<PAGE>
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
(Mark One)
|X| Annual report pursuant to Section 13 or 15(d) of the Securities Exchange
Act of 1934
For the fiscal year ended December 31, 1998 or
-----------------
|_| Transition report pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from ___________ to ______________
Commission File Number 0-1052
------
MILLIPORE CORPORATION
(Exact name of registrant as specified in its charter)
Massachusetts 04-2170233
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
80 Ashby Road, Bedford, MA 01730
(Address of principal executive offices) (Zip Code)
(781) 533-6000
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act:
Title of Class Name of Exchange on Which Registered
-------------- ------------------------------------
Common Stock, $1.00 Par Value New York Stock Exchange, Inc.
Securities registered pursuant to Section 12(g) of the Act: None
Indicate by check mark whether the registrant: (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes |X| No |_|
Indicate by check mark if disclosure of delinquent filers pursuant to Item
405 of Regulation S-K is not contained herein and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of Form 10-K or any amendment to this Form
10-K. |_|
As of February 26, 1999, the aggregate market value of the registrant's
voting stock held by non-affiliates of the registrant was approximately
$1,048,190,000 based on the closing price on that date on the New York Stock
Exchange.
As of February 26, 1999, 44,074,626 shares of the registrant's Common Stock
were outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Document Incorporated into Form 10-K/A
-------- -----------------------------
Definitive Proxy Statement, dated March 19, 1999 Part III
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<PAGE>
PART I
Item 1. Business.
The Company
Millipore Corporation was incorporated under the laws of Massachusetts
on May 3, 1954. Millipore is a market leader in the field of separations
technology and develops, manufactures and sells products which are used
primarily for the analysis, identification, monitoring and purification of
liquids and gasses. In addition, Millipore sells products to control
critical aspects of the manufacturing process for integrated circuits
(semiconductors). Millipore's separations products are based on a variety
of membrane and other technologies that effect separations through physical
and chemical methods and are applied primarily to biological and
environmental laboratory research and testing, to pharmaceutical and food
and beverage research, manufacturing and quality control and to the
purification and control of process liquids and gasses for integrated
circuit ("IC") manufacturing operations. Millipore's IC process control
products use electro-mechanical, pressure differential and related
technologies to permit IC manufacturers to monitor and control the flow and
condition of process gasses used in the IC fabrication process. Millipore
is an integrated multinational manufacturer of these products. Millipore's
role as a market leader has been recognized by independent surveys of
filtration markets. Unless the context otherwise requires, the terms
"Millipore" or the "Company" mean Millipore Corporation and its
subsidiaries.
Information About Operating Segments
Millipore operates in two business segments: Biopharmaceutical &
Research and Microelectronics. Millipore has traditionally organized its
business and management structures around the markets and customers which
it serves. The Biopharmaceutical & Research segment includes products and
services sold to pharmaceutical companies, biotechnology companies, food
and beverage companies, university and government laboratories and research
institutes; the Microelectronics segment includes products and services
sold to semiconductor fabrication companies as well as OEM and material
suppliers to those companies. While there is some overlap in the products
sold to each business segment, the economic environments in which these two
segments operate are distinct. The Biopharmaceutical and Research business
segment is characterized by customer needs for reliability and consistency
of standardized products used in validated production processes and for
assured continuity and comparability of analytical results; this segment
has demonstrated relatively stable patterns of revenue growth and
profitability. While technical innovation is important to the
Biopharmaceutical and Research business segment, the adoption of new
technologies and products often requires that a lengthy validation process
be completed prior to adoption. On the other hand, the Microelectronics
business segment is characterized by rapid technological change and
economic cycles with dramatic shifts in revenue growth and decline with
corresponding impacts on profitability. During 1998 approximately 74% of
Millipore's net sales were made to customers in the Biopharmaceutical &
Research segment and approximately 26% to customers in the Microelectronics
segment. In addition, approximately 60% of Millipore's net sales were made
to customers outside the United States. Industry and geographic segment
information is discussed in Note Q to the Millipore Corporation
Consolidated
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Financial Statements (the "Financial Statements") included in Item 8 below,
which Note is hereby incorporated herein by reference.
