Time, of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the U.S.
Underwriters, together with signed or reproduced copies of such letter for
each of the other International Managers, to the effect set forth in
Exhibit D hereto and to such further effect as counsel to the International
Managers may reasonably request.
(e) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. At Closing
Time, the Lead Managers shall have received the favorable opinion, dated as
of Closing Time, of Shearman & Sterling, counsel for the International
Managers, together with signed or reproduced copies of such letter for each
of the other International Managers with respect to the matters set forth
in clauses (i), (ii), (iii), (iv) (solely as to preemptive or other similar
rights arising by operation of law or under the charter or by-laws of the
Company), (viii) through (vii), inclusive, (viii), (ix) (solely as to the
information in the Prospectus under "Description of Capital Stock--Common
Stock" and "Material United States Federal Tax Considerations for Non-U.S.
Holders") and the penultimate paragraph of Exhibit A hereto. In giving such
opinion such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the law of the State of New York and the federal
law of the United States and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to the Lead Managers.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem
21
<PAGE>
proper, upon certificates of officers of the Company and its subsidiaries
and certificates of public officials.
(f) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information
is given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or results of operations, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business (a
"MATERIAL ADVERSE CHANGE"), and the Lead Managers shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such Material
Adverse Change, (ii) the representations and warranties in Section 1(a)
hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and has satisfied all conditions on its part to be
performed or satisfied under this Agreement at or prior to Closing Time,
and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending, to the best of their knowledge or are
contemplated by the Commission.
(g) CERTIFICATE OF SELLING SHAREHOLDERS. At Closing Time, the Lead
Managers shall have received a certificate of an Attorney-in-Fact on behalf
of each Selling Shareholder, dated as of Closing Time, to the effect that
(i) the representations and warranties of each Selling Shareholder
contained in Section 1(b) hereof are true and correct in all respects with
the same force and effect as though expressly made at and as of Closing
Time and (ii) each Selling Shareholder has complied in all material
respects with all agreements and has satisfied all conditions on its part
to be performed or satisfied under this Agreement at or prior to Closing
Time.
(h) ACCOUNTANTS' COMFORT LETTER. At the time of the execution of this
Agreement, the Lead Managers shall have received from Arthur Andersen LLP a
letter dated such date, in form and substance satisfactory to the Lead
Managers, together with signed or reproduced copies of such letter for each
of the other International Managers containing statements and information
of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement and the Prospectuses.
(i) BRING-DOWN COMFORT LETTER. At Closing Time, the Lead Managers
shall have received from Arthur Andersen LLP a letter, dated as of Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (i) of this Section 5, except that the
specified date referred to shall be a date not more than three business
days prior to Closing Time.
22
<PAGE>
(j) APPROVAL OF LISTING. At Closing Time, the Securities shall have
been approved for inclusion in the Nasdaq National Market, subject only to
official notice of issuance.
(k) AMENDED CHARTER DOCUMENTS. The certificate of incorporation and
by-laws of the Company have been amended as required by the
Recapitalization, and the Recapitalization has been duly authorized and
consummated by the Company.
(l) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the
underwriting terms and arrangements.
(m) LOCK-UP AGREEMENTS. At the date of this Agreement, the Lead
Managers shall have received an agreement substantially in the form of
Exhibit E hereto signed by the persons listed on Schedule D hereto.
(n) DOWNGRADE OF COMPANY'S SECURITIES. Between the date of this
Agreement and the Closing Time or any applicable Date of Delivery (if any),
there shall not have occurred any downgrading, nor shall any notice have
been given to the Company of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction of
the possible change, in the rating accorded any of the Company's securities
or in the rating outlook for the Company by any "nationally recognized
statistical rating organization", as such term is defined for purposes of
Rule 436(g)(2) under the Securities Act.
(o) PURCHASE OF INITIAL U.S. SECURITIES. Contemporaneously with the
purchase by the International Managers of the Initial International
Securities under this Agreement, the U.S. Underwriters shall have purchased
the Initial U.S. Securities under the U.S. Purchase Agreement.
(p) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES. In the
event that the International Managers exercise their option provided in
Section 2(b) hereof to purchase all or any portion of the International
Option Securities, the representations and warranties of the Company and
the Selling Shareholders contained herein and the statements in any
certificates furnished by the Company or on behalf of any Selling
Shareholder hereunder shall be true and correct (to the extent set forth
herein) as of each Date of Delivery and, at the relevant Date of Delivery,
the Lead Managers shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the President or a Vice President of the Company and of
the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at Closing Time pursuant to
Section 5(f) hereof remains true and correct (to the extent set forth
therein) as of such Date of Delivery.
23
<PAGE>
(ii) CERTIFICATE OF SELLING SHAREHOLDERS. A certificate, dated
such Date of Delivery, of an Attorney-in-Fact on behalf of each
Selling Shareholder confirming that the certificate delivered at
Closing Time pursuant to Section 5(g) hereof remains true and correct
(to the extent set forth therein) as of such Date of Delivery.
(iii) OPINION OF COUNSEL FOR THE COMPANY. The favorable opinion
of Wachtell, Lipton, Rosen & Katz, counsel for the Company, together
with the favorable opinion of Timothy O. White, Jr., general counsel
of the Company, each in form and substance satisfactory to counsel for
the International Managers, dated such Date of Delivery, relating to
the International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(b) hereof.
(iv) OPINION OF PATENT COUNSEL FOR THE COMPANY. The favorable
opinion of Jenkens & Gilchrist, patent counsel for the Company, in
form and substance satisfactory to counsel for International Managers,
dated such Date of Delivery, relating to the Option Securities to be
purchased on such Date of Delivery, and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(v) OPINION OF COUNSEL FOR THE SELLING SHAREHOLDERS. The
favorable opinion of Day, Berry & Howard LLP, counsel for the Selling
Shareholders, in form and substance satisfactory to counsel for the
International Managers, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery, and
otherwise to the same effect as the opinion required by Section 5(d)
hereof.
(vi) OPINION OF COUNSEL FOR THE INTERNATIONAL MANAGERS. The
favorable opinion of Shearman & Sterling, counsel for the
International Managers, dated such Date of Delivery, relating to the
International Option Securities to be purchased on such Date of
Delivery and otherwise to the same effect as the opinion required by
Section 5(e) hereof.
(vii) BRING-DOWN COMFORT LETTER. A letter from Arthur Andersen
LLP in form and substance satisfactory to the Lead Managers and dated
such Date of Delivery, substantially in the same form and substance as
the letter furnished to the Lead Managers pursuant to Section 5(i)
hereof, except that the "specified date" in the letter furnished
pursuant to this paragraph shall be a date not more than five days
prior to such Date of Delivery.
24
<PAGE>
(q) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of
Delivery, counsel for the International Managers shall have been furnished
with such documents and opinions as they may require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as
herein contemplated, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all proceedings taken by the Company and the Selling
Shareholders in connection with the issuance and sale of the Securities as
herein contemplated shall be reasonably satisfactory in form and substance
to the Lead Managers and counsel for the International Managers.
(r) TERMINATION OF AGREEMENT. If any condition specified in this
Section 5 shall not have been fulfilled when and as required to be
fulfilled, this Agreement, or, in the case of any condition to the purchase
of International Option Securities on a Date of Delivery which is after the
Closing Time, the obligations of the several International Managers to
purchase the relevant Option Securities, may be terminated by the Lead
Managers by notice to the Company at any time at or prior to Closing Time
or such Date of Delivery, as the case may be, and such termination shall be
without liability of any party to any other party except as provided in
Section 4 and except that Sections 1, 6, 7 and 8 shall survive any such
termination and remain in full force and effect.
SECTION 6. INDEMNIFICATION.
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS. The Company and the
Management Selling Shareholders who are listed as such in SCHEDULE B hereto (the
"MANAGEMENT SELLING SHAREHOLDERS") agree to jointly and severally indemnify and
hold harmless each International Manager and each person, if any, who controls
any International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act in the manner set forth in clauses (i), (ii), (iii),
(iv) and (v) of this Section 6(a); PROVIDED, HOWEVER, that none of the
Management Selling Shareholders shall be liable for the payment of an amount,
pursuant to this Section 6, which exceeds the net proceeds received by such
Management Selling Shareholder from the sale of Option Securities sold by such
Management Selling Shareholder pursuant to this Agreement. In addition, the
Non-Management Selling Shareholders who are listed as such in SCHEDULE B hereto
(the "NON-MANAGEMENT SELLING SHAREHOLDERS") agree to severally and not jointly
indemnify and hold harmless each International Manager and each person, if any,
who controls any International Manager within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act in the manner set forth in clauses (i),
(ii), (iii) and (iv) of this Section 6(a); PROVIDED, HOWEVER, that none of the
Non-Management Selling Shareholders shall be liable for the payment of an
amount, pursuant to this Section 6, which exceeds the net proceeds received by
such Non-Management Selling Shareholder from the sale of Option Securities sold
by such Non-Management Selling Shareholder pursuant to this Agreement.
25
<PAGE>
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement
(or any amendment thereto), including the Rule 430A Information, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading
or arising out of any untrue statement or alleged untrue statement of a
material fact included in any preliminary prospectus or the Prospectuses or
any amendment or supplement thereto (or any prospectus wrapper) or the
omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of (A) the violation of any applicable
securities laws or regulations of foreign jurisdictions where Reserved
Securities have been offered and (B) any untrue statement or alleged untrue
statement of a material fact included in the supplement or prospectus
wrapper material distributed in foreign jurisdictions in connection with
the sale of the Reserved Securities or the omission or alleged omission
therefrom of a material fact necessary to make the statements therein, when
considered in conjunction with the Prospectuses or preliminary
prospectuses, not misleading;
(iii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission or in connection with any violation of
the nature referred to in Section 6(a)(ii)(A) hereof; provided that
(subject to Section 6(d) below) any such settlement is effected with the
written consent of the Company and the Selling Shareholders, as applicable;
(iv) against any and all expense whatsoever, as incurred (including
the fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission or
in connection with any violation of the nature referred to in Section
6(a)(ii)(A) hereof, to the extent that any such expense is not paid under
(i),(ii) or (iii) above; and
(v) against any and all expense whatsoever, as incurred (including the
fees and disbursements of counsel chosen by Merrill Lynch), reasonably
incurred in investigating, preparing or defending against any litigation,
or any claim whatsoever based upon any claim asserted alleging violation of
preemptive rights;
26
<PAGE>
PROVIDED, HOWEVER, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense (a) to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
International Manager through the Lead Managers expressly for use in the
Registration Statement or any amendment thereto (or any prospectus wrapper),
including the Rule 430A Information, or any preliminary prospectus or the
Prospectuses or any amendment or supplement thereto (or any prospectus wrapper)
and (b) with respect to any preliminary prospectus to the extent that any such
loss, liability, claim, damage or expense of such International Manager results
solely from the fact that such International Manager sold Securities to a person
as to whom the Company shall establish that there was not sent by commercially
reasonable means, at or prior to the written confirmation of such sale, a copy
of the International Prospectus in any case where such delivery is required by
the 1933 Act, if the Company has previously furnished copies thereof in
sufficient quantity to such International Manager (in compliance with Section
3(d) hereof) and the loss, liability, claim, damage or expense of such U.S.
Underwriter results from an untrue statement or omission of a material fact
contained in the preliminary prospectus that was corrected in the International
Prospectus; and PROVIDED FURTHER that the liability of each Selling Shareholder
under this indemnity agreement (i) shall apply only to losses, liability,
claims, damages or expenses to the extent arising out of any untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information provided by such Selling Shareholder to the
Company expressly for use in the Registration Statement or any amendment thereto
(or any prospectus wrapper), including the Rule 430A Information or any
preliminary prospectus or the International Prospectus or any amendment or
supplement thereto (for any prospectus wrapper) and (ii) shall not exceed the
net proceeds received by such Selling Shareholder.
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND THE SELLING
SHAREHOLDERS. Each International Manager severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and
each Selling Shareholder, against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsections (a)(i) through (iv)
(except that reference in (a)(iv) to Merrill Lynch shall be to the Company and
the Selling Shareholders, as the case may be), of this Section 6, as incurred,
but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto), including the Rule 430A Information or any preliminary international
prospectus or the International Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such International Manager through the Lead Managers expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the International Prospectus (or any amendment or
supplement thereto).
27
<PAGE>
(c) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by Merrill Lynch, and, in
the case of parties indemnified pursuant to Section 6(b) above, counsel to the
indemnified parties shall be selected by the Company. An indemnifying party may
participate at its own expense in the defense of any such action; PROVIDED,
HOWEVER, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying parties be liable for fees and expenses of more
than one counsel (in addition to any local counsel) separate from their own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties (which consent
shall not be unreasonably withheld), settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the indemnified
parties are actual or potential parties thereto), unless such settlement,
compromise or consent (i) includes an unconditional release of each indemnified
party from all liability arising out of such litigation, investigation,
proceeding or claim and (ii) does not include a statement as to or an admission
of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel, such indemnifying party
agrees that it shall be liable for any settlement with respect to such fees and
expenses as contemplated by Section 6(a)(iii) effected without its written
consent if (i) such settlement is entered into more than 45 days after receipt
by such indemnifying party of the aforesaid request, (ii) such indemnifying
party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying
party shall not have reimbursed such indemnified party in accordance with such
request prior to the date of such settlement.
(e) INDEMNIFICATION FOR RESERVED SECURITIES. In connection with the offer
and sale of the Reserved Securities, the Company agrees, promptly upon a request
in writing, to indemnify and hold harmless the International Managers from and
against any and all losses, liabilities, claims, damages and expenses incurred
by them as a result of the failure of eligible employees and persons having
business relationships with the Company to pay for and accept delivery of
Reserved Securities which, by the end of the first business day following the
date of this Agreement, were subject to a properly confirmed agreement to
purchase.
28
<PAGE>
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION. The provisions of
this Section 6 shall not affect any agreement or arrangement among the Company
and the Selling Shareholders with respect to indemnification, including without
limitation as set forth in Section 12 of the Irrevocable Power of Attorney and
Custody Agreement.
SECTION 7. CONTRIBUTION. If the indemnification provided for in Section 6
hereof is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Selling Shareholders on the one hand and the International Managers on the other
hand from the offering of the Securities pursuant to this Agreement or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Selling Shareholders on the one hand and of the International Managers on
the other hand in connection with the statements or omissions, or in connection
with any violation of the nature referred to in Section 6(a)(ii)(A) hereof,
which resulted in such losses, liabilities, claims, damages or expenses, as well
as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Shareholders
on the one hand and the International Managers on the other hand in connection
with the offering of the International Securities pursuant to this Agreement
shall be deemed to be in the same respective proportions as the total net
proceeds from the offering of the International Securities pursuant to this
Agreement (before deducting expenses) received by the Company and the Selling
Shareholders and the total underwriting discount received by the International
Managers, in each case as set forth on the cover of the International
Prospectus, bear to the aggregate initial public offering price of the
International Securities as set forth on such cover.
The relative fault of the Company and the Selling Shareholders on the one
hand and the International Managers on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Shareholders
or by the International Managers and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission or any violation of the nature referred to in Section 6(a)(ii)(A)
hereof.
The Company, the Selling Shareholders and the International Managers agree
that it would not be just and equitable if contribution pursuant to this Section
were determined by pro rata allocation (even if the International Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section. The aggregate amount of losses, liabilities, claims, damages and
expenses incurred by an indemnified party and referred to above in this Section
shall be deemed
29
<PAGE>
to include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no International Manager
shall be required to contribute any amount in excess of the amount by which the
total price at which the International Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such International Manager has otherwise been required to pay by
reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the 1933 Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
International Manager within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
International Manager, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or any Selling Shareholder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as the Company or such Selling Shareholder, as the case may be. The
International Managers' respective obligations to contribute pursuant to this
Section are several in proportion to the number of Initial International
Securities set forth opposite their respective names in Schedule A hereto and
not joint. The Company's and the Management Selling Shareholder's respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule B hereto. The Non-Management Selling Shareholder's respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Securities set forth opposite their respective names in
Schedule B hereto and not joint.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the Company or the Selling Shareholders submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any International Manager or
controlling person, or by or on behalf of the Company or the Selling
Shareholders, and shall survive delivery of the Securities to the International
Managers.
30
<PAGE>
SECTION 9. TERMINATION OF AGREEMENT.
(a) TERMINATION; GENERAL. The Lead Managers may terminate this Agreement,
by notice to the Company and the Selling Shareholders, at any time at or prior
to Closing Time (i) if there has been, since the time of execution of this
Agreement or since the respective dates as of which information is given in the
International Prospectus, any Material Adverse Change, or (ii) if there has
occurred any material adverse change in the financial markets in the United
States or the international financial markets, any outbreak of hostilities or
escalation thereof or other calamity or crisis or any change or development
involving a prospective change in national or international political, financial
or economic conditions, in each case the effect of which is such as to make it,
in the reasonable judgment of the Lead Managers, impracticable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if
trading in any securities of the Company has been suspended or materially
limited by the Commission or the Nasdaq National Market, or if trading generally
on the American Stock Exchange or the New York Stock Exchange or in the Nasdaq
National Market has been suspended or materially limited, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices have been
required, by any of said exchanges or by such system or by order of the
Commission, the National Association of Securities Dealers, Inc. or any other
governmental authority, or (iv) if a banking moratorium has been declared by
either Federal or New York authorities.
(b) LIABILITIES. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
Notwithstanding any other provision of this Agreement to the contrary, no
Selling Shareholder shall have any liability under this Agreement, and this
Agreement shall terminate and have no force and effect with respect to the
Selling Shareholders, if no Option Securities are sold hereunder.
SECTION 10. DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS. If one or
more of the International Managers shall fail at Closing Time or a Date of
Delivery to purchase the Securities which it or they are obligated to purchase
under this Agreement (the "DEFAULTED SECURITIES"), the Lead Managers shall have
the right, within 24 hours thereafter, to make arrangements for one or more of
the non-defaulting International Managers, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the Lead
Managers shall not have completed such arrangements within such 24-hour period,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of International Securities to be purchased on such date, the
non-defaulting International Managers shall be obligated, each severally
and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting International Managers, or
31
<PAGE>
(b) if the number of Defaulted Securities exceeds 10% of the number of
International Securities to be purchased on such date, this Agreement or,
with respect to any Date of Delivery which occurs after Closing Time, the
obligation of the International Managers to purchase and of the Company to
sell the Option Securities to be purchased and sold on such Date of
Delivery, shall terminate without liability on the part of any
non-defaulting International Manager.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement or, in the case of a Date of Delivery which is after Closing
Time, which does not result in a termination of the obligation of the
International Managers to purchase and the Company and the Selling Shareholders
to sell the relevant International Option Securities, as the case may be, either
the Lead Managers or the Company and the Selling Shareholders shall have the
right to postpone Closing Time or the relevant Date of Delivery, as the case may
be, for a period not exceeding seven days in order to effect any required
changes in the Registration Statement or Prospectuses or in any other documents
or arrangements. As used herein, the term "International Manager" includes any
person substituted for an International Manager under this Section.
SECTION 11. DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS OR THE
COMPANY.
(a) If a Selling Shareholder shall fail at Closing Time or at a Date of
Delivery to sell and deliver the number of Option Securities which such Selling
Shareholder or Selling Shareholders are obligated to sell hereunder, and the
remaining Selling Shareholders or the Company do not exercise the right hereby
granted to increase, pro rata or otherwise, the number of Securities to be sold
by them hereunder to the total number to be sold by all Selling Shareholders as
set forth in Schedule B hereto, then the International Managers may, at the
option of the Lead Managers, by notice from the Lead Managers to the Company and
the non-defaulting Selling Shareholders, either (a) terminate this Agreement
without any liability on the part of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Shareholders have agreed to sell hereunder. No action taken pursuant to this
Section shall relieve any Selling Shareholder so defaulting from liability in
respect of such default.
In the event of a default by any Selling Shareholder as referred to in this
Section, each of the Lead Managers, the Company and the non-defaulting Selling
Shareholders shall have the right to postpone Closing Time or the relevant Date
of Delivery for a period not exceeding seven days in order to effect any
required change in the Registration Statement or Prospectuses or in any other
documents or arrangements.
(b) If the Company shall fail at Closing Time or at a Date of Delivery to
sell the number of Securities that it is obligated to sell hereunder, then this
Agreement shall terminate
32
<PAGE>
without any liability on the part of any non-defaulting party; PROVIDED,
HOWEVER, that the provisions of Sections 1, 4, 6, 7 and 8 shall remain in full
force and effect. No action taken pursuant to this Section shall relieve the
Company from liability in respect of such default.
SECTION 12. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Managers at Ropemaker
Place, 25 Ropemaker Street, London EC2Y 9LY, England; and notices to the Company
shall be directed to it at Packard BioScience Company, 800 Research Parkway,
Meriden, Connecticut 06450, attention of Chief Financial Officer and General
Counsel; and notices to the Selling Shareholders shall be directed to Day, Berry
& Howard LLP, attention of William H. Cuddy.
SECTION 13. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the International Managers, the Company and the Selling
Shareholders and their respective successors. Nothing expressed or mentioned in
this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the International Managers, the Company and the Selling
Shareholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the International Managers, the Company and the Selling
Shareholders and their respective successors, and said controlling persons and
officers and directors and their heirs and legal representatives, and for the
benefit of no other person, firm or corporation. No purchaser of Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES
OF DAY REFER TO NEW YORK CITY TIME.
SECTION 15. EFFECT OF HEADINGS. The Article and Section headings herein and
the Table of Contents are for convenience only and shall not affect the
construction hereof.
33
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Attorney-in-Fact for the Selling
Shareholders a counterpart hereof, whereupon this instrument, along with all
counterparts, will become a binding agreement between the International
Managers, the Company and the Selling Shareholders in accordance with its terms.
Very truly yours,
PACKARD BIOSCIENCE COMPANY
By:___________________________________
Name: Ben D. Kaplan
Title: Vice President & Chief Financial
Officer
THE SELLING SHAREHOLDERS
By:____________________________________
As Attorney-in-Fact acting on behalf
of the Selling Shareholders named in
Schedule B hereto
CONFIRMED AND ACCEPTED,
as of the date first above written:
MERRILL LYNCH INTERNATIONAL
CHASE MANHATTAN INTERNATIONAL LIMITED
ROBERT W. BAIRD & CO. INCORPORATED
BANK OF AMERICA INTERNATIONAL LIMITED
THOMAS WEISEL INTERNATIONAL LIMITED
By: MERRILL LYNCH INTERNATIONAL
By: ___________________________________
Authorized Signatory
For themselves and as Lead Managers of the other International Managers named in
Schedule A hereto
34
<PAGE>
SCHEDULE A
NUMBER OF
INITIAL
INTERNATIONAL
NAME OF INTERNATIONAL MANAGER SECURITIES
----------------------------- -------------
Merrill Lynch International..........................
Chase Manhattan International Limited................
Robert W. Baird & Co. Incorporated...................
Bank of America International Limited................
Thomas Weisel International Limited..................
__________
Total................................................ 2,400,000
==========
Sch A-1
<PAGE>
SCHEDULE B
MAXIMUM NUMBER
MAXIMUM NUMBER OF INTERNATIONAL
OF INTERNATIONAL OPTION
SECURITIES SECURITIES(1)
------------------ ----------------
Packard BioScience Company.............. 2,400,000 304,440
----------- ----------
Management Selling Shareholders: 0
Emery G. Olcott....................... 0 15,000
Richard T. McKernan................... 0 15,000
George Serrano........................ 0 7,000
Non-Management Selling Shareholders: 0
Orren Tench........................... 0 7,880
Staf van Cauter....................... 0 2,940
Daniel Meert.......................... 0 2,640
Eugene Della Vecchia.................. 0 2,880
Michael A. Zebarth.................... 0 2,220
----------- ----------
Selling Shareholders (total) 0 55,560
----------- ----------
Total................................... 2,400,000 360,000
=========== ==========
______________________
(1) If the option is exercised as to less than the maximum number of
International Option Securities, then the offer to sell by the Company and the
Selling Shareholders shall be that proportion of the total number of
International Option Securities then being offered which the number of
International Option Securities set forth above opposite the Company and each of
the Selling Shareholders bears to the total number of International Option
Securities offered.
Sch B-1
<PAGE>
SCHEDULE C
PACKARD BIOSCIENCE COMPANY
2,400,000 Shares of Common Stock
(Par Value $.002 Per Share)
1. The initial public offering price per share for the Securities shall be $ .
2. The purchase price per share for the International Securities to be paid by
the several International Managers shall be $ , being an amount equal to the
initial public offering price set forth above less $ per share; provided that
the purchase price per share for any International Option Securities purchased
upon the exercise of the over-allotment option described in Section 2(b) shall
be reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial International Securities but
not payable on the International Option Securities.
Sch C-1
<PAGE>
SCHEDULE D
List of persons and entities
subject to lock-up(2)
- ----------------
(2) The lock-up by these persons and entities covers at least 85% of the issued
and outstanding shares of Common Stock of the Company, giving effect to the
exercise of outstanding options to purchase shares of Common Stock of the
Company.
Sch D-1
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Anderson Troy D.
------------------------------------------ -------------------------
Baird Capital Partners
II Limited Partnership
------------------------------------------ -------------------------
Baldwin Brenda J.
------------------------------------------ -------------------------
BCP II Affiliates Fund
Limited Partnership
------------------------------------------ -------------------------
Belobraydich Michael W.
------------------------------------------ -------------------------
Bernard Shelly R.
------------------------------------------ -------------------------
Bock Warren H.
------------------------------------------ -------------------------
Bosel Manfred
------------------------------------------ -------------------------
Bronson Frazier
------------------------------------------ -------------------------
Bryant W. Michael
------------------------------------------ -------------------------
Burger Paul
------------------------------------------ -------------------------
Burke Jocelyn W.
------------------------------------------ -------------------------
Burns David
------------------------------------------ -------------------------
Bursens Marc
------------------------------------------ -------------------------
Campagnuolo Benjamin
------------------------------------------ -------------------------
Carl Richard A.
------------------------------------------ -------------------------
Carter-Allen Kelly S.
------------------------------------------ -------------------------
Catalano III Michael A.
------------------------------------------ -------------------------
Catalano Jr. Michael A.
------------------------------------------ -------------------------
Chapman Jeffrey A.
------------------------------------------ -------------------------
Charland Andrea
------------------------------------------ -------------------------
Charland Michael J.
------------------------------------------ -------------------------
Chelsky Daniel
------------------------------------------ -------------------------
Christodoulou Apostolos
------------------------------------------ -------------------------
Cohen Rafael Z.
------------------------------------------ -------------------------
Colaresi James F.
------------------------------------------ -------------------------
Darken Jr Lawrence S.
------------------------------------------ -------------------------
Davidson Dorothy R.
------------------------------------------ -------------------------
Dean David M.
------------------------------------------ -------------------------
DeBaerdemaeker Luc
------------------------------------------ -------------------------
Della Vecchia Eugene
------------------------------------------ -------------------------
Duebendorfer Juerg
------------------------------------------ -------------------------
East Larry V.
------------------------------------------ -------------------------
Eichem II Charles E.
------------------------------------------ -------------------------
Elands Jack
------------------------------------------ -------------------------
Elsishans Jr. Carl J.
------------------------------------------ -------------------------
Sch D-2
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
End Robert F.
------------------------------------------ -------------------------
Englert David F.
------------------------------------------ -------------------------
Fisher Edward G.
------------------------------------------ -------------------------
Fleissner John G.
------------------------------------------ -------------------------
Frei Hans Rudolph
------------------------------------------ -------------------------
Fulbright Richard S.
------------------------------------------ -------------------------
Gallagher Brian
------------------------------------------ -------------------------
Hall David L.
------------------------------------------ -------------------------
Hall Nance
------------------------------------------ -------------------------
Harazin Richard R.
------------------------------------------ -------------------------
Heinze Karl R.
------------------------------------------ -------------------------
Hering Paul
------------------------------------------ -------------------------
Hill Donald W.
------------------------------------------ -------------------------
Hinshaw Steve M.
------------------------------------------ -------------------------
Hoecker Bradley J.
------------------------------------------ -------------------------
Houchins Brandon A.
------------------------------------------ -------------------------
Huckins Robert J.
------------------------------------------ -------------------------
Hurst Mark E.
------------------------------------------ -------------------------
Jones Donald K.
------------------------------------------ -------------------------
Kadner Steven P.
------------------------------------------ -------------------------
Kaplan Ben D.
------------------------------------------ -------------------------
Koskelo Markku
------------------------------------------ -------------------------
Krug Robert E.
------------------------------------------ -------------------------
Kuhn Roberta
------------------------------------------ -------------------------
Kuwashima Susumu
------------------------------------------ -------------------------
Laforge Michael A.
------------------------------------------ -------------------------
Laskos Steven C.
------------------------------------------ -------------------------
Le Saec Marcel
------------------------------------------ -------------------------
Lee Darren M.
------------------------------------------ -------------------------
Li Mary
------------------------------------------ -------------------------
Little Tony
------------------------------------------ -------------------------
Magny France
------------------------------------------ -------------------------
McElroy Robert D.
