As filed with the Securities and Exchange Commission on March 16, 1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
Form S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
--------------------
Millipore Corporation
(Exact name of registrant as specified in its charter)
Massachusetts 3070 04-2170233
(State or other jurisdiction (Primary Standard Industrial (I.R.S.Employer
of incorporation or Classification Code Number) Identification No.)
organization)
80 ASHBY ROAD, BEDFORD, MA 01730 (617) 275-9200
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
GEOFFREY NUNES, ESQ.
80 Ashby Road
Bedford, MA 01730 (617) 275-9200
(Name, address, including zip code, and telephone number, including area code
of agent for service)
----------------------
Copy to:
STEVEN F. SCOTT, ESQ.
Ropes & Gray
One International Place
Boston, MA 02110 (617) 951-7000
----------------------
Approximate date of commencement of proposed sale to the public:
As soon as practicable after the Registration Statement becomes effective.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instructions, check the following box.
-----------------------
CALCULATION OF REGISTRATION FEE
Proposed Proposed
maximum maximum
Title of each class of Amount to be offering aggregate Amount of
securities to be registered price per offering registration
registered unit price fee
6.78% Senior Notes $100,000,000 100% $100,000,000 $34,483
Due 2004
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 said Section 8(a), may determine.
<PAGE>
CROSS REFERENCE SHEET
Pursuant to Item 501(b) of Regulation S-K
Showing Location in Prospectus of Information
Required by Items of Part I of Form S-4
Registration Statement
Item Number and Caption Caption or Location in Prospectus
1. Forepart of Registration
Statement and Outside Front Outside Front Cover Page
Cover Page of Prospectus
2. Inside Front and Outside Back
Cover Page of Prospectus Inside Front Cover Page;
Outside Back Cover Page
3. Risk Factors, Ratio of
Earnings to Fixed Charges and Prospectus Summary; Selected
Other Information Consolidated Financial Data
4. Terms of the Transaction Outside Front Cover Page;
Prospectus Summary; The
Exchange Offer; Description
Notes; Plan of Distribution
5. Pro-Forma Financial Information Inapplicable
6. Material Contracts with the
Company Being Acquired Inapplicable
7. Additional Information Required Inapplicable
8. Interests of Named Experts Legal Matters; Experts
and Counsel
9. Disclosure of Commission
Position on Indemnification
for Securities Act Liabilities Inapplicable
10 Information with Respect to S-3 Prospectus Summary;
Registrant Capitalization; Selected
Consolidated Financial Data;
Management's Discussion of
Analysis of Financial
Condition and Results of
Operations; Plan of
Distribution
11 Incorporation of Certain
Information by Reference Incorporation of Certain
Documents by Reference
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12 Information with Respect to S-
3 or S-2 Registrants Inapplicable
13 Incorporation of Certain
Information by Reference Inapplicable
14 Information with Respect to
Registrants other than S-3 or Inapplicable
S-2 Registrants
15 Information with Respect to S-3
Companies Inapplicable
16 Information with Respect to S-3
or S-2 Companies Inapplicable
17 Information with Respect to
Companies Other Than S-3 or S-2 Inapplicable
Companies
18 Information if Proxies,
Consents or Authorizations Inapplicable
are to be Solicited
19 Information if Proxies,
Consents or Authorizations
are not to be Solicited or in Management: Incorporation of
an Exchange Officer Certain Documents by
Reference
ii
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SUBJECT TO COMPLETION, DATED MARCH 15, 1995
PROSPECTUS
MILLIPORE CORPORATION
Exchange (the "Exchange") of its 6.78% Senior Notes due 2004,
for all of its outstanding 6.78% Senior Notes due 2004
The Exchange will expire at 5:00 p.m. New York City time, on May 3, 1995.
Millipore Corporation, a Massachusetts corporation ("Millipore" or the
"Company"), hereby intends upon the terms and conditions set forth in this
Prospectus (the "Prospectus"), to exchange (the "Exchange") $1,000 principal
amount of its 6.78% Senior Notes due 2004, (the "Public Notes"),
which will have been registered under the Securities Act of 1933, as amended
(the "Securities Act") pursuant to a Registration Statement of which this
Prospectus is a part, for each $1,000 principal amount of its outstanding
6.78% Senior Notes due 2004 (the "Notes"), of which $100,000,000 principal
amount is outstanding. The form and terms of the Public Notes are the same
as the form and term of the Notes (which they replace) except that the Public
Notes will have been registered under the Securities Act and, therefore, will
not bear legends restricting their transfer and will not contain certain
provisions relating to an increase in the interest rate which were included
in the terms of the Notes in certain circumstances relating to the timing of
the Exchange. The Public Notes will evidence the same debt as the Notes
(which they replace) and will be issued under and be entitled to the benefits
of the Indenture dated May_____, 1995 between the Company and The First
Bank National Bank of Boston (the "Indenture") governing the Public Notes.
The Notes were issued and sold by the Company on March 3, 1994 to the
Metropolitan Life Insurance Company ("Met") in a transaction not
registered under the Securities Act in reliance upon an exemption under the
Securities Act ("Met Transaction"). Accordingly, the Notes may not be
reoffered, resold or otherwise transferred in the United States unless
registered under the Securities Act or unless an applicable exemption from
the registration requirements of the Securities Act is available. The
Company will exchange all Notes prior to 5:00 p.m., New York City time, on
May 3, 1995, (the "Exchange Date").
Based on no-action letters issued by the staff of the Securities and
Exchange Commission (the "Commission") to third parties, the Company believes
the Public Notes issued pursuant to the Exchange may be offered for resale,
resold and otherwise transferred by any holder thereof (other than any such
holder that is an "affiliate" of the Company within the meaning of Rule 405
under the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided that such
Public Notes are acquired in the ordinary course of such holder's business
and such holder has no arrangement or understanding with any person to
participate in the distribution of such Public Notes. See "The Exchange--
Purpose and Effect of the Exchange" and "--Resale of the Public Notes."
Under the terms and conditions of the Met Transaction, the Met has
agreed to participate in the Exchange. The Company will pay all the expenses
incurred by it incident to the Exchange. See "The Exchange."
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
The date of this Prospectus is May , 1995
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such State.
<PAGE>
AVAILABLE INFORMATION
Millipore Corporation (the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934 and in accordance
therewith files reports, proxy statements and other information with the
Securities and Exchange Commission (the "Commission"). Such reports, proxy
statements and other information filed by the Company can be inspected and
copied at the public reference facilities of the Commission at Room 1024,
Judiciary Plaza, 450 Fifth Street, N.W., Washington D.C. 20549, as well as at
the Regional Offices of the Commission at 75 Park Place, New York, New York
10007 and at Northwestern Atrium Center, 500 West Madison Street, Suite 1400,
Chicago, Illinois, 60661. Copies of such material can be obtained by mail
from the Public Reference Section of the Commission, at 450 Fifth Street,
N.W., Judiciary Plaza, Washington, D.C. 20549 at prescribed rates.
This Prospectus constitutes a part of a Registration Statement on Form S-
4 filed by the Company with the Commission under the Securities Act of 1933,
as amended. This Prospectus omits certain of the information contained in
the Registration Statement, and reference is hereby made to the Registration
Statement and related exhibits for further information with respect to the
Company and the Public Notes offered hereby. Any statements contained herein
concerning the provisions of any document are not necessarily complete, and,
in each instance, reference is made to the copy of such document filed as an
exhibit to the Registration Statement or otherwise filed with the Commission.
Each such statement is qualified in its entirety by such reference.
The Company's principal executive offices are located at 80 Ashby Road,
Bedford, MA 01730, telephone (617) 275-9200.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following reports and documents are hereby incorporated herein by
reference and made a part hereof:
The Company's Annual Report on Form 10-K for the year ended December 31,
1994
All documents filed by the Company pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 subsequent to the date of
this Prospectus and prior to the termination of the offering of the Public
Notes hereunder shall be deemed to be incorporated herein by reference and
shall be a part hereof from the date of filing of such documents. Any
statement contained in a document incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained in this Prospectus or in any other
subsequently filed document which also is incorporated by reference herein
modifies or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Company will provide without charge to each person to whom a
Prospectus is delivered, upon written or oral request of such person, a copy
of the documents incorporated by reference herein, other than exhibits to
such documents not specifically incorporated by reference. Such requests
should be directed to Geoffrey Nunes, Senior Vice President and General
Counsel, Millipore Corporation, by mail to 80 Ashby Road, Bedford,
Massachusetts 01730, or by telephone at (617) 275-9200
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<PAGE>
PROSPECTUS SUMMARY
The following information is qualified in its entirety by the more
detailed information and financial data appearing elsewhere in this
Prospectus and incorporated by reference herein.
The Company
Millipore Corporation was incorporated under the laws of The
Commonwealth of Massachusetts on May 3, 1954. Millipore and its subsidiaries
operate in a single business segment, the analysis, identification and
purification of fluids using separations technology. Millipore is a leader
in the field of membrane separations technology. The Company develops,
manufactures and sells products which are used primarily for the analysis and
purification of fluids. The Company's products are based on a variety of
membranes and certain other technologies that effect separations principally
through physical and chemical methods.
The principal customers for the Company's products include
pharmaceutical, electronics, chemical and food and beverage companies;
government, university and private research and testing laboratories; and
health care and medical facilities. The Company markets and supports its
products through a field sales force and a marketing support staff of
approximately 380 employees in the United States and 615 employees overseas.
In fiscal 1994, approximately 64% of the Company's sales were made to
customers outside the United States.
The Exchange Offering
Securities Being Offered
in Exchange $100,000,000 principal amount of 6.78% Senior Notes Due
March 3, 2004, (the "Public Notes").
Interest Payment Date March 3 and September 3, commencing
September 3, 1995. Interest on the Public Notes
will accrue from March 3, 1995.
Maturity March 3, 2004
The Exchange $1,000 principal amount of the Public Notes plus
accrued interest in exchange for each $1,000
principal amount of 6.78% Senior Notes ("Notes") sold by
the Company on March 3, 1994 to Metropolitan Life
Insurance Company ("Met"). As of the date hereof,
$100,000,000 aggregate principal amount of Notes are
outstanding. The Company will issue the Public Notes to
Met on the Exchange Date pursuant to the terms and
conditions of the Notes Purchase and Exchange Agreement
dated March 3, 1994 between the Company and the Met (the
"Note Agreement").
Based on an interpretation by the staff of the Commission
set forth in no-action letters issued to third parties,
the Company believes that Public Notes issued pursuant to
the Exchange may be offered for resale, resold and
otherwise transferred by any holder thereof (other than
any such holder which is an "affiliate" of the Company
within the meaning of Rule 405 under the Securities Act)
without compliance with the registration and prospectus
delivery provisions of the Securities Act, provided that
such Public Notes are acquired in the ordinary course of
such holder's business and that such holder does not
intend to participate and has no arrangement or
understanding with any person to participate in the
distribution of such Public Notes.
Expiration Date 5:00 p.m., New York City time, on May 3, 1995
3
<PAGE>
Accrued Interest on the
Public Notes Each Public Note will bear interest
from March 3, 1995.
Use of Proceeds There will be no cash proceeds to the
Company from, or pursuant to, the Exchange.
General The form and terms of the Public
Notes are the same as the form and terms of the Notes
(which they replace) except that (i) the Public Notes
have been registered under the Securities Act and,
therefore, will not bear legends restricting the transfer
thereof, and (ii) the holders of Public Notes will not be
entitled to certain rights under the Note Purchase and
Exchange Agreement, including the provisions providing
for an increase in the interest rate on the Notes in
certain circumstances relating to the timing of the
Exchange, which rights will terminate when the Exchange
is consummated. The Public Notes will evidence the same
debt as the Notes and will be entitled to the benefits of
the Indenture. See "Description of Notes."
Summary Financial Data(1)
(In thousands except per share amounts)
Year Ended December 31
1990 1991 1992 1993 1994
Statement of Income Data:
Net Sales $380,983 $415,075 $427,188 $445,366 $497,252
Income from continuing
operations before income 43,384 50,490 45,853 63,223 76,915
taxes
Net Income 23,077 54,565 33,183 34,603 56,209
Income per share from 1.05 1.27 1.26 1.75 2.18
continuing operations
Net income per share 0.82 1.17 1.24 2.05 1.93
Weighted average shares 28,307 28,294 28,242 27,951 27,363
outstanding
Ratio of earnings from
continuing operations to 5.79 5.17 4.69 6.24 14.0
fixed charges(2)
Dec. 31, 1994
Balance Sheet Data:
Working capital $100,649
Total assets 527,653
Long-term debt 100,231
Shareholders' equity 221,277
_______________
(1)On November 11, 1993, the Company's Board of Directors approved a plan to
divest operations of the Company's Instrumentation Divisions, which
served primarily the chromatography and bioscience markets. These
divisions, which represented separate product lines with separate
customers, have been accounted for as discontinued operations. The
Company sold these divisions in the third quarter of 1994 and realized a
net loss upon disposition of these divisions. The consolidated statement
of income in 1993 included the results of discontinued operations through
November 11, 1993. The following table reflects the results of
continuing operations.
(2)The ratio of earnings from continuing operations to fixed charges were
computed by dividing earnings from continuing operations before fixed
charges and income taxes by the fixed charges. Earnings consist of
income from continuing operations, to which has been added fixed charges
and income taxes. Fixed charges consist of interest and debt expense and
one-third of rent expense, which approximate the interest factor.
4
<PAGE>
USE OF PROCEEDS
The Exchange is intended to allow the Company to exercise its option
under the Note Purchase and Exchange Agreement. The gross proceeds of $100
million from the issuance of the Notes were used for general corporate
purposes. The Company will not receive any cash proceeds from the issuance
of the Public Notes in the Exchange.
CAPITALIZATION
The following table sets forth the consolidated capitalization of the
Company at December 31, 1994.
December 31, 1994
(in thousands except share data)
Short-term debt:
Notes payable $ 56,116
Current portion of long-term debt 173
Total short-term debt $ 56,289
Notes payable with interest
rates of 6.78% due in 2004 $100,000
Other notes payable with
average interest of
11.2% in 1994, due through 1997 231
Total long-term debt $100,231
Shareholders' equity:
Common stock, 80,000,000 shares
authorized: 28,494,353 shares issued and
outstanding on December 31, 1994(1) $ 28,494
Additional paid-in capital 23,603
Retained earnings 458,579
Translation adjustments 5,147
Less: Treasury stock at cost, 5,361,136 (294,546)
shares on December 31, 1994
Total shareholders' equity $221,277
Total Capitalization $377,797
________________
(1)Excludes 1,759,000 shares of Common Stock reserved for issuance upon
exercise of outstanding stock options under the Company's employee stock
option plans, on December 31, 1994.
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SELECTED CONSOLIDATED FINANCIAL DATA
The following table summarizes selected consolidated financial data
relating to the Company for each of the five years in the period ended
December 31, 1994. The data for the five-year period ended December 31, 1994
have been derived from the Company's consolidated financial statements, which
have been audited by Coopers & Lybrand L.L.P., independent certified public
accountants. The consolidated balance sheets of the Company as of December
31, 1993 and 1994 and the consolidated statements of income, shareholders'
equity and cash flows for the five years ended December 31, 1994 are
incorporated herein by reference. The following table is qualified in its
entirety by such financial statements and notes thereto.
Year Ended December 31
1990 1991 1992 1993 1994
(In thousands except per share amounts)
Net Sales $380,983 $415,075 $427,188 $445,366 $497,252
Cost of Sales 170,049 194,557 195,462 193,575 212,675
Gross Profit 210,934 220,518 231,726 251,791 284,577
Selling, general and 117,214 129,593 142,701 145,647 159,591
administrative expenses
Research and development 29,538 32,633 32,953 34,952 34,327
expenses
Restructuring charge 17,103 - - - -
Operating Income 47,079 58,292 56,072 71,192 90,659
Interest income 6,723 6,182 6,888 4,069 4,091
Interest expense (10,418) (13,984) (14,692) (12,038) (7,035)
Other expense - - (2,415) - (10,800)
Income from continuing
operations before income 43,384 50,490 45,853 63,223 76,915
taxes
Provision for income taxes 13,629 14,570 10,317 14,225 17,306
Income from continuing 29,755 35,920 35,536 48,998 59,609
operations
Discontinued operations
Earnings (loss) from (6,678) 18,645 2,715 (10,851) -
discontinued operations.
Net loss on disposal of
discontinued operations - - - - (3,400)
Income before extraordinary
item and cumulative effect
of change in accounting
principle 23,077 54,565 38,251 38,147 56,209
Extraordinary item-loss on
early extinguishment of - - - 3,544 -
debt
Cumulative effect of change
in accounting for
postretirement benefits - - 5,068 - -
Net income $ 23,077 $ 54,565 $ 33,183 $ 34,603 $ 56,209
Net income per common share
From continuing operations $1.05 $1.27 $1.26 $1.75 $2.18
Net income $0.82 $1.93 $1.17 $1.24 $2.05
Cash dividends declared per $0.43 $0.47 $0.51 $0.55 $0.59
common share
Weighted average common 28,307 28,294 28,242 27,951 27,363
shares
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MANAGEMENT'S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
General
On November 11, 1993, the Company's Board of Directors approved a plan
to divest operations of the Company's Instrumentation Divisions, which served
primarily chromatography and bioscience markets. These Instrumentation
Divisions, which represented separate product lines with separate customers,
have been accounted for as discontinued operations. The Company sold these
Divisions in the third quarter of 1994 and realized a net loss upon their
disposition. The consolidated statement of income in 1993 includes the
results of discontinued operations through November 11, 1993. The following
discussion on results of operations applies to continuing operations.
Results of Operations
Consolidated net sales increased 12 percent in 1994 to $497 million.
Sales growth rates, measured both in local currencies and in U.S. dollars,
are summarized in the table below.