Products, Technologies and Applications
Millipore sells more than 10,000 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 filtration
systems and process chromatography systems to meet specific needs of the
customer. The Company's products also include, in some cases, proprietary
software designed to operate and/or integrate certain of its other products
or systems (particularly membrane ultrafiltration and chromatography
systems and gas monitoring equipment).
Biopharmaceutical & Research Business Segment. The products that the Company
sells to customers in the Biopharmaceutical & Research business segment
include disc filters, OEM membranes, filter devices and ancillary equipment
and supplies, filter-based test kits, laboratory water purification
systems, cartridge filters and housings of various sizes and
configurations, process liquid chromatography systems and process
filtration systems.
The principal separation technologies utilized by products sold to
Biopharmaceutical & Research segment customers are based on membrane
filters and on certain chemistries and resins as well as liquid
chromatography. Membranes are used to filter either the wanted or the
unwanted particulate, bacterial, molecular or viral entities from fluids.
Some of the Company's newer membrane materials also use affinity,
ion-exchange or electrical charge mechanisms to effect the desired
separation. Membranes are incorporated into both microfiltration and
ultrafiltration devices, cartridges and modules of different configurations
to address a variety of customer fluid separation needs. The Company's
laboratory water purification products combine membrane, resin and other
separations technologies to provide ultrapure water for critical
applications.
Customers use the Company's products in the Biopharmaceutical &
Research segment to gain knowledge about a molecule, compound or
micro-organism by detecting, identifying and quantifying the relevant
components of a fluid sample. In addition Millipore products are used for
the purification of small and large volumes of critical fluids. The
Company's products are also used by pharmaceutical manufacturing and
research operations to isolate and purify specific components of fluid
streams for analysis and to concentrate identified compounds for further
processing. The Company's laboratory water purification products are used
by customers to provide ultrapure water for critical laboratory analysis
and for clinical testing.
Microelectronics Business Segment. The products sold to customers in the
Microelectronics business segment include polymeric cartridge filters and
housings of various sizes, materials and configurations, metal filters,
precision liquid dispense filtration pumps, resin based gas purifiers and
gas monitors as well as mass flow controllers and pressure and vacuum
control products.
Membrane products sold to customers in the Microelectronics business
segment are based on essentially the same membrane technologies described
above but with membranes and housings
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made from distinct polymers as required by the nature of the liquids being
purified. Gas purification and monitoring products rely on resin based
chemistries which react with process gasses to either remove contaminants
or to monitor the purity of the process gas. In addition, the Company's IC
process control products use thermal-dynamic, pressure differential and
electromechanical technologies to create pressurized or vacuum environments
to precisely measure and control the flow of IC process gases.
The Company's separations products are used by Microelectronics
customers in manufacturing operations to remove contaminants in a process
liquid stream and to purify and precisely dispense process liquids during
critical IC fabrication operations. The Company's products are also used in
process gas applications to precisely monitor and control the purity of and
rate at which process gases are introduced into the IC process chamber, the
conditions in the chamber during processing and the rate at which the gas
is evacuated from the IC process chamber.
Customers and Markets
Within each customer group served by Millipore, the Company focuses
its sales efforts upon those segments where customers have specific
requirements which can be satisfied by the Company's products.
Biopharmaceutical & Research Business Segment. Major customer groups served by
this business segment include pharmaceutical/biotechnology and food and
beverage companies and government, university and private research and
testing analytical laboratories. 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 protein 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 by
offering customers a continuum of products capable of being scaled-up to
match customer needs at different stages during the development process
from laboratory research through full scale drug production. In addition,
Millipore has developed and is developing products for biopharmaceutical
applications in order to meet the purification requirements of the
biotechnology industry. The Company also sells its analytical products,
filter cartridges and laboratory water purification systems to chemical
manufacturers and processors.
The Food and Beverage Industry uses the Company's products for quality
control and process applications principally to monitor for microbiological
contamination; and to prevent spoilage by removal of bacteria and yeast
from products such as wine, beer and bottled juices and water.
Universities, governments 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, and cell
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.