------------------------------------------ -------------------------
Sch D-3
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
McKernan Brendan
------------------------------------------ -------------------------
McKernan Kevin
------------------------------------------ -------------------------
McKernan Melissa
------------------------------------------ -------------------------
McKernan Patricia G.
------------------------------------------ -------------------------
McKernan Richard B.
------------------------------------------ -------------------------
McKernan Richard T.
------------------------------------------ -------------------------
McKernan Virginia
------------------------------------------ -------------------------
McKernan Family Trust
------------------------------------------ -------------------------
Meert Daniel
------------------------------------------ -------------------------
Menard Luc
------------------------------------------ -------------------------
Meredith David R.
------------------------------------------ -------------------------
Merrill Lynch KECALP Int'l
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1994
------------------------------------------ -------------------------
Merrill Lynch KECALP LP 1997
------------------------------------------ -------------------------
Michas Alexis
------------------------------------------ -------------------------
Montgomery George G.
------------------------------------------ -------------------------
Morrison Douglas A.
------------------------------------------ -------------------------
Murray James
------------------------------------------ -------------------------
Mylymuk Michale J.
------------------------------------------ -------------------------
Nacht Arthur F.
------------------------------------------ -------------------------
Olcott Barbara
------------------------------------------ -------------------------
Olcott Charles W.
------------------------------------------ -------------------------
Olcott Emery G.
------------------------------------------ -------------------------
Olcott Timothy S.
------------------------------------------ -------------------------
Olcott Jr. Emery G.
------------------------------------------ -------------------------
Papen Roeland
------------------------------------------ -------------------------
Pearce Gibson
------------------------------------------ -------------------------
Plested Graham
------------------------------------------ -------------------------
Proulx Robert
------------------------------------------ -------------------------
Pyle William D.
------------------------------------------ -------------------------
Richardson Wayne G.
------------------------------------------ -------------------------
Rieveschl David C.
------------------------------------------ -------------------------
Rossi Ferdinando
------------------------------------------ -------------------------
Rotando Lynn
------------------------------------------ -------------------------
Sch D-4
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
Salisbury Robert C.
------------------------------------------ -------------------------
Schaich Steven R.
------------------------------------------ -------------------------
Schmeizl Mark A.
------------------------------------------ -------------------------
Seabourne William J.
------------------------------------------ -------------------------
Seely Jr Ernest C.
------------------------------------------ -------------------------
Serralunga Michel
------------------------------------------ -------------------------
Serrano George
------------------------------------------ -------------------------
Shepard Randy L.
------------------------------------------ -------------------------
Sielaff Willard A.
------------------------------------------ -------------------------
Smalling John P.
------------------------------------------ -------------------------
Smith David H.
------------------------------------------ -------------------------
SOWA Trading Co. Inc.
------------------------------------------ -------------------------
Spallone Martin C.
------------------------------------------ -------------------------
Special Patrick E.
------------------------------------------ -------------------------
Stangl Rainer
------------------------------------------ -------------------------
Stevenson Chase
------------------------------------------ -------------------------
Stone Richard A.
------------------------------------------ -------------------------
Stonington Capital Appreciation 1994 Fund
------------------------------------------ -------------------------
Swanson Drew E.
------------------------------------------ -------------------------
Tamburro John G.
------------------------------------------ -------------------------
Tench Orren K.
------------------------------------------ -------------------------
Tong Peter P.
------------------------------------------ -------------------------
Toritzin Oleg
------------------------------------------ -------------------------
Toyo Corporation
------------------------------------------ -------------------------
Upham Loraine E.
------------------------------------------ -------------------------
Van Cauter Staf C.
------------------------------------------ -------------------------
Vermilye Ronald M.
------------------------------------------ -------------------------
Verplancke Jan
------------------------------------------ -------------------------
Villani Marcel F.
------------------------------------------ -------------------------
Wang Changjin
------------------------------------------ -------------------------
Webb Robert G.
------------------------------------------ -------------------------
West Leon
------------------------------------------ -------------------------
Wherlock Charles Michael
------------------------------------------ -------------------------
White Robert M.
------------------------------------------ -------------------------
White Sally Ann
------------------------------------------ -------------------------
White Jr. Timothy O.
------------------------------------------ -------------------------
Sch D-5
<PAGE>
------------------------------------------ -------------------------
LAST NAME FIRST NAME
------------------------------------------ -------------------------
White Sr. Timothy O.
------------------------------------------ -------------------------
White, TRUST Melissa
------------------------------------------ -------------------------
White, TRUST Timothy O.
------------------------------------------ -------------------------
Woodard Robert C.
------------------------------------------ -------------------------
Yocum Kenneth M.
------------------------------------------ -------------------------
Young Brian M.
------------------------------------------ -------------------------
Young Harry M.
------------------------------------------ -------------------------
Zebarth Michael A.
------------------------------------------ -------------------------
Ziegler Michael R.
------------------------------------------ -------------------------
Zukosky Patrick A.
------------------------------------------ -------------------------
Sch D-6
<PAGE>
EXHIBIT A
FORM OF OPINION OF WACHTELL, LIPTON, ROSEN & KATZ
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
will be subject to personal liability by reason of being such a holder.
(iv) The issuance of the Securities is not subject to the preemptive or, to
the knowledge of such counsel, other similar rights, of any securityholder of
the Company.
(v) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by the Company.
(vi) The Registration Statement, including any Rule 462(b) Registration
Statement, has been declared effective under the 1933 Act; any required filing
of the Prospectuses pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and, to the best of our
knowledge, no stop order suspending the effectiveness of the Registration
Statement or any Rule 462(b) Registration Statement has been issued under the
1933 Act and no proceedings for that purpose have been instituted or are pending
or threatened by the Commission.
(vii) The Registration Statement, including any Rule 462(b) Registration
Statement, the Rule 430A Information, the Prospectuses and each amendment or
supplement to the Registration Statement and the Prospectuses as of their
respective effective or issue dates (except, in each case, for the financial
statements, related notes and schedules and other financial data included
therein or
A-1
<PAGE>
omitted therefrom, as to which we express no opinion) complied as to form in all
material respects with the requirements of the 1933 Act and the 1933 Act
Regulations.
(viii) The form of certificate used to evidence the Common Stock complies
in all material respects with all applicable statutory requirements, with any
applicable requirements of the charter and by-laws of the Company.
(ix) The information in the Prospectuses under "Related Party
Transactions--Stockholders' Agreement," "Description of Capital Stock--Common
Stock", and "Material United States Federal Tax Considerations for Non-U.S.
Holders", to the extent that it purports to summarize legal matters or the
Company's charter and by-laws fairly summarizes the legal matters described
therein in all material respects.
(x) The Recapitalization has been duly authorized and validly consummated
by the Company.
(xi) The Company is not an "investment company" or an entity "controlled"
by an "investment company," within the meaning of the 1940 Act and the rules and
regulations of the Commission thereunder.
With respect to the matters covered in paragraph (vii) above, our opinion
is based on participation in the preparation of the Registration Statement and
Prospectuses and any amendment or supplement thereto, and in discussions with
officers and other representatives of the Company and its independent public
accountants (including discussions in which representatives of the Underwriters
and their counsel participated) but is without independent check or
verification. We have participated in the preparation of the Registration
Statement and Prospectuses and in conferences with officers and other
representatives of the Company, representatives of the independent public
accountants for the Company and with representatives of the Underwriters and
their counsel at which the contents of the Registration Statement, the
Prospectuses and related matters were discussed. In connection with the opinions
expressed herein and the participation referenced above, we have not verified
and are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectuses (other than as set forth in paragraph (ix) above).
We confirm, however, that in the course of such participation, review and
discussions, no facts have come to our attention to lead us to believe (A) that
the Registration Statement (including the Rule 430A Information) or any
amendment thereto (except for the financial statements and related notes and
schedule, and other financial data included therein or omitted therefrom, as to
which we express no opinion), at the time the Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectuses or any
amendment or supplement thereto (except for the financial statements and related
notes and schedule, and other financial data included therein or omitted
therefrom, as to which we express no opinion), at the time the Prospectuses were
issued, at the time any such amended or supplemented prospectus was issued or at
the Closing Time, included or include an untrue statement or a material fact or
omitted or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
A-2
<PAGE>
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
A-3
<PAGE>
EXHIBIT B
FORM OF OPINION OF TIMOTHY O. WHITE
TO BE DELIVERED PURSUANT TO
SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and
operate its properties and to conduct its business as described in the
Prospectuses and to enter into and perform its obligations under the U.S.
Purchase Agreement and the International Purchase Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing could not reasonably be expected to result in a Material
Adverse Effect.
(iv) The Company had at the date indicated a duly authorized, issued and
outstanding capitalization as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" and notes thereto; the
shares of issued and outstanding capital stock of the Company have been duly
authorized and validly issued and are fully paid and non-assessable; none of the
Initial Securities was issued in violation of the preemptive or other similar
rights of any securityholder of the Company; none of the outstanding shares of
capital stock of the Company was issued in violation of the preemptive or other
similar rights of any securityholder of the Company with the exception of the
issuance by the Company of an aggregate of 26,500 authorized but unissued shares
of Common Stock (the "ISSUED SHARES") in three separate issuances (the
equivalent of 465,000 shares of the presently outstanding Common Stock in the
aggregate), in March 1987, March 1988 and March 1989 (collectively, the "STOCK
ISSUANCES"); with respect to the Issued Shares, to the Company's knowledge, the
holders of then-outstanding Common Stock did not seek to exercise, and neither
such holders nor any successor, transferee or purchaser for value of such Common
Stock outstanding immediately prior to the Stock Issuances have, at any time
since, threatened to, or notified the Company of their intent to, exercise
preemptive rights as to the Issued Shares or brought, or threatened to bring,
any claim at law or in equity challenging the Stock Issuances; and to my actual
knowledge, none of the Option Securities was issued in violation of the
preemptive or other similar rights of any securityholder of the Company.
(v) The Securities to be purchased by the U.S. Underwriters and the
International Managers from the Company have been duly authorized for issuance
and sale to the Underwriters pursuant to the U.S. Purchase Agreement and the
International Purchase Agreement, respectively, and, when issued and delivered
by the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement, respectively, against payment of the consideration set forth
in the
B-1
<PAGE>
U.S. Purchase Agreement and the International Purchase Agreement, will be
validly issued and fully paid and non-assessable and no holder of the Securities
is or will be subject to personal liability by reason of being such a holder.
(vi) The issuance of the Securities is not subject to the preemptive rights
of any securityholder of the Company or other similar rights pursuant to
agreements or instruments to which the Company is a party.
(vii) Each Subsidiary has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing could not
reasonably be expected to result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement (including with respect to the
Credit Agreement), all of the issued and outstanding capital stock of each
Subsidiary has been duly authorized and validly issued, is fully paid and
non-assessable and, to the best of my knowledge, is owned by the Company,
directly or through subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of (a) Packard Instrument Company or CCS Packard, Inc.
was issued in violation of the preemptive rights of any securityholder of such
Subsidiary or other similar rights pursuant to agreements or instruments to
which such Subsidiary is a party and (b) any Subsidiary (other than Packard
Instrument Company and CCS Packard, Inc.) was issued, after such entity
became a Subsidiary of the Company, in violation of the preemptive rights
of any securityholder of such Subsidiary or other similar rights pursuant
to agreements or instruments to which such Subsidiary is a party.
(viii) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by the Company.
(ix) To the best of my knowledge, no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b) Registration
Statement has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission.
(x) The form of certificate used to evidence the Common Stock complies in
all material respects with all applicable statutory requirements and with any
applicable requirements of the charter and by-laws of the Company.
(xi) To the best of my knowledge, there is not pending or threatened any
action, suit, proceeding, inquiry or investigation, to which the Company or any
subsidiary is a party, or to which the property of the Company or any subsidiary
is subject, before or brought by any court or governmental agency or body,
domestic or foreign, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), which (a) could reasonably be
expected to result in a Material Adverse Effect, or (b) could reasonably be
expected to materially and adversely affect the value of the properties or
assets of the Company, in the aggregate, or the consummation of the transactions
contemplated in the U.S. Purchase Agreement and International Purchase Agreement
or the performance by the Company of its obligations thereunder.
B-2
<PAGE>
(xii) The information in the Prospectuses under "Related Party
Transactions," "Description of Capital Stock", "Description of Indebtedness,"
"Business--Properties","Business--Legal Proceedings", "Risk Factors--Changes in
environmental regulations could increase the costs of manufacturing our products
or providing our services, or otherwise adversely affect the demand for our
products or services," "Business--Environmental Matters", and
"Business--Regulation" and in the Registration Statement under Items 14 and 15,
to the extent that it purports to summarize legal matters, the Company's charter
and by-laws or legal proceedings fairly summarizes the legal matters described
therein.
(xiii) To the best of my knowledge, there are no statutes or regulations
that are required to be described in the Prospectuses that are not described as
required.
(xiv) All descriptions in the Registration Statement of contracts and other
documents to which the Company or its subsidiaries are a party are accurate in
all material respects; to the best of my knowledge, there are no contracts,
indentures, mortgages, loan agreements, notes, leases or other instruments
required pursuant to the 1933 Act to be described or referred to in the
Prospectuses or filed as exhibits to the Registration Statement, which have not
been so described or filed.
(xv) To the best of my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company or any
subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other agreement or
instrument that is described or referred to in the Registration Statement or the
Prospectuses or filed or incorporated by reference as an exhibit to the
Registration Statement.
(xvi) No filing with, or authorization, approval, consent, license, order,
registration, qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale of the
Securities under this Agreement and the International Purchase Agreement or the
consummation of the transactions contemplated by this Agreement and the
International Purchase Agreement, except (i) such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or under
the Securities Exchange Act of 1934, as amended, and the rules and regulations
of the Commission thereunder, with respect to the Common Stock or under foreign
or state securities or blue sky laws, (ii) such as have been already obtained or
as may be required under the laws and regulations of jurisdictions outside the
United States in which the Securities and the Reserved Securities are offered
and (iii) which shall have been obtained or made prior to the Closing Time or,
if applicable, the Time of Delivery.
(xvii) The execution, delivery and performance of this Agreement and the
International Purchase Agreement and the consummation of the transactions
contemplated in this Agreement, the International Purchase Agreement and in the
Registration Statement (with respect to the issuance and sale of the Securities
and the use of the proceeds from the sale of the Securities as described in the
Prospectuses under the caption "USE OF PROCEEDS") and compliance by the Company
with its obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action, including
(if required) board approval, and do not and will not,
B-3
<PAGE>
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, any contract indenture, mortgage, deed of trust, loan or
credit agreement, note, lease or any other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which it or any of them is
bound (collectively, "THE AGREEMENT AND INSTRUMENTS") (except for such
conflicts, breaches, defaults or Repayment Events or liens, charges or
encumbrances that could not reasonably be expected to result in a Material
Adverse Effect), nor will such action result in any violation of (A) the
provisions of the charter or by-laws of the Company or any Subsidiary, (B) any
existing applicable domestic law, statute, rule, regulation, judgment, order,
writ or decree of any domestic government, government instrumentality or court
having jurisdiction over the Company or any Subsidiary or any of their assets,
properties or operations, except, in the case of (B), for such violations that
could not reasonably be expected to result in a Material Adverse Effect or (C)
to the best of my knowledge, any existing applicable foreign law, statute, rule,
regulation, judgment, order, writ or decree of any foreign government,
government instrumentality or court having jurisdiction over the Company or any
Subsidiary or any of their assets, properties or operations, except for such
violations that could not reasonably be expected to result in a Material Adverse
Effect.
(xviii) To the best of my knowledge, there are no persons with registration
rights or other similar rights to have any securities registered pursuant to the
Registration Statement.
(xix) The Recapitalization has been duly authorized and validly consummated
by the Company.
Nothing has come to my attention that would lead me to believe (A) that the
Registration Statement (including the Rule 430A Information) or any amendment
thereto (except for financial statements and related notes and schedule, and
other financial data included therein or omitted therefrom, as to which I
express no opinion), at the time such Registration Statement or any such
amendment became effective, contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (B) that the Prospectuses or any
amendment or supplement thereto (except for financial statements, related notes
and schedule, and other financial data included therein or omitted therefrom, as
to which I express no opinion), at the time the Prospectuses were issued, at the
time any such amended or supplemented prospectus was issued or at the Closing
Time, included or includes an untrue statement of a material fact or omitted or
omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials (including with respect
to the Stock Issuances) and, in the case of the opinion set forth in clause
(iv), on the books and records of the Company. Such opinion shall not state that
it is to be governed or qualified by, or that it is otherwise subject to, any
treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
B-4
<PAGE>
EXHIBIT C
FORM OF OPINION OF JENKENS & GILCHRIST
TO BE DELIVERED PURSUANT TO
SECTION 5(c)
(i) The statements and descriptions made in the Prospectuses under the
captions "Risk Factors--If we are unable to effectively protect our intellectual
property, we may be unable to prevent third parties from using our technology,
which could impair our ability to compete effectively in the market," "Risk
Factors--Our products could infringe on the intellectual property rights of
others, causing costly litigation and seriously harming our business" and
"Business--Intellectual Property" to the extent that they constitute matters of
law or legal conclusions, have been reviewed by us and fairly present the
information disclosed therein in all material respects and nothing has come to
our attention which leads us to believe that (A) the information set forth in
the Registration Statement, or any amendment thereto, under the captions
referred to above as of the time the Registration Statement became effective
under the Securities Act, and as of the Closing Time or any Delivery Date,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading and (B) the information set forth in the Prospectuses, or in any
supplement thereto, under the captions referred to above as of their issue dates
and as of such Closing Time or any Delivery Date, contained an untrue statement
of a material fact or omitted to state a material fact, necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(ii) Such counsel has no knowledge of any pending or threatened legal or
governmental proceeding relating to patents or proprietary know-how owned or
used by the Company or any of its subsidiaries, to which the Company or any of
its subsidiaries is a party, except as disclosed in the Registration Statement,
which, if adversely decided, would have a material adverse effect on the
business, financial condition or results of operations of the Company or any of
its subsidiaries, taken as a whole.
(iii) Such counsel has no knowledge of any infringement or alleged
infringement by the Company or any of its subsidiaries of issued patent rights
of others, except as disclosed in the Registration Statement, which would have a
material adverse effect on the business, financial condition or results of
operations of the Company and its subsidiaries, taken as a whole.
C-1
<PAGE>
EXHIBIT D
FORM OF OPINION OF DAY, BERRY & HOWARD LLP
TO BE DELIVERED PURSUANT TO SECTION 5(e)
(i) No filing with, or consent, approval, authorization, license, order,
registration, qualification or decree of, any court or governmental authority or
agency, domestic or foreign, (other than the issuance of the order of the
Commission declaring the Registration Statement effective and such
authorizations, approvals or consents as may be necessary under state or foreign
securities laws, as to which we need express no opinion) is necessary or
required to be obtained by the Selling Shareholders for the performance by each
Selling Shareholder of its obligations under the U.S. Purchase Agreement and
International Purchase Agreement or in the Irrevocable Power of Attorney and
Custody Agreement, or in connection with the offer, sale or delivery of the
Option Securities to be sold by the Selling Shareholders.
(ii) Each Irrevocable Power of Attorney and Custody Agreement has been duly
executed and delivered by the respective Selling Shareholder named therein and
constitutes the legal, valid and binding agreement of such Selling Shareholder.
(iii) The U.S. Purchase Agreement and the International Purchase Agreement
have been duly authorized, executed and delivered by or on behalf of each
Selling Shareholder.
(iv) Each Attorney-in-Fact has been duly authorized by the Selling
Shareholders to deliver the Option Securities to be sold by the Selling
Shareholders on behalf of the Selling Shareholders in accordance with the terms
of the U.S. Purchase Agreement and the International Purchase Agreement.
(v) The execution, delivery and performance by the Selling Shareholders of
the U.S. Purchase Agreement, the International Purchase Agreement, the
Irrevocable Power of Attorney and Custody Agreement and the sale and delivery by
the Selling Shareholders of the Option Securities to be sold by the Selling
Shareholders and the consummation of the transactions by the Selling
Shareholders contemplated in the U.S. Purchase Agreement, in the International
Purchase Agreement, and in the Registration Statement and compliance by the
Selling Shareholders with their obligations under the U.S. Purchase Agreement
and International Purchase Agreement have been duly authorized by all necessary
action on the part of the Selling Shareholders and (A) do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default under or result in the
creation or imposition of any tax, lien, charge or encumbrance upon the Option
Securities to be sold by the Selling Shareholders or any property or assets of
the Selling Shareholders pursuant to, any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other instrument or
agreement to which any Selling Shareholder is a party or by which it may be
bound, or to which any of the property or assets of any Selling Shareholder may
be subject, nor (B) will
D-1
<PAGE>
such action result in any violation of any law, administrative regulation,
judgment or order of any governmental agency or body or any administrative or
court decree having jurisdiction over such Selling Shareholder or any of its
properties.
(vi) Each Selling Shareholder has full right, power and authority to sell,
transfer and deliver such Option Securities pursuant to the Purchase Agreements.
Assuming that (i) the certificate or certificates representing the Option
Securities to be sold by such Selling Shareholder pursuant to the Purchase
Agreements have been effectively indorsed in blank in accordance with NYUCC
Article 8 and (ii) the Underwriters are without notice of any adverse claim
to the Option Securities, then, upon the Underwriters' acquiring possession of
such certificate or certificates for the Option Securities and paying the
purchase price therefor pursuant to the Purchase Agreements, each Underwriter
will be a "protected purchaser" of the Option Securities to be purchased by it
(within the meaning of Section 8-303 of the NYUCC) and will acquire its
interest in such Option Securities (including, without limitation, all rights
that such Selling Shareholder had or has the power to transfer in such
Securities) free of any adverse claim.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper on certificates of
the Selling Shareholders and of responsible officers of the Company and public
officials. Such counsel may also rely on opinions of other counsel, to the
extent they deem proper, as to matters governed by the laws of a jurisdiction in
which such counsel are not admitted to practice law.
D-2
<PAGE>
EXHIBIT E
April , 2000
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated,
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
as U.S. Representatives of the several
U.S. Underwriters to be named in the
within-mentioned U.S. Purchase Agreement
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower
World Financial Center
New York, New York 10281
MERRILL LYNCH INTERNATIONAL
Chase Manhattan International Limited
Robert W. Baird & Co. Incorporated
Bank of America International Limited
Thomas Weisel International Limited
as Lead Manager of the several International Managers
to be named in the within-mentioned International Purchase Agreement
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Re: PROPOSED PUBLIC OFFERING BY PACKARD BIOSCIENCE COMPANY
------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder [and an officer and/or director] of Packard
BioScience Company, a Delaware corporation (the "COMPANY"), understands that
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated
("MERRILL LYNCH") and Chase Securities Inc., Robert W. Baird & Co. Incorporated,
Banc of America Securities LLC, and Thomas Weisel Partners LLC (the "U.S.
UNDERWRITERS") propose to enter into a U.S. Purchase Agreement (the
E-1
<PAGE>
"U.S. PURCHASE AGREEMENT") with the Company and the persons listed in Schedule B
to the U.S. Purchase Agreement (the "SELLING SHAREHOLDERS") providing for the
public offering of shares (the "SECURITIES") of the Company's common stock, par
value $.002 per share (the "COMMON STOCK"). The undersigned also understands
that the Company and the Selling Shareholders propose to concurrently enter into
an agreement with certain international underwriters (the "INTERNATIONAL
MANAGERS" and, together with the U.S. Underwriters, the "UNDERWRITERS") for the
offering of the Common Stock outside the United States and Canada (the
"INTERNATIONAL PURCHASE AGREEMENT" and, together with the U.S. Purchase
Agreement, the "PURCHASE AGREEMENTS"). In recognition of the benefit that such
an offering will confer upon the undersigned as a stockholder [and an officer
and/or director] of the Company, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, and subject to the
next paragraph of this agreement, the undersigned agrees with each of the
Underwriters that, during a period of 180 days from the date of the Purchase
Agreements, the undersigned will not, without the prior written consent of
Merrill Lynch, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
The foregoing paragraph shall not apply to (A) Securities (i) transferred
as a BONA FIDE gift or gifts, provided that the donee or donees thereof agree to
be bound in writing by the restrictions set forth in this agreement, (ii)
transferred to any trust for the direct or indirect benefit of any stockholder
or the immediate family of such stockholder, provided that the trustee of trust
agrees to be bound in writing by the restrictions set forth herein, and provided
further that any such transfer shall not involve a disposition for value, (iii)
sold by the stockholder but only if and to the extent that such Securities have
been acquired by such stockholder (x) pursuant to the Purchase Agreements or (y)
in the open market after completion of the offering of the Securities by the
Underwriters, or (iv) if the transfer of such Securities occurs by operation of
law, such as rules of intestate succession or statutes governing the effects of
a merger, provided that the transferee executes an agreement stating that the
transferee is receiving and holding the shares subject to the provisions of this
agreement, and (B) any sales of any Securities to the Underwriters pursuant to
the Purchase Agreements. For purposes of this paragraph "immediate family" shall
mean any relationship by blood, marriage or adoption, not more remote than first
cousin.
Very truly yours,
Signature: __________________________
E-2
<PAGE>
Print Name: _________________________
E-3
<PAGE>
TABLE OF CONTENTS
INTERNATIONAL PURCHASE AGREEMENT...............................................1
SECTION 1. REPRESENTATIONS AND WARRANTIES.................................4
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY..................4
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS............4
(ii) INDEPENDENT ACCOUNTANTS..............................5
(iii) FINANCIAL STATEMENTS.................................5
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS...............5
(v) GOOD STANDING OF THE COMPANY.........................6
(vi) GOOD STANDING OF SUBSIDIARIES........................6
(vii) CAPITALIZATION.......................................6
(viii) AUTHORIZATION OF AGREEMENT...........................7
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES..........7
(x) ABSENCE OF DEFAULTS AND CONFLICTS....................7
(xi) ABSENCE OF LABOR DISPUTE.............................8
(xii) ABSENCE OF PROCEEDINGS...............................8
(xiii) ACCURACY OF EXHIBITS.................................8
(xiv) POSSESSION OF INTELLECTUAL PROPERTY..................8
(xv) ABSENCE OF FURTHER REQUIREMENTS......................9
(xvi) POSSESSION OF LICENSES AND PERMITS...................8
(xvii) TITLE TO PROPERTY...................................10
(xviii) INVESTMENT COMPANY ACT..............................10
(xix) ENVIRONMENTAL LAWS..................................10
(xx) REGISTRATION RIGHTS.................................11
(xxi) YEAR 2000 PROBLEM...................................11
(xxii) INSURANCE...........................................11
(xxiii) RELATIONSHIPS WITH DIRECTORS AND STOCKHOLDERS.......11
(xxiv) COMPLIANCE WITH CUBA ACT............................11
(b) REPRESENTATIONS AND WARRANTIES BY THE SELLING SHAREHOLDERS....11
(i) ACCURATE DISCLOSURE.................................11
(ii) AUTHORIZATION OF AGREEMENTS.........................12
(iii) GOOD AND MARKETABLE TITLE...........................12
(iv) DUE EXECUTION OF IRREVOCABLE POWER OF ATTORNEY AND
CUSTODY AGREEMENT...................................12
(v) ABSENCE OF MANIPULATION.............................13
(vi) ABSENCE OF FURTHER REQUIREMENTS.....................13
(vii) RESTRICTION ON SALE OF SECURITIES...................13
(viii) CERTIFICATES SUITABLE FOR TRANSFER..................13
(ix) NO ASSOCIATION WITH NASD............................14
(c) OFFICER'S CERTIFICATES........................................14
SECTION 2. SALE AND DELIVERY TO INTERNATIONAL MANAGERS; CLOSING..........14
(a) INITIAL SECURITIES............................................14
<PAGE>
(b) OPTION SECURITIES.............................................14
(c) PAYMENT.......................................................15
(d) DENOMINATIONS; REGISTRATION...................................15
SECTION 3. COVENANTS OF THE COMPANY......................................16
(a) COMPLIANCE WITH SECURITIES REGULATIONS
AND COMMISSION REQUESTS.......................................16
(b) FILING OF AMENDMENTS..........................................16
(c) DELIVERY OF REGISTRATION STATEMENTS...........................16
(d) DELIVERY OF PROSPECTUSES......................................17
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS.....................17
(f) BLUE SKY QUALIFICATIONS.......................................17
(g) RULE 158......................................................18
(h) USE OF PROCEEDS...............................................18
(i) LISTING.......................................................18
(j) RESTRICTION ON SALE OF SECURITIES.............................18
(k) REPORTING REQUIREMENTS........................................18
(l) COMPLIANCE WITH NASD RULES....................................19
(m) COMPLIANCE WITH RULE 463......................................19
SECTION 4. PAYMENT OF EXPENSES...........................................19
(a) EXPENSES......................................................19
(b) EXPENSES OF THE SELLING SHAREHOLDERS..........................20
(c) TERMINATION OF AGREEMENT......................................20
SECTION 5. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS.............20
(a) EFFECTIVENESS OF REGISTRATION STATEMENT.......................20
(b) OPINION OF COUNSEL FOR COMPANY................................20
(c) OPINION OF PATENT COUNSEL FOR COMPANY.........................21
(d) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS.................21
(e) OPINION OF COUNSEL FOR INTERNATIONAL MANAGERS.................21
(f) OFFICERS' CERTIFICATE.........................................21
(g) CERTIFICATE OF SELLING SHAREHOLDERS...........................22
(h) ACCOUNTANTS' COMFORT LETTER...................................22
(i) BRING-DOWN COMFORT LETTER.....................................22
(j) APPROVAL OF LISTING...........................................22
(k) AMENDED CHARTER DOCUMENTS.....................................22
(l) NO OBJECTION..................................................22
(m) LOCK-UP AGREEMENTS............................................22
(n) PURCHASE OF INITIAL U.S. SECURITIES...........................22
(m) DOWNGRADE OF COMPANY'S SECURITIES.............................23
(n) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES.....23
(o) PURCHASE OF INITIAL U.S. SECURITIES...........................23
(p) CONDITIONS TO PURCHASE OF INTERNATIONAL OPTION SECURITIES.....23
(q) ADDITIONAL DOCUMENTS..........................................24
(r) TERMINATION OF AGREEMENT......................................24
<PAGE>
SECTION 6. INDEMNIFICATION...............................................24
(a) INDEMNIFICATION OF INTERNATIONAL MANAGERS.....................24
(b) INDEMNIFICATION OF COMPANY, DIRECTORS, OFFICERS AND SELLING
SHAREHOLDERS..................................................25
(c) ACTIONS AGAINST PARTIES; NOTIFICATION.........................26
(d) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE............26
(e) INDEMNIFICATION FOR RESERVED SECURITIES.......................27
(f) OTHER AGREEMENTS WITH RESPECT TO INDEMNIFICATION..............27
SECTION 7. CONTRIBUTION..................................................27
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS
TO SURVIVE DELIVERY...........................................28
SECTION 9. TERMINATION OF AGREEMENT......................................29
(a) TERMINATION; GENERAL..........................................30
(b) LIABILITIES...................................................30
SECTION 10.DEFAULT BY ONE OR MORE OF THE INTERNATIONAL MANAGERS..........30
SECTION 11.DEFAULT BY ONE OR MORE OF THE SELLING SHAREHOLDERS............30
SECTION 12.NOTICES.......................................................31
SECTION 13.PARTIES.......................................................31
SECTION 14.GOVERNING LAW AND TIME........................................31
SECTION 15.EFFECT OF HEADINGS............................................31
SCHEDULES
SCHEDULE A - LIST OF INTERNATIONAL MANAGERS.........................Sch A-1
SCHEDULE B - LIST OF SELLING SHAREHOLDERS...........................Sch B-1
SCHEDULE C - PRICING INFORMATION....................................Sch C-1
SCHEDULE D - LIST OF PERSONS AND ENTITIES SUBJECT TO LOCK-UP........Sch D-1
EXHIBITS
EXHIBIT A - FORM OF OPINION OF COMPANY'S COUNSEL........................A-1
EXHIBIT B - FORM OF OPINION OF TIMOTHY O. WHITE.........................B-1
EXHIBIT C - FORM OF OPINION OF PATENT COUNSEL FOR THE COMPANY...........C-1
<PAGE>
EXHIBIT D - FORM OF OPINION OF SELLING SHAREHOLDERS' COUNSEL........... D-1
EXHIBIT E - FORM OF LOCK-UP LETTER..................................... E-1
<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
PACKARD BIOSCIENCE COMPANY
PACKARD BIOSCIENCE COMPANY, a corporation incorporated under the General
Corporation Law of Delaware (the "Corporation"), hereby amends and restates its
Certificate of Incorporation, which was originally filed with the Secretary of
State on August 8, 1975 under the name Canberra Industries, Inc., and amended
and restated on March 21, 2000, as follows:
FIRST: The name of the corporation is Packard BioScience Company.