Sales growth rates Sales growth rates
measured in local currencies measured in U.S. dollars
1991 1992 1993 1994 1991 1992 1993 1994
Americas 5% (1%) 6% 8% 5% (1%) 6% 8%
Europe 5% 9% 4% 6% 4% 12% (7%) 7%
Asia/Pacific 17% (6%) 10% 16% 25% (2%) 18% 21%
Consolidated 8% 1% 6% 10% 9% 3% 4% 12%
Sales growth, excluding foreign exchange impact, increased to 10 percent in
1994 from 6 percent in 1993. This performance was led by the
electronics/industrial market which grew by 28 percent.
In the Americas, sales growth increased to 8 percent in 1994 from 6 percent
in 1993; and in Europe, sales grew 6 percent in 1994 from 4 percent in 1993.
Sales in Japan grew 10 percent in 1994 from 2 percent in 1993; while sales in
the rest of Asia increased by 53 percent.
Electronics/industrial was the strongest market in each geography, with
particular impact in Korea and Japan. Sales to the
pharmaceutical/biotechnology market grew more slowly in 1994 due to reduced
spending by pharmaceutical customers in the Americas and to a recessionary
economy and a more difficult regulatory environment in Europe and Japan. The
lab/research market showed sales growth in the Americas, Europe and Japan,
and was particularly strong in Asia. Laboratory water products also grew
across all geographies, with strongest performance in Europe and Japan.
The effect of foreign exchange rates on sales was 2 percent favorable in
1994, compared to 2 percent unfavorable in 1993 and 2 percent favorable in
1992. A weaker dollar will benefit, and a stronger dollar will affect
adversely, future operations. However, the Company is unable to predict
future currency movements and to quantify their effect on income. The
Company sells a wide range of products in many worldwide industrial markets.
Price changes and inflation has not significantly affected the comparability
of sales during the past three years.
Gross Margins were 57.2 percent in 1994, 56.5 percent in 1993, and 54.2
percent in 1992. Excluding the charges for EPA settlements and the accrual
of costs associated with increasing the efficiency of the Company's
manufacturing operations in 1992, margins in 1992 were 56.3 percent. The
improvement in margins in 1994 resulted from significantly increased
production volume in the Company's electronics/industrial plants, as well as
continued cost reduction activities in all of the Company's manufacturing
operations.
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Selling, General and Administrative (S,G&A) expenses, excluding the
effects of foreign exchange grew 8 percent in 1994, 6 percent in 1993, and 10
percent in 1992. SG&A spending was higher in the second half of 1994 than in
the first as the Company invested in sales and marketing programs to support
future sales growth.
Research and Development Expenses decreased slightly in 1994 compared to
a 6 percent increase in 1993 and a marginal increase in 1992. The Company
continued to fund all major programs in 1994.
Other Expense in 1994 reflects a non-recurring charge of $10.8 million
to settle litigation which arose from the Company's sale of its Process Water
Division in 1989. The litigation was settled in the fourth quarter of 1994.
Other expense in 1992 reflects the loss taken on the sale of the Company's
environmental testing business Resource Analysts Inc. (RAI) in 1992.
Net Interest Expense in 1994 was significantly lower than in 1993 and
1992, primarily due to interest earned on the net proceeds received from the
divested businesses, a lower interest rate on the refinanced $100 million
long-term note, and an overall lower level of net short-term borrowings.
The Provision for Income Taxes was 22.5 percent of pre-tax income in
1994, the same effective rate as 1993 and 1992. The Company continues to
benefit from low tax rates in Puerto Rico and tax incentives attributable to
its U.S. export operations.
The Net Loss on Disposal of Discontinued Operations reflects the after-
tax loss of the disposition of the Company's Instrumentation Divisions, which
were concluded in the third quarter of 1994.
Extraordinary Loss on Early Extinguishment of Debt reflects the after-
tax cost recorded by the Company in the fourth quarter of 1993 to pre-pay its
$100 million note, which bore interest at 9.2 percent and was callable in
1995. In March 1994, the Company issued and sold a new $100 million note
bearing interest at 6.78 percent.
Earnings Per Share for the past three years include a number of charges
resulting from either specific transactions or adoption of new accounting
pronouncements. Earnings per share from continuing operations adjusted for
these events are summarized as follows:
Year Ended December 31
1992 1993 1994
Earnings from continuing
operations after accounting $1.07 $1.62 $2.18
changes and charges
SFAS #106 Charges - cumulative .19 - -
impact
Charges .34 .13 .30
Earnings from continued
operations before $1.60 $1.75 $2.48
accounting changes and charges
The charge in 1994 resulted from the settlement of litigation relating
to the Company's sale of its Process Water Division in 1989. The charge in
1993 resulted from the early extinguishment of the Company's long-term debt.
The charges in 1992 resulted from providing for the settlement of all known
environmental disputes with the Environmental Protection Agency (EPA), the
sale of Resource Analysts, Inc. and an additional charge taken to cover costs
of increasing the efficiencies of the Company's manufacturing operations.
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Legal Proceedings
The potential settlement amount of all environmental claims against all
participants at hazardous waste ("Superfund") sites in which the Company has
been named a potential responsible party by the EPA is significant. It is
unlikely, however, that the Company's share of these costs will have a
material impact on the financial condition of the Company. The Company is
only one of many potentially responsible parties named at each site.
Additionally, in certain instances the Company believes that its insurance
will cover a portion of the costs incurred. In 1992, the EPA unexpectedly
proposed settlements for several of these sites. Based on these proposed
settlements and all other information available to management, the Company
recorded a provision of $5.8 million against cost of sales in 1992, which, in
management's best estimate, will be sufficient to satisfy all known claims by
the EPA. No individual settlement to date has had a material impact on the
Company's financial condition.
Millipore has settled its suit in the Superior Court for Middlesex
County, Massachusetts brought against it by Eastern Enterprises and its
subsidiary, Ionpure Technologies, Inc. ("Ionpure") and alleging
misrepresentations made in conjunction with the sale by Millipore of its
Process Water Division to Ionpure in November of 1989. The settlement
became final in December of 1994 and resulted in the charge of $.30 per
share as reflected in the table above.
Capital Resources and Liquidity
In 1994, the Company generated $49 million of cash from continuing
operations, compared to generating $34 million in 1993 and expending $14
million in 1992. Cash provided by operations continue to be the Company's
primary source of funding working capital requirements. In addition to the
increase in net income from continuing operations of $14.1 million in 1994 as
compared to 1993, the Company received a tax refund of $14.0 million in 1994.
These sources of cash were partially offset by an increase in accounts
receivable of $14.7 million in 1994 compared to an increase of $5.4 million
in 1993. In addition, inventories increased $1.9 million in 1994 compared to
a decrease of $6.4 million in 1993. Capital expenditures by continuing
operations were lower in 1994 than in 1993 and 1992 as the Company spent less
on facility expansions and information technology systems. The Company
expects capital expenditures in 1995 to be in line with capital spending in
1994 and 1993. At December 31, 1994, the Company had no significant
commitments for capital expenditures.
In 1994, the Company paid a total of $15.4 million in non-recurring financing-
related transactions; $5.1 million was used to pre-pay the Company's $100
million notes payable due in 1998, while $10.3 million was used to close out
the Company's yen currency swap. In addition, the Company had $258.0 million
of net proceeds from the sale of its Waters Chromatography and Bioscience
divisions in 1994. The Company spent $293 million, net of stock option
receipts, to repurchase 6.1 million shares of its common stock in 1994,
primarily pursuant to a Dutch Auction Self Tender completed in the third
quarter and an ongoing open market share repurchase program. In the fourth
quarter of 1994, the Company announced a $100 million open market share
repurchase program and spent $78 million in share repurchases. In early
1995, the Company announced plans to spend an additional $50 million on open
market share repurchases.
The Company has $30.2 million of cash and short-term investments on hand at
the end of 1994, which along with the Company's strong financial position,
provides a high degree of flexibility in financing future requirements.
Dividends
The quarterly dividend was increased in the second quarter of 1994 from
$0.14 to $0.15 per share. Dividends paid in 1994 were $15.8 million.
9
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BUSINESS
Millipore Corporation is a leader in the field of membrane separations
technology. The Company develops, manufactures and sells products which are
used primarily for the analysis and purification of fluids. The Company's
products are based on a variety of membrane, and certain other technologies
that effect separations principally through physical and chemical methods.
Products and Technologies
The Company's products are used for analytical applications to gain
knowledge about a molecule, (compound) or micro-organism by detecting,
identifying and quantifying the relevant components of a sample. For
purification applications, the Company's products are used in manufacturing
and research operations to isolate and purify specific components or to
remove contaminants.
The principal separation technologies utilized by the Company are based
on membrane filters, and certain chemistries, resins and enzyme
immunoassays. Membranes are used to filter either the wanted or the
unwanted particulate, bacterial, viral or molecular entities from fluids, or
concentrate and retain such entities (in the fluid) for further processing.
Some of the Company's newer membrane materials also use affinity, ion-
exchange or electrical charge mechanisms for separation.
Both analytical and purification products incorporate membrane and
other technologies. The Company's products include disc and cartridge
filters and housings of various sizes and configurations, filter-based test
kits, precision pumps and other ancillary equipment and supplies.
The Company has more than 3,000 products. Most of the Company's
products are listed in its catalogs and are sold as standard items, systems
or devices. For special applications, the Company assembles custom products,
usually based upon standard modules and components. In certain instances,
the Company also designs and engineers process systems specifically for the
customer.
Customers and Markets
The Company sells its products primarily to customers in the following
markets: pharmaceutical/biotechnology, microelectronics, chemical and food
and beverage companies; government, university and private research and
testing laboratories; and health care and medical facilities. Within each of
these markets, the Company focuses its sales efforts upon those segments
where customers have specific requirements which can be satisfied by the
Company's products.
Pharmaceutical/Biotechnology Industry. The Company's products are used
by the pharmaceutical/biotechnology industry in sterilization, including
virus reduction, and sterility testing of products such as antibiotics,
vaccines, vitamins and protein solutions; concentration and fractionation
of biological molecules such as vaccines and blood products; cell
harvesting; isolation and purification of compounds from complex mixtures
and the purification of water for laboratory use. The Company's membrane
products also play an important role in the development of new drugs; in
addition, the Company has developed and is developing products for
biopharmaceutical applications in order to meet the purification
requirements of the biotechnology industry.
Microelectronics Industry. The microelectronics industry uses the
Company's products to purify (by removing particles and unwanted
contaminating molecules), deliver and monitor the liquids and gases used in
the manufacturing processes of semiconductors and other microelectronics
components.
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Chemical Industry. This industry uses the Company's products primarily
for purification of reagent grade chemicals, for monitoring in the
industrial workplace, and of waste streams, and in the purification of water
for laboratory use.
Food and Beverage Industry. The Company's products are widely used by
the food and beverage industry in quality control and process applications
principally to monitor for microbiological contamination; to remove bacteria
and yeast from products such as wine and beer in order to prevent spoilage,
and in producing pure water for laboratory use.
Universities and Government Agencies. Universities, government and
private and corporate research and testing laboratories, environmental
science laboratories and regulatory agencies purchase a wide range of the
Company's products. Typical applications include: purification of proteins;
cell culture, structure studies and interactions; concentration of
biological molecules; fractionation of complex molecular mixtures; and
collection of microorganisms. The Company's water purification products are
used extensively by these organizations to prepare high purity water for
sensitive assays and the preparation of tissue culture media.
Health Care Industry. Customers in this field include hospitals,
clinical laboratories, medical schools and medical research institutions who
use the Company's products to filter particulate and bacterial contaminants
which may be present in intravenous solutions, and its water purification
products to produce high purity water.
Sales and Marketing
The Company sells its products within the United States primarily to
end users through its own direct sales force. The Company sells its products
in foreign markets through the sales forces of its subsidiaries and branches
located in more than 25 major industrialized and developing countries as
well as through independent distributors in other parts of the world. The
Company's marketing, sales and service forces consist of approximately 280
employees in the United States and 615 employees overseas.
The Company's marketing efforts focus on application development for
existing products and on new products for other existing, newly-identified
and proposed customer uses. The Company seeks to educate customers as to
the variety of analytical and purification problems which may be addressed
by its products and to adapt its products and technologies to separations
problems identified by customers.
The Company believes that its technical support services are important
to its marketing efforts. These services include assistance in defining the
customer's needs, evaluating alternative solutions, designing a specific
system to perform the desired separation, training users, and assisting
customers in compliance with relevant government regulations.
Research and Development
In its role as a pioneer of membrane separations Millipore has
traditionally placed heavy emphasis on research and development. Research
and development activities include the extension and enhancement of existing
separations technologies to respond to new applications, the development of
new membranes, and the upgrading of membrane based systems to afford the
user greater purification capabilities. Research and development efforts
also identify new separations applications to which disposable separations
devices would be responsive, and develop new configurations into which
membrane and ion exchange separations media can be fabricated to efficiently
respond to the applications identified. Instruments, hardware, and
accessories are also developed to incorporate membranes, modules and devices
into total separations systems. Introduction of new applications frequently
requires considerable market development prior to the generation of
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revenues. Millipore performs substantially all of its own research and
development and does not provide material amounts of research services for
others.
When it believes it to be in its long-term interests, the Company will
license newly developed technology from unaffiliated third parties and/or
will acquire exclusive distribution rights with respect thereto.
Competition
The Company faces intense competition in all of its markets. The
Company believes that its principal competitors include Pall Corporation,
Barnstead Thermolyne Corporation, Sartorius GmbH, and Gelman, Inc., Certain
of the Company's competitors are larger and have greater resources than the
Company. However, the Company believes that it offers a broader line of
products, making use of a wider range of separations technologies and
addressing a broader range of applications than any single competitor.
While price is an important factor, the Company competes primarily on
the basis of technical expertise, product quality and responsiveness to
customer needs, including service and technical support.
Certain Recent Developments
On November 11, 1993 the Company announced that it had approved a plan
to focus the Company on its membrane business, divest its Waters
Chromatography Business and explore options for exiting its non-membrane
Bioscience business. The Waters Chromatography Business was acquired in
1980. Growth in the analytical instrument market has been limited in the
past few years and the Company believes that the divestiture of its
chromatography business along with that of its non-membrane bioscience
business, will enable the Company to better serve its membrane customers,
improve operating performance and increase shareholder value. The
divestitures were completed in August of 1994 and resulted in a net loss of
$3.4 million, which included all costs estimated to be incurred in connection
with the divestitures as well as the pre-tax operating loss generated by
these Divisions from November 11, 1993, through the completion of the
divestitures. In addition, in late July and early August the Company
completed the sale of its Ceraflo (ceramic filters) and BioImage (image
analysis systems and software) product lines. The consideration received for
the Ceraflo product line consisted of 135,500 shares of the common stock of
U.S. Filter Corp., valued at $2.6 million; and for the BioImage product line
cash in the amount of $585,000 and a five year promissory note for $850,000.
Using $216 million of the net proceeds of the sales of these units, the
Company repurchased in September 1994 3,771,000 shares of its Common Stock
pursuant to a Dutch Auction Self Tender. In the balance of 1994 the Company
spent an additional $78 million in connection with the $100 million open
market share repurchase program. In February 1995 an additional $50 million
was authorized for this program.
See "Management Discussion and Analysis - Legal Proceedings" for
information concerning settlement of the litigation surrounding the 1989 sale
of its Process Water Division.
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MANAGEMENT
The following table sets forth certain information regarding the
executive officers of the Company.
Name Age Office
John A. Gilmartin 52 Chairman of the Board, President
and Chief Executive Officer
Geoffrey Nunes 64 Senior Vice President and General Counsel
Glenda K. Burkhart 43 Vice President
Michael P. Carroll 44 Vice President , Treasurer and
Chief Financial Officer
Douglas B. Jacoby 48 Vice President
John E. Lary 48 Vice President
DESCRIPTION OF PUBLIC NOTES
The Public Notes are to be issued under and Indenture, to be dated as of
May __, 1995 (the "Indenture"), between the Company and The First National
Bank of Boston, as Trustee (the "Trustee"), the form of which is filed as an
exhibit to the Registration Statement of which this Prospectus is a part.
The following summaries of certain provisions of the Indenture do not purport
to be complete and are subject to, and are qualified in their entirety by
reference to the Trust Indenture Act of 1939, as amended (the "TIA"), and to
all the provisions of the Indenture, including the definitions therein of
certain terms (and those terms made a part of the Indenture by reference to
the TIA and in effect on the date of the Indenture).
General
The Public Notes will be unsecured obligations of the Company, will be
limited to $100,000,000 aggregate principal amount and will mature on March
3, 2004. The Public Notes will bear interest at the rate of 6.78 percent
per annum from the most recent Interest Payment Date to which interest has
been paid or provided for, (March 3, 1995 and not the date of issuance),
payable semi-annually on March 3 and September 3 of each year (commencing
September 3, 1995), to the Person in whose name a Public Note (or any
predecessor Public Note) is registered at the close of business on the
preceding February 3 or August 3, as the case may be. ( 3.1 and 3.7)
Principal of and interest on the Public Notes will be payable, and the
transfer of Public Notes will be registrable, at the office of the Trustee or
such other place as the Company may from time to time designate, provided
that with respect to any institutional investor holding not less than
$5,000,000 in principal amount of the Public Notes which so requests, the
Company shall make such payments by bank wire transfer of federal funds. In
addition, payment of interest to all other holders of the Public Notes may,
at the option of the Company, be made by check mailed to the address of the
Person entitled thereto as it appears in the Security Register. ( 3.1, 3.5
and 10.2).
The Public Notes will be issued only in fully registered form, without
coupons, in denominations of $1,000 and any integral multiple thereof. (
3.2) No service charge will be made for any registration of transfer or
exchange of Public Notes, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith. ( 3.5)
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Certain Covenants
Certain Definitions. "Subsidiary" means a corporation or business
trust, a majority of whose voting stock is owned by the Company or its other
Subsidiaries. "Consolidated Net Tangible Assets" means the aggregate amount
of assets of the Company and its Subsidiaries (less applicable reserves)
after deducting therefrom: (i) all current liabilities and (ii) all amounts
representing goodwill, trade names, trademarks, patents, unamortized debt
discount and other like intangibles. "Indebtedness" includes indebtedness
for money borrowed or capitalized leases or any guarantee of such
obligations. "Lien" includes any mortgage, pledge or other lien or
encumbrance. "Restricted Subsidiary" means a Subsidiary which owns or leases
any Important Property. "Important Property" means any manufacturing plant
or other building, structure or facility owned or leased by the Company or
any Subsidiary which, in the opinion of the Company's Board of Directors, is
of material importance to the total business conducted by the Company and its
Subsidiaries as a whole. "Attributable Debt" means, with respect to any
particular lease, the total net amount of rent required to be paid under such
lease during the remaining primary term thereof, discounted from the
respective due dates thereof at the rate per annum borne by the Public Notes.