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Sales to the Biopharmaceutical & Research Business Segment accounted
for approximately 74% of Millipore's 1998 consolidated sales and 65% of
1997 consolidated sales.
Microelectronics Business Segment. Major customer groups served by this business
segment include IC manufacturers and OEM manufacturers that sell a variety
of equipment used in the manufacture of ICs to IC manufacturers. IC
manufacturers use the Company's products to purify (by removing particles
and unwanted contaminating molecules), deliver, control and monitor the
liquids and gases used in the manufacturing processes of semiconductors and
other microelectronics components. The Company's mass flow and pressure
control products and precision liquid dispense filtration products are sold
to OEM capital equipment suppliers to semiconductor manufacturers as well
as directly to manufacturers of ICs. Sales to the Microelectronics business
segment accounted for approximately 26% of Millipore's 1998 consolidated
sales as contrasted with 35% of 1997 consolidated sales. As noted above,
this business segment has experienced historic volatility, and the effect
of such volatility has, in the past, affected Millipore's sales growth.
While no single customer is material to the Company taken as a whole,
the Microelectronics business segment does rely on a relatively narrow
group of customers, some of whom purchase significant quantities of the
Company's products.
Sales and Marketing
The Company sells its products to both business segments within the
United States primarily to end users through its own direct sales force
and, in the case of analytical products, to a limited extent through an
independent distributor. The Company sells its products to both business
segments in international markets through the sales forces of its
subsidiaries and branches located in more than 30 major industrialized and
developing countries as well as through independent distributors in other
parts of the world. As of December 31, 1998, the Company's marketing, sales
and service forces consisted of approximately 915 employees worldwide of
which 819 were employed in the Biopharmaceutical and Research Business
Segment and 96 were employed in the Microelectronics Business Segment.
The Company's marketing efforts focus on application development for
existing products and on new and differentiated products for other
existing, newly-identified and proposed customer uses. The Company seeks to
educate customers as to the variety of analytical, purification and process
control problems which may be addressed by its products and to adapt its
products and technologies to separations and process control problems
identified by its customers. The Company believes that its technical
support services are important to its marketing efforts. These services
include assisting 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. In addition, the Company maintains a network of
service centers located in the United States and in key international
markets to support its process gas measurement/control products as well as
its laboratory water products.
Research and Development
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In its role as a pioneer of membrane separations, Millipore has
traditionally placed heavy emphasis on research and development. This
emphasis has permitted Millipore to be the first company to introduce a
number of major new enabling separations membranes and membrane devices
(examples include: nitrocellulose microfiltration membrane in 1954, compact
high purity laboratory water systems in 1972, membrane based syringe filter
devices in 1973, membrane based filters for intravenous drug therapy in
1975, tangential flow filtration cassette devices in 1975, polyvinylidene
fluoride membrane in 1978, continuous electro-deionization water
purification systems in 1988, composite ultrafiltration membranes in 1989,
composite microfiltration membranes for the removal of viruses from
solution in 1991, melt-cast PFA membranes in 1990, ultra-high weight
polythylene membrane in 1993, high flow high efficiency metal membrane for
gas filtration in 1996 and non-dewetting PTFE membrane in 1997). 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. Research and
development activities related to the Company's IC process control products
focuses upon developments which will address the evolving needs of IC
manufacturers and development of enabling technologies which will
anticipate those needs. Introduction of new applications frequently
requires considerable market development prior to the generation of
revenues. Millipore performs most of its own research and development and
does not provide material amounts of research services for others.
Millipore's aggregate research and development expenses in 1998 and 1997
were $53,578,000 and $55,899,000, respectively. In 1996 Millipore's
aggregate research and development expenses were $38,429,000 (excluding
pre-acquisition amounts spent by Amicon and Tylan). For discussions of
research and development write-offs relating to the Amicon and Tylan
acquisitions, see Management's Discussion and Analysis of Financial
Condition and Results of Operations - Acquisitions and Note E to the
Financial Statements, which discussions are hereby incorporated herein by
reference.
In addition, the Company has followed a practice of supplementing its
internal research and development efforts by licensing newly developed
technology from unaffiliated third parties and/or acquiring distribution
rights with respect thereto, when it believes it is in its long term
interests to do so.