SECOND: The address of the registered office of the Corporation in the
State of Delaware is 1013 Centre Road, City of Wilmington, County of New Castle;
and the name of the registered agent of the Corporation is the State of Delaware
at such address is Corporation Service Company.
THIRD: A. The nature of the business to be conducted and the purposes to be
promoted by the Corporation are as follows:
1. To engage in the development, manufacture, use, sale, purchase, and
distribution of electronic or mechanical equipment, products, instruments and
machinery.
2. To engage in any lawful act or activity for which corporations may
be organized under the General Corporation Law of the State of Delaware.
B. The Corporation shall have all powers granted by law and all powers
granted under the General Corporation Law of the State of Delaware.
FOURTH: A. The total number and classes of shares of stock which the
Corporation shall have authority to issue is (a) Two Hundred Million
(200,000,000) shares of Common Stock, all of which are $.002 par value and (b)
One Million (1,000,000) shares of Preferred Stock, all of which are $.01 par
value.
B. Shares of Preferred Stock may be issued from time to time in one or
more series. The Board of Directors is hereby authorized to fix the voting
rights, if any, designations, preferences and the relative, participating,
optional or other rights, if any, and the qualifications, limitations or
restrictions thereof, of any unissued shares of Preferred Stock; and to fix the
number of shares constituting such series, and to increase or decrease the
number of shares of any such series (but not the number of shares thereof then
outstanding).
C. There shall be no preemptive rights granted to any stockholder.
D. Except as otherwise provided by law, or by the resolution or
resolutions adopted by the Board of Directors designating the rights, powers and
preferences or any series of Preferred Stock, the Common Stock shall have the
exclusive right to vote for the election of directors and for all other
purposes. Each share of Common Stock shall have one vote, and the
<PAGE>
Common Stock shall vote together as a single class. There shall be no cumulative
voting rights granted to any stockholder.
FIFTH: The Corporation is to have perpetual existence.
SIXTH: For the management of the business and for the conduct of the
affairs of the Corporation, and in further definition, limitation and regulation
of the powers of the Corporation and of its directors and of its stockholders or
any class thereof, as the case may be, it is further provided:
1. The management of the business and the conduct of the affairs of
the Corporation shall be vested in its Board of Directors. The number of
directors which shall constitute the whole Board of Directors shall be fixed by,
or in the manner provided in, the By-Laws. The phrase "whole Board" and the
phrase "total number of directors" shall be deemed to have the same meaning, to
wit, the total number of directors which the Corporation would have if there
were no vacancies. No election of directors need be by written ballot.
2. In furtherance and not in limitation of the powers conferred by
law, the Board of Directors is expressly authorized and empowered to make, alter
and repeal the By-Laws of the Corporation by a majority vote at any regular or
special meeting of the Board of Directors or by written consent.
SEVENTH: 1. The Corporation shall, to the fullest extent permitted by
Section 145 of the General Corporation Law of the State of Delaware, as the same
may be amended and supplemented, indemnify any and all persons whom it shall
have power to indemnify under said section from and against any and all of the
expenses, liabilities or other matters referred to in or covered by said
section, and the indemnification provided for herein shall not be deemed
exclusive of any other rights to which those indemnified may be entitled under
any By-Law, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in another capacity while holding such office, and
shall continue as to a person who had ceased to be a director, officer, employee
or agent and shall inure to the benefit of the heirs, executors and
administrators of such a person.
2. No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director in his capacity as a director; provided, however, that a director shall
be liable to the extent provided by applicable law (i) for the breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
3. Expenses incurred by an officer or director of the Corporation in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it shall be ultimately determined that such
officer or director is not entitled to be indemnified by the Corporation as
authorized by the Delaware General Corporation Law. Such expenses incurred by
other
-2-
<PAGE>
employees and agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
4. No amendment to or repeal of this Article SEVENTH shall apply to or
have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal, nor shall any such amendment or
repeal have any adverse effect on the right to indemnification or the obligation
of the Corporation to pay in advance expenses incurred by an officer or director
of the Corporation in defending any action, suit or proceeding arising out of or
with respect to any acts or omissions occurring prior to such amendment or
repeal.
EIGHTH: From time to time any of the provisions of this Certificate of
Incorporation may be amended, altered or repealed, and other provisions
authorized by the laws of the State of Delaware at the time in force may be
added or inserted in the manner and at the time prescribed by said laws, and all
rights at any time conferred upon the stockholders of the Corporation by this
Certificate of Incorporation are granted subject to the provisions of this
Article EIGHTH.
-3-
<PAGE>
IN WITNESS WHEREOF, this Amended and Restated Certificate of Incorporation,
which restates and integrates and further amends the provisions of the Amended
and Restated Certificate of Incorporation of this Corporation, and which has
been duly adopted in accordance with Sections 242 and 245 of the Delaware
General Corporation Law has been executed by its duly authorized officer and
attested this day of April, 2000.
Attest: PACKARD BIOSCIENCE COMPANY
___________________________________ By:_________________________________
Timothy O. White, Jr. Emery G. Olcott
Secretary President and Chief Executive Officer
STATE OF CONNECTICUT )
) ss. Meriden
COUNTY OF NEW HAVEN )
On this day of April, 2000, before me, the undersigned officer,
personally appeared Emery G. Olcott, who acknowledged himself to be the
President of Packard BioScience Company, a Delaware corporation, and that he as
such officer, being authorized so to do, executed the foregoing instrument for
the purposes therein contained, by signing the name of the corporation by
himself as such officer, and the said Emery G. Olcott acknowledged said
instrument to be the act and deed of said corporation, that his signing is his
act and deed and that the facts stated therein are true.
IN WITNESS WHEREOF, I hereunto set my hand.
______________________
Notary Public
My Commission Expires:
-4-
<PAGE>
EXHIBIT 3.2
As Amended and Restated
April 18, 2000
AMENDED AND RESTATED BY-LAWS
OF
PACKARD BIOSCIENCE COMPANY
Incorporated under the Laws of the State of Delaware
==========================================================
ARTICLE I
OFFICES AND RECORDS
SECTION 1.1. DELAWARE OFFICE. The principal office of the Corporation
in the State of Delaware shall be located in the City of Wilmington, County of
New Castle, and the name and address of its registered agent is Corporation
Service Company, 1013 Centre Road, Wilmington, Delaware.
SECTION 1.2. OTHER OFFICES. The Corporation may have such other
offices, either within or without the State of Delaware, as the Board of
Directors may designate or as the business of the Corporation may from time to
time require.
SECTION 1.3. BOOKS AND RECORDS. The books and records of the
Corporation may be kept outside the State of Delaware at such place or places as
may from time to time be designated by the Board of Directors.
ARTICLE II
STOCKHOLDERS
SECTION 2.1. ANNUAL MEETING. The annual meeting of the stockholders of
the Corporation shall be held on such date and at such place and time as may be
fixed by resolution of the Board of Directors.
SECTION 2.2. SPECIAL MEETING. Subject to the rights of the holders of
any series of stock having a preference over the Common Stock of the Corporation
as to dividends or upon liquidation ("Preferred Stock") with respect to such
series of Preferred Stock, special meetings of the stockholders may be called
only by the Chairman of the Board of Directors or by the Board of Directors
pursuant to a resolution adopted by a majority of the total number of directors
which the Corporation would have if there were no vacancies (the "Whole Board").
SECTION 2.3. PLACE OF MEETING. The Board of Directors or the Chairman
of the Board of Directors, as the case may be, may designate the place of
meeting for any annual meeting or for any special meeting of the stockholders
called by the Board of Directors or the
<PAGE>
Chairman of the Board of Directors. If no designation is so made, the place of
meeting shall be the principal office of the Corporation.
SECTION 2.4. NOTICE OF MEETING. Written or printed notice, stating the
place, day and hour of the meeting and the purpose or purposes for which the
meeting is called, shall be delivered by the Corporation not less than ten (10)
days nor more than sixty (60) days before the date of the meeting, either
personally or by mail, to each stockholder of record entitled to vote at such
meeting. If mailed, such notice shall be deemed to be delivered when deposited
in the United States mail with postage thereon prepaid, addressed to the
stockholder at his address as it appears on the stock transfer books of the
Corporation. Such further notice shall be given as may be required by law. Only
such business shall be conducted at a special meeting of stockholders as shall
have been brought before the meeting pursuant to the Corporation's notice of
meeting. Meetings may be held without notice if all stockholders entitled to
vote are present, or if notice is waived by those not present in accordance with
Section 6.4 of these By-Laws. Any previously scheduled meeting of the
stockholders may be postponed, and (unless the Amended and Restated Certificate
of Incorporation of the Corporation (the "Certificate of Incorporation")
otherwise provides) any special meeting of the stockholders may be cancelled, by
resolution of the Board of Directors upon public notice given prior to the date
previously scheduled for such meeting of stockholders.
SECTION 2.5. QUORUM AND ADJOURNMENT. Except as otherwise provided by
law or the Certificate of Incorporation, the holders of a majority of the
outstanding shares of the Corporation entitled to vote generally in the election
of directors (the "Voting Stock"), represented in person or by proxy, shall
constitute a quorum at a meeting of stockholders, except that when specified
business is to be voted on by a class or series of stock voting as a class, the
holders of a majority of the shares of such class or series shall constitute a
quorum of such class or series for the transaction of such business. The
Chairman of the meeting or a majority of the shares so represented may adjourn
the meeting from time to time, whether or not there is such a quorum. No notice
of the time and place of adjourned meetings need be given except as required by
law. The stockholders present at a duly called meeting at which a quorum is
present may continue to transact business until adjournment, notwithstanding the
withdrawal of enough stockholders to leave less than a quorum.
SECTION 2.6. PROXIES. At all meetings of stockholders, a stockholder
may vote by proxy executed in writing (or in such manner prescribed by the
General Corporation Law of the State of Delaware) by the stockholder, or by his
duly authorized attorney in fact.
SECTION 2.7. NOTICE OF STOCKHOLDER BUSINESS AND NOMINATIONS.
(A) ANNUAL MEETINGS OF STOCKHOLDERS. (1) Nominations of persons for
election to the Board of Directors of the Corporation and the proposal of
business to be considered by the stockholders may be made at an annual meeting
of stockholders (a) pursuant to the Corporation's notice of meeting, (b) by or
at the direction of the Board of Directors or (c) by any stockholder of the
Corporation who was a stockholder of record at the time of giving of notice
provided for in this By-Law, who is entitled to vote at the meeting and who
complied with the notice procedures set forth in this By-Law.
-2-
<PAGE>
(2) For nominations or other business to be properly brought
before an annual meeting by a stockholder pursuant to clause (c) of paragraph
(A)(1) of this By-Law, the stockholder must have given timely notice thereof in
writing to the Secretary of the Corporation and such other business must be a
proper matter for stockholder action. To be timely, a stockholder's notice shall
be delivered to the Secretary at the principal executive offices of the
Corporation not later than the close of business on the 90th day nor earlier
than the close of business on the 120th day prior to the first anniversary of
the preceding year's annual meeting; provided, however, that in the event that
the date of the annual meeting is more than 30 days before or more than 60 days
after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 120th day prior to such
annual meeting and not later than the close of business on the later of the 90th
day prior to such annual meeting or the 10th day following the day on which
public announcement of the date of such meeting is first made. In no event shall
the public announcement of an adjournment of an annual meeting commence a new
time period for the giving of a stockholder's notice as described above. Such
stockholder's notice shall set forth (a) as to each person whom the stockholder
proposes to nominate for election or reelection as a director all information
relating to such person that is required to be disclosed in solicitations of
proxies for election of directors in an election contest, or is otherwise
required, in each case pursuant to Regulation 14A under the Securities Exchange
Act of 1934, as amended (the "Exchange Act") and Rule 14a-11 thereunder
(including such person's written consent to being named in the proxy statement
as a nominee and to serving as a director if elected); (b) as to any other
business that the stockholder proposes to bring before the meeting, a brief
description of the business desired to be brought before the meeting, the
reasons for conducting such business at the meeting and any material interest in
such business of such stockholder and the beneficial owner, if any, on whose
behalf the proposal is made; and (c) as to the stockholder giving the notice and
the beneficial owner, if any, on whose behalf the nomination or proposal is made
(i) the name and address of such stockholder, as they appear on the
Corporation's books, and of such beneficial owner and (ii) the class and number
of shares of the Corporation which are owned beneficially and of record by such
stockholder and such beneficial owner.
(3) Notwithstanding anything in the second sentence of paragraph
(A)(2) of this By-Law to the contrary, in the event that the number of directors
to be elected to the Board of Directors of the Corporation is increased and
there is no public announcement naming all of the nominees for director or
specifying the size of the increased Board of Directors made by the Corporation
at least 100 days prior to the first anniversary of the preceding year's annual
meeting, a stockholder's notice required by this By-Law shall also be considered
timely, but only with respect to nominees for any new positions created by such
increase, if it shall be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 10th day
following the day on which such public announcement is first made by the
Corporation.
(B) SPECIAL MEETINGS OF STOCKHOLDERS. Only such business shall be
conducted at a special meeting of stockholders as shall have been brought before
the meeting pursuant to the Corporation's notice of meeting. Nominations of
persons for election to the Board of Directors may be made at a special meeting
of stockholders at which directors are to be elected pursuant to the
Corporation's notice of meeting (a) by or at the direction of the Board of
Directors or (b) by any stockholder of the Corporation who is a stockholder of
record at the time
-3-
<PAGE>
of giving of notice provided for in this By-Law, who shall be entitled to vote
at the meeting and who complies with the notice procedures set forth in this
By-Law. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any
such stockholder may nominate a person or persons (as the case may be), for
election to such position(s) as specified in the Corporation's notice of
meeting, if the stockholder's notice required by paragraph (A)(2) of this By-Law
shall be delivered to the Secretary at the principal executive offices of the
Corporation not earlier than the close of business on the 120th day prior to
such special meeting and not later than the close of business on the later of
the 90th day prior to such special meeting or the 10th day following the day on
which public announcement is first made of the date of the special meeting and
of the nominees proposed by the Board of Directors to be elected at such
meeting. In no event shall the public announcement of an adjournment of a
special meeting commence a new time period for the giving of a stockholder's
notice as described above.
(C) GENERAL. (1) Only such persons who are nominated in accordance
with the procedures set forth in this By-Law shall be eligible to serve as
directors and only such business shall be conducted at a meeting of stockholders
as shall have been brought before the meeting in accordance with the procedures
set forth in this By-Law. Except as otherwise provided by law, the Certificate
of Incorporation or the By-Laws of the Corporation, the Chairman of the meeting
shall have the power and duty to determine whether a nomination or any business
proposed to be brought before the meeting was made, or proposed, as the case may
be, in accordance with the procedures set forth in this By-Law and, if any
proposed nomination or business is not in compliance with this By-Law, to
declare that such defective proposal or nomination shall be disregarded.
(2) For purposes of this By-Law, "public announcement" shall mean
disclosure in a press release reported by the Dow Jones News Service, Associated
Press or comparable national news service or in a document publicly filed by the
Corporation with the Securities and Exchange Commission pursuant to Section 13,
14 or 15(d) of the Exchange Act.
(3) Notwithstanding the foregoing provisions of this By-Law, a
stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set
forth in this By-Law. Nothing in this By-Law shall be deemed to affect any
rights of (i) stockholders to request inclusion of proposals in the
Corporation's proxy statement pursuant to Rule 14a-8 under the Exchange Act or
(ii) the holders of any series of Preferred Stock to elect directors under
specified circumstances.
SECTION 2.8. PROCEDURE FOR ELECTION OF DIRECTORS; REQUIRED VOTE.
Election of directors at all meetings of the stockholders at which directors are
to be elected shall be by ballot, and, subject to the rights of the holders of
any series of Preferred Stock to elect directors under specified circumstances,
a plurality of the votes cast thereat shall elect directors. Except as otherwise
provided by law, the Certificate of Incorporation or these By-Laws, in all
matters other than the election of directors, the affirmative vote of a majority
of the shares present in person or represented by proxy at the meeting and
entitled to vote on the matter shall be the act of the stockholders.
-4-
<PAGE>
SECTION 2.9. INSPECTORS OF ELECTIONS; OPENING AND CLOSING THE POLLS.
The Board of Directors by resolution shall appoint one or more inspectors, which
inspector or inspectors may include individuals who serve the Corporation in
other capacities, including, without limitation, as officers, employees, agents
or representatives, to act at the meetings of stockholders and make a written
report thereof. One or more persons may be designated as alternate inspectors to
replace any inspector who fails to act. If no inspector or alternate has been
appointed to act or is able to act at a meeting of stockholders, the Chairman of
the meeting shall appoint one or more inspectors to act at the meeting. Each
inspector, before discharging his or her duties, shall take and sign an oath
faithfully to execute the duties of inspector with strict impartiality and
according to the best of his or her ability. The inspectors shall have the
duties prescribed by law.
The Chairman of the meeting shall fix and announce at the meeting the
date and time of the opening and the closing of the polls for each matter upon
which the stockholders will vote at a meeting.
SECTION 2.10. RECORD DATE FOR ACTION BY WRITTEN CONSENT. In order that
the Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board of Directors may fix a record
date, which record date shall not precede the date upon which the resolution
fixing the record date is adopted by the Board of Directors, and which date
shall not be more than 10 days after the date upon which the resolution fixing
the record date is adopted by the Board of Directors. Any stockholder of record
seeking to have the stockholders authorize or take corporate action by written
consent shall, by written notice to the Secretary, request the Board of
Directors to fix a record date. The Board of Directors shall promptly, but in
all events within 10 days after the date on which such a request is received,
adopt a resolution fixing the record date. If no record date has been fixed by
the Board of Directors within 10 days of the date on which such a request is
received, the record date for determining stockholders entitled to consent to
corporate action in writing without a meeting, when no prior action by the Board
of Directors is required by applicable law, shall be the first date on which a
signed written consent setting forth the action taken or proposed to be taken is
delivered to the Corporation by delivery to its registered office in Delaware,
its principal place of business or to any officer or agent of the Corporation
having custody of the book in which proceedings of meetings of stockholders are
recorded. Delivery made to the Corporation's registered office shall be by hand
or by certified or registered mail, return receipt requested. If no record date
has been fixed by the Board of Directors and prior action by the Board of
Directors is required by applicable law, the record date for determining
stockholders entitled to consent to corporate action in writing without a
meeting shall be at the close of business on the date on which the Board of
Directors adopts the resolution taking such prior action.
SECTION 2.11. INSPECTORS OF WRITTEN CONSENT. In the event of the
delivery, in the manner provided by Section 2.10, to the Corporation of the
requisite written consent or consents to take corporate action and/or any
related revocation or revocations, the Corporation shall engage nationally
recognized independent inspectors of elections for the purpose of promptly
performing a ministerial review of the validity of the consents and revocations.
For the purpose of permitting the inspectors to perform such review, no action
by written consent without a meeting shall be effective until such date as the
independent inspectors certify to the Corporation that the consents delivered to
the Corporation in accordance with Section 2.10
-5-
<PAGE>
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this paragraph shall in any way be
construed to suggest or imply that the Board of Directors or any stockholder
shall not be entitled to contest the validity of any consent or revocation
thereof, whether before or after such certification by the independent
inspectors, or to take any other action (including, without limitation, the
commencement, prosecution or defense of any litigation with respect thereto, and
the seeking of injunctive relief in such litigation).
SECTION 2.12. EFFECTIVENESS OF WRITTEN CONSENT. Every written consent
shall bear the date of signature of each stockholder who signs the consent and
no written consent shall be effective to take the corporate action referred to
therein unless, within 60 days of the earliest dated written consent received in
accordance with Section 2.10, a written consent or consents signed by a
sufficient number of holders to take such action are delivered to the
Corporation in the manner prescribed in Section 2.10.
ARTICLE III
BOARD OF DIRECTORS
SECTION 3.1. GENERAL POWERS. The business and affairs of the
Corporation shall be managed under the direction of the Board of Directors. In
addition to the powers and authorities by these By-Laws expressly conferred upon
them, the Board of Directors may exercise all such powers of the Corporation and
do all such lawful acts and things as are not by statute or by the Certificate
of Incorporation or by these By-Laws required to be exercised or done by the
stockholders.
SECTION 3.2. NUMBER, TENURE AND QUALIFICATIONS. Subject to the rights
of the holders of any series of Preferred Stock to elect directors under
specified circumstances, the number of directors shall be fixed from time to
time exclusively pursuant to a resolution adopted by a majority of the Whole
Board. In the absence of such resolution, the Board of Directors shall consist
of at least three (3), and no more than twelve (12), directors. The term of
office of each of the directors elected at any annual meeting of stockholders
shall be three (3) years, with each director to hold office until his or her
successor shall have been duly elected and qualified. A director may, but need
not, be a stockholder of the Corporation.
SECTION 3.3. REGULAR MEETINGS. A regular meeting of the Board of
Directors shall be held without other notice than this By-Law immediately after,
and at the same place as, the Annual Meeting of Stockholders. The Board of
Directors may, by resolution, provide the time and place for the holding of
additional regular meetings without other notice than such resolution.
SECTION 3.4. SPECIAL MEETINGS. Special meetings of the Board of
Directors shall be called at the request of the Chairman of the Board of
Directors, the President or a majority of the Board of Directors then in office.
The person or persons authorized to call special meetings of the Board of
Directors may fix the place and time of the meetings.
-6-
<PAGE>
SECTION 3.5. NOTICE. Notice of any special meeting of directors shall
be given to each director at his business or residence in writing by hand
delivery, first-class or overnight mail or courier service, telegram or
facsimile transmission, or orally by telephone. If mailed by first-class mail,
such notice shall be deemed adequately delivered when deposited in the United
States mails so addressed, with postage thereon prepaid, at least five (5) days
before such meeting. If by telegram, overnight mail or courier service, such
notice shall be deemed adequately delivered when the telegram is delivered to
the telegraph company or the notice is delivered to the overnight mail or
courier service company at least twenty-four (24) hours before such meeting. If
by facsimile transmission, such notice shall be deemed adequately delivered when
the notice is transmitted at least twelve (12) hours before such meeting. If by
telephone or by hand delivery, the notice shall be given at least twelve (12)
hours prior to the time set for the meeting. Neither the business to be
transacted at, nor the purpose of, any regular or special meeting of the Board
of Directors need be specified in the notice of such meeting, except for
amendments to these By-Laws, as provided under Section 8.1. A meeting may be
held at any time without notice if all the directors are present or if those not
present waive notice of the meeting in accordance with Section 6.4 of these
By-Laws.
SECTION 3.6. ACTION BY CONSENT OF BOARD OF DIRECTORS. Any action
required or permitted to be taken at any meeting of the Board of Directors or of
any committee thereof may be taken without a meeting if all members of the Board
or committee, as the case may be, consent thereto in writing, and the writing or
writings are filed with the minutes of proceedings of the Board or committee.
SECTION 3.7. CONFERENCE TELEPHONE MEETINGS. Members of the Board of
Directors, or any committee thereof, may participate in a meeting of the Board
of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and such participation in a meeting shall
constitute presence in person at such meeting.
SECTION 3.8. QUORUM. Subject to Section 3.9, a whole number of
directors equal to at least a majority of the Whole Board shall constitute a
quorum for the transaction of business, but if at any meeting of the Board of
Directors there shall be less than a quorum present, a majority of the directors
present may adjourn the meeting from time to time without further notice. The
act of the majority of the directors present at a meeting at which a quorum is
present shall be the act of the Board of Directors. The directors present at a
duly organized meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough directors to leave less than a quorum.
SECTION 3.9. VACANCIES. Subject to applicable law and the rights of
the holders of any series of Preferred Stock with respect to such series of
Preferred Stock, and unless the Board of Directors otherwise determines,
vacancies resulting from death, resignation, retirement, disqualification,
removal from office or other cause, and newly created directorships resulting
from any increase in the authorized number of directors, may be filled only by
the affirmative vote of a majority of the remaining directors, though less than
a quorum of the Board of Directors, and directors so chosen shall hold office
for a term expiring at the annual meeting of stockholders at which the term of
office of the class to which they have been elected expires and until such
director's successor shall have been duly elected and qualified. No decrease in
the
-7-
<PAGE>
number of authorized directors constituting the Whole Board shall shorten the
term of any incumbent director.
SECTION 3.10. EXECUTIVE AND OTHER COMMITTEES. The Board of Directors
may, by resolution adopted by a majority of the Whole Board, designate an
Executive Committee to exercise, subject to applicable provisions of law, all
the powers of the Board in the management of the business and affairs of the
Corporation when the Board is not in session, including without limitation the
power to declare dividends, to authorize the issuance of the Corporation's
capital stock and to adopt a certificate of ownership and merger pursuant to
Section 253 of the General Corporation Law of the State of Delaware, and may, by
resolution similarly adopted, designate one or more other committees. The
Executive Committee and each such other committee shall consist of two or more
directors of the Corporation. The Board may designate one or more directors as
alternate members of any committee, who may replace any absent or disqualified
member at any meeting of the committee. Any such committee, other than the
Executive Committee (the powers of which are expressly provided for herein), may
to the extent permitted by law exercise such powers and shall have such
responsibilities as shall be specified in the designating resolution. In the
absence or disqualification of any member of such committee or committees, the
member or members thereof present at any meeting and not disqualified from
voting, whether or not constituting a quorum, may unanimously appoint another
member of the Board to act at the meeting in the place of any such absent or
disqualified member. Each committee shall keep written minutes of its
proceedings and shall report such proceedings to the Board when required.