"Secured Debt" means indebtedness for money borrowed that is secured by a
Lien on any Important Property or any shares of stock or indebtedness of any
Restricted Subsidiary. The foregoing definitions are qualified by the more
complete definitions set forth in the Indenture.
Limitation on Liens. The Company will not, and will not permit any
Subsidiary to, create any Lien upon any of their property or assets to secure
Indebtedness without making effective provisions whereby the Public Notes
then outstanding shall be secured by such Lien equally and ratably with the
Indebtedness thereby secured, except that this restriction will not apply,
among other things, to: (i) Liens existing on the date of the Indenture;
(ii) Liens existing on any asset or shares of capital stock of any
corporation at the time such corporation becomes a Subsidiary; (iii) Liens on
any asset securing Indebtedness incurred or assumed for the purpose of
financing all or any part of the cost of acquiring, constructing, improving
or repairing such asset (including industrial revenue bonds) provided such
Liens attach within 120 days of the acquisition, construction, improvement or
repair thereof; (iv) Liens existing on any asset or shares of stock of any
corporation at the time such corporation is merged into or consolidated with
the Company or a Subsidiary; (v) Liens existing on any asset or shares of
capital stock prior to the acquisition thereof by the Company or a
Subsidiary; (vi) Liens arising pursuant to any statute or order of
attachment, distraint or similar legal process issued in connection with
court proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested in good
faith by appropriate proceedings; (vii) Liens securing Indebtedness of a
Subsidiary owing to the Company or another Subsidiary; (viii) Liens securing
taxes, assessments or governmental charges not yet delinquent or being
contested in good faith by appropriate proceedings; (ix) Liens securing
obligations owing to landlords and mechanics and materialmen incurred in the
ordinary course of business for sums not yet due or being contested in good
faith by appropriate proceedings; and (x) Liens arising out of the
refinancing, extension, renewal or refunding of any Indebtedness secured by
any Lien permitted by the foregoing clauses. Notwithstanding the foregoing,
the Company and its Subsidiaries may, without complying with the foregoing
restrictions, create Liens securing Indebtedness in an aggregate amount that
(together with the value of any Sale and Leaseback Transaction entered into
other than in reliance on this exception) does not exceed at the time 15
percent of Consolidated Net Tangible Assets. ( 10.5) At December 31, 1994,
the Company's Consolidated Net Tangible Assets aggregated approximately
$364,000,000.
Limitation on Sale and Leaseback Transactions. The Company will not,
and will not permit any Restricted Subsidiary to, enter into any Sale and
Leaseback Transactions with respect to any Important Property unless the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
equal in an amount to the amount of the Attributable Debt resulting from such
transaction without equally and ratably securing the Public Notes. The
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foregoing will not apply if: (i) the lease is for a period not exceeding
three years and the Company or the Restricted Subsidiary intends that its use
of such property will be discontinued on or before the expiration of such
period; (ii) the sale or transfer of the Important Property is made prior to
or within 180 days of the later of the date of its acquisition or the
completion of construction thereof; (iii) subject to certain limitations, the
Company or the Restricted Subsidiary applies an amount equal to the value of
the property so leased to the retirement, within 180 days after the effective
date of such arrangement, of any part of Consolidated Funded Debt or the
purchase of other Important Property, or both; (iv) the lease secures or
relates to obligations issued by a governmental body to finance the
acquisition or construction of property; or (v) the transaction is between or
among the Company and one or more Restricted Subsidiaries or between or among
Restricted Subsidiaries. ( 10.6)
Merger, Consolidation or Sale of Assets
The Indenture provides that the Company may not consolidate or merge
into any other corporation, or convey or transfer its properties and assets
substantially as an entirety to any person or entity unless (i) the successor
corporation shall assume by a supplemental indenture the Company's
obligations under the Indenture, (ii) immediately after giving effect to such
transaction, no Event of Default (as defined in the Indenture) shall have
occurred and be continuing and (iii) if as a result of such transaction, the
Company would become subject to a Lien which would not be permitted under
the Indenture, the successor corporation shall secure the Public Notes
equally and ratably with all indebtedness secured thereby. ( 8.1)
Events of Default
The following will be Events of Default under the Indenture: (a)
failure to pay principal of any Public Note when due; (b) failure to pay any
interest on any Public Notes for 5 days after becoming due; (c) failure to
perform any other covenant of the Company in the Indenture, continued for 30
days after written notice as provided in the Indenture; (d) failure to pay
when due the principal of, or acceleration of, any indebtedness of the
Company or any Subsidiary for money borrowed in excess of $5,000,000, if such
indebtedness is not discharged, or such acceleration is not annulled, within
30 days after written notice as provided in the Indenture; and (e) certain
events in bankruptcy, insolvency or reorganization involving the Company or
any Significant Subsidiary. ( 5.1) Subject to the provisions of the
Indenture relating to the duties of the Trustee, in case an Event of Default
(as defined) shall occur and be continuing, the Trustee will be under no
obligation to exercise any of its rights or powers under the Indenture at the
request or direction of any of the Holders, unless such Holders shall have
offered to the Trustee reasonable indemnity. ( 6.3) Subject to such
provisions for the indemnification of the Trustee, the Holders of a majority
in aggregate principal amount of the Public Notes will have the right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee or exercising any trust or power conferred on the
Trustee. ( 5.12)
The term "Significant Subsidiary" is defined to include any of the
Company's Subsidiaries which meets any of the following conditions: (i) the
Company's and its other Subsidiaries' investments in and advances to such
Subsidiary exceed 10 percent of the total assets of the Company and its
Subsidiaries consolidated; or (ii) the Company's and its other Subsidiaries'
proportionate share of the total assets of such Subsidiary exceeds 10 percent
of the total assets of the Company and its Subsidiaries consolidated; or
(iii) the Company's and its other Subsidiaries' equity in the income from
continuing operations before income taxes, extraordinary items and cumulative
effect of changes in accounting principles of the Subsidiary exceeds 10
percent of such income of the Company and its Subsidiaries consolidated.
If an Event of Default shall occur and be continuing, either the Trustee
or the Holders of at least 25 percent in aggregate principal amount of the,
Public Notes may accelerate the maturity of all Notes; provided, however,
that after such acceleration, but before a judgment or decree is issued based
on acceleration, the Holders of a majority in aggregate principal amount of
Public Notes then outstanding may, under certain circumstances, rescind and
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annul such acceleration if all Events of Default, other than the non-payment
of accelerated principal, have been cured or waived as provided in the
Indenture. ( 5.2) For information as to waiver of defaults, see
"Modification and Waiver."
No Holder of any Public Note will have any right to institute any
proceeding with respect to the Indenture or for any remedy thereunder, unless
such Holder shall have previously given to the Trustee written notice of a
continuing Event of Default and unless the Holders of at least 25 percent in
aggregate principal amount of the Public Notes then outstanding shall have
made written request, and offered reasonable indemnity, to the Trustee to
institute such proceeding as trustee, and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Public
Notes then outstanding a direction inconsistent with such request and shall
have failed to institute such proceedings within 60 days. ( 5.7) However,
such limitations do not apply to a suit instituted by a Holder of a Public
Note for enforcement of payment of the principal of or interest on such
Public Notes on or after the respective due dates express in such Note. (
5.8)
The Company will be required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance. ( 10.7)
Defeasance and Discharge. The indenture provides that the Company will
be discharged from any and all obligations in respect of the Public Notes
(except for certain obligations to register the transfer or exchange of
Public Notes, to replace stolen, lost or mutilated Public Notes, to maintain
paying agencies and to hold monies for payment in trust) upon the deposit
with the Trustee, in trust, of money and/or U.S. Government Obligations which
through the payment of interest and principal in respect thereof in
accordance with their terms will provide money in an amount sufficient to pay
the principal of and each installment of interest on the Public Notes on the
stated maturity of such payments in accordance with the terms of the
Indenture and the Public Notes. Such a trust may only be established if,
among other things, the Company has delivered to the Trustee an Opinion of
Counsel (who may be an employee of or counsel to the Company) to the effect
that either (x) there has occurred a change in Federal income tax law or (y)
there has been issued by the Internal Revenue Service a ruling, in either
case to the further effect that Holders of the Public Notes will not
recognize income, gain or loss for Federal income tax purposes as a result of
such deposit, defeasance and discharge and will be subject to Federal Income
tax on the same amount and in the same manner and at the same times as would
have been the case if such deposit, defeasance and discharge had not
occurred. ( 4.1 and 12.2)
Defeasance of Certain Covenants. The indenture also provides that the
Company may omit to comply with certain restrictive covenants in Sections
10.5 (Limitation on Liens) and 1006 (Limitation on Sale and Leaseback
Transactions) and that Section 5.1(4) (failure to pay and acceleration of
certain indebtedness) shall not be deemed to be an Event of Default under the
Indenture and the Public Notes, upon the deposit with the Trustee, in trust,
of money and/or U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with their terms will
provide money in an amount sufficient to pay the principal of and each
installment of interest on the Public Notes on the stated maturity of such
payments in accordance with the terms of the Indenture and the Public Notes.
The obligations of the Company under the Indenture and the Public Notes other
than with respect to the covenants referred to above shall remain in full
force and effect. Such a trust may only be established if, among other
things, (x) the Company has delivered to the Trustee an Opinion of Counsel
(who may be an employee of or counsel to the Company) to the effect that
there has been a change in Federal income tax law, or (y) there has been
issued by the Internal Revenue Service a ruling, in either case to the effect
that the Holders of the Public Notes will not recognize income, gain or loss
for Federal income tax purposes as a result of such deposit and defeasance of
certain covenants and will be subject to Federal income tax on the same
amount and in the same manner and at the same times as would have been the
case if such deposit and defeasance had not occurred. ( 12.4)
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In the event the Company exercises its option to omit compliance with
certain covenants of the Indenture with respect to the Public Notes as
described above and the Public Notes are declared due and payable because of
the occurrence of any Event of Default (other than an Event of Default
described in 5.1(4)), the amount of money and U.S. Government Obligations
on deposit with the Trustee will be sufficient to pay amounts due on the
Public Notes at the time of the acceleration resulting from such Event of
Default. However, the Company shall remain liable for such payments.
Optional Redemption
The Public Notes are redeemable at the election of the Company at any
time as a whole, or in part from time to time (in multiples of $1,000,000
principal amount) on the date specified in notice thereof given by the
Company which date shall not be less than 30 days nor more than 60 after such
notice (the "Redemption Date"). ( 11.2) Such notice shall be
mailed to each Holder of Public Notes at the Holder's address appearing in
the Security Register, and if less than all the Public Notes are to be
redeemed specify the aggregate principal amount of
Public Notes held by such Holder to be so redeemed. ( 11.4) On the third
business day prior to the Redemption Date (the "Calculation Date")
the Company shall give written notice to each Holder and the Trustee of the
determination of the Redemption Price setting forth in reasonable detail the
computation thereof. The Redemption Price set forth in such notice, shall,
in the absence of manifest error, be binding on the Company and Trustee.
( 11.2)
The term "Redemption Price" is defined in the Indenture to mean the greater
of (1) the sum of the respective Payment Values of each prospective interest
payment and the principal payment at maturity in respect of the Public Notes
being redeemed (the amount of each such payment being herein referred to as a
"Payment"), and (2) the unpaid principal amount of the Public Notes so being
redeemed. The Payment Value of each Payment shall be determined by
discounting such Payment at the Reinvestment Rate for the period from the
scheduled date of such Payment to the Redemption Date. The Reinvestment Rate
is the sum of (a) .25% and (b) the yield which shall be imputed from the
yield of those actively traded "On The Run" United States Treasury
securities, as reported on the Cantor-Fitzgerald brokerage screen available
on Telerate Information Systems (page 500 mid-point of Bid/Ask price), having
maturities as close as practicable to the final maturity of the Public Notes
so to be redeemed or, if such yields shall not be reported as of such time or
the yields reported as of such time are not ascertainable in accordance with
the preceding clause, then the arithmetic mean of the rates, published for
the 5 Business Days preceding the applicable Calculation Date, in the weekly
statistical release designated H.15(519) (or any successor publication) of
the Board of Governors of the Federal Reserve System under the caption "U.S.
Government Securities--Treasury Constant Maturities" opposite the maturity
corresponding to the final maturity of the Public Notes, (rounded to the
nearest month) so to be redeemed. If no maturity exactly corresponding to
such final maturity of the Public Notes shall appear therein, yields for the
next longer and the next shorter maturities shall be calculated
pursuant to the foregoing sentence and the Redemption Price shall be
interpolated from such yields on a straight-line basis (rounding in each of
such relevant periods, to the nearest month). The yields of such United
States Treasury securities (under both of the methods described above) shall
be determined as of 10:00 a.m., New York time, on the Calculation Date.
On the Redemption Date, the Company shall redeem the unpaid principal amount
of such holder's Public Notes by payment to such holder of (a) the Redemption
Price of such holder's Public Notes and (b) interest accrued on the aggregate
outstanding principal amount of such holder's Public Notes to the Redemption
Date. ( 11.6) Upon such payment by the Company the holder shall surrender
the Public Notes held by such holder to the Trustee for cancellation. The
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Public Notes are not subject to any mandatory redemption provisions, nor
entitled to any sinking fund provisions.
Modification and Waiver
Modifications and amendments of the Indenture may be made by the Company
and the Trustee with the consent of the Holders of a majority in aggregate
principal amount of the Public Notes then outstanding; provided, however,
that no such modification or amendment may, without the consent of the Holder
of each Public Note then outstanding affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of interest on, any Public
Note, (b) reduce the principal amount of or interest on, any Public Note, (c)
change the place or currency of payment of principal of or interest on any
Public Note, (d) impair the right to institute suit for the enforcement of
any payment on or with respect to any Public Note, (e) reduce the above-
stated percentage of Public Notes then outstanding necessary to modify or
amend the Indenture or (f) reduce the percentage of aggregate principal
amount of Public Notes then outstanding necessary for waiver of compliance
with certain provisions of the Indenture or for waiver of certain events of
default. ( 9.2)
The Holders of a majority in aggregate principal amount of the Public
Notes then outstanding may waive compliance by the Company with certain
restrictive provisions of the Indenture. ( 10.8) The Holders of a majority
in aggregate principal amount of the Public Notes then outstanding may waive
any past default under the Indenture, except a default in the payment of
principal or interest or in respect of a covenant or provision which cannot
be modified without the consent of the Holder of each Public Note affected.
( 513)
Additional Information
The Indenture provides that the Company will deliver to the Trustee
within 15 days after the filing of the same with the Commission, copies of
the quarterly and annual reports and of the information, documents and other
reports, if any, which the Company is required to file with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act. The Indenture further
provides that, notwithstanding that the Company may not be subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the
Company will file with the Commission, to the extent permitted, and provide
the Trustee and Holders with such annual reports and such information,
documents and other reports specified in Section 13 and 15(d) of the Exchange
Act. The Company will also comply with the other provisions of TIA.
THE EXCHANGE
The Notes were sold by the Company on March 3, 1994 to Metropolitan
Life Insurance Company ("Met") pursuant to a Note Purchase and Exchange
Agreement (the "Purchase Agreement") which has been filed as an exhibit to
the Registration Statement of which this Prospectus is a part. The Purchase
Agreement provides that the Company may prepay the Notes by delivering to the
Met the Public Notes being registered hereunder pursuant to the Exchange
described herein prior to May 3, 1995. The failure of the Company to effect
the Exchange would result in the interest rate on the Notes (currently fixed
at 6.78 percent) increasing to 7.03% for the balance of their term. By
effecting the exchange on or prior to May 3, 1995, the Company will be able
to fix the interest rate payable until the stated maturity of the Public
Notes. In the Purchase Agreement the Company made customary representations
and warranties with respect to the due authorization, execution and delivery
of the Purchase Agreement and various matters relating to the business of the
Company, such as financial condition, licenses and litigation.
The Purchase Agreement further provides that:
(i) The Company will reimburse the Met for certain expenses incurred by
it in connection with its purchase of the Notes and the Public Notes; and
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(ii) The Company will indemnify the Met against certain liabilities,
including certain liabilities under the Securities Act of 1933.
Upon this Exchange Registration Statement being declared Effective, the
Company will exchange the Public Notes upon surrender of the Notes. The
Company will keep the Exchange open until Notes have been exchanged for the
Public Notes, currently contemplated to be no later than May 3, 1995. For
each Note surrendered to the Company pursuant to the Exchange, the holder of
such Notes will receive a Public Note having a principal amount equal to that
of the surrendered Note. Interest on each Public Note will be 6.78 percent
the same as the Notes, and will accrue from March 3, 1995. All the
outstanding Notes are anticipated to be surrendered in the Exchange.
Upon the terms and subject to the conditions set forth in this
Prospectus the Company will accept all Notes prior to 5:00 p.m., New York
City time, on the Expiration Date (as defined herein). The Company will
issue $1,000 principal amount of Public Notes in exchange for each $1,000
principal amount of outstanding Notes accepted in the Exchange Offer.
The form and terms of the Public Notes are the same as the form and
terms of the Notes except that the Public Notes have been registered under
the Securities Act and hence will not bear legends restricting the transfer
thereof. The Public Notes will evidence the same debt as the Notes and will
be entitled to the benefits of Indenture. As of the date of this Prospectus,
$100,000,000 aggregate principal amount of Notes were outstanding.
The term "Expiration Date" shall mean 5:00 p.m., New York City time, on
May 3, 1995.