Millipore has been granted a number of patents and licenses and has
other patent applications pending both in the United States and abroad.
While these patents and licenses are viewed as valuable assets, Millipore's
patent position is not of material importance to its operations. Millipore
also owns a number of trademarks, the most significant being "Millipore."
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Competition
The Company faces intense competition in all of its markets. The
Company believes that its principal competitors in the Biopharmaceutical &
Research business segment include Pall Corporation, Barnstead Thermolyne
Corporation, Sartorius GmbH and United States Filter Corporation. The
principal competitors in the Microelectronics business segment are Pall
Corporation, United States Filter Corporation, Aera and MKS Instruments.
Certain of the Company's competitors are larger and have greater resources
than the Company. However, the Company believes that, within the markets it
serves, it offers a broader line of products, making use of a wider range
of separations and IC process control 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.
Environmental Matters
The Company is subject to numerous federal, state and foreign laws and
regulations that impose strict requirements for the control and abatement
of air, water and soil pollutants and the manufacturing, storage, handling
and disposal of hazardous substances and waste. The federal laws and
regulations include the Comprehensive Environmental Response, Compensation,
and Liability Act, the Clean Air Act, the Clean Water Act and the Resource
Conservation and Recovery Act. The Company is in substantial compliance
with applicable environmental requirements. Because regulatory standards
under environmental laws and regulations are becoming increasingly
stringent, however, there can be no assurance that future developments will
not cause the Company to incur material environmental liabilities or costs.
Under the Clean Air Act Amendments of 1990 ("CAA"), the U.S.
Environmental Protection Agency has been directed, among other things, to
develop standards and permit procedures with respect to certain air
pollutants. Because many of the implementing regulations have not yet been
promulgated, the Company cannot make a final assessment of the impact of
the CAA. Based upon its preliminary review of the CAA, however, the Company
currently believes that compliance with the CAA will not have a material
adverse impact on the operations or financial condition of the Company.
Other Information
Since April of 1988, the Company has had in place a shareholder rights
plan (the "Rights Plan") pursuant to which Millipore declared a dividend to
its shareholders of the right to purchase (a "Right"), for each share of
Millipore Common Stock owned, one additional share of Millipore Common
Stock at a price of $80 for each share (after giving effect to the 1995 two
for one stock split). In April of 1998, the Rights Plan was amended and
restated to, among other things, extend the expiration date until April 30,
2008, to increase the purchase price on the exercise of a Right to $200, to
permit the Directors to exchange certain of the Rights for shares of
Company Common Stock (on a 1 for 1 basis) under certain circumstances and
to make certain other updating changes. The Rights Plan, as amended and
restated, is designed to protect Millipore's shareholders from attempts by
others to acquire Millipore on terms or by using tactics that could
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deny all shareholders the opportunity to realize the full value of their
investment. The Rights will be exercisable only if a person or group of
affiliated or associated persons acquires beneficial ownership of 20% or
more of the outstanding shares of the Company Common Stock or commences a
tender or exchange offer that would result in a person or group owning 20%
or more of the outstanding Common Stock. In such event, or in the event
that Millipore is subsequently acquired in a merger or other business
combination, each Right will entitle its holder to purchase, at the then
current exercise price, shares of the common stock of the surviving company
having a value equal to twice the exercise price.
Millipore's products are made from a wide variety of raw materials
which are generally available in quantity from alternate sources of supply;
as a result, Millipore is not substantially dependent upon any single
supplier.
As of December 31, 1998, Millipore employed 4,289 persons worldwide,
of whom 2,027 were employed in the United States and 2,173 were employed
overseas.
Executive Officers of Millipore
The following is a list, as of March 1, 1999, of the Executive
Officers of Millipore. All of the following individuals were elected to
serve until the Directors Meeting next following the 1999 Annual
Stockholders Meeting.
<TABLE>
<CAPTION>
First Elected
------------------------
An To Present
Name Age Office Officer Office
- ---- --- ------ ------- ------
<S> <C> <C> <C> <C>
C. William Zadel 55 Chairman of the Board, 1996 1996
President and Chief
Executive Officer of
the Corporation
Michael P. Carroll 48 Vice President of the 1992 1997
Corporation and President (As President of
of Millipore Asia, Ltd. Millipore Asia Ltd.)