A majority of any committee may determine its action and fix the time
and place of its meetings, unless the Board shall otherwise provide. Notice of
such meetings shall be given to each member of the committee in the manner
provided for in Section 3.5 of these By-Laws. The Board shall have power at any
time to fill vacancies in, to change the membership of, or to dissolve any such
committee. Nothing herein shall be deemed to prevent the Board from appointing
one or more committees consisting in whole or in part of persons who are not
directors of the Corporation; PROVIDED, HOWEVER, that no such committee shall
have or may exercise any authority of the Board.
SECTION 3.11. REMOVAL. Subject to the rights of the holders of any
series of Preferred Stock with respect to such series of Preferred Stock, any
director, or the entire Board of Directors, may be removed from office at any
time, but only for cause and only by the affirmative vote of the holders of at
least 80 percent of the voting power of all of the then-outstanding shares of
Voting Stock, voting together as a single class.
SECTION 3.12. RECORDS. The Board of Directors shall cause to be kept a
record containing the minutes of the proceedings of the meetings of the Board
and of the stockholders, appropriate stock books and registers and such books of
records and accounts as may be necessary for the proper conduct of the business
of the Corporation.
-8-
<PAGE>
ARTICLE IV
OFFICERS
SECTION 4.1. ELECTED OFFICERS. The elected officers of the Corporation
shall be a Chairman of the Board of Directors, a President, a Secretary, a
Treasurer, one or more Vice Presidents, and such other officers (including,
without limitation, a Chief Financial Officer) as the Board of Directors from
time to time may deem proper. The Chairman of the Board of Directors shall be
chosen from among the directors, and may, but need not, be an officer of the
Corporation. All officers elected by the Board of Directors shall each have such
powers and duties as generally pertain to their respective offices, subject to
the specific provisions of this ARTICLE IV, or as may be prescribed from time to
time by the Board of Directors. Such officers shall also have such powers and
duties as from time to time may be conferred by the Board of Directors or by any
committee thereof. The Board or any committee thereof may from time to time
elect, or the Chairman of the Board of Directors or the President may appoint,
such other officers (including one or more Assistant Vice Presidents, Assistant
Secretaries, Assistant Treasurers, and Assistant Controllers) and such agents,
as may be necessary or desirable for the conduct of the business of the
Corporation. Such other officers and agents shall have such duties and shall
hold their offices for such terms as shall be provided in these By-Laws or as
may be prescribed by the Board or such committee or by the Chairman of the Board
of Directors or the President, as the case may be.
SECTION 4.2. ELECTION AND TERM OF OFFICE. The elected officers of the
Corporation shall be elected annually by the Board of Directors at the regular
meeting of the Board of Directors held after the annual meeting of the
stockholders. If the election of officers shall not be held at such meeting,
such election shall be held as soon thereafter as convenient. Each officer shall
hold office until his successor shall have been duly elected and shall have
qualified or until his death or until he shall resign, but any officer may be
removed from office at any time by the affirmative vote of a majority of the
Whole Board or, except in the case of an officer or agent elected by the Board,
by the Chairman of the Board of Directors or the President. Such removal shall
be without prejudice to the contractual rights, if any, of the person so
removed.
SECTION 4.3. CHAIRMAN OF THE BOARD. The Chairman of the Board of
Directors shall preside at all meetings of the stockholders and of the Board of
Directors and shall be the Chief Executive Officer of the Company. The Chairman
of the Board of Directors shall be responsible for the general management of the
affairs of the Corporation and shall perform all duties incidental to his office
which may be required by law and all such other duties as are properly required
of him by the Board of Directors. He shall make reports to the Board of
Directors and the stockholders, and shall see that all orders and resolutions of
the Board of Directors and of any committee thereof are carried into effect. The
Chairman of the Board of Directors may also serve as President, if so elected by
the Board.
SECTION 4.4. PRESIDENT. The President shall act in a general executive
capacity and shall assist the Chairman of the Board of Directors in the
administration and operation of the Corporation's business and general
supervision of its policies and affairs. The President shall, in the absence of
or because of the inability to act of the Chairman of the Board of Directors,
-9-
<PAGE>
perform all duties of the Chairman of the Board of Directors and preside at all
meetings of stockholders and of the Board of Directors.
SECTION 4.5. VICE-PRESIDENTS. Each Vice President shall have such
powers and shall perform such duties as shall be assigned to him by the Board of
Directors.
SECTION 4.6. CHIEF FINANCIAL OFFICER. The Chief Financial Officer (if
any) shall be a Vice President and act in an executive financial capacity. He
shall assist the Chairman of the Board of Directors and the President in the
general supervision of the Corporation's financial policies and affairs.
SECTION 4.7. TREASURER. The Treasurer shall exercise general
supervision over the receipt, custody and disbursement of corporate funds. The
Treasurer shall cause the funds of the Corporation to be deposited in such banks
as may be authorized by the Board of Directors, or in such banks as may be
designated as depositaries in the manner provided by resolution of the Board of
Directors. He shall have such further powers and duties and shall be subject to
such directions as may be granted or imposed upon him from time to time by the
Board of Directors, the Chairman of the Board of Directors or the President.
SECTION 4.8. SECRETARY. The Secretary shall keep or cause to be kept
in one or more books provided for that purpose, the minutes of all meetings of
the Board, the committees of the Board and the stockholders; he shall see that
all notices are duly given in accordance with the provisions of these By-Laws
and as required by law; he shall be custodian of the records and the seal of the
Corporation (except to the extent some other person is authorized to have
custody and possession thereof by resolution of the Board of Directors) and
affix and attest the seal to all stock certificates of the Corporation (unless
the seal of the Corporation on such certificates shall be a facsimile, as
hereinafter provided) and affix and attest the seal to all other documents to be
executed on behalf of the Corporation under its seal; and he shall see that the
books, reports, statements, certificates and other documents and records
required by law to be kept and filed are properly kept and filed; and in
general, he shall perform all the duties incident to the office of Secretary and
such other duties as from time to time may be assigned to him by the Board, the
Chairman of the Board of Directors or the President.
SECTION 4.9. REMOVAL AND COMPENSATION. Any officer elected, or agent
appointed, by the Board of Directors may be removed by the affirmative vote of a
majority of the Whole Board whenever, in their judgment, the best interests of
the Corporation would be served thereby. Any officer or agent appointed by the
Chairman of the Board of Directors or the President may be removed by him
whenever, in his judgment, the best interests of the Corporation would be served
thereby. The officers shall receive such salary or compensation as may be
determined by the Compensation Committee, or in the absence of such a committee,
by the Board of Directors. No elected officer shall have any contractual rights
against the Corporation for compensation by virtue of such election beyond the
date of the election of his successor, his death, his resignation or his
removal, whichever event shall first occur, except as otherwise provided in an
employment contract or under an employee deferred compensation plan.
-10-
<PAGE>
SECTION 4.10. VACANCIES. A newly created elected office and a vacancy
in any elected office because of death, resignation, or removal may be filled by
the Board of Directors for the unexpired portion of the term at any meeting of
the Board of Directors. Any vacancy in an office appointed by the Chairman of
the Board of Directors or the President because of death, resignation, or
removal may be filled by the Chairman of the Board of Directors or the
President.
ARTICLE V
STOCK CERTIFICATES AND TRANSFERS
SECTION 5.1. STOCK CERTIFICATES AND TRANSFERS. The interest of each
stockholder of the Corporation shall be evidenced by certificates for shares of
stock in such form as the appropriate officers of the Corporation may from time
to time prescribe. The shares of the stock of the Corporation shall be
transferred on the books of the Corporation by the holder thereof in person or
by his attorney, upon surrender for cancellation of certificates for at least
the same number of shares, with an assignment and power of transfer endorsed
thereon or attached thereto, duly executed, with such proof of the authenticity
of the signature as the Corporation or its agents may reasonably require.
The certificates of stock shall be signed, countersigned and
registered in such manner as the Board of Directors may by resolution prescribe,
which resolution may permit all or any of the signatures on such certificates to
be in facsimile. In case any officer, transfer agent or registrar who has signed
or whose facsimile signature has been placed upon a certificate has ceased to be
such officer, transfer agent or registrar before such certificate is issued, it
may be issued by the Corporation with the same effect as if he were such
officer, transfer agent or registrar at the date of issue.
SECTION 5.2. LOST, STOLEN OR DESTROYED CERTIFICATES. No certificate
for shares of stock in the Corporation shall be issued in place of any
certificate alleged to have been lost, destroyed or stolen, except on production
of such evidence of such loss, destruction or theft and on delivery to the
Corporation of a bond of indemnity in such amount, upon such terms and secured
by such surety, as the Board of Directors or any financial officer may in its or
his discretion require.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1. FISCAL YEAR. The fiscal year of the Corporation shall
begin on the first day of January and end on the thirty-first day of December of
each year.
SECTION 6.2. DIVIDENDS. The Board of Directors may from time to time
declare, and the Corporation may pay, dividends on its outstanding shares in the
manner and upon the terms and conditions provided by law and the Certificate of
Incorporation.
-11-
<PAGE>
SECTION 6.3. SEAL. The corporate seal shall have enscribed thereon the
words "Corporate Seal", the year of incorporation and around the margin thereof
the words "Packard BioScience Company - Delaware."
SECTION 6.4. WAIVER OF NOTICE. Whenever any notice is required to be
given to any stockholder or director of the Corporation under the provisions of
the General Corporation Law of the State of Delaware or these By-Laws, a waiver
thereof in writing, signed by the person or persons entitled to such notice,
whether before or after the time stated therein, shall be deemed equivalent to
the giving of such notice. Neither the business to be transacted at, nor the
purpose of, any annual or special meeting of the stockholders or the Board of
Directors or committee thereof need be specified in any waiver of notice of such
meeting.
SECTION 6.5. AUDITS. The accounts, books and records of the
Corporation shall be audited upon the conclusion of each fiscal year by an
independent certified public accountant selected by the Board of Directors, and
it shall be the duty of the Board of Directors to cause such audit to be done
annually.
SECTION 6.6. RESIGNATIONS. Any director or any officer, whether
elected or appointed, may resign at any time by giving written notice of such
resignation to the Chairman of the Board of Directors, the President, or the
Secretary, and such resignation shall be deemed to be effective as of the close
of business on the date said notice is received by the Chairman of the Board of
Directors, the President, or the Secretary, or at such later time as is
specified therein. No formal action shall be required of the Board of Directors
or the stockholders to make any such resignation effective.
SECTION 6.7. INDEMNIFICATION AND INSURANCE. (A) The Corporation shall,
to the fullest extent permitted by Section 145 of the General Corporation Law of
the State of Delaware, as the same may be amended and supplemented, indemnify
any and all persons whom it shall have power to indemnify under said section
from and against any and all of the expenses, liabilities or other matters
referred to in or covered by said section, and the indemnification provided for
herein shall not be deemed exclusive of any other rights to which those
indemnified may be entitled under the Certificate of Incorporation or any
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in another capacity while holding such office, and shall continue as
to a person who had ceased to be a director, officer, employee or agent and
shall inure to the benefit of the heirs, executors and administrators of such a
person.
No director shall be personally liable to the Corporation or its
stockholders for monetary damages for any breach of fiduciary duty by such
director in his capacity as a director; provided, however, that a director shall
be liable to the extent provided by applicable law (i) for the breach of the
director's duty of loyalty to the Corporation or its stockholders, (ii) for acts
or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) pursuant to Section 174 of the Delaware General
Corporation Law, or (iv) for any transaction from which the director derived an
improper personal benefit.
(B) To obtain indemnification under this By-Law, a claimant shall
submit to the Corporation a written request, including therein or therewith such
documentation and information as is reasonably available to the claimant and is
reasonably necessary to determine
-12-
<PAGE>
whether and to what extent the claimant is entitled to indemnification. Upon
written request by a claimant for indemnification pursuant to the first sentence
of this paragraph (B), a determination, if required by applicable law, with
respect to the claimant's entitlement thereto shall be made as follows: (1) if
requested by the claimant, by Independent Counsel (as hereinafter defined), or
(2) if no request is made by the claimant for a determination by Independent
Counsel, (i) by the Board of Directors by a majority vote of a quorum consisting
of Disinterested Directors (as hereinafter defined), or (ii) if a quorum of the
Board of Directors consisting of Disinterested Directors is not obtainable or,
even if obtainable, such quorum of Disinterested Directors so directs, by
Independent Counsel in a written opinion to the Board of Directors, a copy of
which shall be delivered to the claimant, or (iii) if a quorum of Disinterested
Directors so directs, by the stockholders of the Corporation. In the event the
determination of entitlement to indemnification is to be made by Independent
Counsel at the request of the claimant, the Independent Counsel shall be
selected by the Board of Directors unless there shall have occurred within two
years prior to the date of the commencement of the action, suit or proceeding
for which indemnification is claimed a "Change of Control" as defined in the
Packard BioScience Company 2000 Stock Incentive Plan, in which case the
Independent Counsel shall be selected by the claimant unless the claimant shall
request that such selection be made by the Board of Directors. If it is so
determined that the claimant is entitled to indemnification, payment to the
claimant shall be made within 10 days after such determination.
(C) If a claim under paragraph (A) of this By-Law is not paid in full
by the Corporation within thirty days after a written claim pursuant to
paragraph (B) of this By-Law has been received by the Corporation, the claimant
may at any time thereafter bring suit against the Corporation to recover the
unpaid amount of the claim and, if successful in whole or in part, the claimant
shall be entitled to be paid also the expense of prosecuting such claim. It
shall be a defense to any such action (other than an action brought to enforce a
claim for expenses incurred in defending any proceeding in advance of its final
disposition where the required undertaking, if any is required, has been
tendered to the Corporation) that the claimant has not met the standard of
conduct which makes it permissible under the General Corporation Law of the
State of Delaware for the Corporation to indemnify the claimant for the amount
claimed, but the burden of proving such defense shall be on the Corporation.
Neither the failure of the Corporation (including its Board of Directors,
Independent Counsel or stockholders) to have made a determination prior to the
commencement of such action that indemnification of the claimant is proper in
the circumstances because he or she has met the applicable standard of conduct
set forth in the General Corporation Law of the State of Delaware, nor an actual
determination by the Corporation (including its Board of Directors, Independent
Counsel or stockholders) that the claimant has not met such applicable standard
of conduct, shall be a defense to the action or create a presumption that the
claimant has not met the applicable standard of conduct.
(D) If a determination shall have been made pursuant to paragraph (B)
of this By-Law that the claimant is entitled to indemnification, the Corporation
shall be bound by such determination in any judicial proceeding commenced
pursuant to paragraph (C) of this By-Law.
(E) The Corporation shall be precluded from asserting in any judicial
proceeding commenced pursuant to paragraph (C) of this By-Law that the
procedures and presumptions of this By-Law are not valid, binding and
enforceable and shall stipulate in such proceeding that the Corporation is bound
by all the provisions of this By-Law.
-13-
<PAGE>
(F) Expenses incurred by an officer or director of the Corporation in
defending a civil or criminal action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such officer or
director to repay such amount if it shall be ultimately determined that such
officer or director is not entitled to be indemnified by the Corporation as
authorized by the Delaware General Corporation Law. Such expenses incurred by
other employees and agents of the Corporation may be so paid upon such terms and
conditions, if any, as the Board of Directors deems appropriate.
(G) The right to indemnification and the payment of expenses incurred
in defending a proceeding in advance of its final disposition conferred in this
By-Law shall not be exclusive of any other right which any person may have or
hereafter acquire under any statute, provision of the Certificate of
Incorporation, By-Laws, agreement, vote of stockholders or Disinterested
Directors or otherwise.
(H) The Corporation may maintain insurance, at its expense, to protect
itself and any director, officer, employee or agent of the Corporation or
another corporation, partnership, joint venture, trust or other enterprise
against any expense, liability or loss, whether or not the Corporation would
have the power to indemnify such person against such expense, liability or loss
under the General Corporation Law of the State of Delaware. To the extent that
the Corporation maintains any policy or policies providing such insurance, each
such director or officer, and each such agent or employee to which rights to
indemnification have been granted as provided in paragraph (J) of this By-Law,
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage thereunder for any such director,
officer, employee or agent.
(I) The Corporation may, to the extent authorized from time to time by
the Board of Directors, grant rights to indemnification, and rights to be paid
by the Corporation the expenses incurred in defending any proceeding in advance
of its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this By-Law with respect to the
indemnification and advancement of expenses of directors and officers of the
Corporation.
(J) If any provision or provisions of this By-Law shall be held to be
invalid, illegal or unenforceable for any reason whatsoever: (1) the validity,
legality and enforceability of the remaining provisions of this By-Law
(including, without limitation, each portion of any paragraph of this By-Law
containing any such provision held to be invalid, illegal or unenforceable, that
is not itself held to be invalid, illegal or unenforceable) shall not in any way
be affected or impaired thereby; and (2) to the fullest extent possible, the
provisions of this By-Law (including, without limitation, each such portion of
any paragraph of this By-Law containing any such provision held to be invalid,
illegal or unenforceable) shall be construed so as to give effect to the intent
manifested by the provision held invalid, illegal or unenforceable.
(K) For purposes of this By-Law:
-14-
<PAGE>
(1) "DISINTERESTED DIRECTOR" means a director of the Corporation
who is not and was not a party to the matter in respect of which
indemnification is sought by the claimant.
(2) "INDEPENDENT COUNSEL" means a law firm, a member of a law
firm, or an independent practitioner, that is experienced in matters of
corporation law and shall include any person who, under the applicable
standards of professional conduct then prevailing, would not have a
conflict of interest in representing either the Corporation or the claimant
in an action to determine the claimant's rights under this By-Law.
(L) Any notice, request or other communication required or permitted
to be given to the Corporation under this By-Law shall be in writing and either
delivered in person or sent by telecopy, telex, telegram, overnight mail or
courier service, or certified or registered mail, postage prepaid, return
receipt requested, to the Secretary of the Corporation and shall be effective
only upon receipt by the Secretary.
(M) No amendment to or repeal of this By-Law shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal, nor shall any such amendment or
repeal have any adverse effect on the right to indemnification or the obligation
of the Corporation to pay in advance expenses incurred by an officer or director
of the Corporation in defending any action, suit or proceeding arising out of or
with respect to any acts or omissions occurring prior to such amendment or
repeal.
ARTICLE VII
CONTRACTS, PROXIES, ETC.
SECTION 7.1. CONTRACTS. Except as otherwise required by law, the
Certificate of Incorporation or these By-Laws, any contracts or other
instruments may be executed and delivered in the name and on the behalf of the
Corporation by such officer or officers of the Corporation as the Board of
Directors may from time to time direct. Such authority may be general or
confined to specific instances as the Board may determine. The Chairman of the
Board of Directors, the President or any Vice President may execute bonds,
contracts, deeds, leases and other instruments to be made or executed for or on
behalf of the Corporation. Subject to any restrictions imposed by the Board of
Directors or the Chairman of the Board of Directors, the President or any Vice
President of the Corporation may delegate contractual powers to others under his
jurisdiction, it being understood, however, that any such delegation of power
shall not relieve such officer of responsibility with respect to the exercise of
such delegated power.
SECTION 7.2. PROXIES. Unless otherwise provided by resolution adopted
by the Board of Directors, the Chairman of the Board of Directors, the President
or any Vice President may from time to time appoint an attorney or attorneys or
agent or agents of the Corporation, in the name and on behalf of the
Corporation, to cast the votes which the Corporation may be entitled to cast as
the holder of stock or other securities in any other corporation, any of whose
stock or other securities may be held by the Corporation, at meetings of the
holders of the stock or other securities of such other corporation, or to
consent in writing, in the name of the
-15-
<PAGE>
Corporation as such holder, to any action by such other corporation, and may
instruct the person or persons so appointed as to the manner of casting such
votes or giving such consent, and may execute or cause to be executed in the
name and on behalf of the Corporation and under its corporate seal or otherwise,
all such written proxies or other instruments as he may deem necessary or proper
in the premises.
ARTICLE VIII
AMENDMENTS
SECTION 8.1. AMENDMENTS. These By-Laws may be altered, amended, or
repealed at any meeting of the Board of Directors or of the stockholders,
provided notice of the proposed change was given in the notice of the meeting
and, in the case of a meeting of the Board of Directors, in a notice given not
less than two days prior to the meeting; PROVIDED, HOWEVER, that, in the case of
amendments by stockholders, notwithstanding any other provisions of these
By-Laws or any provision of law which might otherwise permit a lesser vote or no
vote.
-16-
<PAGE>
EXHIBIT 4.1
[SPECIMEN COMMON STOCK CERTIFICATE]
[FACE OF CERTIFICATE]
COMMON STOCK [LOGO] COMMON STOCK
NUMBER PACKARD BIOSCIENCE SHARES
PBS INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP 695172 20 5
THIS CERTIFIES THAT is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE COMMON STOCK, WITH A PAR VALUE OF
TWO-TENTHS OF A CENT ($0.002) EACH, OF
PACKARD BIOSCIENCE COMPANY (herein called the "Corporation"), transferable
upon the books of the Corporation in person or by attorney upon surrender of
this Certificate duly endorsed or assigned. This Certificate and the shares
represented hereby are subject to the laws of the State of Delaware and to
the Certificate of Incorporation and the By-Laws of the Corporation, as
amended from time to time (copies of which are on file with the Transfer
Agent). This Certificate is not valid unless countersigned and registered by
the Transfer Agent and Registrar.
IN WITNESS WHEREOF Packard BioScience Company has caused its facsimile
corporate seal and the facsimile signatures of its duly authorized officers
to be hereunto affixed.
Dated: [SEAL]
/s/ Timothy O. White, Jr. /s/ Emery G. Olcott
VICE PRESIDENT and SECRETARY PRESIDENT AND CHIEF
EXECUTIVE OFFICER
COUNTERSIGNED AND REGISTERED:
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
TRANSFER AGENT AND REGISTRAR
AUTHORIZED SIGNATURE
<PAGE>
[BACK OF CERTIFICATE]
PACKARD BIOSCIENCE COMPANY
THE CORPORATION IS AUTHORIZED TO ISSUE MORE THAN ONE CLASS OR SERIES OF STOCK. A
COPY OF THE PREFERENCES, POWERS, QUALIFICATIONS AND RIGHTS OF EACH CLASS AND
SERIES WILL BE FURNISHED BY THE CORPORATION UPON REQUEST AND WITHOUT CHARGE.
The following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM -- as tenants in common
TEN ENT -- as tenants by the entireties
JT TEN -- as joint tenants with right of
survivorship and not as tenants
in common
UNIF GIFT MIN ACT _________________ Custodian _______________
(Cust) (Minor)
under Uniform Gifts to Minors
Act ______________
(State)
Additional abbreviations may also be used though not in the above
list. FOR VALUE RECEIVED, ________________ hereby sell, assign and transfer unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
______________
_______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE)
_______________________________________________________________________________
_______________________________________________________________________________
_________________________________________________________________________Shares
of the capital stock represented by the within Certificate, and do hereby
irrevocably constitute and appoint
__________________________________________________________________ Attorney to
transfer the said stock on the books of the within-named Corporation with full
power of substitution in the premises.
Dated ____________________
___________________________________________
Signature
Signature(s) Guaranteed:
_______________________________________________________________________________
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM), PURSUANT TO
S.E.C. RULE 17Ad-15.
<PAGE>
Exhibit 5.1
[LETTERHEAD OF WACHTELL, LIPTON, ROSEN & KATZ]
April 18, 2000
Packard BioScience Company
800 Research Parkway
Meriden, Connecticut 06450
Ladies and Gentlemen:
In connection with the registration of 12,000,000 shares of common
stock, par value $.002 per share (the "Shares"), of Packard BioScience Company
(the "Company") under the Securities Act of 1933, as amended, on Form S-1 filed
with the Securities and Exchange Commission (the "Commission") on March 8, 2000
(File No. 333-31996), as amended by Amendment No. 1 filed with the Commission on
March 23, 2000 and Amendment No. 2 filed with the Commission on April 18, 2000
(as it may be further amended, the "Registration Statement"), you have requested
our opinion with respect to the following matters.
In connection with the delivery of this opinion, we have examined
originals or copies of a form of the Amended and Restated Certificate of
Incorporation and a form of the Amended and Restated By-Laws of the Company as
set forth in exhibits to the Registration Statement, the Registration Statement,
certain resolutions adopted or to be adopted by the Board of Directors, the form
of stock certificate representing the Shares and such other records, agreements,
instruments, certificates and other documents of public officials, the Company
and its officers and representatives, and have made such inquiries of the
Company and its officers and representatives, as we have deemed necessary or
appropriate in connection with the opinions set forth herein. We are familiar
with the proceedings heretofore taken, and with the additional proceedings
proposed to be taken, by the Company in connection with the authorization,
registration, issuance and sale of the Shares. With respect to certain factual
matters material to our opinion, we have relied upon representations from, or
certificates of, officers of the Company. In making such examination and
rendering the opinions set forth below, we have assumed without verification the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the authenticity of the originals of such documents submitted to
us as certified copies, the conformity to originals of all documents submitted
to us as copies, the authenticity of the originals of such latter documents, and
that all documents submitted to us as certified copies are true and correct
copies of such originals.
<PAGE>
Packard BioScience Company
April 18, 2000
Page 2
Based on such examination and review, and subject to the foregoing, we
are of the opinion that the Shares have been duly authorized and, upon issuance,
delivery and payment therefor in the manner contemplated by the Registration
Statement, will be validly issued, fully paid and non-assessable.
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 United States of America, State of New York and the General
Corporation Law of the State of Delaware.
We consent to the use of this opinion as an Exhibit to the Registration
Statement and to the reference to our firm in the Prospectus that is a part of
the Registration Statement. In giving such consent, we do not hereby admit that
we are in the category of persons whose consent is required under Section 7 of
the Securities Act of 1933.
Very truly yours,
/s/ Wachtell, Lipton, Rosen & Katz
<PAGE>
Exhibit 10.11
PACKARD BIOSCIENCE COMPANY
2000 STOCK INCENTIVE PLAN
SECTION 1. PURPOSE; DEFINITIONS
The purpose of the Plan is to give the Company a competitive
advantage in attracting, retaining and motivating officers, employees and/or
consultants and to provide the Company and its Subsidiaries and Affiliates
with a stock plan providing incentives directly linked to the profitability
of the Company's businesses and increases in the Company's shareholder value.
For purposes of the Plan, the following terms are defined as set
forth below:
(a) "AFFILIATE" shall mean, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person; PROVIDED, that when used with respect
to the Company, the term "Affiliate" shall also include any Person designated
as such by the Committee from time to time. As used in this Plan, the term
"control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of such Person, whether through the ownership
of voting securities or other ownership interest, by contract or otherwise.
(b) "AWARD" means a Stock Appreciation Right, Stock Option,
Restricted Stock, Performance Unit, or other stock-based award.
(c) "AWARD AGREEMENT" means a written agreement setting forth the
terms and conditions of an Award.
(d) "AWARD CYCLE" shall mean a period of consecutive fiscal years or
portions thereof designated by the Committee over which Performance Units are
to be earned.
(e) "BOARD" means the Board of Directors of the Company.
(f) "BUSINESS COMBINATION" has the meaning set forth in Section
10(b)(iii).
(g) "CAUSE" means, unless otherwise provided by the Committee, (1)
"Cause" as defined in any Individual Agreement to which the Participant is a
party, or (2) if there is no such Individual Agreement, or if it does not
define Cause, any of the following on the part of the Participant: an
intentional failure to perform assigned duties; willful misconduct in the
course of the Participant's employment; breach of a fiduciary duty involving
personal profit of the Participant, a member of the Participant's family or
any other Person the Participant intended to benefit; or acts or omissions of
personal dishonesty, any of which results in material loss to the Company or
any of its Subsidiaries or Affiliates. The Committee shall, unless otherwise
provided in an Individual Agreement with the Participant, have the sole
discretion to determine whether "Cause" exists, and its determination shall
be final.
(h) "CHANGE IN CONTROL" has the meaning set forth in Section 10(b).
<PAGE>
(i) "CODE" means the Internal Revenue Code of 1986, as amended from
time to time, and any successor thereto.
(j) "COMMISSION" means the Securities and Exchange Commission or any
successor agency.
(k) "COMMITTEE" means the Committee referred to in Section 2.
(l) "COMMON STOCK" means common stock, par value $0.002 per share,
of the Company.
(m) "COMPANY" means Packard BioScience Company, a Delaware
corporation.
(n) "COVERED EMPLOYEE" means a Participant designated prior to or at
the time of the grant of Restricted Stock or Performance Units by the
Committee as an individual who is or may be a "covered employee" within the
meaning of Section 162(m)(3) of the Code in the year in which Restricted
Stock or Performance Units are expected to be taxable to such Participant.
(o) "DISABILITY" means, unless otherwise determined by the
Committee, Disability as defined in the Company's Group Long-Term Disability
contract with Metropolitan Life, or any successor contract or insurer, or if
not so defined or otherwise defined in an Individual Agreement, shall mean
the permanent and total inability of a Participant by reason of mental or
physical infirmity, or both, to perform the work customarily assigned to him
or her, if a medical doctor selected or approved by the Board, and
knowledgeable in the field of such infirmity, advises the Committee either
that it is not possible to determine when such Disability will terminate or
that it appears probable that such Disability will be permanent during the
remainder of said Participant's lifetime.