PLAN OF DISTRIBUTION
The Company will not receive any proceeds from the Exchange Offer, nor
will it pay any commission in connection therewith to any broker, dealer or
agent.
Absence of a Public Market
The Public Notes will constitute a new issue of securities with no
established trading market. The Company does not intend to list the Public
Notes on any national securities exchange or to seek the admission thereof to
trading in the National Association of Securities Dealers Automated Quotation
System. Accordingly, no assurance can be given that an active public or
other market will develop for the Public Notes or as to the liquidity of the
trading market for the Public Notes. If a trading market does not develop or
is not maintained, holders of the Public Notes may experience difficulty in
reselling the Public Notes or may be unable to sell them at all. If a market
for the Public Notes develops, any such market may be discontinued at any
time.
If a public trading market develops for the Public Notes, future trading
prices of such securities will depend on many factors, including, among other
things, prevailing interest rates, the Company's results of operations and
the market for similar securities. Depending on prevailing interest rates,
the market for similar securities and other factors, including the financial
condition of the Company, the Public Notes may trade at a discount from their
principal amount.
LEGAL MATTERS
The validity of the Public Notes will be passed upon for the Company by
Ropes & Gray, One International Place, Boston, Massachusetts 02110.
19
<PAGE>
EXPERTS
The Company's consolidated balance sheets as of December 31, 1993 and
1994, and the consolidated statements of income, shareholders' equity and
cash flows and financial statement schedules for each of the years in the
three-year period ended December 31, 1994, incorporated herein by reference,
have been incorporated herein by reference in reliance upon the reports of
Coopers & Lybrand L.L.P., independent certified public accountants, upon the
authority of said firm as experts in accounting and auditing.
20
<PAGE>
No dealer, salesman or
other person has been
authorized to give any
information or to make any
representations not contained
in or incorporated by
reference in this Prospectus
and, if given or made, such MILLIPORE
information or representation
must not be relied upon as
having been authorized by the
Company or any other person. $100,000,000
This Prospectus does not 6.78% Senior Notes
constitute an offer to sell Due 2004
or a solicitation of an offer
to buy any of the securities
offered hereby in any
jurisdiction to any person to P R O S P E C T U S
whom it is unlawful to make
such offer in such
jurisdiction. Neither the
delivery of this Prospectus
nor any sale made hereunder
shall, under any
circumstances, create any
implication that there has
been no change in the affairs
of the Company since the date
hereof or that information
contained or incorporated by
reference herein is correct
as of any time subsequent to
such date.
______________
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain
Documents
by Reference 2
Prospectus Summary 3
Use of Proceeds 5
Capitalization 5
Selected Consolidated
Financial Data 6
Management's Discussion and
Analysis
of Financial Condition and
Results of
Operations 7
Business 10
Management 13
Description of Public Notes
13
Plan of Distribution 19
Legal Matters 19
Experts 20
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20 Indemnification of Directors and Officers
The registrants' Restated Articles of Organization, as amended, provide
that no director of the registrant shall be liable for monetary damages for
any breach of fiduciary duty as a director, except to the extent that the
Massachusetts Business Corporation Law prohibits the elimination or
limitation of liability of directors for breach of fiduciary duty.
The registrant's By-Laws provide that each officer and director of the
registrant and its subsidiaries shall be indemnified, to the fullest extent
permitted by the Massachusetts Business Corporation Law, against all
liabilities and expenses arising out of litigation and other proceedings in
which he is involved because of being an officer or director of the
registrant or a subsidiary so long as he shall have acted in good faith in
the reasonable belief that his action was in the best interests of the
registrant. A complete statement of provisions for indemnification of the
registrant's officers and directors and controlling persons is set forth in
Section 9 of the Company's By-Laws, as amended, filed as Exhibit 3 to the
registrant's Form 10-K Annual Report for the year ended December 31, 1987,
and which is hereby incorporated herein by reference.
The registrant maintains, on behalf of its directors and officers,
insurance protection against certain liabilities arising out of the discharge
of their duties and also insurance covering the registrant against
indemnification payments to its directors and officers for certain
liabilities.
Item 21. Exhibits
(a) The following exhibits are included as a part of this Registration
Statement:
Exhibit No. Description
(3)(a) -- Articles of Organization as amended, filed as
part of Corporation's Annual Report on Form 10-K for the year
ending December 31, 1987 and incorporated herein by reference.
(b) -- By-Laws as amended, filed as part of
Corporation's Annual Report on Form 10-K for the year ending
December 31, 1990 and incorporated herein by reference.
4(a) -- Proposed form of Indenture.
(b) -- Specimen Note (included in Sections 2.2 and 2.3
of the form of Indenture listed in Exhibit 4(a)).
5 -- Opinion of Ropes & Gray.
12 -- Computation of Ratio of Earnings from Continuing
Operations
to Fixed Charges
13 -- Annual Report to Security Holders on Form 10-K for the
fiscal year ended December 31, 1994, and incorporated
herein in reference.
II-1
<PAGE>
21 -- Subsidiaries of Registrant, filed as Part of Exhibit 13
23(a) -- Consent of Coopers & Lybrand L.L.P. (contained on
page II-4).
(b) -- Consent of Ropes & Gray (included in
Exhibit 5).
24 -- Powers of Attorney.
25 -- Statement on Form T-1 of eligibility and qualification of
Bank of Boston under the Trust Indenture Act of 1939.
(b) -- Financial Statement Schedules
Not Applicable.
Item 17. Undertakings
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the registrant's annual report pursuant to Section 13(a) of Section 15(d) of
the Securities Exchange Act of 1934 that is incorporated by reference in this
Registration Statement 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 bona fide offering
thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent
or given, the latest annual report, to security holders that is incorporated
by reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver,
or cause to be delivered to each person to whom the prospectus is sent or
given, the latest quarterly report that is specifically incorporated by
reference in the prospectus to provide such interim financial information.
(1) The undersigned registrant hereby undertakes as follows: that prior
to any public reoffering of the securities registered hereunder through use
of a prospectus which is a part of this registration statement, by any person
or party who is deemed to be an underwriter within the meaning of Rule
145(c), the issuer undertakes that such reoffering prospectus will contain
the information called for by the applicable registration form with respect
to reofferings by persons who may be deemed underwriters, in addition to the
information called for by the other items of the applicable form.
(2) The registrant undertakes that every prospectus: (i) that is filed
pursuant to paragraph (1) immediately preceding, or (ii) that purports to
meet the requirements of Section 10(a)(3) of the Act and is used in
connection with an offering of securities subject to Rule 415, will be filed
as part of an amendment to the registration statement and will not be used
until such amendment is effective, and that, for purposes of determining any
liability under the Securities Act of 1933, each such post-effective
amendment 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 bona fide offering thereof.
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
II-2
<PAGE>
Exchange Commission such indemnifications against public policy as expressed
in the Act 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 Act
and will be governed by the final adjudication of such issue.
II-3
<PAGE>
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We consent to the incorporation by reference in this Registration
Statement on Form S-4 of our report dated January 26, 1995, on our audits of
the consolidated financial statements and financial statement schedules of
Millipore Corporation as of December 31, 1993 and 1994 and for the years
ended December 31, 1992, 1993, and 1994, which reports are included or
incorporated by reference in the Company's Annual Report on Form 10-K for the
year ended December 31, 1994.
We also consent to the references to our firm under the captions "Selected
Consolidated Financial Data" and "Experts".
Coopers & Lybrand L.L.P.
Boston, Massachusetts
March 15, 1995
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned thereunder duly authorized, in the Town of Bedford, Commonwealth
of Massachusetts on this fifteenth day of March, 1995.
MILLIPORE CORPORATION
By /s/ Geoffrey Nunes
Geoffrey Nunes
Senior Vice President
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
Name Title Date
/s/ John A. Gilmartin Director, Chairman, March 15, 1995
John A. Gilmartin President and
Chief Executive
Officer (Principal
Executive Officer)
/s/ Michael P. Carroll Vice President and March 15, 1995
Michael P. Carroll Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/ Charles D. Baker* Director March 15, 1995
Charles D. Baker
/s/ Samuel C. Butler* Director March 15, 1995
Samuel C. Butler
/s/ Mark Hoffman* Director March 15, 1995
Mark Hoffman
/s/ Gerald D. Laubach* Director March 15, 1995
Gerald D. Laubach
/s/ Steven Muller* Director March 15, 1995
Steven Muller
/s/ Thomas O. Pyle* Director March 15, 1995
Thomas O. Pyle
/s/ John F. Reno* Director March 15, 1995
John F. Reno
*By /s/ Geoffrey Nunes March 15, 1995
Geoffrey Nunes
Attorney-in-Fact
II-5
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
4 (a) -- Proposed form of Indenture.
(b) -- Specimen Note (included in Section 2.2 and 2.3
of the form of Indenture list as Exhibit 4(a).
5 -- Opinion of Ropes & Gray.
12 -- Computation of Ratio of Earnings to Fixed Charges.
23(a) -- Consent of Coopers & Lybrand L.L.P. (contained
on page II-4).
(b -- Consent of Ropes & Gray (included in Exhibit 5).
24 -- Powers of Attorney.
25 -- Statement on Form T-1 of eligibility and
qualification of Bank of Boston under
the Trust Indenture Act of 1939.
<PAGE>
MILLIPORE CORPORATION,
Issuer
To
THE FIRST NATIONAL BANK OF BOSTON
Trustee
_______________________
INDENTURE
Dated as of May ___, 1995
________
$100,000,000
6.78% SENIOR NOTES DUE 2004
<PAGE>
TABLE OF CONTENTS
Page
RECITALS OF THE COMPANY 1
ARTICLE 1 Definitions and Other Provisions of General
Application 1
Section 1.1 Definitions 1
Act 2
Affiliate 2
Attributable Debt 2
Authenticating Agent 2
Board of Directors 3
Board Resolution 3
Business Day 3
Calculation Date 3
Capitalized Lease 3
Commission 3
Company 3
Company Request or Company Order 3
Consolidated Funded Debt 4
Consolidated Net Tangible Assets 4
Corporate Trust Office 4
corporation 4
covenant defeasance and defeasance 4
Defaulted Interest 4
Event of Default 4
Expiration Date 4
Fiscal Year 4
Funded Debt 4
Holder 4
Important Property 5
Indebtedness 5
Indenture 5
Interest Payment Date 5
Liens 5
Maturity 5
Notice of Default 5
Officers' Certificate 5
Opinion of Counsel 5
Outstanding 6
Paying Agent 6
Person 6
Place of Payment 7
Predecessor Security 7
Redemption Date 7
Redemption Price 7
Regular Record Date 7
Responsible Officer 7
<PAGE>
Restricted Subsidiary 7
Sale Leaseback Transaction 7
Secretary and Assistant Secretary 7
Secured Debt 7
Securities 8
Security Register and Security Registrar 8
Significant Subsidiary 8
Special Record Date 8
Stated Maturity 8
Subsidiary 8
Trust Indenture Act 8
Trustee 9
U.S. Government Obligation 9
Vice President 9
Voting Stock 9
Yield Maintenance Price 9
Section 1.2 Compliance Certificates and Opinions 10
Section 1.3 Form of Documents Delivered to Trustee 10
Section 1.4 Acts of Holders; Record Dates 11
Section 1.5 Notices, Etc., to Trustee, and Company 13
Section 1.6 Notice to Holders; Waiver 14
Section 1.7 Conflict with Trust Indenture Act 14
Section 1.8 Effect of Headings and Table of Contents 14
Section 1.9 Successors and Assigns 15
Section 1.10 Separability Clause 15
Section 1.11 Benefits of Indenture 15
Section 1.12 Governing Law 15
Section 1.13 Legal Holidays 15
ARTICLE 2 Security Forms 15
Section 2.1 Forms Generally 15
Section 2.2 Form of Face of Security 16
Section 2.3 Form of Reverse of Security 18
Section 2.4 Form of Trustee's Certificate of
Authentication 20
ARTICLE 3 The Securities 20
Section 3.1 Title and Terms 20
Section 3.2 Denominations 21
Section 3.3 Execution, Authentication, Delivery
and Dating 21
Section 3.4 Temporary Securities 22
Section 3.5 Registration, Registration of
Transfer and Exchange 23
Section 3.6 Mutilated, Destroyed, Lost and
Stolen Securities 24
Section 3.7 Payment of Interest; Interest Rights
Preserved 24
Section 3.8 Persons Deemed Owners 26
Section 3.9 Cancellation 26
Section 3.10 Computation of Interest 26
-ii-
<PAGE>
ARTICLE 4 Satisfaction and Discharge 26
Section 4.1 Satisfaction and Discharge of Indenture 26
Section 4.2 Application of Trust Money 28
ARTICLE 5 Remedies 28
Section 5.1 Events of Default 28
Section 5.2 Acceleration of Maturity;
Rescission and Annulment 30
Section 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee 31
Section 5.4 Trustee May File Proofs of Claim 32
Section 5.5 Trustee May Enforce Claims Without
Possession of Securities 32
Section 5.6 Application of Money Collected 32
Section 5.7 Limitation on Suits 33
Section 5.8 Unconditional Right of Holders to
Receive Principal, Premium and Interest 33
Section 5.9 Restoration of Rights and Remedies 34
Section 5.10 Rights and Remedies Cumulative 34
Section 5.11 Delay or Omission Not Waiver 34
Section 5.12 Control by Holders 34
Section 5.13 Waiver of Past Defaults 35
Section 5.14 Undertaking for Costs 35
Section 5.15 Waiver of Usury, Stay or Extension Laws 35
ARTICLE 6 The Trustee 36
Section 6.1 Certain Duties and Responsibilities 36
Section 6.2 Notice of Defaults 36
Section 6.3 Certain Rights of Trustee 36
Section 6.4 Not Responsible for Recitals or
Issuance of Securities 37
Section 6.5 May Hold Securities 38
Section 6.6 Money Held in Trust 38
Section 6.7 Compensation and Reimbursement 38
Section 6.8 Conflicting Interests 39
Section 6.9 Corporate Trustee Required; Eligibility 39
Section 6.10 Resignation and Removal;
Appointment of Successor 40
Section 6.11 Acceptance of Appointment by Successor 41
Section 6.12 Merger, Conversion, Consolidation or
Succession to Business 41
Section 6.13 Preferential Collection of Claims 42
Section 6.14 Appointment of Authenticating Agent 42
ARTICLE 7 Holders' Lists and Reports by Trustee
and Company 44
Section 7.1 Company to Furnish Trustee Names
and Addresses of Holders 44
Section 7.2 Preservation of Information;
Communications to Holders 44
Section 7.3 Reports by Trustee 44
Section 7.4 Reports by Company 45
-iii-
<PAGE>
ARTICLE 8 Consolidation, Merger, Conveyance, Transfer
or Lease 45
Section 8.1 Company May Consolidate, Etc.,
Only on Certain Terms 45
Section 8.2 Successor Corporation Substituted 46
ARTICLE 9 Supplemental Indentures 46
Section 9.1 Supplemental Indentures Without
Consent of Holders 46
Section 9.2 Supplemental Indentures with
Consent of Holders 47
Section 9.3 Execution of Supplemental Indentures 48
Section 9.4 Effect of Supplemental Indentures 48
Section 9.5 Conformity with Trust Indenture Act 48
Section 9.6 Reference in Securities to
Supplemental Indentures 48
ARTICLE 10 Covenants 49
Section 10.1 Payment of Principal, Premium
and Interest 49
Section 10.2 Maintenance of Office or Agency 49
Section 10.3 Money for Securities Payments to
Be Held in Trust 49
Section 10.4 Corporate Existence 50
Section 10.5 Limitation on Liens 51
Section 10.6 Limitation on Sale and
Leaseback Transactions 52
Section 10.7 Statement by Officers as to Default 53
Section 10.8 Waiver of Certain Covenants. 53
ARTICLE 11 Redemption of Securities 54
Section 11.1 Applicability of Article 54
Section 11.2 Election to Redeem; Notice to Trustee 54
Section 11.3 Selection by Trustee of Securities
to Be Redeemed 55
Section 11.4 Notice of Redemption 55
Section 11.5 Deposit of Redemption Price 56
Section 11.6 Securities Payable on Redemption Date 56
Section 11.7 Securities Redeemed in Part 56
ARTICLE 12 Defeasance and Covenant Defeasance 57
Section 12.1 Applicability of Article;
Company's Option to Effect Defeasance
or Covenant Defeasance 57
Section 12.2 Defeasance and Discharge 57
Section 12.3 Covenant Defeasance 57
Section 12.4 Conditions to Defeasance or
Covenant Defeasance 58
Section 12.5 Deposited Money and U.S. Government
Obligations to Be Held in Trust; Other
Miscellaneous Provisions 60
Section 12.6 Reinstatement 60
-iv-
<PAGE>
MILLIPORE CORPORATION
Certain Sections of this Indenture relating to Sections 310 through 318,
inclusive, of the Trust Indenture Act of 1939
Trust Indenture
Act Section
310(a)(1) 6.9
(a)(2) 6.9
(a)(3) Not Applicable
(a)(4) Not Applicable
(b) 6.8
6.10
311(a) 6.13
(b) 6.13
7.3
312(a) 7.1
7.2
(b) 7.2
(c) 7.2
313(a) 7.3
(b) 7.3
(c) 7.3
(d) 7.3
314(a) 7.4
(a)(4) 1.1, 10.7
(b) Not Applicable
(c)(1) 1.2
(c)(2) 1.2
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.2
315(a) 6.1
(b) 6.2
7.3
(c) 6.1
(d) 6.1
(e) 5.14
316(a) 1.1
(a)(1)(A) 5.2
5.12
(a)(1)(B) 5.13
(a)(2) Not Applicable
(b) 5.8
(c) 1.4
317(a)(1) 5.3
(a)(2) 5.4
(b) 10.3
318(a) 1.7
________________
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
V
<PAGE>
INDENTURE, dated as of May __, 1995, between Millipore Corporation, a
corporation duly organized and existing under the laws of the Commonwealth of
Massachusetts (herein called the "Company"), having its principal executive
offices at 80 Ashby Road, Bedford, Massachusetts 01730 and The First National
Bank of Boston, as Trustee (herein called the "Trustee"), having its
corporate trust office at 150 Royall Street, Canton, Massachusetts 02021.