<CAPTION>
First Elected
------------------------
An To Present
Name Age Office Officer Office
- ---- --- ------ ------- ------
<S> <C> <C> <C> <C>
Douglas B. Jacoby 52 Vice President 1989 1989
of the Corporation
John E. Lary 52 Vice President 1994 1994
of the Corporation
Francis J. Lunger 53 Vice President, Treasurer 1997 1997
and Chief Financial Officer
of the Corporation
Joanna Nikka 47 Vice President 1996 1996
of the Corporation
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C>
Jeffrey Rudin 47 Vice President 1996 1996
of the Corporation
and General Counsel
Hideo Takahashi 58 Vice President of 1996 1979
the Corporation and (As President
President of Nihon of Nihon
Millipore Millipore)
</TABLE>
Mr. Zadel was elected President, Chief Executive Officer and Chairman on
February 20, 1996. Mr. Zadel had been, since 1986, President and Chief Executive
Officer of Ciba Corning Diagnostics Corp., a company that develops, manufactures
and sells medical diagnostic products. Prior to that he was Senior Vice
President of Corning Glass Works' (now Corning Inc.) Americas Operations (1985)
and Vice President of business development (1983). Mr. Zadel currently serves on
the Boards of Directors of Kulicke and Soffa Industries, Inc. and Matritech,
Inc. Mr. Zadel is Chairman of the Board of Directors of the Massachusetts High
Technology Council (February 1999). He has also served as the Chairman of the
Health Industry Manufacturers Association (1994 - 1995).
Mr. Carroll joined Millipore in 1986 as Vice President/Finance for the
Membrane Products Division following a ten-year career in the general practice
audit division of Coopers and Lybrand. In 1988, Mr. Carroll assumed the position
of Vice President of Information Systems (worldwide) and in December of 1990, he
became the Vice President of Finance for the Company's Waters Chromatography
Division. Mr. Carroll was elected Corporate Vice President, Chief Financial
Officer and Treasurer in February, 1992. In 1997 Mr. Carroll was elected
President of Millipore Asia Ltd.; he remains a Corporate Vice President.
Mr. Jacoby joined Millipore in 1975. After serving in various sales and
marketing capacities, Mr. Jacoby became Director of Marketing for the Millipore
Membrane Products Division in 1983 and in 1985 he assumed the position of
General Manager of the Membrane Pharmaceutical Division. In 1987, Mr. Jacoby
assumed responsibility for the Company's process membrane business and in 1994
assumed responsibility for the sales, marketing and R&D for all of the Company's
worldwide business. Mr. Jacoby was elected a Corporate officer in December,
1989.
Mr. Lary was elected a Corporate Vice President in November 1994, and is
responsible for the worldwide operations of the Company. From May of 1993 until
his election as a Corporate Vice President, Mr. Lary served as Senior Vice
President and General Manager of the Americas Operation. For the ten years prior
to that time, he served as Senior Vice President of the Membrane Operations
Division of Millipore.
Mr. Lunger was elected Vice President, Chief Financial Officer and
Treasurer of Millipore upon joining the Company in June 1997. Mr. Lunger had
been, since 1995, Senior Vice President and Chief Financial Officer of Oak
Industries, Inc., a developer, manufacturer and supplier of components to the
telecommunications industry. From 1994 until 1995, Mr. Lunger had been acting
Chief Executive Officer and Chief Administrative Officer of Nashua Corporation,
a
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conglomerate with diverse businesses ranging from office supplies to photo
finishing. During the period 1983-1994, Mr. Lunger served in various business
operations and financial management positions with Raychem Corporation, an
international material science company serving the telecommunication,
automotive, energy and defense markets, including Vice President and Group
General Manager (1992-1994); Vice President and Assistant Sector General Manager
(1991-1992) and Vice President, Finance (1988-1991).
Ms. Nikka was elected Corporate Vice President for Human Resources in
November 1996. Ms. Nikka was Vice President at Fidelity Investments from 1991 to
November 1996. Prior to joining Fidelity in 1991, Ms. Nikka was Vice President
of Human Resources at Symbolics, Inc.