(p) "ELIGIBLE INDIVIDUALS" means officers, employees and consultants
of the Company or any of its Subsidiaries or Affiliates, and prospective
employees and consultants, who have accepted offers of employment or
consultancy from the Company or its Subsidiaries or Affiliates, and who are
or will be responsible for or contribute to the management, growth or
profitability of the business of the Company, or its Subsidiaries or
Affiliates.
(q) "EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor thereto.
(r) "FAIR MARKET VALUE" of the Common Stock means, as of any given
date, the closing price of the Common Stock on the composite transaction tape
of the New York Stock Exchange as of the closing of regular-hours trading on
the immediately preceding date or, if there are no reported sales on such
immediately preceding date, on the last day prior to such date on which there
were sales of the Common Stock on the New York Stock Exchange or, if the
Common Stock is not listed on such exchange, on any other national securities
exchange on which the Common Stock is listed or on The Nasdaq Stock Market.
If there is no regular public trading market for such Common Stock, the Fair
Market Value of the Common Stock shall be determined by the Committee in good
faith.
(s) "FREESTANDING STOCK APPRECIATION RIGHT" has the meaning set
forth in Section 6(a).
(t) "INCUMBENT BOARD" has the meaning set forth in Section 10(b)(ii).
-2-
<PAGE>
(u) "INCENTIVE STOCK OPTION" means any Stock Option designated as,
and qualified as, an "incentive stock option" within the meaning of Section
422 of the Code.
(v) "INDIVIDUAL AGREEMENT" means an employment, consulting or
similar agreement between a Participant and the Company or one of its
Subsidiaries or Affiliates.
(w) "NONQUALIFIED STOCK OPTION" means any Stock Option that is not
an Incentive Stock Option.
(x) "OUTSTANDING COMPANY COMMON STOCK" has the meaning set forth in
Section 10(b)(i).
(y) "OUTSTANDING COMPANY VOTING POWER" has the meaning set forth in
Section 10(b)(i).
(z) "QUALIFIED PERFORMANCE-BASED AWARD" means an Award of Restricted
Stock or Performance Units designated as such by the Committee at the time of
grant, based upon a determination that (i) the recipient is a Covered
Employee and (ii) the Committee wishes such Award to qualify for the Section
162(m) Exemption.
(aa) "PARTICIPANT" means an Eligible Individual to whom an Award has
been granted under the Plan.
(bb) "PERFORMANCE GOALS" means the performance goals established by
the Committee in connection with the grant of Restricted Stock or Performance
Units. In the case of Qualified Performance-Based Awards, (i) such goals
shall be based on the attainment of specified levels of one or more of the
following measures: return on equity, return on assets, operating income,
earnings per share, net income and/or achievement of pre-determined,
objectively defined strategic performance goals, and (ii) such Performance
Goals shall be set by the Committee within the time period prescribed by
Section 162(m) of the Code and related regulations. Performance Goals may be
stated in the alternative or in combination.
(cc) "PERFORMANCE UNITS" means an Award granted under Section 8.
(dd) "PERFORMANCE UNITS AGREEMENT" means a written agreement setting
forth the terms and conditions of an award of Performance Units.
(ee) "PERSON" has the meaning set forth in Section 10(b)(i).
(ff) "PLAN" means the Packard BioScience Company 2000 Stock
Incentive Plan, as set forth herein and as hereinafter amended from time to
time.
(gg) "RESTRICTED STOCK" means an Award granted under Section 7.
(hh) "RESTRICTED STOCK AGREEMENT" means a written agreement setting
forth the terms and conditions of an award of Restricted Stock.
(ii) "RESTRICTION PERIOD" has the meaning set forth in Section
7(c)(ii).
-3-
<PAGE>
(jj) "RETIREMENT" means retirement from the employ of the Company or
its Subsidiaries or Affiliates at the normal or early retirement date as set
forth in any tax-qualified retirement/pension plan of the Company.
(kk) "RULE 16B-3" means Rule 16b-3, as promulgated by the Commission
under Section 16(b) of the Exchange Act, as amended from time to time.
(ll) "SECTION 162(M) EXEMPTION" means the exemption from the
limitation on deductibility imposed by Section 162(m) of the Code that is set
forth in Section 162(m)(4)(C) of the Code.
(mm) "STOCK APPRECIATION RIGHT" means an Award granted under Section
6.
(nn) "STOCK OPTION" means an Award granted under Section 5.
(oo) "STONINGTON" shall mean Stonington Capital Appreciation 1994
Fund, L.P.
(pp) "STONINGTON AFFILIATES" shall have the meaning set forth in
Section 10(b).
(qq) "SUBSIDIARY" means any corporation, partnership, joint venture
or other entity during any period in which at least a 50% voting or profits
interest is owned, directly or indirectly, by the Company or any successor to
the Company.
(rr) "TANDEM STOCK APPRECIATION RIGHT" has the meaning set forth in
Section 6(a).
(ss) "TERMINATION OF EMPLOYMENT" means the termination of the
Participant's employment with, or performance of services for, the Company
and any of its Subsidiaries or Affiliates. A Participant employed by, or
performing services for, a Subsidiary or an Affiliate of the Company shall
also be deemed to incur a Termination of Employment if the Subsidiary or
Affiliate ceases to be such a Subsidiary or an Affiliate, as the case may be,
and the Participant does not immediately thereafter become an employee of, or
service-provider for, the Company or an entity that continues to be a
Subsidiary or Affiliate of the Company. Temporary absences from employment
because of illness, vacation or leave of absence and transfers among the
Company and its Subsidiaries and Affiliates shall not be considered
Terminations of Employment. For purposes of the Plan, a Participant's
employment shall be deemed to have terminated at the close of business on the
day preceding the first date on which he or she is no longer for any reason
whatsoever employed by the Company or any of its Subsidiaries or Affiliates.
SECTION 2. ADMINISTRATION
The Plan shall be administered by the Compensation Committee of the
Board or such other committee of the Board as the Board may from time to time
designate (the "Committee"), which shall be composed of not less than two
directors, and shall be appointed by and serve at the pleasure of the Board.
-4-
<PAGE>
The Committee shall have plenary authority to grant Awards pursuant
to the terms of the Plan to Eligible Individuals.
Among other things, the Committee shall have the authority, subject
to the terms of the Plan:
(a) To select the Eligible Individuals to whom Awards may from time
to time be granted;
(b) To determine whether and to what extent Incentive Stock Options,
Nonqualified Stock Options, Stock Appreciation Rights, Restricted Stock,
Performance Units and other stock-based awards or any combination thereof are
to be granted hereunder;
(c) To determine the number of shares of Common Stock to be covered
by each Award granted hereunder;
(d) To determine the terms and conditions of any Award granted
hereunder (including, but not limited to, the option price (subject to
Section 5(a)), any vesting condition, restriction or limitation (which may be
related to the performance of the Participant, the Company or any Subsidiary
or Affiliate of the Company) and any vesting acceleration or forfeiture
waiver regarding any Award and the shares of Common Stock relating thereto,
based on such factors as the Committee shall determine;
(e) To modify, amend or adjust the terms and conditions of any
Award, at any time or from time to time, including but not limited to
Performance Goals; PROVIDED, HOWEVER, that the Committee may not (i) reduce
the exercise price or cancel and regrant a Stock Option theretofore granted,
except as provided in the last paragraph of Section 3, or (ii) adjust upwards
the amount payable with respect to a Qualified Performance-Based Award or
waive or alter the Performance Goals associated therewith;
(f) To determine to what extent and under what circumstances Common
Stock and other amounts payable with respect to an Award shall be deferred;
and
(g) To determine under what circumstances an Award may be settled in
cash or Common Stock under Sections 5(i), 6(b) and 8(b)(iv).
The Committee shall have the authority to adopt, alter and repeal
such administrative rules, guidelines and practices governing the Plan as it
shall from time to time deem advisable, to interpret the terms and provisions
of the Plan and any Award issued under the Plan (and any agreement relating
thereto) and to otherwise supervise the administration of the Plan.
The Committee may act only by a majority of its members then in
office, except that the Committee may, except to the extent prohibited by
applicable law or the applicable rules of a stock exchange, allocate all or
any portion of its responsibilities and powers to any one or more of its
members and may delegate all or any part of its responsibilities and powers
to any person or persons selected by it; PROVIDED, that no such delegation
may be made that would cause Awards or other transactions under the Plan to
cease to be exempt from Section 16(b) of the Exchange Act or cause an Award
designated as a Qualified Performance-Based Award not to
-5-
<PAGE>
qualify for, or to cease to qualify for, the Section 162(m) Exemption. Any
such allocation or delegation may be revoked by the Committee at any time.
Any determination made by the Committee or pursuant to delegated
authority pursuant to the provisions of the Plan with respect to any Award
shall be made in the sole discretion of the Committee or such delegate at the
time of the grant of the Award or, unless in contravention of any express
term of the Plan, at any time thereafter. All decisions made by the Committee
or any appropriately delegated officer pursuant to the provisions of the Plan
shall be final and binding on all persons, including the Company and Plan
Participants.
Any authority granted to the Committee may also be exercised by the
full Board, except to the extent that the grant or exercise of such authority
would cause any Award or transaction to become subject to (or lose an
exemption under) Section 16(b) of the Exchange Act or cause an Award
designated as a Qualified Performance-Based Award not to qualify for, or to
cease to qualify for, the Section 162(m) Exemption. To the extent that any
permitted action taken by the Board conflicts with action taken by the
Committee, the Board action shall control.
SECTION 3. COMMON STOCK SUBJECT TO PLAN
The maximum number of shares of Common Stock that may be delivered
to Participants and their beneficiaries under the Plan shall be 15.0% of the
Outstanding Company Common Stock, plus 5.0% of the Outstanding Company Common
Stock for each calendar year during the term of this Plan. The maximum number
of shares of Common Stock that may be issued under Incentive Stock Options is
6,300,000. No Participant may be granted Stock Options and Freestanding Stock
Appreciation Rights covering in excess of 200,000 shares of Common Stock in
any calendar year. No Participant may be granted more than 200,000 shares of
Restricted Stock or Performance Units covering in excess of 200,000 shares of
Common Stock under this Plan. Shares subject to an Award under the Plan may
be authorized and unissued shares or may be treasury shares.
If all or a portion of any Award is forfeited or repurchased by the
Company for cash, or if any Stock Option (and related Stock Appreciation
Right, if any) terminates, expires or lapses without being exercised, or is
repurchased by the Company for cash, or if any Stock Appreciation Right is
exercised for cash or is repurchased by the Company for cash, the shares of
Common Stock subject to such Award or portion of an Award shall again be
available for distribution in connection with Awards under the Plan.
In the event of any change in corporate capitalization, such as a
stock split or an extraordinary corporate transaction, such as any merger,
consolidation, separation, including a spin-off, or other distribution of
stock or property of the Company, any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the
Code) or any partial or complete liquidation of the Company, the Committee or
Board may make such substitution or adjustments to reflect such change or
transaction in (i) the limitations set forth in the first paragraph of this
Section 3, to the extent such adjustments do not cause any Qualified
Performance-Based Award to fail to qualify for the Section 162(m) Exemption;
(ii) the number, kind and option or base price of shares subject to
outstanding Stock Options and Stock Appreciation Rights; (iii) the number and
kind of shares subject to Restricted Stock and other
-6-
<PAGE>
outstanding Awards granted under the Plan; and/or (iv) such other equitable
manner, in each case, as it may determine to be appropriate in its sole
discretion; PROVIDED, HOWEVER, that the number of shares subject to any Award
shall always be a whole number. The adjusted option price of an Option with a
Tandem Stock Appreciation Right shall also be used to determine the amount
payable by the Company upon the exercise of such Tandem Stock Appreciation
Right.
SECTION 4. ELIGIBILITY
Awards may be granted under the Plan to Eligible Individuals. No
grant shall be made under this Plan to a director who is not an officer or a
salaried employee of the Company or its Subsidiaries or Affiliates.
SECTION 5. STOCK OPTIONS
Stock Options may be granted alone or in addition to other Awards
granted under the Plan and may be of two types: Incentive Stock Options and
Nonqualified Stock Options. Any Stock Option granted under the Plan shall be
in such form as the Committee may from time to time approve.
The Committee shall have the authority to grant any optionee
Incentive Stock Options, Nonqualified Stock Options or both types of Stock
Options (in each case with or without Stock Appreciation Rights); PROVIDED,
HOWEVER, that grants hereunder are subject to the aggregate limit on grants
to individual Participants set forth in Section 3. Incentive Stock Options
may be granted only to employees of the Company and its subsidiaries (within
the meaning of Section 424(f) of the Code). To the extent that any Stock
Option is not designated as an Incentive Stock Option or even if so
designated does not qualify as an Incentive Stock Option on or subsequent to
its grant date, it shall constitute a Nonqualified Stock Option.
Stock Options shall be evidenced by option agreements, the terms and
provisions of which may differ. An option agreement shall indicate on its
face whether it is intended to be an agreement for an Incentive Stock Option
or a Nonqualified Stock Option. The grant of a Stock Option shall occur on
the date the Committee by resolution selects an Eligible Individual to
receive a grant of a Stock Option, determines the number of shares of Common
Stock to be subject to such Stock Option to be granted to such Eligible
Individual and specifies the terms and provisions of the Stock Option. The
Company shall notify an Eligible Individual of any grant of a Stock Option,
and a written option agreement or agreements shall be duly executed and
delivered by the Company to the Participant. Such agreement or agreements
shall become effective upon execution by the Company and the Participant.
Stock Options granted under the Plan shall be subject to the
following terms and conditions and shall contain such additional terms and
conditions as the Committee shall deem desirable:
(a) OPTION PRICE. The option price per share of Common Stock
purchasable under a Stock Option shall be determined by the Committee and set
forth in the option agreement, and shall not be less than the Fair Market
Value of the Common Stock subject to the Stock Option on the date of grant
unless otherwise determined by the Committee at the time of grant.
-7-
<PAGE>
(b) OPTION TERM. The term of each Stock Option shall be fixed by the
Committee, but no Stock Option shall be exercisable more than 10 years after
the date the Stock Option is granted.
(c) EXERCISABILITY. Except as otherwise provided herein or as
determined by the Committee at the time of grant, each Stock Option shall be
exercisable in four equal annual installments, beginning on the first
anniversary of the date of grant. The Committee may at any time waive such
installment exercise provisions, in whole or in part, based on such factors
as the Committee may determine. In addition, the Committee may at any time
accelerate the exercisability of any Stock Option.
(d) METHOD OF EXERCISE. Subject to the provisions of this Section 5,
Stock Options may be exercised, in whole or in part, at any time during the
option term by giving written notice of exercise to the Company specifying
the number of shares of Common Stock subject to the Stock Option to be
purchased.
Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the Company may
accept. If approved by the Committee, payment, in full or in part, may also
be made in the form of unrestricted Common Stock (by delivery of such shares
or by attestation) already owned by the optionee of the same class as the
Common Stock subject to the Stock Option (based on the Fair Market Value of
the Common Stock on the date the Stock Option is exercised); PROVIDED,
HOWEVER, that, in the case of an Incentive Stock Option, the right to make a
payment in the form of already owned shares of Common Stock of the same class
as the Common Stock subject to the Stock Option may be authorized only at the
time the Stock Option is granted; and PROVIDED, FURTHER, that such already
owned shares have been held by the optionee for at least six months at the
time of exercise or had been purchased on the open market.
If approved by the Committee, payment in full or in part may also be
made by delivering a properly executed exercise notice to the Company,
together with a copy of irrevocable instructions to a broker to deliver
promptly to the Company the amount of sale or loan proceeds necessary to pay
the purchase price, and, if requested, reduced by the amount of any federal,
state, local or foreign withholding taxes. To facilitate the foregoing, the
Company may enter into agreements for coordinated procedures with one or more
brokerage firms.
In addition, if approved by the Committee, payment in full or in
part may also be made by instructing the Committee to withhold a number of
such shares having a Fair Market Value on the date of exercise equal to the
aggregate exercise price of such Stock Option.
No shares of Common Stock shall be issued until full payment
therefor has been made. Except as otherwise provided in Section 5(i), an
optionee shall have all of the rights of a shareholder of the Company holding
the Common Stock that is subject to such Stock Option (including, if
applicable, the right to vote the shares and the right to receive dividends),
when the optionee has given written notice of exercise, has paid in full for
such shares and, if requested, has given the representation described in
Section 13(a).
(e) NONTRANSFERABILITY OF STOCK OPTIONS. No Stock Option shall be
transferable by the optionee other than (i) by will or by the laws of descent
and distribution or (ii) in the case of a
-8-
<PAGE>
Nonqualified Stock Option, as otherwise expressly permitted by the Committee
including, if so permitted, pursuant to a transfer to such optionee's
immediate family, whether directly or indirectly or by means of a trust or
partnership or otherwise. For purposes of the Plan, unless otherwise
determined by the Committee, "immediate family" shall mean, except as
otherwise defined by the Committee, any child, sibling, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
sister-in-law or brother-in-law, including adoptive relationships, of the
optionee. All Stock Options shall be exercisable, subject to the terms of the
Plan, only by the optionee, the guardian or legal representative of the
optionee, or any person to whom such option is transferred pursuant to this
paragraph, it being understood that the terms "holder" and "optionee" include
such guardian, legal representative and other transferee.
(f) TERMINATION BY DEATH. Unless otherwise determined by the
Committee or as set forth in an Award Agreement, if an optionee incurs a
Termination of Employment by reason of death, any Stock Option held by such
optionee may thereafter be exercised, to the extent then exercisable, or on
such accelerated basis as the Committee may determine, for a period of one
year (or such other period as the Committee may specify in the option
agreement) from the date of such death or until the expiration of the stated
term of such Stock Option, whichever period is shorter.
(g) TERMINATION BY REASON OF DISABILITY OR RETIREMENT. Unless
otherwise determined by the Committee or as set forth in an Award Agreement,
if an optionee incurs a Termination of Employment by reason of Disability or
Retirement, any Stock Option held by such optionee may thereafter be
exercised by the optionee, to the extent it was exercisable at the time of
termination, or on such accelerated basis as the Committee may determine, for
a period of one year (or such other period as the Committee may specify in
the option agreement) from the date of such Termination of Employment or
until the expiration of the stated term of such Stock Option, whichever
period is shorter; PROVIDED, HOWEVER, that if the optionee dies within such
period, any unexercised Stock Option held by such optionee shall,
notwithstanding the expiration of such period, continue to be exercisable to
the extent to which it was exercisable at the time of death for a period of
12 months from the date of such death or until the expiration of the stated
term of such Stock Option, whichever period is shorter. If an Incentive Stock
Option is exercised after the expiration of the exercise periods that apply
for purposes of Section 422 of the Code, such Stock Option will thereafter be
treated as a Nonqualified Stock Option.
(h) OTHER TERMINATION. Unless otherwise determined by the Committee
or as set forth in an Award Agreement: (A) if an optionee incurs a
Termination of Employment for Cause, all Stock Options held by such optionee
shall thereupon terminate; and (B) if an optionee incurs a Termination of
Employment for any reason other than death, Disability, Retirement or for
Cause, any Stock Option held by such optionee, to the extent it was then
exercisable at the time of termination, or on such accelerated basis as the
Committee may determine, may be exercised for the lesser of three months from
the date of such Termination of Employment or the balance of such Stock
Option's term; PROVIDED, HOWEVER, that if the optionee dies within such
three-month period, any unexercised Stock Option held by such optionee shall,
notwithstanding the expiration of such three-month period, continue to be
exercisable to the extent to which it was exercisable at the time of death
for a period of 12 months from the date of such death or until the expiration
of the stated term of such Stock Option, whichever period is shorter.
Notwithstanding any other
-9-
<PAGE>
provision of this Plan to the contrary, in the event an optionee incurs a
Termination of Employment other than for Cause during the 24-month period
following a Change in Control, any Stock Option held by such optionee may
thereafter be exercised by the optionee, to the extent it was exercisable at
the time of termination, including on such accelerated basis as provided in
Section 10(a), for (x) the longest of (i) one year from such date of
termination, (ii) the period provided in Section 10(a)(i), if applicable, or
(iii) such other period as may be provided in the Plan for such Termination
of Employment or as the Committee may provide in the option agreement, or (y)
until expiration of the stated term of such Stock Option, whichever period is
shorter. If an Incentive Stock Option is exercised after the expiration of
the post-termination exercise periods that apply for purposes of Section 422
of the Code, such Stock Option will thereafter be treated as a Nonqualified
Stock Option.
(i) CASHING OUT OF STOCK OPTION. On receipt of written notice of
exercise, the Committee may elect to cash out all or part of the portion of
the shares of Common Stock for which a Stock Option is being exercised by
paying the optionee an amount, in cash or Common Stock, equal to the excess
of the Fair Market Value of the Common Stock over the option price times the
number of shares of Common Stock for which the Option is being exercised on
the effective date of such cash-out.
(j) DEFERRAL OF OPTION SHARES. The Committee may from time to time
establish procedures pursuant to which an optionee may elect to defer, until
a time or times later than the exercise of an Option, receipt of all or a
portion of the shares of Common Stock subject to such Option and/or to
receive cash at such later time or times in lieu of such deferred shares, all
on such terms and conditions as the Committee shall determine. If any such
deferrals are permitted, then notwithstanding Section 5(d) above, an optionee
who elects such deferral shall not have any rights as a stockholder with
respect to such deferred shares unless and until shares are actually
delivered to the optionee with respect thereto, except to the extent
otherwise determined by the Committee.
SECTION 6. STOCK APPRECIATION RIGHTS
(a) GRANT AND EXERCISE. Stock Appreciation Rights may be granted
without relationship to a Stock Option (each, a "Freestanding Stock
Appreciation Right") or in conjunction with all or part of any Stock Option
granted under the Plan (each, a "Tandem Stock Appreciation Right"). In the
case of a Nonqualified Stock Option, Tandem Stock Appreciation Rights may be
granted either at or after the time of grant of such Stock Option. In the
case of an Incentive Stock Option, Tandem Stock Appreciation Rights may be
granted only at the time of grant of such Stock Option. A Tandem Stock
Appreciation Right shall terminate and no longer be exercisable upon the
termination or exercise of the related Stock Option.
(b) TERMS OF FREESTANDING STOCK APPRECIATION RIGHTS. Freestanding
Stock Appreciation Rights shall be subject to such terms and conditions as
shall be determined by the Committee, including the following:
(i) a Freestanding Stock Appreciation Right shall be exercisable
as determined by the Committee, but in no event after ten
years from the date of grant;
-10-
<PAGE>
(ii) the base price of a Freestanding Stock Appreciation Right
shall be the Fair Market Value of a share of Common Stock on
the date of grant. A Freestanding Stock Appreciation Right
shall entitle the holder, upon exercise of such right, to an
amount in cash, shares of Common Stock or both (as determined
by the Committee), with a value equal to the product of (A)
the excess of the Fair Market Value of a share of Common Stock
on the date of exercise of the Stock Appreciation Right over
the base price of the Stock Appreciation Right and (B) the
number of shares of Common Stock as to which such Stock
Appreciation Right shall have been exercised with the
Committee having the right to determine the form of payment;
(iii) a Freestanding Stock Appreciation Right shall be exercised by
giving written notice of exercise to the Company or its
designated agent specifying the number of shares of Common
Stock as to which such Stock Appreciation Right is being
exercised; and
(iv) a Freestanding Stock Option shall not be transferable other
than by will or laws of descent and distribution.
(c) TERMS OF TANDEM STOCK APPRECIATION RIGHTS. Tandem Stock
Appreciation Rights shall be subject to such terms and conditions as shall be
determined by the Committee, including the following:
(i) Tandem Stock Appreciation Rights shall be exercisable only at
such time or times and to the extent that the Stock Options to
which they relate are exercisable in accordance with the
provisions of Section 5 and this Section 6;
(ii) upon the exercise of a Tandem Stock Appreciation Right, an
optionee shall be entitled to receive an amount in cash,
shares of Common Stock or both, in value equal to the excess
of the Fair Market Value of one share of Common Stock over the
option price per share specified in the related Stock Option
multiplied by the number of shares in respect of which the
Stock Appreciation Right shall have been exercised, with the
Committee having the right to determine the form of payment;
(iii) a Tandem Stock Appreciation Right may be exercised by an
optionee in accordance with this Section 6(c) by surrendering
the applicable portion of the related Stock Option in
accordance with procedures established by the Committee, and
upon such exercise and surrender, the optionee shall be
entitled to receive an amount determined in the manner
prescribed in this Section 6(c); and Stock Options which have
been so surrendered shall no longer be exercisable to the
extent the related Tandem Stock Appreciation Rights have been
exercised;
(iv) upon the exercise of a Tandem Stock Appreciation Right, the
Stock Option or part thereof to which such Tandem Stock
Appreciation Right is related shall be deemed to have been
exercised for the purpose of the limitation set forth in
Section 3 on the number of shares of Common Stock to be issued
under the Plan,
-11-
<PAGE>
but only to the extent that the number of shares covered by
the Tandem Stock Appreciation Right at the time of exercise
is based on the value of the Tandem Stock Appreciation Right
at such time; and
(v) Tandem Stock Appreciation Rights shall be transferable only to
permitted transferees of the underlying Stock Option in
accordance with Section 5(e).
SECTION 7. RESTRICTED STOCK
(a) ADMINISTRATION. Shares of Restricted Stock may be awarded either
alone or in addition to other Awards granted under the Plan. The Committee
shall determine the Eligible Individuals to whom and the time or times at
which grants of Restricted Stock will be awarded, the number of shares to be
awarded to any Eligible Individual, the conditions for vesting, the time or
times within which such Awards may be subject to forfeiture and any other
terms and conditions of the Awards, in addition to those contained in Section
7(c).
(b) AWARDS AND CERTIFICATES. Shares of Restricted Stock shall be
evidenced in such manner as the Committee may deem appropriate, including
book-entry registration or issuance of one or more stock certificates. Any
certificate issued in respect of shares of Restricted Stock shall be
registered in the name of such Participant and shall bear an appropriate
legend referring to the terms, conditions and restrictions applicable to such
Award, substantially in the following form:
The transferability of this certificate and the shares of
stock represented hereby are subject to the terms and
conditions (including forfeiture) of the Packard BioScience
Company 2000 Stock Incentive Plan and a Restricted Stock
Agreement. Copies of such Plan and Agreement are on file at
the offices of Packard BioScience Company, 800 Research
Parkway, Meriden, CT 06450.
The Committee may require that the certificates evidencing such shares be
held in custody by the Company until the restrictions thereon shall have
lapsed and that, as a condition of any Award of Restricted Stock, the
Participant shall have delivered a stock power, endorsed in blank, relating
to the Common Stock covered by such Award.
(c) TERMS AND CONDITIONS. Shares of Restricted Stock shall be
subject to the following terms and conditions.
(i) The Committee may, prior to or at the time of grant, designate
an Award of Restricted Stock as a Qualified Performance-Based
Award, in which event it shall condition the grant or vesting,
as applicable, of such Restricted Stock upon the attainment of
Performance Goals. If the Committee does not designate an
Award of Restricted Stock as a Qualified Performance-Based
Award, it may also condition the grant or vesting thereof upon
the attainment of Performance Goals. Regardless of whether an
Award of Restricted Stock is a Qualified Performance-Based
Award, the Committee may also condition the grant or vesting
thereof upon the continued service of the Participant. The
conditions for grant or vesting and the other provisions of
Restricted Stock Awards (including without limitation
-12-
<PAGE>
any applicable Performance Goals) need not be the same with
respect to each recipient. The Committee may at any time, in
its sole discretion, accelerate or waive, in whole or in part,
any of the foregoing restrictions; PROVIDED, HOWEVER, that
(except as otherwise provided in Section 7(c)(iv) or
10(a)(ii)) in the case of Restricted Stock that is a Qualified
Performance-Based Award, the applicable Performance Goals have
been satisfied.
(ii) Subject to the provisions of the Plan and the Restricted Stock
Agreement referred to in Section 7(c)(vi), during the period,
if any, set by the Committee, commencing with the date of such
Award for which such Participant's continued service is
required (the "Restriction Period"), and until the later of
(i) the expiration of the Restriction Period and (ii) the date
the applicable Performance Goals (if any) are satisfied, the
Participant shall not be permitted to sell, assign, transfer,
pledge or otherwise encumber shares of Restricted Stock.
(iii) Except as provided in this paragraph (iii) and Sections
7(c)(i) and 7(c)(ii) and in the Restricted Stock Agreement and
except as otherwise determined by the Committee, the
Participant shall have, with respect to the shares of
Restricted Stock, all of the rights of a stockholder of the
Company holding the class or series of Common Stock that is
the subject of the Restricted Stock, including, if applicable,
the right to vote the shares and the right to receive any cash
dividends. If so determined by the Committee in the applicable
Restricted Stock Agreement and subject to Section 13(e) of the
Plan, (A) cash dividends or distributions of property other
than Common Stock with respect to the class or series of
Common Stock that is the subject of the Restricted Stock Award
shall be automatically deferred and reinvested in additional
Restricted Stock, held subject to the vesting of the
underlying Restricted Stock, or held subject to meeting
Performance Goals applicable only to dividends, and (B)
dividends payable in Common Stock shall be paid in the form of
Restricted Stock of the same class as the Common Stock with
which such dividend was paid, held subject to the vesting of
the underlying Restricted Stock, or held subject to meeting
Performance Goals applicable only to dividends.