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 6.78% Senior Notes, Series B
(herein called the "Securities"), to be issued as in this Indenture provided.
All things necessary to make the Securities when executed by the Company
and authenticated and delivered hereunder and duly issued by the Company, the
valid obligations of the Company and to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE 1
Definitions and Other Provisions
of General Application
Section 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
<PAGE>
such accounting principles as are generally accepted at the date of such
computation;
(4) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as the case
may be, of this Indenture; and
(5) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Six, are defined in that
Article.
"Act", when used with respect to any Holder, has the meaning specified
in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Attributable Debt" means, with respect to any particular lease under
which any Person is at the time liable and at any date as of which the amount
thereof is to be determined, the total net amount of rent required to be paid
by such Person under such lease during the remaining primary term thereof,
discounted from the respective due dates thereof to such date at the rate per
annum borne by the Securities. The net amount of rent required to be paid
under any such lease for any such period shall be the aggregate amount of the
rent payable by the lessee with respect to such period, after excluding
amounts required to be paid on account of maintenance and repairs, insurance,
taxes, assessments, water rates and similar charges and any additional
rentals (in excess of fixed minimums) based upon a percentage of gross
receipts. In the case of any lease which is terminable by the lessee, such
rent amount shall also include the amount of any penalty payable by the
lessee upon such termination, but no rent shall be considered as required to
be paid under such lease subsequent to the first date upon which it may be so
terminated.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.14 to act on behalf of the Trustee to authenticate
Securities.
2
<PAGE>
"Board of Directors", means either the board of directors, or any duly
authorized committee of the board of directors, of the Company.
"Board Resolution", means a copy of a resolution certified by the Clerk
or an Assistant Clerk of the Company to have been duly adopted by the Board
of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the principal
places of business of the Company and the Trustee are authorized or obligated
by law or executive order to close.
"Calculation Date" means the date on which the Yield Maintenance Price
on the Securities being redeemed pursuant to Article Eleven is to be
determined by the Computing Holder with respect to such Securities which date
shall be the third Business Day prior to the Redemption Date established
pursuant to Article Eleven.
"Capitalized Lease" shall mean a lease the obligations under which are
required to be capitalized and included in determining total liabilities in
accordance with Financial Accounting Standard No. 13 of the Financial
Accounting Standards Board as from time to time in effect.
"Commission" means the Securities and Exchange Commission, as from time
to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties at such time.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Company"
shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company, by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Clerk or an Assistant Clerk, and delivered to the Trustee.
3
<PAGE>
"Consolidated Funded Debt" means Funded Debt of the Company and its
consolidated subsidiaries, determined on a consolidated basis in accordance
with generally accepted accounting principles.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves) after deducting therefrom (a) all current
liabilities and (b) all amounts representing goodwill, trade names, trade
marks, patents, unamortized debt discount and expense and other like
intangibles, all as set forth on the most recent balance sheet of the Company
and its Subsidiaries and computed in accordance with generally accepted
accounting principles.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time its corporate trust business shall be principally
administered, which office, as at the date of this Indenture, is located at
150 Royall Street, Mail Stop 45-02-15 Canton, Massachusetts 02021, Attn:
Corporate Trust Division.
The term "corporation" includes corporations, associations, companies,
joint-stock companies and business trusts.
The terms "covenant defeasance" and "defeasance" bear the meanings
assigned to such terms, respectively, by Sections 12.2 and 12.3.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Event of Default" has the meaning specified in Section 5.1.
"Expiration Date" has the meaning specified in Section 1.4.
"Fiscal Year" means with respect to the Company, the fiscal year ending
December 31 of each year or such other date as the Company may hereafter
elect, and with respect to any other Person the calendar year or other annual
accounting period of the Person in question.
"Funded Debt" means all Indebtedness maturing more than one year after
the date of determination thereof and all Indebteedness, regardless of its
term, renewable by the obligor pursuant to the terms thereof for more than
one year after the date of the creation of the Indebtedness which would, in
accordance with generally accepted accounting principles, be classified as
long-term debt.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
4
<PAGE>
"Important Property" means any manufacturing plant or other building,
structure or other facility owned or leased by the Company or any Subsidiary,
whether now owned or hereafter acquired which, in the opinion of the Board of
Directors, is of material importance to the total business conducted by the
Company and its Subsidiaries as a whole.
"Indebtedness" means (a) all items of indebtedness for money borrowed
and all Capitalized Leases, whether now existing or hereafter created, and
(b) all items of indebtedness for money borrowed and Capitalized Leases of
another which are guaranteed, directly or indirectly, in any manner or are in
effect guaranteed through any agreement or other arrangement, even if not
designated as a guarantee, designed to provide funds for or to secure payment
or performance of such indebtedness for money borrowed or Capitalized Leases
of another.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, including, for all purposes of this instrument and any such
supplemental indenture, the provisions of the Trust Indenture Act that are
deemed to be a part of and to govern this instrument and any such
supplemental indenture, respectively.
"Interest Payment Date", means the Stated Maturity of an installment of
interest on the Securities.
"Liens" has the meaning specified in Section 10.5 hereof.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity
or by declaration of acceleration, call for redemption or otherwise.
"Notice of Default" means a written notice of the kind specified in
Section 5.1(3) or 5.1(4).
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an
Assistant Treasurer, the Clerk or an Assistant Clerk, of the Company, and
delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 10.7 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to the Company, and who shall be acceptable to the
Trustee.
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"Outstanding", when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money in the
necessary amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) Securities as to which defeasance has been effected pursuant
to Section 12.2 or Section 12.3; and
(iv) Securities which have been paid pursuant to Section 3.7 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid obligations
of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given, made or taken any
request, demand, authorization, direction, notice, consent, waiver or other
action hereunder as of any date, Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company, or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent or waiver or
other action, only Securities which the Trustee knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith
may be regarded as Outstanding if the pledgee establishes to the satisfaction
of the Trustee the pledgee's independent right so to act with respect to such
Securities and that the pledgee is not the Company, other obligor upon the
Securities or any Affiliate of the Company, or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of (and premium, if any) or interest on any Securities on behalf of
the Company.
"Person" means any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization or
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government or any agency or political subdivision thereof.
"Place of Payment", when used with respect to the Securities means the
place or places where the principal of and interest on the Securities are
payable as specified as contemplated by Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by
such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 3.6 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Securities means the February 3 or August 3 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means any
officer in the Corporate Trust Office of the Trustee and also means, with
respect to a particular corporate trust matter, any other officer to whom
such matter is referred because of his knowledge of and familiarity with the
particular subject.
"Restricted Subsidiary" means a Subsidiary which owns or leases any
Important Property.
"Sale Leaseback Transaction" has the meaning stated in Section 10.6.
"Secretary" and "Assistant Secretary" include with respect to the
Company the Clerk and any Assistant Clerk of the Company.
"Secured Debt" means indebtedness for money borrowed that is secured by
a Lien on (a) any Important Property of the Company or any Restricted
Subsidiary (but not including a property determined not to be an Important
Property of the Company or a Restricted Subsidiary by the Board of Directors
in its discretion) or on (b) any shares of stock or indebtedness of any
Restricted Subsidiary.
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"Securities" has the meaning stated in the first recital of this
Indenture and more particularly means any Securities authenticated and
delivered under this Indenture.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Significant Subsidiary" means a Subsidiary, including its Subsidiaries,
which meets any of the following conditions: (i) the Company's and its other
Subsidiaries' investments in, and advances to, such Subsidiary exceed 10% of
the total assets of the Company and its Subsidiaries consolidated as of the
end of the most recently completed fiscal year, or (ii) the Company's and its
other Subsidiaries' proportionate share of the total assets (after
intercompany eliminations) of such Subsidiary exceeds 10% of the total assets
of the Company and its Subsidiaries consolidated as of the end of the most
recently completed fiscal year, or (iii) the Company's and its other
Subsidiaries' equity in the income from continuing operations before income
taxes, extraordinary items and cumulative effect of changes in accounting
principles of the Subsidiary exceeds 10% of such income of the Company and
its Subsidiaries consolidated for the most recently completed fiscal year.
For purposes of making the prescribed income test, when a loss has been
incurred by either the Company and its Subsidiaries consolidated or the
tested Subsidiary, but not both, the equity in the income or loss of the test
Subsidiary should be excluded from the income of the Company and its
Subsidiaries consolidated for purposes of the computation; and if income of
the Company and its Subsidiaries consolidated for the most recent fiscal year
is at least 10% lower than the average of the income for the last five fiscal
years, such average income should be substituted for purposes of the
computation, with any loss years omitted for purposes of computing average
income.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity", when used with respect to any security or any
installment of principal thereof or interest thereon, means the date
specified in such Security as the fixed date on which the principal of such
Security or such installment of principal or interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company, or by one or
more other Subsidiaries, or by the Company, and one or more other
Subsidiaries.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force
at the date as of which this instrument was executed; provided, however, that
in the event the Trust Indenture Act of 1939, is amended after such date,
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"Trust Indenture Act" means, to the extent required by any amendment thereto,
the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant
to the applicable provisions of this Indenture, and thereafter "Trustee"
shall mean or include each Person who is then a Trustee hereunder.
"U.S. Government Obligation" has the meaning set forth in Section 12.4.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock which ordinarily has voting power for the
election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency, but shall
not include securities convertible into such Voting Stock.
"Yield Maintenance Price" means, with respect to any principal amount of
Securities being redeemed pursuant to Article Eleven the greater of (1) the
sum of the respective Payment Values of each prospective interest payment and
the principal payment at maturity in respect of the Securities so being
prepaid pursuant to Article Eleven (the amount of each such payment being
herein referred to as a "Payment"), and (2) the unpaid principal amount of
the Securities so being redeemed. The Payment Value of each Payment shall be
determined by discounting such Payment at the Reinvestment Rate for the
period from the scheduled date of such Payment to the applicable date of
prepayment. The Reinvestment Rate is the sum of (a) .25% and (b) the yield
which shall be imputed from the yields of those actively traded "On The Run"
United States Treasury securities, as reported on the Cantor-Fitzgerald
brokerage screen available on Telerate Information Systems (page 500 mid-
point of Bid/Ask price), having maturities as close as practicable to the
final maturity of the Securities so to be redeemed or, if such yields shall
not be reported as of such time or the yields reported as of such time are
not ascertainable in accordance with the preceding clause, then the
arithmetic mean of the rates, published for the 5 Business Days preceding the
applicable Calculation Date, in the weekly statistical release designated
H.15(519) (or any successor publication) of the Board of Governors of the
Federal Reserve System under the caption "U.S. Government Securities--
Treasury Constant Maturities" opposite the maturity corresponding to the
final maturity of the Notes, (rounded to the nearest month) so to be prepaid
or accelerated, as the case may be. If no maturity exactly corresponding to
such final maturity of the Securities shall appear therein, yields for the
next longer and the next shorter maturities shall be calculated
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pursuant to the foregoing sentence and the Yield Maintenance Price shall be
interpolated from such yields on a straight-line basis (rounding in each of
such relevant periods, to the nearest month). The yields of such United
States Treasury securities (under both of the methods described above) shall
be determined as of 10:00 a.m., New York time, on the Calculation Date.
Section 1.2 Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to take
any action under any provision of this Indenture, the Company shall furnish
to the Trustee such certificates and opinions as may be required under the
Trust Indenture Act. Each such certificate or opinion shall be given in the
form of an Officers' Certificate, if to be given by an officer of the
Company, or an Opinion of Counsel, if to be given by counsel, and shall
comply with the requirements of the Trust Indenture Act and any other
requirements set forth in this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (other than certificates provided
pursuant to Section 10.7) shall include
(1) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.3 Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such Per
son, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and
one or more other such Persons as to other matters, and any such Person may
certify or give an opinion as to such matters in one or several documents.
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Any certificate or opinion of any officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.4 Acts of Holders; Record Dates.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given,
made or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by an agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument
or instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as
the "Act" of the Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent
shall be sufficient for any purpose of this Indenture and (subject to Section
6.1) conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized
by law to take acknowledgments of deeds, certifying that the individual
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority. The fact and date of the execution of any
such instrument or writing, or the authority of the Person executing the
same, may also be proved in any other manner which the Trustee deems
sufficient.
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(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future
Holder of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee,
the Company in reliance thereon, whether or not notation of such action is
made upon such Security or such other Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given, made or
taken by Holders of Securities, provided that the Company may not set a
record date for, and the provisions of this paragraph shall not apply with
respect to, the giving or making of any notice, declaration, request or
direction referred to in the next paragraph. If any record date is set
pursuant to this paragraph, the Holders of Outstanding Securities on such
record date, and no other Holders, shall be entitled to take the relevant
action, whether or not such Holders remain Holders after such record date;
provided that no such action shall be effective hereunder unless taken on or
prior to the applicable Expiration Date by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this
paragraph shall be construed to prevent the Company from setting a new record
date for any action for which a record date has previously been set pursuant
to this paragraph (whereupon the record date previously set shall
automatically and with no action by any Person be cancelled and of no
effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own
expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities in the manner set forth in Section
1.6.
The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to
in Section 5.12. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction,
whether or not such Holders remain Holders after such record date; provided
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that no such action shall be effective hereunder unless taken on or prior to
the applicable Expiration Date by Holders of the requisite principal amount
of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for
any action for which a record date has previously been set pursuant to this
paragraph (whereupon the record date previously set shall automatically and
with no action by any Person be cancelled and of no effect), and nothing in
this paragraph shall be construed to render ineffective any action taken by
Holders of the requisite principal amount of Outstanding Securities on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable
Expiration Date to be given to the Company in writing and to each Holder of
Securities in the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section, the party
hereto which sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day; provided that no such change shall be effective unless notice of
the proposed new Expiration Date is given to the other party hereto in
writing, and to each Holder of Securities in the manner set forth in Section
1.6, on or prior to the existing Expiration Date. If an Expiration Date is
not designated with respect to any record date set pursuant to this Section,
the party hereto which set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as
provided in this paragraph. Notwithstanding the foregoing, no Expiration
Date shall be later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard
to all or any part of the principal amount of such Security or by one or more
duly appointed agents each of which may do so pursuant to such appointment
with regard to all or any part of such principal amount.
Section 1.5 Notices, Etc., to Trustee and Company
Any request, demand, authorization, direction, notice, consent, waiver
or Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder, or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee at its Corporate Trust Office.
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(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its principal
office specified in the first paragraph of this instrument or at any
other address previously furnished in writing to the Trustee by the
Company.
Section 1.6 Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event, such
notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each
Holder affected by such event, at his address as it appears in the Security
Register, not later than the latest date (if any), and not earlier than the
earliest date (if any), prescribed for the giving of such notice. In any
case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 1.7 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act which is required under such Act to be a part of
and govern this Indenture, the latter provision shall control. If any
provision of this Indenture modifies or excludes any provision of the Trust
Indenture Act which may be so modified or excluded, the latter provision
shall be deemed to apply to this Indenture as so modified or excluded, as the
case may be.
Section 1.8 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
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Section 1.9 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not.
Section 1.10 Separability Clause.
In case any provision in this Indenture or in the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 1.11 Benefits of Indenture.
Nothing in this Indenture or in the Securities express or implied, shall
give to any Person, other than the parties hereto and their successors
hereunder and the Holders, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 1.12 Governing Law.
This Indenture and the Securities shall be governed by and construed in
accordance with the laws of The Commonwealth of Massachusetts.
Section 1.13 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal need not be made at such Place
of Payment on such date, but may be made on the next succeeding Business Day
at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, provided
that no interest shall accrue for the period from and after such Interest
Payment Date, Redemption Date or Stated Maturity, as the case may be.
ARTICLE 2
Security Forms
Section 2.1 Forms Generally
The Securities and the Trustee's certificates of authentication shall be
in substantially the forms as set forth in this Article, with such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture, and may have such letters, numbers
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or other marks of identification and such legends or endorsements placed
thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Securities as evidenced by their execution of such Securities.
The definitive Securities shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities, as
evidenced by their execution of such Securities.
Section 2.2 Form of Face of Security.
Millipore Corporation
6.78% Senior Notes Due 2004
Millipore Corporation, a corporation duly organized and existing under the
laws of Massachusetts (herein called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to , or registered
assigns, the principal sum of 100,000,000 Dollars on March 3, 2004, and to
pay interest thereon from March 3, 1995 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, semi-
annually on March 3 and September 3 in each year, commencing September 3,
1995, at the rate of 6.78% per annum, until the principal hereof is paid or
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the February 3 or August 3
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. Any such interest not so punctually paid or
duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close
of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof shall be given to Holders
of Securities not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of and interest
on this Security will be made at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at any other office or agency maintained by the Company for such
purpose, in any such coin or currency of the United States of America as at
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the time of payment is legal tender for payment of public and private debts;
provided, however, that, upon the written request of an institutional
investor holding not less than $5,000,000 in principal amount of the
Securities, the Company shall pay principal of and interest on such
Securities by bank wire transfer of federal funds directed to such account
with a bank located in the United States as may be designated in such
request, and with respect to all other Holders, at the option of the Company,
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Date: MILLIPORE CORPORATION
By ...........................................
Attest:
..................................................
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Section 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of the
Company designated as its 6.78% Senior Notes Due 2004 (herein called
the "Securities"), limited in aggregate principal amount to $100,000,000,
issued and to be issued under an Indenture, dated May ____, 1995 (herein
called the "Indenture"), between the Company and The First National Bank of
Boston, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered.
The Securities are subject to redemption upon not less than 30 days' nor
more than 60 days' notice by mail, at any time on or after March 30, 1995, as
a whole or in part, at the election of the Company, at a Redemption Price
equal to 100% of the Yield Maintenance Price (as defined in the Indenture),
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest instalments whose Stated Maturity is on or
prior to such Redemption Date will be payable to the Holders of record of
such Securities, or one or more Predecessor Securities, at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture.