Mr. Rudin was elected Corporate Vice President and General Counsel in
December 1996. Prior to joining Millipore, Mr. Rudin served Ciba Corning
Diagnostics Corporation as Senior Vice President and General Counsel (since
1993) and as Vice President and General Counsel (1988 - 1993). Prior to that,
Mr. Rudin was Assistant Division Counsel for the Pharmaceutical Division of
Ciba-Geigy Corporation.
Mr. Takahashi joined Millipore in 1979 as President and Chief Executive
Officer of its Japanese subsidiary, Nihon Millipore Ltd. Mr. Takahashi was
elected as a Vice President of the Company on February 8, 1996.
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Item 2. Properties.
Millipore operates 19 manufacturing sites located in the United States,
France, Japan, Ireland, United Kingdom, Brazil and China. The following table
identifies the major production sites which are owned by Millipore and describes
the purpose, floor space and land area of each.
<TABLE>
<CAPTION>
Business
Floor Space Land Area Segment
Location Facility Sq. Ft. Acres Served
- -------- -------- ------- ----- ------
<S> <C> <C> <C> <C>
Bedford, Executive Offices, research, 352,000 31 B&R;
MA membrane manufacturing Micro.
& warehouse
Danvers Manufacturing and office 65,000 16 B&R
MA
Jaffrey, Manufacturing, warehouse 177,000 31 B&R; Micro.
NH and office
Cidra, Manufacturing, warehouse 125,000 29 B&R
Puerto Rico and office
Molsheim, Manufacturing, warehouse 148,000 20 B&R
France and office
Cork, Manufacturing 98,000 20 B&R
Ireland
Yonezawa, Manufacturing and warehouse 169,000 7 B&R;
Japan Micro.
</TABLE>
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B&R = Biopharmaceutical & Research Business Segment.
Micro. = Microelectronics Business Segment
Millipore owns a total of approximately 1.25 million square feet of
facilities worldwide which are used for office, research and development,
manufacturing (including the manufacturing facilities listed above) and
warehouse purposes. All of these facilities are owned in fee and are not subject
to any material encumbrances.
In addition to its owned properties, Millipore currently leases various
manufacturing, sales, warehouse, and administrative facilities throughout the
world. Such leases expire at different times through 2008. The aggregate area of
rented space is approximately 960,000 square feet and cost was approximately
$12,033,000 in 1998. The following leased facilities are the most significant:
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1. A lease of a 198,000 square foot building located on 13 acres in
Allen, Texas (Dallas-Fort Worth vicinity). This lease expires in 2008
and provides for two 5 year extension options. This facility is used
to support the Microelectronics business segment.
2. A lease for premises abutting the Company's Bedford headquarters; this
lease makes 75,000 square feet of building available to Millipore,
provides for a term expiring in 2005 and contains rights of first
refusal and options with respect to the purchase of the premises by
Millipore and the sale of the premises to Millipore. This building
supports both business segments.
3. A lease of a 134,000 square foot building which is adjacent to the
leased property referred to in preceding paragraph for a term ending
in 2006, with renewal options for an aggregate of 20 years, as well as
a purchase option. This building is used primarily to serve the
Biopharmaceutical & Research business segment
4. A lease of a building of 130,000 square feet located in Burlington,
Massachusetts, approximately 5 miles from Millipore's Bedford
headquarters. This lease was amended during 1997 to, among other
things, extend the initial term until February 2002 and to provide for
a single 3-year extension option. This building supports both business
segments.
With the exception of the Allen lease described above, in the opinion of
Millipore, no single lease is material to the Company's operations.
Except for the facilities located in Allen, Texas, Cidra, Puerto Rico and
Yonezawa, Japan, which currently operate at approximately 50%, 75% and 70%,
respectively, of capacity, none of the above listed owned and leased major
facilities are materially underutilized.
Millipore is of the opinion that all the facilities owned or leased by it
are well maintained, appropriately insured, in good operating condition and
suitable for their present uses.
Item 3. Legal Proceedings.