(iv) Except to the extent otherwise provided in the applicable
Restricted Stock Agreement or Section 7(c)(i), 7(c)(ii),
7(c)(v) or 10(a)(ii), upon a Participant's Termination of
Employment for any reason during the Restriction Period or
before the applicable Performance Goals are satisfied, all
shares still subject to restriction shall be forfeited by the
Participant; PROVIDED, HOWEVER, that the Committee shall have
the discretion to waive, in whole or in part, any or all
remaining restrictions (other than, in the case of Restricted
Stock which is a Qualified Performance-Based Award,
satisfaction of the applicable Performance Goals unless the
Participant's employment is terminated by reason of death or
Disability) with respect to any or all of such Participant's
shares of Restricted Stock.
(v) If and when any applicable Performance Goals are satisfied and
the Restriction Period expires without a prior forfeiture of
the Restricted Stock, unlegended
-13-
<PAGE>
certificates for such shares shall be delivered to the
Participant upon surrender of the legended certificates.
(vi) Each Award shall be confirmed by, and be subject to, the terms
of a Restricted Stock Agreement.
SECTION 8. PERFORMANCE UNITS
(a) ADMINISTRATION. Performance Units may be awarded either alone or
in addition to other Awards granted under the Plan. The Committee shall
determine the Eligible Individuals to whom and the time or times at which
Performance Units shall be awarded, the number of Performance Units to be
awarded to any Eligible Individual, the duration of the Award Cycle and any
other terms and conditions of the Award, in addition to those contained in
Section 8(b).
(b) TERMS AND CONDITIONS. Performance Units Awards shall be subject
to the following terms and conditions.
(i) The Committee may, prior to or at the time of the grant,
designate Performance Units as Qualified Performance-Based
Awards, in which event it shall condition the settlement
thereof upon the attainment of Performance Goals, except as
otherwise provided in Section 8(b)(ii) or 10(a)(iii). If the
Committee does not designate Performance Units as Qualified
Performance-Based Awards, it may also condition the settlement
thereof upon the attainment of Performance Goals. Regardless
of whether Performance Units are Qualified Performance-Based
Awards, the Committee may also condition the settlement
thereof upon the continued service of the Participant. The
provisions of such Awards (including without limitation any
applicable Performance Goals) need not be the same with
respect to each recipient. Subject to the provisions of the
Plan and the Performance Units Agreement referred to in
Section 8(b)(v), Performance Units may not be sold, assigned,
transferred, pledged or otherwise encumbered during the Award
Cycle.
(ii) Except to the extent otherwise provided in the applicable
Performance Unit Agreement or Section 8(b)(iii) or 10(a)(iii),
upon a Participant's Termination of Employment for any reason
during the Award Cycle or before any applicable Performance
Goals are satisfied, all rights to receive cash or stock in
settlement of the Performance Units shall be forfeited by the
Participant; PROVIDED, HOWEVER, that the Committee shall have
the discretion to waive, in whole or in part, any or all
remaining payment limitations (other than, in the case of
Performance Units that are Qualified Performance-Based Awards,
satisfaction of the applicable Performance Goals unless the
Participant's employment is terminated by reason of death or
Disability) with respect to any or all of such Participant's
Performance Units.
(iii) A Participant may elect to further defer receipt of cash or
shares in settlement of Performance Units for a specified
period or until a specified event, subject in each case to the
Committee's approval and to such terms as are determined by
the
-14-
<PAGE>
Committee. Subject to any exceptions adopted by the Committee,
such election must generally be made prior to commencement of
the Award Cycle for the Performance Units in question.
(iv) At the expiration of the Award Cycle, the Committee shall
evaluate and certify the Company's performance in light of any
Performance Goals for such Award, and shall determine the
number of Performance Units granted to the Participant which
have been earned, and the Committee shall then cause to be
delivered (A) a number of shares of Common Stock equal to the
number of Performance Units determined by the Committee to
have been earned, or (B) cash equal to the Fair Market Value
of such number of shares of Common Stock to the Participant,
as the Committee shall elect (subject to any deferral pursuant
to Section 8(b)(iii)).
(v) Each Award shall be confirmed by, and be subject to, the terms
of a Performance Unit Agreement.
SECTION 9. OTHER STOCK-BASED AWARDS
Other Awards of Common Stock and other Awards that are valued in whole
or in part by reference to, or are otherwise based upon, Common Stock, including
(without limitation) dividend equivalents and convertible debentures, may be
granted either alone or in conjunction with other Awards granted under the Plan.
In the event that an Award is granted under this Section 9 to a Participant who
is an officer, the Award shall be granted in lieu of additional cash
compensation to the officer for services.
SECTION 10. CHANGE IN CONTROL PROVISIONS
(a) IMPACT OF EVENT. Notwithstanding any other provision of the Plan to
the contrary, except as otherwise provided in the applicable Award Agreement, in
the event of a Change in Control:
(i) any Stock Options and Stock Appreciation Rights outstanding as
of the date such Change in Control is determined to have
occurred, and which are not then exercisable and vested, shall
become fully exercisable and vested to the full extent of the
original grant and shall remain exercisable for the term
provided for in the original grant;
(ii) the restrictions and deferral limitations applicable to any
Restricted Stock shall lapse, and such Restricted Stock shall
become free of all restrictions and become fully vested and
transferable to the full extent of the original grant;
(iii) all Performance Units shall be considered to be earned and
payable in full, and any deferral or other restriction shall
lapse and such Performance Units shall be settled in cash as
promptly as is practicable; PROVIDED, that, if such cash
settlement would make a Change in Control transaction
ineligible for pooling-of-interests accounting under APB No.
16 (that but for the nature of such payment would otherwise be
eligible for such accounting treatment), the Committee shall
have the
-15-
<PAGE>
ability to substitute Common Stock with a Fair Market Value
(as of the effective date of the Change in Control) equal to
the cash that would otherwise be payable hereunder for such
cash settlement or, if necessary to preserve such accounting
treatment, otherwise modify or eliminate such right; and
(iv) the Committee may also make additional adjustments and/or
settlements of outstanding Awards as it deems appropriate and
consistent with the Plan's purposes and shall, with respect to
any right granted under this Plan that would make a Change in
Control transaction ineligible for pooling-of-interests
accounting under APB No. 16 (that but for the nature of such
grant would otherwise be eligible for such accounting
treatment), equitably adjust such Award or, if necessary to
preserve such accounting treatment, otherwise modify or
eliminate such right (as determined by the Committee in its
sole discretion).
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of the Plan, a
"Change in Control" shall mean the happening of any of the following events:
(i) the acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act)
(a "Person") of beneficial ownership (within the meaning of
Rule 13d-3 promulgated under the Exchange Act) of both (A) 30%
or more of either (1) the then outstanding shares of common
stock of the Company (the "Outstanding Company Common Stock")
or (2) the combined voting power of the then outstanding
voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting
Power") and (B) more than both the Outstanding Company Common
Stock and the Outstanding Company Voting Power owned or
controlled directly or indirectly by Stonington and/or its
Affiliates (collectively, the "Stonington Affiliates");
PROVIDED, HOWEVER, that for purposes of this subsection (i),
the following acquisitions shall not constitute a Change in
Control: (1) any acquisition directly from the Company, (2)
any acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or
maintained by the Company or any corporation controlled by the
Company or (4) any acquisition by any corporation pursuant to
a transaction which complies with clauses (1), (2) and (3) of
subsection (iii) of this Section 10(b); or
(ii) individuals who, as of the effective date of the Plan,
constitute the Board (the "Incumbent Board") cease for any
reason not to constitute at least a majority of the Board;
PROVIDED, HOWEVER, that any individual becoming a director
subsequent to the effective date of the Plan whose election,
or nomination for election by the Company's stockholders, was
approved by the Stonington Affiliates at a time when such
entities controlled at least a majority of the Outstanding
Company Voting Power or by a vote of at least a majority of
the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the
Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a
result of an actual or threatened election contest with
respect to the election or removal of directors or
-16-
<PAGE>
other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger or consolidation or
sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each
case, unless, following such Business Combination: (1) all or
substantially all of the individuals and entities who were the
beneficial owners, respectively, of the Outstanding Company
Common Stock and Outstanding Company Voting Power immediately
prior to such Business Combination beneficially own, directly
or indirectly, more than 50% of, respectively, the then
outstanding shares of common stock and the combined voting
power of the then outstanding voting securities entitled to
vote generally in the election of directors, as the case may
be, of the corporation resulting from such Business
Combination (including, without limitation, a corporation
which as a result of such transaction owns the Company or all
or substantially all of the Company's assets either directly
or through one or more subsidiaries), (2) in the event that
the Stonington Affiliates do not own or control at least 50%
of the Outstanding Company Voting Power upon the consummation
of the Business Combination, no Person (excluding any employee
benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination)
beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of
the corporation resulting from such Business Combination or
the combined voting power of the then outstanding voting
securities of such corporation (and such amount exceeds the
amount owned or controlled by the Stonington Affiliates)
except to the extent that such person had such ownership of
the Outstanding Company Common Stock or Outstanding Company
Voting Power immediately prior to the Business Combination and
(3) at least a majority of the members of the board of
directors of the corporation resulting from such Business
Combination were members of the Incumbent Board at the time of
the execution of the initial agreement, or of the action of
the Board, providing for such Business Combination; or
(iv) approval by the shareholders of the Company of a complete
liquidation or dissolution of the Company.
SECTION 11. TERM, AMENDMENT AND TERMINATION
The Plan will terminate on the tenth anniversary of the effective
date of the Plan. Awards outstanding under the Plan as of such date shall not
be affected or impaired by the termination of the Plan.
The Board may amend, alter, or discontinue the Plan, but no
amendment, alteration or discontinuation shall be made which would impair the
rights of an optionee under a Stock Option or a recipient of a Stock
Appreciation Right, Restricted Stock Award, Performance Unit Award or other
stock-based Award theretofore granted without the optionee's or recipient's
consent, except such an amendment made to comply with applicable law, stock
exchange rules or accounting rules. In addition, no such amendment shall be
made without the approval of the
-17-
<PAGE>
Company's stockholders to the extent such approval is required by applicable
law or stock exchange rules; PROVIDED, HOWEVER, that stockholder approval
shall be required for any amendment which (i) increases the maximum number of
shares for which Stock Options may be granted under the Plan (except as
provided in Section 3 hereof), (ii) extends the period during which Stock
Options may be granted or exercised beyond the times originally prescribed,
(iii) changes the persons eligible to participate in the Plan, or (iv)
materially increases the benefits accruing to Participants under the Plan.
Subject to the repricing restrictions in Section 2(e)(i), the
Committee may amend the terms of any Stock Option or other Award theretofore
granted, prospectively or retroactively, but no such amendment shall be
permitted that would cause an Award that is, or is intended to be, a
Qualified Performance-Based Award to fail or cease to qualify for the Section
162(m) Exemption, nor shall any such amendment impair the rights of any
holder without the holder's consent except such an amendment made to cause
the Plan or Award to comply with applicable law, stock exchange rules or
accounting rules.
Subject to the above provisions, the Board shall have the authority
to amend the Plan to take into account changes in law and in tax and
accounting rules as well as other developments, and to grant Awards which
qualify for beneficial treatment under such rules without stockholder
approval.
SECTION 12. UNFUNDED STATUS OF PLAN
It is presently intended that the Plan constitute an "unfunded" plan
for incentive and deferred compensation. The Committee may authorize the
creation of trusts or other arrangements to meet the obligations created
under the Plan to deliver Common Stock or make payments; PROVIDED, HOWEVER,
that unless the Committee otherwise determines, the existence of such trusts
or other arrangements is consistent with the "unfunded" status of the Plan.
SECTION 13. GENERAL PROVISIONS
(a) The Committee may require each person purchasing or receiving
shares pursuant to an Award to represent to and agree with the Company in
writing that such person is acquiring the shares without a view to the
distribution thereof. The certificates for such shares may include any legend
which the Committee deems appropriate to reflect any restrictions on transfer.
Notwithstanding any other provision of the Plan or agreements made
pursuant thereto, the Company shall not be required to issue or deliver any
certificate or certificates for shares of Common Stock under the Plan prior
to fulfillment of all of the following conditions:
(1) listing or approval for listing upon notice of
issuance of such shares on the New York Stock
Exchange, Inc., or such other securities exchange as
may at the time be the principal market for the
Common Stock;
(2) any registration or other qualification of such
shares of the Company under any state or federal law
or regulation, or the maintaining in effect of any
such registration or other qualification which the
Committee shall, in
-18-
<PAGE>
its absolute discretion upon the advice of counsel,
deem necessary or advisable; and
(3) obtaining any other consent, approval, or permit from
any state or federal governmental agency which the
Committee shall, in its absolute discretion after
receiving the advice of counsel, determine to be
necessary or advisable.
(b) Nothing contained in the Plan shall prevent the Company or any
of its Subsidiaries or Affiliates from adopting other or additional
compensation arrangements for its employees.
(c) The Plan shall not constitute a contract of employment, and
adoption of the Plan shall not confer upon any employee any right to
continued employment, nor shall it interfere in any way with the right of the
Company or any of its Subsidiaries or Affiliates to terminate the employment
of any employee at any time.
(d) No later than the date as of which an amount first becomes
includible in the gross income of the Participant for federal income tax
purposes with respect to any Award under the Plan, the Participant shall pay
to the Company, or make arrangements satisfactory to the Company regarding
the payment of, any federal, state, local or foreign taxes of any kind
required by law to be withheld with respect to such amount. Unless otherwise
determined by the Committee, withholding obligations may be settled with
Common Stock, including Common Stock that is part of the Award that gives
rise to the withholding requirement. The obligations of the Company under the
Plan shall be conditional on such payment or arrangements, and the Company
and its Affiliates shall, to the extent permitted by law, have the right to
deduct any such taxes from any payment otherwise due to the Participant. The
Committee may establish such procedures as it deems appropriate, including
making irrevocable elections, for the settlement of withholding obligations
with Common Stock. Any withholding in the form of Common Stock shall be
limited to the minimum required under applicable law.
(e) Reinvestment of dividends in additional Restricted Stock at the
time of any dividend payment shall only be permissible if sufficient shares
of Common Stock are available under Section 3 for such reinvestment (taking
into account then outstanding Stock Options and other Awards).
(f) The Committee shall establish such procedures as it deems
appropriate for a Participant to designate a beneficiary to whom any amounts
payable in the event of the Participant's death are to be paid or by whom any
rights of the Participant, after the Participant's death, may be exercised.
(g) In the case of a grant of an Award to any employee of a
Subsidiary of the Company, the Company may, if the Committee so directs,
issue or transfer the shares of Common Stock, if any, covered by the Award to
the Subsidiary, for such lawful consideration as the Committee may specify,
upon the condition or understanding that the Subsidiary will transfer the
shares of Common Stock to the employee in accordance with the terms of the
Award specified by the Committee pursuant to the provisions of the Plan. All
shares of Common Stock underlying Awards that are forfeited or canceled shall
revert to the Company.
-19-
<PAGE>
(h) The Plan and all Awards made and actions taken thereunder shall
be governed by and construed in accordance with the laws of the State of
Delaware, without reference to principles of conflict of laws.
(i) Except as otherwise provided in Section 5(e) or 6(c)(v) or by
the Committee, Awards under the Plan are not transferable except by will or
by the laws of descent and distribution.
(j) In the event an Award is granted to an Eligible Individual who
is employed or providing services outside the United States and who is not
compensated from a payroll maintained in the United States, the Committee
may, in its sole discretion, modify the provisions of the Plan as they
pertain to such individual to comply with applicable foreign law.
(k) Notwithstanding any other provision of the Plan, the Committee
may make such rules and regulations and such amendments to the Plan, for
purposes of allowing eligible employees to participant in the plan subject to
the laws of any jurisdiction outside the United States, as it determines to
be necessary to comply with such laws or to take account of the tax or other
consequences thereof; PROVIDED, that such rules, regulations and amendments
shall be subject to the limitations set forth in this Section 13 and Sections
3, 4 and 11.
SECTION 14. EFFECTIVE DATE OF PLAN
The Plan shall be effective as of the date it is adopted by the
Board, subject to the approval of the Company's stockholders.
-20-
<PAGE>
Exhibit 10.12
PACKARD BIOSCIENCE COMPANY
NON-EMPLOYEE DIRECTOR
OPTION COMPENSATION PLAN
SECTION 1. PURPOSE
The purposes of the Plan are to assist the Company in (a)
promoting a greater identity of interests between the Company's non-employee
directors and its stockholders, and (b) attracting and retaining non-employee
directors by affording them an opportunity to share in the future successes
of the Company.
SECTION 2. DEFINITIONS
"AFFILIATE" shall mean, as to any Person, any other Person
which, directly or indirectly, is in control of, is controlled by, or is
under common control with, such Person. As used in this Plan, the term
"control" (including, with correlative meanings, the terms "controlled by"
and "under common control with"), as applied to any Person, means the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of such Person, whether through the ownership
of voting securities or other ownership interest, by contract or otherwise.
"BOARD" shall mean the Board of Directors of the Company.
"BUSINESS COMBINATION" shall have the meaning set forth in
Section 11(b).
"CHANGE IN CONTROL" shall have the meaning set forth in
Section 9.
"CODE" shall mean the Internal Revenue Code of 1986, as
amended from time to time, and the rules and regulations thereunder.
"COMMITTEE" shall have the meaning set forth in Section 5.
"COMMON STOCK" shall mean the common stock, $0.002 par
value, of the Company.
"COMPANY" shall mean Packard BioScience Company, a Delaware
corporation.
"EFFECTIVE DATE" shall have the meaning set forth in
Section 12.
<PAGE>
"EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended.
"FAIR MARKET VALUE" of a share of Common Stock shall mean,
as of any given date, the closing price of the Common Stock on the composite
transaction tape of the New York Stock Exchange on such date or, if there are
no reported sales on such date, on the last day prior to such date on which
there were sales of the Common Stock on the New York Stock Exchange or, if
the Common Stock is not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or on the Nasdaq
Stock Market. If there is no regular public trading market for such Common
Stock, the Fair Market Value of the Common Stock shall be determined by the
Committee in good faith.
"INCUMBENT BOARD" shall have the meaning set forth in
Section 9(b).
"INITIAL GRANT" shall have the meaning set forth in Section
6(a).
"IPO" shall mean the Company's initial public offering of
Common Stock pursuant to a registration statement under the Securities Act of
1933, as amended.
"NON-EMPLOYEE DIRECTOR" shall mean each member of the Board
who is neither an employee of the Company nor of Stonington or an Affiliate
of Stonington.
"OUTSTANDING COMPANY COMMON STOCK" shall have the meaning
set forth in Section 9(b).
"OUTSTANDING COMMON VOTING POWER" shall have the meaning
set forth in Section 9(b).
"PERSON" shall have the meaning set forth in Section 9(b).
"PLAN" shall mean this Packard BioScience Company
Non-Employee Director Option Compensation Plan.
"RETIREMENT" shall mean the retirement by a Non-Employee
Director from the Board in accordance with any stated policy of the Company
on retirement by members of the Board, or, if there is no such policy, as
determined by the Committee.
-2-
<PAGE>
"STOCK OPTION" shall mean a non-qualified stock option
awarded to a Non-Employee Director pursuant to Section 6.
"STONINGTON" shall mean Stonington Capital Appreciation
1994 Fund, L.P.
"STONINGTON AFFILIATES" shall have the meaning set forth in
Section 9(b).
SECTION 3. ELIGIBILITY
Each Non-Employee Director shall be eligible to participate
in the Plan. Any Non-Employee Director who becomes an employee of the Company
or of Stonington or an Affiliate of Stonington shall not thereafter be
entitled to additional Stock Options under the Plan, but shall retain all
existing Stock Options pursuant to the terms of the Plan.
SECTION 4. SHARES SUBJECT TO THE PLAN
The maximum number of shares of Common Stock which shall be
reserved and available for use under the Plan shall be 200,000 subject to
adjustment pursuant to Section 13 hereunder. The shares issued under the Plan
may be authorized and unissued shares or may be treasury shares or both.
If any Stock Option is forfeited or repurchased by the
Company for cash, or terminates, expires or lapses without being exercised,
the shares of Common Stock subject to such Stock Option shall again be
available for distribution in connection with grants awarded under the Plan.
SECTION 5. ADMINISTRATION
The Plan shall be administered by the Board or any
committee thereof so designated by the Board (the "Committee"), which shall
have full authority to construe and interpret the Plan, to establish, amend
and rescind rules and regulations relating to the Plan, and to take all such
actions and make all such determinations in connection with the Plan as it
may deem necessary or desirable.
-3-
<PAGE>
SECTION 6. STOCK OPTIONS
(a) INITIAL GRANT. Effective as of the Effective Date, each
Non-Employee Director shall be granted a Stock Option to purchase 15,000
shares of Common Stock (the "Initial Grant"). The option price per share for
the Initial Grant shall be the initial public offering price pursuant to the
IPO.
(b) SUBSEQUENT GRANTS. Each person who first becomes a
Non-Employee Director after the IPO shall be granted a Stock Option to
purchase 15,000 shares of Common Stock as of the date such person is elected
or appointed to the Board; PROVIDED, that no such grant shall be made to a
Non-Employee Director who received an option grant under the Company's 2000
Stock Incentive Plan during the two-year period immediately preceding such
election or appointment to the Board.
(c) REELECTION GRANTS. A Stock Option to purchase 15,000
shares of Common Stock shall be granted to each Non-Employee Director
automatically on the first business day following his or her reelection at
the Company's Annual Meeting of stockholders for such year, PROVIDED, that at
such time such person is a Non-Employee Director. Grants under this Section
6(c) shall be in addition to any grants of Stock Options under Section 6(a)
or 6(b).
(d) OPTION PRICE. Stock Options granted under Section 6(b)
or 6(c) shall be exercisable at a price per share equal to Fair Market Value
on the grant date.
(e) EXERCISABILITY. Each Stock Option shall vest and become
exercisable in equal installments on each of the first three anniversaries of
the grant date. In the event a Non-Employee Director's membership on the
Board terminates before a Stock Option has vested (whether by reason of
death, disability, Retirement, removal from office or otherwise), then any
such unvested Stock Option granted to such Non-Employee Director shall be
canceled and the Non-Employee Director shall have no further right or
interest in such forfeited Stock Option.
(f) TERMINATION. Each vested Stock Option shall remain
outstanding until the tenth anniversary of the date of grant; PROVIDED, that
in the event a Non-Employee Director's membership on the Board terminates
(other than for "cause" as described in Section 10), any vested Stock Option
then held by the Non-Employee Director shall terminate one year after such
termination of Board membership to the extent it is not sooner exercised.
-4-
<PAGE>
SECTION 7. TRANSFERABILITY
No Stock Option shall be transferable by a Non-Employee
Director other than (a) by will or by the laws of descent and distribution,
(b) in the Committee's discretion, pursuant to a written beneficiary
designation or (c) in the Committee's discretion, pursuant to a transfer to
such Non-Employee Director's immediate family, whether directly or
indirectly, by means of a trust, partnership, limited liability company or
otherwise. For purposes of this Section 7, "immediate family" shall mean,
except as otherwise defined by the Committee, any child, sibling, stepchild,
grandchild, parent, stepparent, grandparent, spouse, former spouse, niece,
nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
sister-in-law or brother-in-law, including adoptive relationships, of the
Non-Employee Director. Such permitted transferees may transfer a Stock Option
only by will or by the laws of descent and distribution. All Stock Options
shall be exercisable, subject to the terms of this Plan, only by the
optionee, guardian, legal representative or beneficiary of the optionee, or
permitted transferee, it being understood that the terms "holder" and
"optionee" include any such guardian, legal representative, beneficiary, or
transferee, except where the context requires otherwise.
SECTION 8. AMENDMENT AND TERMINATION
The Board may amend, alter, or discontinue the Plan, but no
amendment, alteration or discontinuation shall be made which would impair the
rights of a Non-Employee Director or former Non-Employee Director under any
Stock Option theretofore granted without such Non-Employee Director's or
former Non-Employee Director's consent. In addition, no such amendment shall
be made without the approval of the Company's stockholders to the extent such
approval is required by applicable law or stock exchange rule.
The Board or the Committee may amend the terms of any Stock
Option theretofore granted, prospectively or retroactively, but no such
amendment shall impair the rights of the holder of such Stock Option without
the holder's consent.
Notwithstanding the foregoing, the Board shall have
authority to amend the Plan to take into account changes in law and tax and
accounting rules as well as other developments, and to grant Stock Options
which qualify for beneficial treatment under such rules without stockholder
approval.
SECTION 9. EFFECT OF CHANGE IN CONTROL
(a) Notwithstanding any other provision of the Plan to the
contrary, in the event of a Change in Control, any Stock Options
outstanding and not then exercisable or vested as of the date such Change in
Control is determined to have occurred shall become fully exercisable and
vested to the full extent of the original grant.
-5-
<PAGE>
(b) For the purposes of this Plan, "Change in Control"
shall mean the happening of any of the following events:
(i) the acquisition by any individual, entity or
group (within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of both (A) 30% or more of either (1) the
then outstanding shares of common stock of the Company (the "Outstanding
Company Common Stock") or (2) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in
the election of directors (the "Outstanding Company Voting Power") and (B)
more than both the Outstanding Company Common Stock and the Outstanding
Company Voting Power owned or controlled directly or indirectly by Stonington
and/or its Affiliates (collectively, the "Stonington Affiliates"); PROVIDED,
HOWEVER, that for purposes of this subsection (i), the following acquisitions
shall not constitute a Change in Control: (1) any acquisition directly from
the Company, (2) any acquisition by the Company, (3) any acquisition by any
employee benefit plan (or related trust) sponsored or maintained by the
Company or any corporation controlled by the Company or (4) any acquisition
by any corporation pursuant to a transaction which complies with clauses (1),
(2) and (3) of subsection (iii) of this Section 9(b); or
(ii) individuals who, as of the effective date of
the Plan, constitute the Board (the "Incumbent Board") cease for any reason
not to constitute at least a majority of the Board; PROVIDED, HOWEVER, that
any individual becoming a director subsequent to the effective date of the
Plan whose election, or nomination for election by the Company's
stockholders, was approved by the Stonington Affiliates at a time when such
entities controlled at least a majority of the Outstanding Company Voting
Power or by a vote of at least a majority of the directors then comprising
the Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any such
individual whose initial assumption of office occurs as a result of an actual
or threatened election contest with respect to the election or removal of
directors or other actual or threatened solicitation of proxies or consents
by or on behalf of a Person other than the Board; or
(iii) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all of the
assets of the Company (a "Business Combination"), in each case, unless,
following such Business Combination: (1) all or substantially all of the
individuals and entities who were the beneficial owners, respectively, of the
Outstanding Company Common Stock and Outstanding Company Voting Power
immediately prior to such Business Combination beneficially own, directly or
indirectly, more than 50% of, respectively, the then outstanding shares of
common stock and the combined voting power of the then outstanding voting
securities entitled to vote generally in the election of directors, as the
case may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the Company's
assets either directly or through one or more Subsidiaries), (2) in the event
that the Stonington Affiliates do not own or control at least 50% of the
Outstanding Company Voting Power upon the consummation of the Business
-6-
<PAGE>
Combination, no Person (excluding any employee benefit plan (or related
trust) of the Company or such corporation resulting from such Business
Combination) beneficially owns, directly or indirectly, 20% or more of,
respectively, the then outstanding shares of common stock of the corporation
resulting from such Business Combination or the combined voting power of the
then outstanding voting securities of such corporation (and such amount
exceeds the amount owned or controlled by the Stonington Affiliates) except
to the extent that such person had such ownership of the Outstanding Company
Common Stock or Outstanding Company Voting Power immediately prior to the
Business Combination, and (3) at least a majority of the members of the board
of directors of the corporation resulting from such Business Combination were
members of the Incumbent Board at the time of the execution of the initial
agreement, or of the action of the Board, providing for such Business
Combination; or
(iv) the approval by the shareholders of the
Company of a complete liquidation or dissolution of the Company.
SECTION 10. EFFECT OF TERMINATION FOR CAUSE
If a Non-Employee Director experiences a termination of
membership on the Board for cause, such Non-Employee Director's Stock Options
shall be automatically canceled immediately. Unless otherwise determined by
the Board, for purposes of the Plan "cause" shall mean (a) the conviction of
the Non-Employee Director for commission of a felony under Federal law or the
law in the state in which such action occurred, or (b) dishonesty in the
course of fulfilling the Non-Employee Director's duties as a director.
SECTION 11. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION
In the event of any change in corporate capitalization,
such as a stock split or an extraordinary corporate transaction, such as any
merger, consolidation, separation, including a spin-off, or other
distribution of stock or property of the Company, any reorganization (whether
or not such reorganization comes within the definition of such term in
Section 368 of the Code) or any partial or complete liquidation of the
Company, the Committee or Board may make such substitution or adjustments to
reflect such change or transaction in the aggregate number and class of
shares reserved for issuance under the Plan, and the number and kind of
shares subject to Stock Options, and such other equitable substitutions or
adjustments, in each case, as it may determine to be appropriate in its sole
discretion; PROVIDED, HOWEVER, that the number of shares subject to any Stock
Option shall always be a whole number.