In the event of redemption of this Security in part only, a new Security
or Securities for the unredeemed portion hereof will be issued in the name of
the Holder hereof upon the cancellation hereof.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture contains provisions for defeasance at any time of (a) the
entire indebtedness evidenced by this Security and (b) certain restrictive
covenants and certain Events of Default upon compliance by the Company with
certain conditions set forth therein.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture
at any time by the Company and the Trustee with the consent of the Holders of
a majority in aggregate principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders
of a majority in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
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compliance by the Company with certain provisions of the Indenture and
certain past defaults under the Indenture and their consequences. Any such
consent or waiver by the Holder of this Security shall be conclusive and
binding upon such Holder and upon all future Holders of this Security and of
any Security issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver
is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Security at the times, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in the Borough of Manhattan, the City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon
one or more new Securities, of authorized denominations and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities are issuable only in registered form without coupons in
denominations of $1,000 and any integral multiple thereof. As provided in
the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of
securities of a different authorized denomination, as requested by the Holder
surrendering the same.
No service changes shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to
the contrary.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
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Section 2.4 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
[ ]
as Trustee
By____________________________
Authorized Signatory
ARTICLE 3
The Securities
Section 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $100,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other Securities pursuant to Sections 3.4,
3.5, 3.6, 9.6 and 11.7.
The Securities shall be known and designated as the "6.78% Senior Notes
Due 2004" of the Company. Their Stated Maturity shall be March 3,
2004 and they shall bear interest at the rate of 6.78% per annum from March
3, 1995 or from the most recent Interest Payment Date to which interest has
been paid or duly provided for, as the case may be, payable semi-annually on
March 3 and September 3, commencing September 3, 1995 until the principal
thereof is paid or made available for payment.
The principal of and interest on the Securities shall be payable at the
Corporate Trust Office of the Trustee or at any other office or agency
maintained by the Company for such purpose; provided, however, that, upon the
written request of an institutional investor holding not less than $5,000,000
in principal amount of the Securities, the Company shall pay principal of and
interest on such Securities by bank wire transfer of federal funds directed
to such account with a bank located in the United States as may be designated
in such request, and with respect to all other Holders, at the option of the
Company, payment of interest may be made by check mailed to the address of
the person entitled thereto as such address shall appear in the Security
Register.
The Securities shall be redeemable as provided in Article Eleven.
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Section 3.2 Denominations.
The Securities shall be issuable only in registered form without coupons
and only in denominations of $1,000 and any integral multiple thereof.
Section 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Clerk or one of its
Assistant Clerks. The signature of any of these officers on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did
not hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities; and the Trustee in accordance
with such Company Order shall authenticate and deliver such Securities. If
the form or terms of the Securities have been established in or pursuant to
one or more Board Resolutions as permitted by Sections 2.1 and 3.1, in
authenticating such Securities, and accepting the additional responsibilities
under this Indenture in relation to such Securities, the Trustee shall be
entitled to receive, and (subject to Section 6.1) shall be fully protected in
relying upon, an Opinion of Counsel stating,
(a) if the form of any of such Securities has been established by
or pursuant to Board Resolution as permitted by Section 2.1, that such
form has been established in conformity with the provisions of this
Indenture;
(b) that such Securities, when authenticated and delivered by the
Trustee and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute valid
and legally binding obligations of the Company, enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles.
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If such form or terms have been so established, the Trustee shall not be
required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will adversely affect the Trustee's own rights,
duties or immunities under the Securities and this Indenture or otherwise in
a manner which is not reasonably acceptable to the Trustee.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never
issued and sold by the Company, and the Company shall deliver such Security
to the Trustee for cancellation as provided in Section 3.9 for all purposes
of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
Section 3.4 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order from the Company, the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued, with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution of
such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation
of definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the
office or agency of the Company in a Place of Payment, without charge to the
Holder. Upon surrender for cancellation of any one or more temporary
Securities the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive
Securities. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
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Section 3.5 Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office of the
Trustee a register (the register maintained in such office and in any other
office or agency of the Company in a Place of Payment being herein sometimes
collectively referred to as the "Security Register") in which, subject to
such reasonable regulations as it may prescribe, the Company shall provide
for the registration of Securities and of transfers of Securities. The
Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at the
office or agency of the Company in a Place of Payment, the Company shall
execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities, of any
authorized denominations and of a like aggregate principal amount.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Securities to be exchanged at such
office or agency. Whenever any Securities are so surrendered for exchange,
the Company shall execute, and the Trustee shall authenticate and deliver,
the Securities which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities, shall be the valid obligations of the Company evidencing the same
debt, and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or exchange of Securities,
other than exchanges pursuant to Section 3.4, 9.6 or 11.7 not involving any
transfer.
The Company shall not be required (i) to issue, register the transfer of
or exchange any Securities during a period beginning at the opening of
business 15 days before the day of the mailing of a notice of redemption of
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any such Securities under Section 11.3 and ending at the close of business on
the day of such mailing, or (ii) to register the transfer of or exchange any
Security so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of like tenor and principal amount, and bearing a
number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and
(ii) such security or indemnity as may be required by them to save each of
them and any agent of any of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee
shall authenticate and deliver, in lieu of any such destroyed, lost or stolen
Security, a new Security of like tenor and principal amount and bearing a
number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities.
Section 3.7 Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person
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in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder on
the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the Trustee
an amount of money equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date
(the "Special Record Date") for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The
Trustee shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause notice
of the proposed payment of such Defaulted Interest and the Special
Record Date therefor to be given to each Holder of Securities in the
manner set forth in Section 1.6 not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered
at the close of business on such Special Record Date and shall no longer
be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such Securities may be
listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment
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pursuant to this Clause, such manner of payment shall be deemed prac
ticable by the Trustee.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture, upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue interest, which were carried by
such other Security.
Section 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee and any agent of the Company, or the Trustee may treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Section 3.7) interest on such Security and for all other purposes whatsoever,
whether or not such Security be overdue, and neither the Company, the Trustee
nor any agent of the Company, or the Trustee shall be affected by notice to
the contrary.
Section 3.9 Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange shall, if surrendered to any Person other than the
Trustee, be delivered to the Trustee and shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture.
All cancelled Securities held by the Trustee shall be disposed of as directed
by a Company Order from the Company.
Section 3.10 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
ARTICLE 4
Satisfaction and Discharge
Section 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request from the Company cease to be
of further effect (except as to any surviving rights of registration of
transfer or exchange of securities herein expressly provided for), and the
Trustee, at the expense of the Company, shall execute proper instruments
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acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section
3.6 and (ii) Securities for whose payment money has theretofore
been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from
such trust, as provided in Section 10.3) have been delivered to the
Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving
of notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
in trust for the purpose an amount sufficient to pay and discharge
the entire indebtedness on such Securities not theretofore
delivered to the Trustee for cancellation, for principal and
interest to the date of such deposit (in the case of Securities
which have become due and payable) or to the Stated Maturity or
Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations
of the Trustee to any Authenticating Agent under Section 6.14 and, if money
shall have been deposited with the Trustee pursuant to subclause (B) of
clause (1) of this Section, the obligations of the Trustee under Section 4.2
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and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Money.
Subject to provisions of the last paragraph of Section 10.3, all money
deposited with the Trustee pursuant to Section 4.1, all money and U.S.
Government Obligations deposited with the Trustee pursuant to Section 12.2 or
Section 12.3 and all money received by the Trustee in respect of U.S.
Government Obligations deposited with the Trustee pursuant to Section 12.2 or
Section 12.3, shall be held in trust and applied by it, in accordance with
the provisions of the Securities and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest for whose payment such money has
been deposited with or received by the Trustee as contemplated by Section
4.1, Section 12.2 or Section 12.3.
ARTICLE 5
Remedies
Section 5.1 Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
(1) default in the payment of any interest upon any Security when
it becomes due and payable, and continuance of such default for a period
of 5 days; or
(2) default in the payment of the principal of any Security at its
Maturity; or
(3) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 30 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to the
Company and the Trustee by the Holders of at least 10% in principal
amount of the Outstanding Securities a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
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(4) a default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any Subsidiary or
under any mortgage, indenture or instrument under which there may be
issued or by which there may be secured or evidenced any indebtedness
for money borrowed by the Company, having an aggregate principal amount
outstanding which, when aggregated with all such other indebtedness then
in default, is in excess of $5,000,000 (other than the Outstanding
Securities), whether such indebtedness now exists or shall hereafter be
created, which default shall constitute a failure to pay any portion of
the principal of such indebtedness when due and payable after the
expiration of any applicable grace period with respect thereto or shall
have resulted in such indebtedness (in the aggregate in excess of
$5,000,000) becoming or being declared due and payable prior to the date
on which it would otherwise have become due and payable, without such
indebtedness having been discharged, or such acceleration having been
rescinded or annulled, within a period of 30 days after there shall have
been given, by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 10%
in principal amount of the Outstanding Securities, a written notice
specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded
or annulled and stating that such notice is a "Notice of Default"
hereunder; or
(5) the entry by a court having jurisdiction in the premises of
(A) a decree or order for relief in respect of the Company or any
Signficant Subsidiary in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any
signficant subsidiary a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company or any signficiant
subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
other similar official of the Company or any Significant Subisidary or
of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(6) the commencement by the Company or any Significant Subsidiary
of a voluntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or of any
other case or proceeding to be adjudicated a bankrupt or insolvent, or
the consent by it to the entry of a decree or order for relief in
respect of the Company or any Siginficant Subsidiary in an involuntary
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case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or to the commencement
of any bankruptcy or insolvency case or proceeding against it, or the
filing by it of a petition or answer or consent seeking reorganization
or relief under any applicable Federal or State law, or the consent by
it to the filing of such petition or to the appointment of or taking pos
session by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Significant
Subsidiary or of any substantial part of its property, or the making by
either of them of an assignment for the benefit of creditors, or the
admission by either of them in writing of its inability to pay its debts
generally as they become due, or the taking of corporate action by the
Company or any Significant Subsidiary in furtherance of any such action.
Subject to the provisions of Section 6.1 hereof, the Trustee shall not be
deemed to have knowledge of an Event of Default hereunder (except for those
described in paragraphs (1) and (2) above) unless a Responsible Officer has
received written notice thereof.
Section 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of
the Outstanding Securities may declare the principal amount of all of the
Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by Holders), and upon any such
declaration such principal shall become immediately due and payable.
At any time after such a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article provided, the Holders of a
majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and
its consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates prescribed therefor in such
Securities,
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(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of Securities which have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 5.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest becomes due and payable and such default continues
for a period of 30 days; or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of
the Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and
on any overdue interest, at the rate or rates prescribed therefor in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
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Section 5.4 Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company, (or any
other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled to take any and all actions authorized under the
Trust Indenture Act in order to have claims of the Holders and the Trustee
allowed in any such proceeding. In particular, the Trustee shall be
authorized to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar
official in any such judicial proceeding is hereby authorized by each Holder
to make such payments to the Trustee and, in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any
other amounts due the Trustee under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding; provided,
however, that the Trustee, may, on behalf of the Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any
of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought
in its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
be for the ratable benefit of the Holders of the Securities in respect of
which such judgment has been recovered.
Section 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal or
interest, upon presentation of the Securities and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee under Section
6.7; and
SECOND: To the payment of the amounts then due and unpaid for
principal of and interest on the Securities in respect of which or for
the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities for principal and interest, respectively.
Section 5.7 Limitation on Suits.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all of such Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium and
Interest.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of and (subject to Section 3.7) interest on
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such Security on the Stated Maturity or Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
Section 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the
Holders shall continue as though no such proceeding had been instituted.
Section 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent
the concurrent assertion or employment of any other appropriate right or
remedy.
Section 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Securities
to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of
Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
Section 5.12 Control by Holders.
The Holders of a majority in principal amount of
the Outstanding Securities shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the Trustee, with
respect to the Securities, provided that
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture, nor subject the Trustee to a material risk of
personal liability, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
Section 5.13 Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities may on behalf of the Holders of all the Securities
waive any past default hereunder and its consequences, except a default
(1) in the payment of the principal of or interest on any
Outstanding Securities, or
(2) in respect of a covenant or provision hereof which under
Article Ten cannot be modified or amended without the consent of the
Holder of each Outstanding Security.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent
or other default or impair any right consequent thereon.
Section 5.14 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as Trustee, the court may require any party litigant in such
suit to file an undertaking to pay the costs of such suit, and may assess
costs against any such party litigant, in the manner and to the extent
provided in the Trust Indenture Act; provided that neither this Section nor
the Trust Indenture Act shall be deemed to authorize any court to require
such an undertaking or to make such an assessment in any suit instituted by
the Company.
Section 5.15 Waiver of Usury, Stay or Extension Laws.
The Company covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any usury, stay or extension law wherever
enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the
extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had
been enacted.
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ARTICLE 6
The Trustee
Section 6.1 Certain Duties and Responsibilities.
The duties and responsibilities on the Trustee shall be as provided by
the Trust Indenture Act. Notwithstanding the foregoing, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Trustee shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults.
If a default occurs hereunder with respect to the Securities, the
Trustee shall give the Holders of Securities notice of such default hereunder
known to the Trustee, as and to the extent provided in the Trust Indenture
Act; provided, however, that in the case of any default of the character
specified in Section 5.1(3) with respect to the Securities, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
For the purpose of this Section, the term "default" means any event which is,
or after notice or lapse of time or both would become, an Event of Default
with respect to the Securities.
Section 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order, or as
otherwise expressly provided herein, and any resolution of the Board of
Directors of the Company shall be sufficiently evidenced by a Board
Resolution;
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(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
(f) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder.
Section 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificates of authentication, shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations
as to the validity or sufficiency of this Indenture or of the Securities.
The Trustee or any Authenticating Agent shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
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Section 6.5 May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, or of the Trustee, in its
individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 6.8 and 6.13, may otherwise deal with the
Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other agent.
Section 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under
no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 6.7 Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse
the Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation and
the expenses and disbursements of its agents and counsel), except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(3) to indemnify the Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith
on its part, arising out of or in connection with the acceptance or
administration of the trust, including the costs and expenses of
defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
When the Trustee and its agents and any Authenticating Agent incur expenses
or render services after an Event of Default specified in Sections 5.1(5) or
(6) occurs, the expenses and compensation for the services are intended to
constitute expenses of administration under any bankruptcy, insolvency or
similar laws.
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Section 6.8 Conflicting Interests.
If the Trustee has or shall acquire any conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject
to the provisions of the Trust Indenture Act and this Indenture. To the
extent permitted by such Act, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under another indenture
which is a collateral trust indenture under which the only collateral
consists of Securities issued under this Indenture, or as a trustee under any
indenture or indentures under which other securities, or certificates of
interest or participation in other securities, of the Company are
outstanding, if
(1) this Indenture and such other indenture or indentures are
wholly unsecured and such other indenture or indentures are hereafter
qualified under the Trust Indenture Act, unless the Commission shall
have found and declared by order pursuant to Section 305(b) or Section
307(c) of the Trust Indenture Act that differences exist between the
provisions of this Indenture and the provisions of such other indenture
or indentures which are so likely to involve a material conflict of
interest as to make it necessary in the public interest or for the
protection of investors to disqualify the Trustee from acting as such
under this Indenture and such other indenture or indentures, or
(2) the Company shall have sustained the burden of proving, on
application to the Commission and after opportunity for hearing thereon,
that the trusteeship under this Indenture and such other indenture or
indentures is not so likely to involve a material conflict of interest
as to make it necessary in the public interest or for the protection of
investors to disqualify the Trustee from acting as such under one of
such indentures.
Section 6.9 Corporate Trustee Required; Eligibility
There shall at all times be one (and only one) Trustee with respect to
the Securities, which shall be a Person eligible pursuant to the Trust
Indenture Act to act as such, and has a combined capital and surplus of at
least $50,000,000. If such Person publishes reports of condition at least
annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section and to the extent
permitted by the Trust Indenture Act, the combined capital and surplus of
such Person shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee with respect to the Securities shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately
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in the manner and with the effect hereinafter specified in this Article.
Section 6.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.11.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee
required by Section 6.11 shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee
may petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Securities, delivered to the
Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company, for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9 and
shall fail to resign after written request therefor by the Company or
any such Holders, or
(3) the Trustee shall become incapable of acting or shall be
adjudged bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor Trustee or
Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause,
the Company, by a Board Resolution, shall promptly appoint a successor
Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
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appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment in accordance with the applicable requirements of Section 6.11,
become the successor Trustee and supersede the successor Trustee appointed by
the Company. If no successor Trustee shall have been so appointed by the
Company or the Holders and accepted appointment in the manner required by
Section 6.11, any Holder who has been a bona fide Holder of a Security for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 1.6. Each notice shall include
the name of the successor Trustee and the address of its Corporate Trust
Office.
Section 6.11 Acceptance of Appointment by Successor.
(a) In case of the appointment hereunder of a successor Trustee, every
such successor Trustee so appointed shall execute, acknowledge and deliver to
the Company and the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all
the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder.
(b) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) of this Section.
(c) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
Section 6.12 Merger, Conversion, Consolidation or Succession to Business
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all the corporate trust
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business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
Section 6.13 Preferential Collection of Claims.
If and when the Trustee shall be or become a creditor of the Company,
the Trustee shall be subject to the provisions of the Trust Indenture Act
regarding the collection of claims against the Company (or any such other
obligor).