SECTION 12. EFFECTIVENESS OF PLAN
The Plan shall become effective upon the date the
registration statement filed by the Company and under the Securities Act of
1933, as amended, for the IPO is declared effective (the "Effective Date").
-7-
<PAGE>
SECTION 13. DURATION OF PLAN
Unless earlier terminated pursuant to Section 8 hereof,
this Plan shall automatically terminate on, and no grants may be made after,
the tenth anniversary of the Effective Date of the Plan, except with respect
to the exercise of outstanding Stock Options.
SECTION 14. PRO RATA GRANTS
Notwithstanding anything in the Plan to the contrary, in
the event that, on any particular date, the number of shares of Common Stock
available for grants of Stock Options under the Plan is insufficient to make
all such automatic grants, then all Non-Employee Directors entitled to a
grant of Stock Options on such date shall share ratably in the number of
Stock Options available for grant under the Plan. The Committee shall
determine any additional appropriate action to be taken in the event the
number of shares of Common Stock available for the grant of Stock Options on
any particular date is insufficient to accommodate all automatic grants.
SECTION 15. GOVERNING LAW
The Plan and all Stock Options granted and actions taken
thereunder shall be governed by and construed in accordance with the laws of
the State of Delaware, without reference to principles of conflict of laws.
SECTION 16. UNFUNDED PLAN
The Plan is intended to constitute an unfunded plan for
incentive compensation of Directors. The Committee may authorize the creation
of trusts or other arrangements to meet the obligations created under the
Plan to deliver Common Stock or make payments, so long as the existence of
such trusts or other arrangements is consistent with the unfunded status of
the Plan.
-8-
<PAGE>
Exhibit 10.13
PACKARD BIOSCIENCE COMPANY
2000 EMPLOYEE STOCK PURCHASE PLAN
1. ESTABLISHMENT OF PLAN.
Packard BioScience Company, a Delaware corporation (the "Company"),
proposes to grant options ("Options") for purchase of the Company's common
stock, $0.002 par value ("Common Stock"), to eligible employees of the
Company and its Designated Subsidiaries (as defined in Section 5 hereof)
pursuant to this 2000 Employee Stock Purchase Plan (this "Plan"). The Company
intends this Plan to qualify as an "employee stock purchase plan" under
Section 423 of the Internal Revenue Code of 1986, as amended (the "Code"),
and this Plan shall be so construed. Any term not expressly defined in this
Plan but defined in Section 423 of the Code shall have the meaning provided
in Section 423 of the Code.
2. STOCK SUBJECT TO PLAN.
A total of 500,000 shares of the Common Stock will be available for
issuance under this Plan. Such number shall be subject to adjustments
effected in accordance with Section 16 of this Plan. Any shares of Common
Stock that have been made subject to an Option that cease to be subject to
the Option (other than by means of exercise of the Option), including,
without limitation, in connection with the cancellation or termination of an
Option, shall again be available for issuance in connection with future
grants of Options under this Plan.
3. PURPOSE.
The purpose of this Plan is to encourage employees of the Company and
its designated subsidiaries, as that term is defined in Section 5 of this
Plan ("Designated Subsidiaries"), to own Common Stock by permitting them to
acquire Common Stock at a discount through payroll deductions, so as to
enhance such employees' sense of participation in the affairs of the Company
and Subsidiaries and to provide an incentive for continued employment.
4. ADMINISTRATION.
This Plan shall be administered by the Compensation Committee or such
other committee of the Company's Board of Directors (the "Board") as the
Board may from time to time designate, which shall be composed of at least
two directors and shall be appointed by and serve at the pleasure of the
Board (the "Committee"). Subject to the provisions of this Plan and the
limitations of Section 423 of the Code or any successor provision in the
Code, the Committee shall have exclusive authority, in its discretion, to
determine all matters relating to Options granted under this Plan, including
all terms, conditions, restrictions, and limitations of Options; PROVIDED,
HOWEVER, that all participants granted Options under an offering pursuant to
this Plan shall have the same rights and privileges within the meaning of
Code Section 423(b)(5) except as required by applicable law.
The Committee may act only by a majority of its members then in office,
except that the Committee may, except to the extent prohibited by applicable law
or the applicable rules of a
<PAGE>
stock exchange, allocate all or any portion of its responsibilities and
powers to any one or more of its members and may delegate all or any part of
its responsibilities and powers to any person or persons selected by it;
PROVIDED, that no such delegation may be made that would cause Options or
other transactions under the Plan to cease to be exempt from Section 16(b) of
the Exchange Act.
The Committee shall have the authority to adopt, alter and repeal such
administrative rules, guidelines and practices governing the Plan as it shall
from time to time deem advisable, to interpret the terms and provisions of
the Plan and any Option issued under the Plan and to otherwise supervise the
administration of the Plan. The Committee's exercise of discretion and
interpretation of this Plan, its rules and regulations, and all actions taken
and determinations made by the Committee pursuant to this Plan shall be
conclusive and binding on all parties involved or affected. The Committee may
delegate administrative duties to any person or persons selected by it, as it
deems advisable. All expenses incurred in connection with the administration
of this Plan shall be paid by the Company and the Designated Subsidiaries;
PROVIDED, HOWEVER, that the Committee may require a participant to pay any
costs or fees in connection with the sale by the participant of shares of
Common Stock acquired under this Plan or in connection with the participant's
request for the issuance of a certificate for shares of Common Stock held in
the participant's account under the Plan.
5. ELIGIBILITY.
Any employee of the Company or the Designated Subsidiaries is eligible
to participate in the Plan for any Offering Period (as hereinafter defined)
under this Plan except the following:
(a) employees who are customarily employed for less than 20 hours
per week;
(b) employees who are customarily employed for not more than five
months in a calendar year; and
(c) employees who, together with any other person whose stock would
be attributed to such employee pursuant to Section 424(d) of the Code, own
stock or hold options to purchase stock possessing five percent or more of
the total combined voting power or value of all classes of stock of the
Company or any of its Subsidiaries or who, as a result of being granted
Options under this Plan, would own stock or hold options to purchase stock
possessing five percent or more of the total combined voting power or
value of all classes of stock of the Company or any of its Subsidiaries.
For all purposes of this Plan, (i) the term "Subsidiary" shall mean any
"subsidiary corporation" as that term is defined in Section 424(f) of the
Code and (ii) the term "Designated Subsidiaries" shall mean those
Subsidiaries listed on Annex A to this Plan or Subsidiaries which may
hereafter be determined by the Committee or the Board to be Designated
Subsidiaries. A Designated Subsidiary will cease to be a Designated
Subsidiary on the earlier of (i) the date the Committee or the Board
determines that such Subsidiary is no longer a Designated Subsidiary or (ii)
such Designated Subsidiary ceases for any reason to be a Subsidiary.
2
<PAGE>
6. OFFERING PERIODS.
The offering periods of this Plan (individually, an "Offering Period")
shall be of periods not to exceed the maximum period permitted by Section 423
of the Code. Until determined otherwise by the Committee or the Board,
Offering Periods shall commence on January 1 and July 1 of each calendar year
and each Offering Period shall consist of one six-month purchase period
during which payroll deductions of the participants are accumulated under
this Plan; PROVIDED, that the first Offering Period may commence on or after
the IPO Date and prior to July 1, 2000, and shall end on December 31, 2000.
For the purposes of this Plan, the "IPO Date" shall mean the date on which
the registration statement filed by the Company under the Securities Act of
1933, as amended, for the Initial Public Offering is declared effective. The
first day of each Offering Period is referred to as the "Offering Date." The
last day of each Offering Period is referred to as the "Purchase Date."
Subject to the requirements of Section 423 of the Code, the Committee or the
Board shall have the power to change the duration of Offering Periods with
respect to future offerings if such change is announced at least 30 days
prior to the Offering Date of the first Offering Period to be affected by
such change.
7. PARTICIPATION IN THIS PLAN.
An eligible employee may become a participant in this Plan on the first
Offering Date after he or she satisfies the eligibility requirements, by
delivering a properly completed enrollment form (on such form as the
Committee may prescribe) to the Committee not later than the 15th day of the
month (or if such day is not a business day for the Company or the applicable
Subsidiary, on the immediately preceding business day) before such Offering
Date, unless a later time for filing the enrollment form authorizing payroll
deductions is set by the Committee for all eligible employees with respect to
a given Offering Period. Once an employee becomes a participant in the Plan
with respect to an Offering Period, such employee will automatically
participate in the Offering Period commencing immediately following the last
day of the prior Offering Period unless the employee withdraws from this Plan
or terminates further participation in the Offering Period as set forth in
Sections 13 and 14 below. No additional enrollment form shall be required for
such continued participation in this Plan.
8. GRANT OF OPTION ON ENROLLMENT.
Enrollment by an eligible employee in this Plan with respect to an
Offering Period will constitute the grant by the Company to such employee of
an Option to purchase on the relevant Purchase Date up to that number of
shares of Common Stock of the Company, and any fraction of a share,
determined by dividing (a) the amount accumulated in such employee's payroll
deduction account during the Offering Period ending on such Purchase Date, by
(b) the Purchase Price as that term is defined in Section 9; PROVIDED,
HOWEVER, that the number of shares which may be purchased pursuant to an
Option may in no event exceed the number of shares determined in the manner
set forth in Section 11(b) of the Plan.
3
<PAGE>
9. PURCHASE PRICE.
(a) Subject to Section 9(b) below, the purchase price per share (the
"Purchase Price") pursuant to any Option shall be the lower of (i) 85%
percent of the fair market value of such share on the Offering Date for such
Option or (ii) 85% percent of the fair market value of such share on the
Purchase Date for such Option; PROVIDED, HOWEVER, that in no event may the
purchase price per share of Common Stock be below the par value of a share of
the Common Stock.
(b) For purposes of this Plan, the term "fair market value" of the
Common Stock means, as of any given date, the closing price of the Common
Stock on the composite transaction tape of the New York Stock Exchange
(determined at the close of regular trading hours) on such date or, if there
are no reported sales on such date, on the last day prior to such date on
which there were sales of the Common Stock on the New York Stock Exchange or,
if the Common Stock is not listed on such exchange, on any other national
securities exchange on which the Common Stock is listed or on The Nasdaq
Stock Market. If there is no regular public trading market for such Common
Stock, the fair market value of the Common Stock shall be determined by the
Committee in good faith. The Committee may change the manner in which the
Purchase Price is determined, so long as (i) such determination does not have
the effect of lowering the Purchase Price to an amount less than that set
forth in Section 9(a) and (ii) such changed manner of computation is
announced to eligible employees at least 30 days prior to the Offering Date
of the first Offering Period to be affected by such change.
10. PURCHASE OF SHARES; CHANGES IN PAYROLL DEDUCTIONS; ISSUANCE OF SHARES.
(a) Funds contributed by each participant for the purchase of shares
under this Plan shall be accumulated by regular payroll deductions made
during each Offering Period. The deductions shall be made as a percentage of
the participant's Compensation in 1.0% increments comprising not less than
1.0% and not more than 15.0% of the participant's Compensation with respect
to such payroll period. As used herein, "Compensation" shall mean all base
salary, wages, commissions and overtime pay with respect to such payroll
period; PROVIDED, HOWEVER, that, for purposes of determining a participant's
Compensation, any election by such participant to reduce his or her regular
cash remuneration under Sections 125 or 401(k) of the Code shall be treated
as if the participant did not make such election. "Compensation" does not
include cash bonuses, severance pay, hiring and relocation allowances, pay in
lieu of vacation, automobile allowances, imputed income arising under any
Company group insurance or other benefit program, income received in
connection with stock options, or any other special items of remuneration.
Payroll deductions shall commence on the first payday following the Offering
Date and shall continue through the last payday of the Offering Period unless
sooner altered or terminated as provided in this Plan.
(b) A participant may decrease (but not increase) the rate of payroll
deductions during an Offering Period by filing with the Committee a new
authorization for payroll deductions, in which case the new rate shall become
effective for the next payroll period commencing more than 15 days after the
Committee's receipt of the authorization and shall continue for the remainder
of the Offering Period unless changed as described below. Such a decrease in
the rate of payroll deductions may be made at any time during an Offering
Period, but not more than one
4
<PAGE>
change may be made effective during any Offering Period. Notwithstanding the
foregoing, a participant may decrease the rate of payroll deductions to zero
for the remainder of the Offering Period. A participant may increase or
decrease the rate of payroll deductions for any subsequent Offering Period by
filing with the Committee a new authorization for payroll deductions not
later than the 15th day of the month (or if such date is not a business day,
the immediately preceding business day) before the beginning of such Offering
Period. A participant who has decreased the rate of withholding to zero will
be deemed to continue as a participant in the Plan until the participant
withdraws from the Plan in accordance with the provisions of Section 13 or
his or her participation is terminated in accordance with the provisions of
Section 14. A participant shall have the right to withdraw from this Plan in
the manner set forth in Section 13 regardless of whether the participant has
exercised his or her right to decrease the rate at which payroll deductions
are made during the applicable Offering Period.
(c) All payroll deductions made for a participant will be credited to
his or her account under this Plan and deposited with the general funds of
the Company. No interest will accrue on payroll deductions. All payroll
deductions received or held by the Company may be used by the Company for any
corporate purpose, and the Company shall not be obligated to segregate such
payroll deductions.
(d) On each Purchase Date, provided that the participant has not
terminated employment in accordance with Section 14 and has not submitted to
the Committee a signed and completed withdrawal form, in each case on or
before the 15th day (or if such date is not a business day, on the
immediately preceding business day) of the last month of the Offering Period
in accordance with Section 10(b) or Section 13 of this Plan, then, subject to
the limitations set forth in Section 11, the Company shall apply the funds
then in the participant's account to the purchase at the Purchase Price of
whole and any fractional shares (rounded to the nearest hundredth) of Common
Stock issuable under the Option granted to such participant with respect to
the Offering Period.
(e) During a participant's lifetime, such participant's Option to
purchase shares hereunder is exercisable only by him or her or, in the event
of the participant's disability, the participant's legal representatives. The
participant shall have no interest or voting right in shares covered by his
or her Option until such Option has been exercised.
11. LIMITATIONS ON RIGHTS TO PURCHASE.
(a) No employee shall be granted an Option to purchase Common Stock
under this Plan at a rate which, when aggregated with his or her rights to
purchase stock under all other employee stock purchase plans of the Company
or any Subsidiary which is intended to meet the requirements of Code Section
423, exceeds $25,000 in fair market value, determined as of the applicable
date of the grant of the Option, for each calendar year in which the employee
participates in this Plan (or any other employee stock purchase plan
described in this Section 11(a)).
(b) The number of shares which may be purchased by any employee on the
first Purchase Date to occur in any calendar year may not exceed the number of
shares determined by dividing $25,000 by the fair market value (as defined in
Section 9) of a share of Common Stock on the Offering Date of the Offering
Period in which such Purchase Date occurs. The number of shares
5
<PAGE>
which may be purchased by any employee on any subsequent Purchase Date which
occurs in the same calendar year as that referred to in the preceding
sentence shall not exceed the number of shares determined by performing the
calculation described below, with all computations to be made to the nearest
one hundredth of a whole share of Common Stock or one cent, as the case may
be.
STEP ONE: The number of shares purchased by the employee during any
previous Offering Period which occurred in the same calendar year shall be
multiplied by the fair market value (as defined in Section 9) of a share
of Common Stock on the first day of such previous Offering Period in which
such shares were purchased.
STEP TWO: The amount determined in Step One shall be subtracted from
$25,000.
STEP THREE: The amount determined in Step Two shall be divided by the fair
market value (as defined in Section 9) of a share of Common Stock on the
Offering Date of the Offering Period in which the subsequent Purchase Date
(for which the maximum number of shares which may be purchased is being
determined by this calculation) occurs. The quotient so obtained shall be
the maximum number of shares which may be purchased by any employee on
such subsequent Purchase Date.
Subject to the limitations of Section 423 of the Code, and notwithstanding
the foregoing, the Committee may from time to time determine that a different
maximum number of shares may be purchased on any given Purchase Date in lieu
of the maximum amounts described above in this Section 11(b), in which case
the number of shares which may be purchased by any employee on such Purchase
Date may not exceed such different limitation; PROVIDED, that any change made
by the Committee pursuant to this sentence shall only be effective for
Offering Periods that begin at least 30 days after the change is announced to
eligible employees.
(c) If the number of shares to be purchased on a Purchase Date by all
employees participating in this Plan exceeds the number of shares then
available for issuance under this Plan, then the Committee shall make a pro
rata allocation of the remaining shares in as uniform a manner as shall be
reasonably practicable and as the Committee shall determine to be equitable.
In such event, the Company shall give written notice of such reduction of the
number of shares to be purchased under a participant's Option to each
participant affected thereby.
(d) Any payroll deductions accumulated in a participant's account which
are not used to purchase stock due to the limitations in this Section 11
shall be returned to the participant as soon as practicable after the end of
the applicable Offering Period without interest.
12. EVIDENCE OF STOCK OWNERSHIP.
As soon as practicable following each Purchase Date, the number of full
shares of Common Stock purchased by each participant shall be evidenced in
such manner as the Committee may deem appropriate, including book-entry
registration or issuance of one or more stock certificates which shall be
deposited into an account established in the participant's name at a stock
brokerage or other financial services firm designated or approved by the
Committee (the "Plan Financial Agent"). A participant may request, no more
than twice during any 12-month period and/or
6
<PAGE>
within 30 days following the termination of such participant's employment for
any reason, that a stock certificate for full (but not fractional) shares be
issued and delivered to him or her. Such request shall be made by filing
notice with the Plan Financial Agent, and the Plan Financial Agent shall
cause such shares to be delivered promptly following receipt of such notice.
Cash shall be paid in lieu of fractional shares based on the Fair Market
Value of the Common Stock on the date such notice is received by the Company.
In the event a participant or former participant shall have an account
balance of less than one full share with the Plan Financial Agent as of the
Offering Date of any Offering Period for which such participant has elected
not to participate in the Plan, the Plan Financial Agent shall cause such
fractional share to be sold as promptly as possible and the cash proceeds
from such sale to be paid to the account holder.
13. WITHDRAWAL.
Each participant may withdraw from an Offering Period under this Plan
by signing and delivering to the Committee a written notice to that effect on
a form provided for such purpose. Such withdrawal may be elected at any time
on or prior to the 15th day of the last month (or if such date is not a
business day, the immediately preceding business day) of an Offering Period
(such date, the "Withdrawal Deadline").
14. TERMINATION OF EMPLOYMENT; LEAVE OF ABSENCE.
Termination of a participant's employment for any reason, including,
without limitation, retirement, death, or the failure of a participant to
remain an eligible employee, immediately terminates his or her participation
in this Plan. For purposes of this Section 14, an employee will not be deemed
to have terminated employment or failed to remain in the continuous employ of
the Company in the case of any leave of absence approved by the Committee,
but all employees of Designated Subsidiaries that cease for any reason to be
Designated Subsidiaries who are not employed by or transferred to the employ
of the Company or another Designated Subsidiary shall be deemed to have
terminated employment.
15. RETURN OF PAYROLL DEDUCTIONS.
In the event a participant's participation in this Plan is terminated
by withdrawal, termination of employment, or otherwise, the Company shall
promptly deliver to the participant all accumulated payroll deductions of the
participant to the Plan which have not yet been applied to the purchase of
stock as soon as practicable after the end of the applicable offering period,
unless such termination of participation occurs later than the Withdrawal
Deadline for the Offering Period, in which event such accumulated payroll
deductions will be utilized to purchase Common Stock for the participant. No
interest shall accrue on the payroll deductions of a participant in this Plan.
16. CAPITAL CHANGES.
In the event of any change in corporate capitalization, such as a stock
split or an extraordinary corporate transaction, such as any merger,
consolidation, separation, including a spin-off, or other distribution of
stock or property of the Company, any reorganization (whether or not such
7
<PAGE>
reorganization comes within the definition of such term in Section 368 of the
Code) or any partial or complete liquidation of the Company or sale of all or
substantially all of the Company's assets or stock, then the Committee, in
its sole discretion, may make such equitable adjustments as it shall deem
appropriate in the circumstances in the maximum number and kind of shares of
stock subject to this Plan as set forth in Sections 1 and 2, the number and
kind of shares subject to outstanding Options, and/or the Purchase Price of
such Options. The determination by the Committee as to the terms of any of
the foregoing adjustments shall be conclusive and binding.
17. NONASSIGNABILITY.
Neither payroll deductions credited to a participant's account nor any
rights with regard to the exercise of an Option or to receive shares under
this Plan may be assigned, transferred, pledged, or otherwise disposed of in
any way (other than by will, the laws of descent and distribution, or as
provided in Section 24 hereof) by the participant. Any such attempt at
assignment, transfer, pledge, or other disposition shall be void and without
effect.
18. REPORTS AND STATUS OF ACCOUNTS.
Individual accounts will be maintained by the Plan Financial Agent for
each participant in this Plan. The participant shall have all ownership
rights with respect to shares of Common Stock held in his or her account(s)
by the Plan Financial Agent and/or the Company, including the right to vote
such shares and to receive any dividends or distributions which may be
declared thereon by the Board. The Committee shall send to each participant
promptly after the end of each Offering Period a report of his or her
account(s) setting forth with respect to such Offering Period the total
payroll deductions accumulated, the number of whole and any fractional share
purchased, and the per share price thereof, and also setting forth the total
number of shares (including any fractional share) then held in his or her
account(s). Neither the Company nor any Designated Subsidiary shall have any
liability for any error or discrepancy in any such report.
19. NO RIGHTS TO CONTINUED EMPLOYMENT; NO IMPLIED RIGHTS.
Neither this Plan nor the grant of any Option hereunder shall confer
any right on any employee to remain in the employ of the Company or any
Subsidiary or restrict the right of the Company or any Subsidiary to
terminate such employee's employment. The grant of any Option hereunder
during any Offering Period shall not give a participant any right to similar
grants thereafter.
20. EQUAL RIGHTS AND PRIVILEGES.
All eligible employees shall have equal rights and privileges with
respect to this Plan except as required by applicable law so that this Plan
qualifies as an "employee stock purchase plan" within the meaning of Section
423 or any successor provision of the Code and the related regulations. Any
provision of this Plan which is inconsistent with Section 423 or any
successor provision of the Code shall, without further act or amendment by
the Company, the Board, or the Committee, be reformed to comply with the
requirements of Section 423. This Section 20 shall take precedence over all
other provisions in this Plan.
8
<PAGE>
21. NOTICES.
All notices or other communications by a participant to the Company
under or in connection with this Plan shall be deemed to have been duly given
when received in the form specified by the Company at the location, or by the
person, designated by the Company for the receipt thereof.
22. AMENDMENT OF PLAN.
The Board may amend this Plan in such respects as it shall deem
advisable; PROVIDED, HOWEVER, that stockholder approval will be required for
any amendment that will increase the total number of shares as to which
Options may be granted under this Plan or, but for such shareholder approval,
cause this Plan to fail to continue to qualify as an "employee stock purchase
plan" under Section 423 of the Code.
23. TERMINATION OF THE PLAN.
The Board may suspend or terminate this Plan at any time. Upon a
suspension or termination of the Plan while an Offering Period is in
progress, the Committee shall either shorten such Offering Period by setting
a new Purchase Date before the date of such suspension or termination of the
Plan or shall return the accumulated payroll deductions of all participants
as if they had all withdrawn before the Withdrawal Deadline for such Offering
Period, as set forth in Section 15. Unless this Plan shall have been
previously terminated by the Board, this Plan shall terminate on, and no
Options shall be granted after, December 31, 2010. No Options shall be
granted during any period of suspension of this Plan.
24. DESIGNATION OF BENEFICIARY.
(a) A participant may file a written designation of a beneficiary who
is to receive any shares and cash, if any, from the participant's account
under this Plan, in the event of such participant's death prior to delivery
to him or her (or to the Plan Financial Agent on his or her behalf) of such
shares and cash.
(b) Such designation of beneficiary may be changed by the participant
at any time by written notice. In the event of the death of a participant and
in the absence of a beneficiary validly designated under this Plan who is
living at the time of such participant's death, the Company shall deliver
such shares or cash to the executor or administrator of the estate of the
participant, or if no such executor or administrator has been appointed (to
the knowledge of the Company), the Company, in its discretion, may deliver
such shares or cash to the spouse or to any one or more dependents or
relatives of the participant or, if no spouse, dependent, or relative is
known to the Company, to such other person as the Company may in good faith
determine to be the appropriate designee.
9
<PAGE>
25. CONDITIONS UPON ISSUANCE OF SHARES; LIMITATION ON SALE OF SHARES.
Shares shall not be issued with respect to an Option unless the
exercise of such Option and the issuance and delivery of such shares pursuant
thereto shall comply with all applicable provisions of law, domestic or
foreign, including, without limitation, the Securities Act of 1933, as
amended, the Securities Exchange Act of 1934, as amended, the rules and
regulations promulgated thereunder, and the requirements of any stock
exchange or automated quotation system upon which the shares may then be
listed, and shall be further subject to the approval of counsel for the
Company with respect to such compliance.
26. EFFECTIVE DATE.
The Plan shall be effective as of the date it is adopted by the Board,
subject to the approval of the Company's stockholders.
27. GOVERNING LAW.
Except to the extent that provisions of this Plan are governed by
applicable provisions of the Code or any other substantive provision of
federal law, this Plan and actions taken under this Plan shall be governed by
and construed in accordance with the laws of the State of Delaware without
reference to principles of conflict of laws.
10
<PAGE>
EXHIBIT 10.21
IRREVOCABLE POWER OF ATTORNEY
AND CUSTODY AGREEMENT
by and among
Timothy O. White, Jr. and William H. Cuddy
as Attorneys-in-Fact,
Packard BioScience Company
as Custodian and Company,
and
The Shareholders of Packard BioScience Company listed in Schedule I hereto
<PAGE>
IRREVOCABLE POWER OF ATTORNEY
AND CUSTODY AGREEMENT
Timothy O. White, Jr.
As Attorney-in-Fact
c/o Packard BioScience Company
800 Research Parkway
Meriden, Connecticut 06450
William H. Cuddy
As Attorney-in-Fact
c/o Day, Berry & Howard LLP
185 Asylum Street
Hartford, Connecticut 06103-3499
Packard BioScience Company
For the Custodian and the Company
c/o Timothy O. White, Jr.
Vice President, General Counsel and Secretary
Packard BioScience Company
800 Research Parkway
Meriden, Connecticut 06450
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Banc of America Securities LLC
Thomas Weisel Partners LLC
As U.S. Representatives of the several U.S. Underwriters
c/o Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith Incorporated
North Tower
World Financial Center
New York, New York 10281
Merrill Lynch International
Chase Securities Inc.
Robert W. Baird & Co. Incorporated
Bank of America International Limited
Thomas Weisel International Limited
As Lead Managers of the Several International Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
1
<PAGE>
London EC2Y 9LY
England
Ladies and Gentlemen:
The undersigned Shareholder (the "UNDERSIGNED") of Packard
BioScience Company, a Delaware corporation (the "COMPANY"), and the other
Shareholders of the Company listed in Schedule I attached hereto (the
undersigned and such other Shareholders being hereinafter collectively referred
to as the "SELLING SHAREHOLDERS") will enter into (i) a U.S. Purchase Agreement
(the "U.S. PURCHASE AGREEMENT"), among the Company, the Selling Shareholders and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated, Chase
Securities Inc., Robert W. Baird & Co. Incorporated, Banc of America Securities
LLC, and Thomas Weisel Partners LLC, as representatives (the "U.S.
REPRESENTATIVES") of the several U.S. underwriters listed in Schedule A to the
U.S. Purchase Agreement (the "U.S. UNDERWRITERS"); and (ii) an International
Purchase Agreement (the "INTERNATIONAL PURCHASE AGREEMENT"), among the Company
and the Selling Shareholders and Merrill Lynch International Limited, Chase
Securities Inc., Robert W. Baird & Co. Incorporated, Bank of America
International Limited, and Thomas Weisel International Limited, as lead managers
(the "LEAD MANAGERS") of the several international managers in Schedule A to the
International Purchase Agreement (the "MANAGERS" and together with the U.S.
Underwriters, the "UNDERWRITERS") pursuant to which each Selling Shareholder
will grant an option to the Underwriters to purchase up to the number of shares
of common stock, par value $.002 per share (the "COMMON STOCK") set forth
opposite such Selling Shareholder's name in Schedule B to the U.S. Purchase
Agreement and the International Purchase Agreement (the "OPTION SHARES"). The
U.S. Purchase Agreement and the International Purchase Agreement are
collectively hereinafter referred to as the "PURCHASE AGREEMENTS". Capitalized
terms used herein but not otherwise defined herein have the meanings ascribed
thereto in the Purchase Agreements.
The undersigned understands that the Company has filed with the
Securities and Exchange Commission (the "COMMISSION") a Registration Statement
on Form S-1 (the "REGISTRATION STATEMENT") in connection with the initial public
offering (the "OFFERING") of shares of its Common Stock. The undersigned and
each of the other Selling Shareholders have elected to sell their respective
Option Shares in the Offering. Accordingly, the Registration Statement will be
registered under the Securities Act of 1933, as amended (the "1933 ACT"),
covering the Option Shares to be granted by each of the Selling Shareholders.