Section 6.14 Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which shall be
authorized to act on behalf of the Trustee to authenticate Securities issued
upon original issue and upon exchange, registration of transfer or partial
redemption thereof or pursuant to Section 3.6, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall
be valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication, such reference shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee
by an Authenticating Agent. Each Authenticating Agent shall be acceptable to
the Company and shall at all times be a corporation organized and doing
business under the laws of the United States of America, any State thereof or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually,
pursuant to law or to the requirements of said supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such Authenticating Agent shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. If at any time an Authenticating Agent shall cease to be eligible
in accordance with the provisions of this Section, such Authenticating Agent
shall resign immediately in the manner and with the effect specified in this
Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating
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Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be
an Authenticating Agent, provided such corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or
any further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time
terminate the agency of an Authenticating Agent by giving written notice
thereof to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment in the manner provided in Section 1.6 to all
Holders. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and
duties of its predecessor hereunder, with like effect as if originally named
as an Authenticating Agent. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section, and the Trustee
shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 6.7.
If an appointment is made pursuant to this Section, the Securities may
have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternative certificate of authentication in the following
form:
This is one of the Securities designated therein referred to in the
within-mentioned Indenture.
The First National Bank of Boston,
As Trustee
By_________________________________
As Authenticating Agent
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By_________________________________
Authorized Officer
ARTICLE 7
Holders' Lists and Reports by Trustee and Company
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semiannually, not more than 15 days after each Regular Record
Date a list in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company or the Guarantor of any
such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in
its capacity as Security Registrar.
Section 7.2 Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustees, shall be as provided by
the Trust Indenture Act,
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company, nor the
Trustee nor any agent of either of them shall be held accountable by reason
of the disclosure of any such information as to the names and addresses of
the Holders made pursuant to the Trust Indenture Act.
Section 7.3 Reports by Trustee.
The Trustee shall transmit to all Holders such reports concerning the
Trustee and its actions under this Indenture as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
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thereto. A copy of each such report shall, at the time of such transmission
to Holders, be filed by the Trustee with each stock exchange upon which any
Securities are listed, with the Commission and with the Company. The Company
will notify the Trustee when any Securities are listed on any stock exchange.
Section 7.4 Reports by Company.
The Company shall file with the Trustee and the Commission, and transmit
to Holders, such information, documents and other reports, and such summaries
thereof, as may be required pursuant to the Trust Indenture Act at the times
and in the manner provided pursuant to such Act; provided that any such
information, documents and reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934, as
amended, shall be filed with the Trustee within 15 days after the same is so
required to be filed with the Commission.
ARTICLE 8
Consolidation, Merger, Conveyance, Transfer or Lease
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(1) the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company,
substantially as an entirety shall be a corporation, partnership or
trust organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the
Trustee, the due and punctual payment of the principal of and interest
on all the Securities and the performance and observance of every
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction and
treating any Indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no Event
of Default, and no event which, after notice or lapse of time or both,
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would become an Event of Default, shall have happened and be continuing;
(3) if, as a result of any such consolidation or merger or such
conveyance, transfer or lease, properties or assets of the Company would
become subject to a mortgage, pledge, lien, security interest or other
encumbrance which would not be permitted by this Indenture, the Company
or such successor corporation or Person, as the case may be, shall take
such steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all Indebtedness secured thereby;
and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolida
tion, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 8.2 Successor Corporation Substituted.
Upon any consolidation by the Company with or merger by the Company into
any other Person or any conveyance, transfer or lease of the properties and
assets of the Company, substantially as an entirety in accordance with
Section 8.1, the successor Person formed by such consolidation or into which
the Company is merged or to which such conveyance, transfer or lease is made
shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except
in the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 9
Supplemental Indentures
Section 9.1 Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when authorized by a
Board Resolution, and the Trustee, at any time and from time to time, may
enter into one or more indentures supplemental hereto, in form satisfactory
to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company,
and the assumption by any such successor of the covenants of the Company
herein and in the Securities; or
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(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to add to or change any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the issuance
of Securities in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Securities in uncertificated form; or
(4) to secure the Securities pursuant to the requirements of
Section 8.1(3) or Section 10.5 or otherwise; or
(5) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action
pursuant to this clause (5) shall not adversely affect the interests of
the Holders of Securities in any material respect.
Section 9.2 Supplemental Indentures with Consent of Holders.
With the consent of the Holders of not less than a majority in principal
amount of the Outstanding Securities by Act of said Holders delivered to the
Company and the Trustee, the Company, when authorized by a Board Resolution,
and the Trustee may enter into an indenture or indentures supplemental hereto
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; provided, however,
that no such supplemental indenture shall, without the consent of the Holder
of each Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal amount
thereof or the rate of interest thereon or change any Place of Payment
where, or the coin or currency in which, any Security or the interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date), or
(2) reduce the percentage in principal amount of the Outstanding
Securities, the consent of whose Holders is required for any such
supplemental indenture, or the consent of whose Holders is required for
any waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in this
Indenture, or
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(3) modify any of the provisions of this Section, Section 5.13 or
Section 10.8 except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
It shall not be necessary for any Act of Holders under this Section to
approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 9.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby
of the trusts created by this Indenture, the Trustee shall be entitled to
receive, and (subject to Section 6.1) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such supplemental
indenture is authorized or permitted by this Indenture. The Trustee may, but
shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee's own rights, duties, or immunities or liabilities under
this Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 9.5 Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared
and executed by the Company, and be authenticated and delivered by the
Trustee in exchange for Outstanding Securities.
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ARTICLE 10
Covenants
Section 10.1 Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
Section 10.2 Maintenance of Office or Agency.
The Company will maintain in each Place of Payment of Securities an
office or agency where Securities may be presented or surrendered for
payment, and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for
any or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in each
Place of Payment for Securities for such purposes. The Company will give
prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
Section 10.3 Money for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum sufficient to pay the principal or interest so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided and will promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest
so becoming due, such sum to be held as provided in the Trust Indenture Act
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and (unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee, subject to the provisions of this Section, that
such Paying Agent will
(1) comply with the provisions of the Trust Indenture Act
applicable to it as Paying Agent and
(2) during the continuance of any default by the Company, in the
making of any payment in respect of the Securities, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent for payment in respect of the Securities.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such money.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of or interest on
any Security and remaining unclaimed for two years after such principal or
interest has become due and payable shall be paid to the Company on Company
Request, or (if then held by the Company) shall be discharged from such
trust; and the Holder of such Security shall thereafter, as an unsecured
general creditor, look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust
money, and all liability of the Company as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause
to be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in the
Borough of Manhattan, City of New York, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less
than 30 days from the date of such publication, any unclaimed balance of such
money then remaining will be repaid to the Company.
Section 10.4 Corporate Existence.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence.
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Section 10.5 Limitation on Liens.
Neither the Company nor any of its Subsidiaries shall mortgage or
pledge, or permit to be created any mortgage, pledge or other lien or
encumbrance (such mortgages, pledges, liens or encumbrances being referred to
herein as "Liens") upon any of its property or assets to secure Indebtedness,
and shall from time to time take such steps as may be necessary effectively
to prevent any Subsidiary from mortgaging or pledging, or permitting any Lien
to be created upon any of the property or assets of such Subsidiary to secure
Indebtedness, without making effective provisions whereby the Securities then
outstanding shall be secured by such Lien equally and ratably with the
Indebtedness thereby secured, so long as any such other Indebtedness is so
secured; provided, however, that nothing contained in this Section 10.5 shall
prevent, restrict or apply to:
(1) Liens existing on the date hereof securing Indebtedness
outstanding on the date hereof;
(2) Liens existing on any asset or shares of stock of any
corporation at the time such corporation becomes a Subsidiary;
(3) Liens on any asset securing Indebtedness incurred or assumed
for the purpose of financing all or any part of the cost of acquiring,
constructing, improving or repairing such asset (including, without
limitation, Liens incurred in connection with industrial revenue bonds),
provided that such Lien attaches to such asset concurrently with or
within 120 days after the acquisition, construction, improvement or
repair thereof;
(4) Liens on any asset or shares of stock of any corporation
existing at the time such corporation is merged into or consolidated
with the Company or a Subsidiary;
(5) Liens existing on any asset or shares of stock prior to the
acquisition thereof by the Company or a Subsidiary;
(6) Liens arising pursuant to any statute or order of attachment,
distraint or similar legal process arising in connection with court
proceedings so long as the execution or other enforcement thereof is
effectively stayed and the claims secured thereby are being contested in
good faith by appropriate proceedings;
(7) Liens securing Indebtedness of a Subsidiary owing to the
Company or another Subsidiary;
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(8) Liens securing taxes, assessments or governmental charges not
yet delinquent or being contested in good faith by appropriate
proceedings;
(9) Liens securing obligations owing to landlords and mechanics
and materialmen incurred in the ordinary course of business for sums not
yet due or being contested in good faith by appropriate proceedings; and
(10) Liens arising out of the refinancing, extension, renewal or
refunding of any Indebtedness secured by any Lien permitted by any of
the foregoing clauses of this Section, provided that such Indebtedness
is not increased above the amount outstanding at the time of refinancing
and is not secured by any additional assets.
Notwithstanding the foregoing provisions of this Section 10.5, the
Company and its Subsidiaries may, without securing the Securities then
outstanding, create Liens securing Indebtedness which would otherwise be
subject to the foregoing restrictions in an aggregate amount (including the
value of any Sale and Leaseback Transaction not otherwise permitted by
Section 10.6 or clauses (1) through (10) of this Section 10.5) which does not
at the time exceed 15% of Consolidated Net Tangible Assets.
Section 10.6 Limitation on Sale and Leaseback Transactions.
The Company will not, and will not permit any Restricted Subsidiary to,
sell or transfer any Important Property owned by it with the intention of
taking back a lease on such property (a "Sale and Leaseback Transaction")
unless the Company or such Restricted Subsidiary would be entitled, pursuant
to the provisions of this Indenture, to incur Secured Debt equal in amount to
the amount of the Attributable Debt resulting from such Sale and Leaseback
Transaction without equally and ratably securing the Securities. This
covenant shall not apply to Attributable Debt with respect to any Sale and
Leaseback Transaction if:
(a) the lease in such Sale and Leaseback Transaction is for a
period not exceeding three years and the Company or the Restricted
Subsidiary which is a party to such lease intends that its use of such
property will be discontinued on or before the expiration of such
period; or
(b) the sale or transfer of the Important Property is made prior
to, at the time of, or within 180 days after the later of the date of
the acquisition (including acquisition through merger or consolidation)
of such Important Property or the completion or construction thereof; or
(c) the Company or Restricted Subsidiary applies an amount equal
to the value of the property so leased (as determined in any manner
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approved by the Board of Directors) to (i) the retirement, within 180
days after the effective date of such arrangement, of any part of
Consolidated Funded Debt or (ii) the purchase of other property which
will constitute an Important Property or Important Properties, or both
(i) and (ii); provided, however, that the amount to be so applied to the
retirement of Consolidated Funded Debt or the purchase of Important
Property may be reduced by (i) the principal amount of any Securities
delivered within 180 days before or after the effective date of any such
arrangement to the Trustee for retirement or cancellation, and (ii) the
principal amount of any Consolidated Funded Debt, other than Securities,
retired by the Company or a Restricted Subsidiary within 180 days before
or after the effective date of any such arrangement. Notwithstanding
the foregoing, no retirement referred to in this clause (c) may be
effected by payment at maturity or pursuant to any mandatory sinking
fund payment or any mandatory prepayment provision or by retirement of
Consolidated Funded Debt of the Company which is subject and
subordinated in right of payment to the obligations of the Company in
respect of the Securities; or
(d) the lease in such Sale and Leaseback Transaction secures or
relates to obligations issued by a governmental body, to finance the
acquisition or construction of property; or
(e) the Sale and Leaseback Transaction is between or among the
Company and one or more Restricted Subsidiaries or between or among
Restricted Subsidiaries.
Section 10.7 Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the end
of each Fiscal Year of the Company ending after the date hereof, an Officers'
Certificate, stating whether or not, to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any
of the terms, provisions and conditions of Sections 10.5 to 10.6 inclusive
(without regard to any period of grace or requirement of notice provided
hereunder), and if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
Section 10.8 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any term,
provision or condition set forth in any covenant pursuant to Sections 10.5
and 10.6, inclusive, if before the time for such compliance the Holders of at
least a majority in principal amount of the Outstanding Securities shall, by
Act of such Holders, either waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
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such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE 11
Redemption of Securities
Section 11.1 Applicability of Article.
Securities which are redeemable at the election of the Company or as
otherwise required by any provision of this Indenture shall be redeemable in
accordance with such provision and this Article.
Section 11.2 Election to Redeem; Notice to Trustee.
Securities may be redeemed at the election of the Company at any time as
a whole, or in part from time to time (in multiples of $1,000,000 principal
amount), at the Yield Maintenance Price. The election of the Company to
redeem any Securities shall be evidenced by a Board Resolution. In case of
any redemption at the election of the Company of less than all the
Securities, the Company shall, at least 60 days prior to the Redemption Date
fixed by the Company (unless a shorter notice shall be satisfactory to the
Trustee), notify the Trustee of such Redemption Date, the principal amount of
Securities to be so redeemed and the interest that has accrued thereon to the
Redemption Date.
Promptly after each such Calculation Date, the Company shall deliver to
the Trustee and each Holder a certificate signed by a
principal financial officer of the Company setting forth the Yield
Maintenance Price of the principal amount of the Securities held by such
Holder so to be redeemed which certificate sets forth in reasonable detail
the computation of the Yield Maintenance Price of the Securities held
by such Holder. The Yield Maintenance Price set forth in such certificate
shall be binding on the company and such Holder, absent manifest error.
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Section 11.3 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities not
previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption
of a portion (equal to $1,000 or any integral multiple thereof) of the
principal amount of Securities of a denomination larger than $1,000.
The Trustee shall promptly notify the Company in writing of the
Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has
been or is to be redeemed.
Section 11.4 Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) if less than all the Outstanding Securities are to be redeemed, the
identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
(3) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and, if applicable, that
interest thereon will cease to accrue on and after said date; and
(4) the place or places where each such Security is to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
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Section 11.5 Deposit of Redemption Price.
Prior to, but in no event more than five (5) days prior to, any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate and
hold in trust as provided in Section 10.3) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an
Interest Payment Date) accrued interest on, all the Securities which are to
be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest) such
Securities shall cease to bear interest. Upon surrender of any such Security
for redemption in accordance with said notice, such Security shall be paid by
the Company at the Redemption Price, together with accrued interest to the
Redemption Date; provided, however, that, installments of interest whose
Stated Maturity is on or prior to the Redemption Date will be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered
as such at the close of business on the relevant Record Dates according to
their terms and the provisions of Section 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear
interest from the Redemption Date at the rate prescribed therefor in the
Security.
Section 11.7 Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be surrendered
at a Place of Payment therefor (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of such
Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal
of the Security so surrendered.
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ARTICLE 12
Defeasance and Covenant Defeasance
Section 12.1 Applicability of Article; Company's Option to Effect Defeasance
or Covenant Defeasance.
The Company may elect, at its option at any time, to have Section 12.2
or Section 12.3 applied to any Securities upon compliance with the conditions
set forth in this Article. Any such election shall be evidenced by a Board
Resolution.
Section 12.2 Defeasance and Discharge
Upon the Company's exercise of the above option (if any) applicable to
this Section applied to any Securities, the Company shall be deemed to have
been discharged from its obligations with respect to the Securities, as
provided in this Section on and after the date the conditions set forth in
Section 12.4 are satisfied (hereinafter, called "defeasance"). For this
purpose, such defeasance means that the Company shall be deemed to have paid
and discharged the entire indebtedness represented by such Securities and to
have satisfied all its other obligations under such Securities and this
Indenture insofar as such Securities are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), subject to the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Securities to receive, solely from the trust fund described in Section 12.4
and as more fully set forth in such Section, payments in respect of the
principal of and interest on such Securities when payments are due, (B) the
Company's obligations with respect to such Securities under Sections 3.4,
3.5, 3.6, 10.2 and 10.3, (C) the rights, powers, trusts, duties, and
immunities of the Trustee hereunder and (D) this Article Twelve. Subject to
compliance with this Article Twelve, the Company may exercise its option (if
any) under this Section 12.2 applied to any Securities notwithstanding the
prior exercise of its option (if any) to have Section 12.3 applied to such
Securities.
Section 12.3 Covenant Defeasance.
Upon the Company's exercise of the above option applicable to this
Section applied to any Securities, as the case may be, (A), the Company shall
be released from its obligations under Sections 10.5 and 10.6 and the failure
to comply with any such covenants, and (B) the occurrence of an event
specified in Section 5.1(4) shall be deemed not to be or result in an Event
of Default, in each case with respect to such Securities as provided in this
Section, on and after the date the conditions set forth in Section 12.4 are
satisfied (hereinafter, "covenant defeasance"). For this purpose, such
covenant defeasance means that, with respect to such Securities, the Company
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may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such specified Section, whether
directly or indirectly by reason of any reference elsewhere herein to any
such Section or by reason of any reference in any such Section to any other
provision herein or in any other document, but the remainder of this
Indenture and such Securities shall be unaffected thereby.
Section 12.4 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of either Section
12.2 or Section 12.3 to any Securities:
(a) the Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee which satisfies the
requirements contemplated by Section 6.9 and who agrees to comply with the
provisions of this Article Twelve applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the holders of such
Securities, (A) money in an amount, or (B) U.S. Government Obligations which
through the scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before the
due date of any payment, money in an amount, or (C) a combination thereof, in
each case sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge the principal of and any
premium and interest on such Securities on the respective Stated Maturities,
in accordance with the terms of this Indenture and of such Securities. As
used herein, "U.S. Government Obligations" means securities that are (x)
direct obligations of the United States of America for the payment of which
its full faith and credit is pledged or (y) obligations of a Person
controlled or supervised by and acting as an agency or instrumentality of the
United States of America the payment of which is unconditionally guaranteed
as a full faith and credit obligation by the United States of America, which,
in either case, are not callable or redeemable at the option of the issuer
thereof, and shall also include a receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligation or a specific payment of
principal of or interest on any such U.S. Government Obligation held by such
custodian for the account of the holder of such depository receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of principal of or interest on the U.S.
Government Obligation evidenced by such depository receipt.
(b) In the case of an election to have Section 12.2 apply to any
Securities, the Company shall have delivered to the Trustee an Opinion of
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Counsel stating that (x) the Company has received from, or there has been
published by, the Internal Revenue Service a ruling, or (y) since the date of
this Indenture there has been a change in the applicable Federal income tax
law, in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Securities will not recognize gain or loss
for Federal income tax purposes as a result of the deposit, defeasance and
discharge to be effected with respect to such Securities and will be subject
to Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(c) In the case of an election to have Section 12.3 apply to any
Securities, the Company shall have delivered to the Trustee an Opinion of
Counsel to the effect that the Holders of such Securities will not recognize
gain or loss for Federal income tax purposes as a result of such deposit and
covenant defeasance to be effected with respect to such Securities and will
be subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance had
not occurred.
(d) The Company shall have delivered to the Trustee an Officer's
Certificate to the effect that such Securities, if then listed on any
securities exchange, will not be delisted as a result of such deposit.
(e) No event which is, or after notice or lapse of time or both would
become, an Event of Default with respect to such Securities or any other
Securities shall have occurred and be continuing at the time of such deposit
or, with regard to any such event specified in Section 5.1(5) and (6), at any
time on or prior to the 90th day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until after such
90th day).
(f) Such defeasance or covenant defeasance shall not cause the Trustee
to have a conflicting interest within the meaning of the Trust Indenture Act
(assuming all Securities are in default within the meaning of such Act).
(g) Such defeasance or covenant defeasance shall not result in a breach
or violation of, or constitute a default under, any other agreement or
instrument to which the Company is a party or by which it is bound.
(h) Such defeasance or covenant defeasance shall not result in the
trust arising from such deposit constituting an investment company within the
meaning of the Investment Company Act of 1940 unless such trust shall be
registered under such Act or exempt from registration thereunder.
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(i) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent provided for relating to either the defeasance under Section 12.2
or the covenant defeasance under Section 12.3 (as the case may be) have been
complied with.
Section 12.5 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to the provisions of the last paragraph of Section 10.3, all
money and U.S. Government Obligations (including the proceeds thereof)
deposited with the Trustee or other qualifying trustee, (solely for purposes
of this Section 12.5 and Section 12.6, the Trustee and any such other trustee
are referred to collectively as the "Trustee") pursuant to Section 12.4 in
respect of the Outstanding Securities shall be held in trust and applied by
the Trustee, in accordance with the provisions of such Securities and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Holders of such Securities, of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest, but
such money need not be segregated from other funds except to the extent
required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the U.S. Government Obligations
deposited pursuant to Section 12.4 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of the Outstanding Securities.
Anything in this Article Twelve to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or U.S. Government Obligations held by it as provided in
Section 12.4 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof
delivered to the Trustee, are in excess of the amount thereof which would
then be required to be deposited to effect an equivalent defeasance or
covenant defeasance.
Section 12.6 Reinstatement.
If the Trustee or the Paying Agent is unable to apply any money in
accordance with this Article with respect to any Securities by reason of any
order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application, then the obligations
under this Indenture and such Securities from which the Company has been
discharged or released pursuant to Section 12.2 or 12.3 shall be revived and
reinstated as though no deposit had occurred pursuant to this Article with
respect to such Securities, until such time as the Trustee or Paying Agent is
60
<PAGE>
permitted to apply all money held in trust pursuant to Section 12.5 with
respect to such Securities in accordance with this Article; provided,
however, that if the Company makes any payment of principal of or any premium
or interest on any such Security following such reinstatement of its
obligations, the Company shall be subrogated to the rights (if any) of the
Holders of such Securities to receive such payment from the money so held in
trust.
* * * *
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
MILLIPORE CORPORATION
By________________________________
Title: Senior Vice President
Attest:
______________________
Assistant Clerk
THE FIRST NATIONAL BANK OF BOSTON,
as Trustee
By______________________________
Title:
Attest:
___________________________
Assistant Cashier
61
<PAGE>
County of __________)
) ss.:
State of __________ )
On the ___ day of May, 1995, before me personally came Geoffrey Nunes,
to me known, who, being by me duly sworn, did depose and say that he is
Senior Vice President of Millipore Corporation, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation, and that he signed his name thereto by like authority.
_______________________________________
[Notary Seal]
62
<PAGE>
County of Norfolk )
) ss.:
Commonwealth of Massachusetts )
On this day of May in the year of 1995 before me personally came
, to me personally known, who being by me duly sworn did depose and say that
he is Assistant Cashier of The First National Bank of Boston, one of the
corporations described in and which executed the foregoing Indenture; that he
knows the seal of said corporation; that the seal affixed to said instrument
opposite the execution thereof on behalf of said corporation is the corporate
seal of said corporation; that said instrument was signed and said corporate
seal was so affixed on behalf of said corporation by authority and order of
its board of directors; that he signed his name thereto by like authority;
and he acknowledged said instrument to be his free act and deed and the free
act and deed of said .
IN WITNESS WHEREOF I have hereunto set my hand and affixed my official
seal, at ________ in said Commonwealth of Massachusetts, the day and year
first above written.
[Notary Public]
63
<PAGE>
EXHIBIT 5
March 15, 1995
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
Re: Registration Statement on Form S-4
Ladies and Gentlemen:
This opinion is furnished to you in connection with a registration
statement (the "Registration Statement") on Form S-4 to be filed with the
Securities and Exchange Commission under the Securities Act of 1933, as
amended, for the registration of $100,000,000 principal amount of 6 7/8%
Senior Notes Due 2004, Series B (the "Debt Securities"), of Millipore
Corporation (the "Company") to be issued under an Indenture (the "Indenture")
to be entered into between you and The First National Bank of Boston, as
Trustee (the "Trustee").
We have acted as counsel for the Company in connection with the proposed
issue and sale of the Debt Securities and the preparation of the Registration
Statement. For purposes of this opinion, we have examined and relied upon
the information set forth in the registration statement and such other
documents and records as we have deemed necessary.
Basing our opinion on the foregoing, we are of the opinion that:
(1) When the Registration Statement relating to the Debt Securities
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended, has been declared effective; and when the Indenture has
been qualified under the Trust Indenture Act of 1939; no further
authorization, consent or approval by any regulatory authority will be
required for the valid issuance and sale of the Debt Securities (except under
the so-called "blue-sky" or securities laws of the several states, as to the
applicability of which we do not express an opinion);
(2) when the Board of Directors of the Company or committee designated
thereby or other designee thereof have fixed the price and other terms and
conditions relating to the issue and sale of
<PAGE>
Millipore Corporation -2- March 15, 1995
the Debt Securities, the Debt Securities will have been duly authorized by
the Company;
(3) upon the execution and filing with the Trustee of the proper
papers, the Debt Securities will be issuable under the terms of the
Indenture; and
(4) upon the execution, certification and delivery of the Debt
Securities in accordance with the corporate authorizations referred to above
and in accordance with the Indenture, the Debt Securities will be valid and
legally binding obligations of the Company and the Debt Securities will be
entitled to the benefits and security provided by the Indenture together with
any other series of securities of the Company which may hereafter be issued
thereunder pursuant to the terms thereof; except that enforcement of the
rights and remedies created thereby is subject to bankruptcy, reorganization,
insolvency or similar laws affecting creditors' rights generally, as may from
time to time be in effect, and by the availability of specific performance or
of injunctive relief which is subject to the discretion of the court before
which any proceeding may be brought.
We understand that this opinion is to be used in connection with the
Registration Statement relating to the Debt Securities to be filed with the
Securities and Exchange Commission. We consent to the filing of this opinion
with and as a part of said Registration Statement and the use of our name
therein and in the related Prospectus under the caption "Legal Opinions".
Very truly yours,
Ropes & Gray
SFS/mcc
<PAGE>
Millipore Corporation
Exhibit 12
Computation of Ratio of Earnings from Continuing Operations
to Fixed Charges
1990 thru 1994
1990 1991 1992 1993 1994
Earnings from continuing
operations $29,755 $35,920 $35,536 $48,998 $59,609
Add: Provision for
income taxes 13,629 14,570 10,317 14,225 17,306
Fixed Charges 9,062 12,119 12,403 12,064 5,900
Earnings from continuing
operations before taxes
and fixed charges 52,446 62,609 58,256 75,287 82,815
Divided by Fixed charges 9,062 12,119 12,403 12,064 5,900
5.79 5.17 4.69 6.24 14.04
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Officers and
Directors of Millipore Corporation (the "Corporation") do hereby constitute
and appoint John A. Gilmartin, Geoffrey Nunes, and Michael P. Carroll, and
each of them individually, their true and lawful attorneys and agents to
execute on behalf of the Corporation, a Registration Statement on Form S-4
registering with the Securities and Exchange Commission $100,000,000
principal amount of its 6.78% Senior Notes due 2004, in exchange
for the $100,000,000 principal amount of its outstanding 6.8% Senior Notes
Due 2004.
IN WITNESS WHEREOF, Millipore Corporation has caused this Power of
Attorney to be executed in its name and by its Chief Executive Officer, and
its corporate seal to be affixed and attested by its Assistant Clerk, and the
undersigned Officers and Directors have hereunto set their hands and seals
this 9th day of February, 1995.
SIGNATURE TITLE DATE
/S/John A. Gilmartin Chairman, President, February 9, 1995
John A. Gilmartin Chief Executive Officer
and Director
/S/Charles D. Baker Director February 9, 1995
Charles D. Baker
/S/Samuel C. Butler Director February 9, 1995
Samuel C. Butler
/S/Mark Hoffman Director February 9, 1995
Mark Hoffman
/S/Gerald D. Laubach Director February 9, 1995
Gerald D. Laubach
<PAGE>
Power of Attorney
S-4 Registration Statement
SIGNATURE TITLE DATE
/S/Steven Muller Director February 9, 1995
Steven Muller
/S/Thomas O. Pyle Director February 9, 1995
Thomas O. Pyle
/S/John F. Reno Director February 9, 1995
John F. Reno
<PAGE>
SECURITIES ACT OF 1933 FILE NO: (IF APPLICATION TO DETERMINE
ELIGIBILITY
OF TRUSTEE FOR DELAYED OFFERING PURSUANT TO SECTION 305(b)(2)
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________________
FORM T-1
STATEMENT OF ELIGIBILITY AND QUALIFICATION
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b) (2)______
______________________
THE FIRST NATIONAL BANK OF BOSTON
(Exact name of trustee as specified in its charter)
04-2472499
(I.R.S. Employer Identification No.)
100 Federal Street, Boston, Massachusetts 02110
(Address of principal executive offices)
(Zip Code)
Gary A. Speiss, Cashier and General Counsel
100 Federal Street, 24th Floor, Boston, Massachusetts 02110 (617) 434-2870
(Name, address and telephone number of agent for
service)
__________________________
Millipore Corporation
(Exact name of obligor as specified in its charter)
Massachusetts 04-2170233
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
80 Ashby Road
Bedford, MA 01730-2237
(Address of principal executive offices)
(Zip Code)
Senior Notes
(Title of indenture securities)
<PAGE>
1. General Information.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it
is subject.
Comptroller of the Currency of the United States, Washington D.C.
Board of Governors of the Federal Reserve System, Washington, D.C
Federal Deposit Insurance Corporation, Washington, D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Trustee is authorized to exercise corporate trust powers.
2. Affiliations with Obligor and Underwriters.
If the obligor or any underwriter for the obligor is an affiliate of the
trustee, describe each such affiliation.
None with respect to the Trustee.
(See Notes on page 2)
None with respect to Bank of Boston Corporation.
3. through 11. Not applicable.
12. Indebtedness of the Obligor to the Trustee
COL. A COL. B COL. C
NATURE OF AMOUNT
INDEBTEDNESS OUTSTANDING DATE DUE
$40,000,000 Money minimal usage Annual Renewal
Market Demand Line
of Credit
$12,000,000 323,000 Annual Renewal
International Line
of Credit
$1,586,000 Forward 0 Annual Renewal
Contract
13. through 15. Not applicable.
16. List of Exhibits.
List below all exhibits filed as part of this statement of eligibility and
qualification.
1. A copy of the articles of association of the trustee as now in
effect.
A certified copy of the Articles of Association of the trustee is filed as
Exhibit No. 1 to statement of eligibility and qualification No. 22-9514 and is
incorporated herein by reference thereto.
2. A copy of the certificate of authority of the trustee to commence
business, if not contained in the articles of association.
<PAGE>
A copy of the certificate of T. McLean Griffin, Cashier of the trustee,
dated February 3, 1978, as to corporate succession containing copies of the
Certificate of the Comptroller of the Currency that The Massachusetts Bank,
National Association, into which The First National Bank of Boston was merged
effective January 4, 1971, is authorized to commence the business of banking as
a
national banking association, as well as a certificate as to such merger is
filed
as Exhibit No. 2 to statement of eligibility and qualification No. 22-9514 and
is
incorporated herein by reference thereto.
3. A copy of the authorization of the trustee to exercise corporate trust
powers, if such authorization is not contained in the documents specified in
paragraph (1) or (2) above.
A copy of a certificate of the Office of the Currency dated February 6,
1978
is filed as Exhibit No. 3 to statement of eligibility and qualification No. 22-
9514 and is incorporated herein by reference thereto.
4. A copy of the existing by-laws of the trustee, or instruments
corresponding thereto.
A certified copy of the existing By-Laws of the trustee dated December 23,
1993 is filed as Exhibit No. 4 to statement of eligibility and qualification No.
22-25754 and is incorporated herein by reference thereto.
5. The consent of the trustee required by Section 321(b) of the Act.
The consent of the trustee required by Section 321(b) of the Act is
annexed
hereto and made a part hereof.
6. A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining authority.
A copy of the latest report of condition of the trustee published pursuant
to law or the requirements of its supervising or examining authority is annexed
hereto as Exhibit 7 and made a part hereof.
NOTES
In answering any item in this Statement of Eligibility and Qualification
which relates to matters peculiarly within the knowledge of the obligor or any
underwriter for the obligor, the trustee has relied upon information furnished
to
it by the obligor and the underwriters, and the trustee disclaims responsibility
for the accuracy or completeness of such information.
The answer furnished to Item 2 of this statement will be amended, if
necessary, to reflect any facts which differ from those stated and which would
have been required to be stated if known at the date hereof.
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the trustee,
The
First National Bank of Boston, a national banking association organized and
existing under the laws of The United States of America, has duly caused this
statement of eligibility and qualification to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the Town of Canton and
Commonwealth
of Massachusetts, on the 10th day of March,1995.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By : Henry W.Seemore
Henry W.Seemore
Account Manager
EXHIBIT 6
CONSENT OF TRUSTEE
Pursuant to the requirements of Section 321(b) of the Trust Indenture Act of
1939 in connection with the proposed issue by Millipore Corporation of Senior
Notes, we hereby consent that reports of examinations by Federal, State,
Territorial, or District authorities may be furnished by such authorities to the
Securities and Exchange Commission upon request therefor.
THE FIRST NATIONAL BANK OF BOSTON, Trustee
By : Henry W. Seemore
Henry W. Seemore
Account Manager
<PAGE>
EXHIBIT 7
CONSOLIDATED REPORT OF CONDITION, INCLUDING DOMESTIC AND FOREIGN SUBSIDIARIES,
OF
THE FIRST NATIONAL BANK OF BOSTON
In the Commonwealth of Massachusetts, at the close of business on December
31, 1994. Published in response to call made by Comptroller of the Currency,
under Title 12, United States Code, Section 161. Charter number 200.
Comptroller
of the Currency Northeastern District.
ASSETS
Dollar
Amounts in
Thousands
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin $ 1,862,093
Interest-bearing balances 1,551,280
Securities 3,935,691
Federal funds sold and securities purchased under agreements to resell in
domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in
IBF's:
Federal funds sold 758,937
Securities purchased under agreements to resell 0
Loans and lease financing receivables:
Loans and leases, net of unearned income $25,796,462
LESS: Allowance for loan and lease losses 534,630
LESS: Allocated transfer risk reserve 0
Loans and leases, net of unearned income, allowance and reserve
25,261,832
Assets held in trading accounts 840,348
Premises and fixed assets (including capitalized leases) 398,475
Other real estate owned 48,504
Investments in unconsolidated subsidiaries and associated companies 103,670
Customers' liability to this bank on acceptances outstanding 304,031
Intangible assets 651,394
Other assets 1,170,251
Total Assets $36,886,506
LIABILITIES
Deposits:
In domestic offices $14,924,310
Noninterest-bearing $ 4,035,673
Interest-bearing 10,888,637
In foreign offices, Edge and Agreement subsidiaries, and IBF's 9,998,764
Noninterest-bearing 570,582
Interest-bearing 9,428,182
Federal funds purchased and securities sold under agreements to repurchase in
domestic
offices of the bank and of its Edge and Agreement subsidiaries, and in IBF's:
Federal funds purchased 2,464,904
Securities sold under agreements to repurchase 277,077
Demand notes issued to the U.S. Treasury 364,045
Trading Liabilities 227,865
Other borrowed money 3,875,462
Mortgage indebtedness and obligations under capitalized leases 14,007
Bank's liability on acceptances executed and outstanding 305,512
Subordinated notes and debentures 979,167
Other liabilities 1,022,105
Total Liabilities $34,453,218
Limited-life preferred stock and equity capital 0
<PAGE>
EQUITY CAPITAL
Perpetual preferred stock and related surplus $ 0
Common stock 82,264
Surplus 987,524
Undivided profits and capital reserves 1,408,062
LESS: Net unrealized loss on marketable equity securities (39,027)
Cumulative foreign currency translation adjustments (5,535)
Total equity capital 2,433,288
Total Liabilities, Limited-life preferred stock, and
equity $36,866,506
<PAGE>
I, Robert T. Jefferson, Comptroller of the above-named bank, do hereby
declare that this Report of Condition is true and correct to the best of my
knowledge and belief.
Robert T. Jefferson
February 13, 1995
We, the undersigned directors, attest to the correctness of this statement
of
resources and liabilities. We declare that it has been examined by us, and to
the
best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
Charles K. Gifford
Ira Stepanian
J. Donald Monan
Directors
February 13, 1995
<PAGE>