The undersigned, by executing and delivering this Irrevocable Power of
Attorney and Custody Agreement (the "AGREEMENT"), confirms the undersigned's
willingness and intent to sell its Option Shares to the Underwriters pursuant to
the Purchase Agreements, and agrees, simultaneously with the execution and
delivery hereof, to cause the deposit of such Option Shares with Packard
BioScience Company, acting in its capacity as custodian hereunder (solely in
such capacity, the "CUSTODIAN"), all as hereinafter provided.
2
<PAGE>
The undersigned hereby acknowledges receipt of (i) a form of U.S.
Purchase Agreement (a copy of which is attached hereto as Exhibit A) and form of
International Purchase Agreement (a copy of which is attached hereto as Exhibit
B) (collectively, the "DRAFT PURCHASE AGREEMENTS"), and (ii) copies of the U.S.
Preliminary Prospectus and the International Preliminary Prospectus, each dated
March 23, 2000, to be used in connection with the Offering. The undersigned
understands that the Purchase Agreements are subject to revision before
execution, with such changes as the Attorneys-in-Fact referred to below deem
appropriate (including with respect to the number of Option Shares of Common
Stock to be granted), and that the Registration Statement has not yet become
effective under the 1933 Act and is subject to amendment.
To induce the U.S. Underwriters and the Company to enter into the U.S.
Purchase Agreement, and the Managers and the Company to enter into the
International Purchase Agreement, and to secure their performance, the
undersigned agrees as follows:
1. APPOINTMENT OF ATTORNEYS-IN-FACT; GRANT OF AUTHORITY. For purposes
of effecting the sale of the undersigned's Option Shares pursuant to the
Purchase Agreements, the undersigned irrevocably makes, constitutes and appoints
Timothy O. White, Jr. and William H. Cuddy and each of them, true and lawful
agents and attorneys-in-fact of the undersigned (each, an "ATTORNEY-IN-FACT"
and, collectively, the "ATTORNEYS-IN-FACT"), each with full power and authority,
subject to the terms and provisions hereof, to act hereunder, individually,
collectively, or through duly appointed successor attorneys-in-fact, in his or
their sole discretion (it being understood and agreed that the Attorneys-in-Fact
may, unless otherwise specified herein, act individually), all as hereinafter
provided, in the name of and for and on behalf of the undersigned, as fully as
could the undersigned if present and acting in person, with respect to the
following matters in connection with and necessary and incident to the
registration and sale of the undersigned's Option Shares in the Offering:
(a) to authorize and direct the Custodian and any other person or
entity to take any and all actions as may be necessary or deemed to be
advisable by the Attorneys-in-Fact or any of them to effect the sale,
transfer and disposition of any or all of the undersigned's Option Shares
in the Offering as the Attorneys-in-Fact or any of them may, in their sole
discretion, determine, including to direct the Custodian to deliver to the
U.S. Representatives and Lead Managers certificates evidencing any or all
of the Option Shares with appropriate stock powers or other instruments of
transfer duly endorsed or in blank, to effect the sale of any or all of the
Option Shares to the Underwriters pursuant to the terms of the Purchase
Agreements in the Offering;
(b) to execute and deliver the Purchase Agreements on behalf of the
undersigned, substantially in the forms of the Draft Purchase Agreements,
with such changes therein as the Attorneys-in-Fact or any of them, in their
sole discretion may determine (it being understood that the legal opinions
and "comfort" letters to be delivered pursuant to the Purchase Agreements
have not, at the date hereof, been negotiated), the execution and delivery
of such Purchase Agreements by any Attorneys-
3
<PAGE>
in-Fact to be conclusive evidence with respect to their approval thereof,
and carry out and comply with each and all of the provisions of the
Purchase Agreements;
(c) to take any and all actions that may be necessary or deemed to be
advisable by the Attorneys-in-Fact, or any of them, in their sole
discretion, with respect to the Registration Statement, including, without
limitation, the execution, acknowledgment and delivery of any certificates,
documents and consents which may be required by the Commission, appropriate
authorities of states or other jurisdictions, the Underwriters or legal
counsel or such certificates, documents and consents as may otherwise be
necessary or appropriate in connection with the registration of the Option
Shares under the 1933 Act or the securities or blue sky laws of the various
states and foreign jurisdictions or necessary to facilitate sales of the
Option Shares; and
(d) to take or cause to be taken any and all further actions, and
execute and deliver, or cause to be executed and delivered, any and all
such certificates, instruments, documents, stock certificates and share
powers and other instruments of transfer and closing as may be required by
the Purchase Agreements or as may otherwise be necessary or deemed to be
advisable by the Attorneys-in-Fact, or any of them, in connection
therewith, with such changes or amendments thereto as the Attorneys-in-Fact
or any of them may, in their sole discretion, approve (such approval to be
evidenced by their signature thereof), as may be necessary or desirable by
the Attorneys-in-Fact or any of them to effectuate, implement and otherwise
carry out the transactions contemplated by the Purchase Agreements and this
Agreement, or as may be necessary or deemed to be desirable by the
Attorneys-in-Fact, or any of them, in connection with the registration of
the Option Shares, pursuant to the 1933 Act or the securities or blue sky
laws of the various states and foreign jurisdictions, or the sale of the
Option Shares to the Underwriters.
2. TERMS OF SALE. The undersigned agrees that, in the event and only
in the event the Company has executed and delivered, or has agreed
to execute and deliver, the Purchase Agreements, then the Attorneys-in-Fact, or
any of them, acting individually shall be irrevocably directed and obligated to:
(a) execute and deliver the Purchase Agreements on behalf of the
undersigned at such time that the price to the public, the purchase price
to be paid by the Underwriters and the underwriting discount are determined
in accordance with the terms and conditions of the Purchase Agreements and
as set forth in Section 3 hereof;
(b) authorize and direct the Custodian and any other person or entity
to take any and all actions as may be necessary or deemed to be advisable
by the Attorneys-in-Fact or any of them, in their sole discretion, to
effect the sale, transfer and disposition
4
<PAGE>
of the undersigned's Option Shares in the Offering and to deliver, or cause
to be delivered, certificates representing the undersigned's Option Shares
so sold, transferred and disposed of to the U.S. Representatives and the
Lead Managers at the Closing Time or any Date of Delivery all in accordance
with the terms and conditions of the Purchase Agreements; and
(c) authorize and direct the Custodian to return to the undersigned
any of the undersigned's Option Shares not sold in the Offering.
3. SOLE AUTHORITY OF ATTORNEYS-IN-FACT AND THE COMPANY. The
undersigned agrees that each and any Attorney-in-Fact has the sole authority to
agree with the Underwriters upon the price at which the Option Shares will be
sold to the public, the purchase price to be paid by the Underwriters and the
underwriting discount in the Offering. The undersigned further agrees that,
prior to the execution of the Purchase Agreements, the Company may withdraw the
Registration Statement and terminate the Offering in its sole discretion for any
reason whatsoever or for no reason, without any liability to any Selling
Shareholder. Following execution of the Purchase Agreements, termination of the
Offering by any party will be governed by the terms and conditions of the
Purchase Agreements.
4. IRREVOCABILITY. The undersigned has conferred and granted the power
of attorney and all other authority contained herein for the purpose of
completing the Offering and in consideration of the actions of the Company and
the Underwriters in connection therewith. Therefore, the undersigned hereby
agrees that all power and authority hereby conferred is coupled with an interest
and is irrevocable and, to the fullest extent not prohibited by law, shall not
be terminated by any act of the undersigned or by operation of law or by the
occurrence of any event whatsoever, including, without limitation, the death,
incapacity, bankruptcy, dissolution of marital relationship or insolvency of the
undersigned or any similar event. If, after the execution of this Agreement, any
such event shall occur before the completion of the transactions contemplated by
the Purchase Agreements and/or this Agreement, the Attorneys-in-Fact and the
Custodian are nevertheless authorized and directed to complete all of such
transactions, including the delivery of the certificates for the undersigned's
Option Shares to be sold to the Underwriters, as if such event had not occurred
and regardless of notice thereof.
5. DEPOSIT AND DELIVERY OF OPTION SHARES. The undersigned hereby
appoints the Company as Custodian (in such capacity, the "CUSTODIAN") to hold
the undersigned's Option Shares and to deliver or to dispose of them in
accordance with the instructions of the Attorneys-in-Fact or any of them as set
forth herein, with full power in the name of, and for and on behalf of, the
undersigned.
(a) If stock certificates with respect to the undersigned's Option
Shares are in the undersigned's possession, the undersigned has delivered
to and deposited such certificates with the Custodian upon execution of
this Agreement, duly endorsed to the Company or in blank, or accompanied by
proper instruments of transfer to the Company or in blank.
5
<PAGE>
(b) If certificates for any of the undersigned's Option Shares are to
be delivered to the Custodian by someone other than the undersigned, the
undersigned hereby agrees to deliver to and deposit with the Custodian an
irrevocable stock power duly executed in blank.
(c) The undersigned authorizes and directs the Custodian, upon
appropriate instructions from the Attorneys-in-Fact, to deliver to the
Underwriters such of the undersigned's Option Shares as are to be purchased
by the Underwriters under the Purchase Agreements and to deliver, or cause
to be delivered, certificates representing such Option Shares to the U.S.
Representatives and the Lead Managers at the Closing Time or any Date of
Delivery against receipt of payment therefor.
(d) The undersigned hereby authorizes and directs the
Attorneys-in-Fact and the Custodian to issue appropriate receipts to the
Underwriters in the name of the undersigned as payee. If any Option Shares
are sold pursuant to the Purchase Agreements then the undersigned also
authorizes and directs the Attorneys-in-Fact and the Custodian to
acknowledge on behalf of the undersigned receipt of the Option Securities
by the Underwriters.
6. THE CUSTODIAN. The Custodian's execution of this Agreement shall
constitute the acceptance by the Custodian of the agency herein conferred, and
shall evidence its agreement to carry out and perform its duties under this
Agreement in accordance with the provisions hereof; subject, however, to the
following terms and conditions, which all signatories hereto agree shall govern
and control the rights, duties and immunities of the Custodian:
(a) The Custodian, in its capacity as Custodian, shall have no duties
to the undersigned hereunder except those expressly set forth herein and
shall not be liable in such regard except for the performance of such
duties as are specifically set out herein, subject to Section 10 hereof.
The Custodian shall not be responsible for the performance of the powers of
attorney contained herein by any signatory hereto, or for the
interpretation of any of the provisions of such powers of attorney.
(b) If a controversy arises between two or more of the Selling
Shareholders, or between any of the Selling Shareholders and any other
person, as to whether or not or to whom the Custodian shall deliver the
certificates for the Option Shares or any funds held by it, or as to any
other matter arising out of or relating hereto or to the property held by
the Custodian hereunder or as to the interpretation of this Agreement
regarding the duties or obligations of the Custodian hereunder, the
Custodian shall not be required to determine the same until the rights of
the parties to the dispute shall have finally been determined by agreement
or by final order of a court of competent jurisdiction; PROVIDED, HOWEVER,
that the time for appeal for any such final order shall have expired
without an appeal having been made. The Custodian shall deliver the
property, or any portion thereof, within 15 days after it has received
written notice of
6
<PAGE>
any such agreement or final order (accompanied by an affidavit that the
time for appeal has expired without an appeal having been made) in
accordance with the terms of the final agreement or order. The Custodian
shall be entitled to assume that no such controversy has arisen unless it
has received a written notice that such a controversy has arisen which
refers specifically to this Agreement and identifies by name and address
the adverse claimants to the controversy. Notwithstanding the foregoing,
if, after the execution of this Agreement, any such controversy shall occur
before the completion of the transactions contemplated by the Purchase
Agreements and/or this Agreement, the Attorneys-in-Fact and the Custodian
are nevertheless authorized and directed to complete all of such
transactions, including the delivery of the certificates for the
undersigned's Option Shares to be sold to the Underwriters, as if such
controversy had not occurred and regardless of notice thereof.
(c) The Custodian will acknowledge in writing to each of the Selling
Shareholders receipt by physical delivery of any certificates representing
the undersigned's Option Shares when such certificates are received.
7. REPRESENTATIONS, WARRANTIES AND AGREEMENTS. The undersigned
represents, warrants and agrees that:
(a) All authorizations and consents, including, but not limited to,
any releases necessary for the execution and delivery by the undersigned of
this Agreement and for the sale and delivery of the undersigned's Option
Shares to the Underwriters as contemplated hereby and in the Purchase
Agreements substantially in the form attached hereto as Exhibits A and B
have been obtained and are in full force and effect; and the undersigned
has full right, power and authority to enter into the Purchase Agreements
and this Agreement and to sell, transfer and deliver the undersigned's
Option Shares to the Underwriters as contemplated hereby and in the
Purchase Agreements.
(b) The undersigned has read and understands the Draft Purchase
Agreements including, without limitation, the representations and
warranties of the respective Selling Shareholder contained in Section 1(b)
thereof (the "SECTION 1(B) REPRESENTATIONS AND WARRANTIES"), and confirms
the accuracy of such representations as of the date hereof; the undersigned
will promptly, after becoming aware thereof, notify the Attorneys-in-Fact
and the Company (i) if any Section 1(b) Representation and Warranty of the
undersigned ceases to be true and correct at any time after the date hereof
or (ii) if any representation and warranty of the undersigned contained in
this Agreement is not true and correct.
(c) The undersigned has not taken and will not take, directly or
indirectly, any action intended to constitute, or which has constituted, or
which might reasonably be expected to cause or result in, stabilization or
manipulation of the price of the Common Stock; and to assure compliance
with Regulation M under the Securities Exchange Act of 1934, as amended
("the 1934 ACT"), the undersigned will not make bids for or purchases of,
or induce bids for or purchases of, directly or indirectly, any
7
<PAGE>
shares of Common Stock until the distribution of all shares being sold in
the Offering has been completed; the undersigned has not distributed and
will not distribute any prospectus or other offering material in connection
with the Offering and sale of the Shares other than the prospectuses filed
with the Commission in connection with the Registration Statement.
The foregoing representations, warranties and agreements are for the
benefit of and may be relied upon by the Attorneys-in-Fact, the Company, the
other Selling Shareholders the Underwriters and their respective legal counsel.
The undersigned agrees, if so requested in writing by the Attorneys-in-Fact or
by the Company, the Underwriters or their respective legal counsel, to provide
one or more certificates setting forth such matters as to which Wachtell,
Lipton, Rosen & Katz, as counsel for the Company, Shearman & Sterling, as
counsel for the Underwriters, and Day Berry & Howard LLP, as counsel for the
Selling Shareholders, are entitled to rely in rendering their opinions pursuant
to the Purchase Agreements.
8. PAYMENT. The undersigned hereby authorizes and directs the
Attorneys-in-Fact or any of them to take such action as may be required to
provide for the distribution or delivery to the undersigned as promptly as
practicable of the undersigned's portion of the wire transfer of immediately
available funds described in Section 2(c) of the Purchase Agreements, which wire
transfer to the bank account designated by the Custodian will constitute all of
the proceeds of the Offering owing to the undersigned for his Option Shares
purchased at the Closing Time or on the relevant Date of Delivery. The
undersigned agrees that the Attorneys-in-Fact may deposit any amounts owing to
the undersigned by wire transfer of funds or by deposit pursuant to the
instructions noted below the signature of the undersigned. Subject to the
provisions of Section 4 of the Purchase Agreements, the undersigned hereby
authorizes and directs the Attorneys-in-Fact to pay on behalf of the undersigned
all expenses and taxes incident to the sale and delivery of the Option Shares
that may be sold by the undersigned to the Underwriters and the undersigned will
advance to the Attorneys-in-Fact or reimburse them in the full amount of any
such expenses, taxes or reimbursements; PROVIDED, HOWEVER, that in connection
with the payment by the undersigned of the New York State stock transfer tax,
the Attorneys-in-Fact will be required to use their best efforts to obtain a
rebate of such tax before seeking reimbursement from the undersigned.
9. OWNERSHIP OF STOCK. Subject to the terms hereof, until payment of
the purchase price for the Option Shares being sold by the undersigned pursuant
to the Purchase Agreements has been made by or for the account of the
Underwriters, each of the Selling Shareholders shall remain the owner of all of
its respective Option Shares. However, until such payment in full has been made
or until the Purchase Agreements have been terminated, the undersigned agrees
that the undersigned will not give, sell, pledge, hypothecate, grant any lien on
or security interest in, transfer, deal with or contract with respect to the
undersigned's Option Shares or any interest therein, except (i) to the
Underwriters pursuant to the Purchase Agreements and (ii) to the Custodian as
provided herein.
10 RELEASE. Subject to the provisions of Section 12 hereof, the
undersigned hereby agrees to release and does release the Attorneys-in-Fact and
each of them and the
8
<PAGE>
Custodian from any and all liabilities, joint or several, to which they may
become subject insofar as such liabilities (or action in respect thereof) arise
out of or are based upon any action taken or omitted to be taken, including, but
not limited to, not executing the Purchase Agreements or not proceeding with the
Offering for any reason whatsoever, by the Attorneys-in-Fact or the Custodian
pursuant hereto, except for their gross negligence or willful misconduct or bad
faith.
11. WAIVER. Subject to the provision of Section 12 hereof, the
undersigned acknowledges and agrees that, by accepting payment for the Option
Shares purchased by the Underwriters pursuant to the Purchase Agreements, the
undersigned forever releases and discharges the Company and its heirs,
successors and assigns from any and all claims whatsoever that the undersigned
now has, or may have in the future, arising out of, or related to the Option
Shares.
12. INDEMNIFICATION. (a) Each Selling Shareholder, severally and not
jointly, agrees to indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act, against any and all loss, liability, claim,
damage and expense as and to the extent described in the indemnity agreement of
such Selling Shareholder contained in subsection (a) of Section 6 of the
Purchase Agreements (except that the reference in clause (iv) therein to Merrill
Lynch shall be to the Company), as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information (as defined in the Purchase Agreements), or any U.S. or
International preliminary prospectuses or the U.S. or International Prospectuses
or any amendment or supplement thereto (or any prospectus wrapper) in reliance
upon and in conformity with written information furnished to the Company by such
Selling Shareholder expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information or such U.S. or
International preliminary prospectuses or the U.S. or International Prospectuses
or any amendment or supplement thereto (or any prospectus wrapper); PROVIDED
that the liability of such Selling Shareholder under this indemnity agreement
shall not exceed the net proceeds received by such Selling Shareholder from the
sale of his Option Shares pursuant to the Purchase Agreements.
(b) The Company agrees to indemnify and hold harmless each Selling
Shareholder against any and all loss, liability, claim, damage and expense as
and to the extent described in the indemnity agreement of the Company contained
in subsection (a) of Section 6 of the Purchase Agreements (except that the
reference in clause (iv) therein to Merrill Lynch shall be to the Selling
Shareholders), as incurred, and will reimburse such Selling Shareholder for any
and all expense whatsoever (including the fees and disbursements of up to one
counsel chosen by the Selling Shareholders), reasonably incurred by such Selling
Shareholder in investigating, preparing or defending against any such
litigation, investigation, proceeding or claim as such expenses are incurred.
(c) Each indemnified party shall give notice as promptly as reasonably
practicable to each indemnifying party of any action commenced against it in
respect of which
9
<PAGE>
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability hereunder to
the extent it is not materially prejudiced as a result thereof and in any event
shall not relieve it from any liability which it may have otherwise than on
account of this indemnity agreement. An indemnifying party may participate at
its own expense in the defense of any such action; PROVIDED, HOWEVER, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying parties be liable for fees and expenses of more than one
counsel (in addition to any local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties (which consent shall not be
unreasonably withheld), settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification could be sought under this
Section 12 (whether or not the indemnified parties are actual or potential
parties thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) OTHER PROVISIONS. The provisions of this Section 12 will be in
addition to any liability which the Company or any Selling Shareholder may
otherwise have, including, but not limited to, Sections 7 and 8 of the
Purchase Agreements.
13. TERMINATION. This Agreement shall terminate upon the earliest
to occur of (i) the date, if any, on which the Registration Statement is
withdrawn, (ii) if the Purchase Agreements have not been executed by the parties
thereto within 30 days from the date hereof, then the date that is 30 days after
the date hereof and (iii) the date on which the sale of the shares to be sold in
the Offering (including the Option Shares, if any Option Shares are to be
purchased pursuant to the Purchase Agreements) is consummated and the proceeds
have been distributed to the Selling Shareholders, whether or not all the Option
Shares owned by the Selling Shareholders are sold in the Offering.
Notwithstanding any such termination, the provisions of Sections 10, 11 and 12
hereof shall survive termination of this Agreement and remain in full force and
effect. This Agreement shall also terminate (including without limitation with
respect to the indemnification obligations set forth in Section 12, but
excluding Sections 10 and 11) and cease to have force and effect if the options
granted under Section 2(b) of each of the Purchase Agreements expire without
being exercised at least in part. Following any termination of this Agreement,
the Attorneys-in-Fact and the Custodian shall have no further responsibilities
or liabilities to the undersigned hereunder except to redeliver to the
undersigned its Option Shares not sold in the Offering and to deliver to the
undersigned its stock powers described in Section 4 hereof held in custody and
to distribute to the undersigned its portion of the net proceeds of the
Offering, if any.
10
<PAGE>
14. NOTICES. Any notice required to be given pursuant to this
Agreement shall be deemed given if in writing and delivered in person, or if
given by telephone or telegraph if subsequently confirmed by letter, (i) to
Timothy O. White, Jr. as Attorney-in-Fact, c/o Packard BioScience Company, 800
Research Parkway, Meriden, Connecticut 06450 or to William H. Cuddy, as
Attorney-in-Fact, c/o Day, Berry & Howard LLP, 185 Asylum Street, Hartford,
Connecticut 06103-3499 (ii) to Packard BioScience Company, for the Company and
Custodian, at 800 Research Parkway, Meriden, Connecticut 06450, Attention:
General Counsel, (iii) to the Selling Shareholders at the addresses set forth in
Schedule I attached hereto, and (iv) to Wachtell, Lipton, Rosen & Katz at 51
West 52nd Street, New York, NY 10019, Attention: Andrew Brownstein, Esq.
15. APPLICABLE LAW. The validity, enforceability, interpretation and
construction of this Agreement shall be determined in accordance with the
substantive laws of the State of Connecticut.
16. BINDING EFFECT. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned, and this
Agreement shall inure to the benefit of, and shall be binding upon, the
undersigned and the undersigned's heirs, executors, administrators, successors
and assigns.
17. COUNTERPARTS. This Agreement may be signed in any number of
counterparts, each of which constituting an original but all of which together
constituting one instrument.
--------------------------------
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_________________________
Name: Emery G. Olcott
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
11
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:____________________________
Name: Richard T. McKernan
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:________________________
Name: George Serrano
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:________________________
Name: Orren Tench
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:__________________________
Name: Staf van Cauter
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_________________________
Name: Daniel Meert
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_____________________________
Name: Eugene Della Vecchia
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
This Irrevocable Power of Attorney and Custody Agreement has been
entered into on this ___ day of April, 2000.
Very truly yours,
By:_____________________________
Name: Michael A. Zebarth
Wire transfer or Deposit instructions:
Bank: _____________________
Account No.: _____________________
ABA No.: _____________________
Reference: _____________________
-------------------------
Taxpayer Identification Number
(A separate signature page should be
executed and filled in by each seller of shares.)
(Signatures continued on next page)
<PAGE>
(Signatures continued from prior page)
PACKARD BIOSCIENCE COMPANY
By:_________________________
Name:
Title:
(Signatures continued on next page)
<PAGE>
(Signatures continued from prior page)
CUSTODIAN
Packard BioScience Company hereby accepts the appointment as Custodian
pursuant to the foregoing Agreement, and agrees to abide by and act in
accordance with the terms of said Agreement.
Dated: April ___, 2000
PACKARD BIOSCIENCE COMPANY
___________________________________
Name: Ben D. Kaplan
Title: Vice President & Chief Financial
Officer
(Signatures continued on next page)
<PAGE>
(Signatures continued from prior page)
ATTORNEYS-IN-FACT
Timothy O. White, Jr. hereby accepts the appointment as
Attorney-in-Fact pursuant to the foregoing Irrevocable Power of Attorney and
Custody Agreement, and agrees to abide by and act in accordance with the terms
of said Agreement.
Dated: April __, 2000
------------------------------
William H. Cuddy hereby accepts the appointment as Attorney-in-Fact
pursuant to the foregoing Irrevocable Power of Attorney and Custody Agreement,
and agrees to abide by and act in accordance with the terms of said Agreement.
Dated: April __, 2000
------------------------------
(End of signature pages)
<PAGE>
SCHEDULE I
================================= ============= =========== ==============
NAME AND ADDRESS OF SELLING MAXIMUM MAXIMUM TOTAL NUMBER
SHAREHOLDER NUMBER OF NUMBER OF OF OPTION
U.S. OPTION INTER- SHARES
SHARES NATIONAL
OPTION
SHARES
- --------------------------------- ------------- ----------- --------------
Emery G. Olcott
One Gold Street, Apt. #27H-J
Hartford, CT 06103
- --------------------------------- ------------- ----------- --------------
Richard T. McKernan
11 Salisbury Way
Farmington, CT 06032
- --------------------------------- ------------- ----------- --------------
George Serrano
One Dalriada
Cromwell, CT 06416
- --------------------------------- ------------- ----------- --------------
Orren Tench
6 Glory Lane
Wethersfield, CT 06109
- --------------------------------- ------------- ----------- --------------
Staf van Cauter
145 Tuttles Point Road
Guilford, CT 06437
- --------------------------------- ------------- ----------- --------------
Daniel Meert
Research Parc
Pontbeeklaan 57
Zellik B-1731
Belgium
- --------------------------------- ------------- ----------- --------------
Eugene Della Vecchia
2424 SW Longwood Drive
Palm City, FL 34990
- --------------------------------- ------------- ----------- --------------
Michael A. Zebarth
35 Bernadette Lane
Durham, CT 06422
===========================================================================
<PAGE>
INSTRUCTIONS
(For completing the Irrevocable Power of Attorney and Custody Agreement)
A. You have been sent five copies of the Irrevocable Power of Attorney
and Custody Agreement (the "Agreement"). Please complete and return
four copies of the Agreement and stock certificate(s) as set forth in
paragraph D below. A fully executed copy of the Agreement will be
returned to you; a fully executed copy of the Agreement and your stock
certificate(s) will be retained by the Custodian; and a fully executed
copy of the Agreement will be delivered one to the Attorneys-in-Fact
and one to the U.S. Representatives and Lead Managers.
B. Complete Schedule A attached hereto.
C. Each copy of the Agreement and each stock certificate or stock power
deposited hereunder must be executed by you with your signature on the
Agreement and the stock certificate(s) or the accompanying stock power
guaranteed by a commercial bank or trust company in the United States
or any broker which is a member firm of the New York Stock Exchange.
Please sign the stock certificate(s) or stock power and the Agreement
exactly as your name appears on your stock certificate(s).
D. Endorsed stock certificate(s) or stock certificate(s) with stock
powers attached along with all four executed copies of the completed
Agreement should be promptly returned by hand delivery or by certified
mail appropriately insured to:
Packard BioScience Company
800 Research Parkway
Meriden, Connecticut 06450
Attention: Timothy O. White, Jr.
If sent through the mail, it is recommended that the certificate(s)
not be endorsed, but an executed stock power be sent under separate
cover from the certificate(s).
E. If any certificate that you submit represents a greater number of
shares of Option Securities than the aggregate number of shares of
Option Securities which you agree to sell pursuant to the Purchase
Agreements, the Custodian will cause to be delivered to you in due
course, but not earlier than ten days after the closing for the
purchase of Option Securities by the Underwriters, a certificate for
the excess number of Option Securities.
F. For purposes of discharging your obligations under the Purchase
Agreements, please contact Timothy O. White, Jr. or William H. Cuddy
if any information or representation included in the foregoing
Agreement or the Purchase Agreements should change, or if you become
aware of any new information, at any time prior to termination of
the period referred to in Section 13 of the Agreement.
1
<PAGE>
G. For the purpose of getting your spouse to join in and consent to the
Agreement, please have your spouse fill out the Consent of Spouse
which is attached hereto as Annex A.
2
<PAGE>
-------------------------------------
(Name of Selling Stockholder)
SCHEDULE A
Certificate(s) for Shares of Common Stock of
PACKARD BIOSCIENCE COMPANY
Deposited under
Irrevocable Power of Attorney and Custody Agreement
Certificate Number of Option Shares Represented Number of Option Shares from
Number by Certificate this Certificate to Be Sold*
Total:
* If fewer than all shares represented by a certificate are to be sold, indicate
below, if desired for income tax purposes, the date of purchase or purchase
price of the particular shares to be sold.
<PAGE>
ANNEX A
CONSENT OF SPOUSE
I am the spouse of ______________________. On behalf of myself, my heirs,
legatees, and assigns, I hereby join in and consent to the terms of the
foregoing Irrevocable Power of Attorney and Custody Agreement and agree to the
sale of the shares of Common Stock of Packard BioScience Company, registered in
the name of my spouse or otherwise registered, which my spouse proposes to sell,
or to agree to sell, pursuant to the Purchase Agreements referred to in the
Irrevocable Power of Attorney and Custody Agreement.
Dated: April __, 2000
---------------------------------
(Signature of Spouse)
1