The Company currently is not a party to any material legal proceeding and
the Company knows of no material legal proceeding contemplated by any
governmental authority. However, as has been previously disclosed, Millipore
has, in the past, been named as a potentially responsible party ("PRP") under
the Comprehensive Environmental Response Compensation and Liability Act of 1980,
as amended by the Superfund Amendments and Reauthorization Act of 1986 ("CERCLA"
or "Superfund") by the U.S. Environmental Protection Agency ("EPA") with respect
to a "release" (as defined in Section 101 of CERCLA), at twelve sites to which
chemical wastes generated by the manufacturing operations of Millipore or one of
its divisions may have been sent. The Company has settled its liability pursuant
to consent decrees releasing Millipore from further liability with respect to
certain covered matters related to all of the Superfund sites at which the
Company has been named a PRP. However, as is typical with consent decrees in
such Superfund proceedings, EPA and the relevant state agencies reserved the
right to maintain actions against the settling parties, including the Company,
in the event certain actions occur or do not occur.
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In 1991 the Company brought suit against The Travelers Indemnity Company,
Hartford Accident and Indemnity Company and Insurance Company of North America
in U.S. District Court for the District of Massachusetts with respect to four of
the Superfund sites and one other site at which the Company had been named a
PRP, seeking recovery of the full costs of defending the actions at such sites,
indemnification for its liability and damages for unfair and deceptive insurance
practices. The case against Hartford Accident and Indemnity Company has been
settled. The case against Insurance Company of North America is awaiting action
on remand by the District Court after a successful appeal by the Company of a
dismissal of the case. The appeal of the dismissal of the case against The
Travelers Indemnity Company was unsuccessful.
Item 4. Submission of Matters to a Vote of Security Holders.
This item is not applicable.
PART II
Item 5. Market for Millipore's Common Stock, and Related Stockholder Matters.
Millipore's Common Stock, $1.00 par value, is listed on the New York Stock
Exchange and is traded under the symbol "MIL". The following table sets forth,
for the indicated fiscal periods, the high and low sales prices of Millipore's
Common Stock (as reported on the New York Stock Exchange Composite Tape) and the
dividends declared (on a per share basis). As of February 26, 1999 there were
approximately 3,230 shareholders of record.
<TABLE>
<CAPTION>
Range of Stock Prices Dividends Declared
-------------------------------------------- ------------------
1998 1997 1998 1997
------------------- ------------------- ---- ----
High Low High Low (Per Share)
---- --- ---- ---
<S> <C> <C> <C> <C> <C> <C>
First Quarter $38.44 $30.00 $45.63 $38.88 $0.10 $0.09
Second Quarter $36.94 $26.82 $44.88 $37.25 $0.11 $0.10
Third Quarter $27.50 $17.50 $51.88 $41.06 $0.11 $0.10
Fourth Quarter $29.88 $17.25 $52.00 $33.50 $0.11 $0.10
</TABLE>
Item 6. Selected Financial Data.
The following selected consolidated financial data for Millipore are
derived from the Company's Financial Statements and related notes thereto. The
following selected consolidated financial data should be read in connection with
and is qualified in its entirety by Millipore's Financial Statements and related
notes thereto and other financial information included elsewhere in this Form
10-K/A report.
13
<PAGE>
Millipore Corporation -- Five-year Summary of Operations
<TABLE>
<CAPTION>
(In thousands, except per share data) 1998 1997(2) 1996 1995 1994
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Net sales $ 699,307 $ 758,919 $ 618,735 $ 594,466 $ 497,252
Cost of sales 364,467 342,237 249,443 243,849 212,675
-----------------------------------------------------------------------
Gross profit 334,840 416,682 369,292 350,617 284,577
Selling, general and administrative expenses 236,521 245,585 202,140 195,026 159,591
Research and development expenses 53,578 55,899 38,429 36,515 34,327
Purchased research & development expense -- 114,091 68,311(2) -- --
Settlement of litigation 11,766(1) -- -- -- --
Restructuring charge 33,641(1) -- -- -- --
-----------------------------------------------------------------------
Operating (loss) income (666) 1,107 60,412 119,076 90,659
Gain on sale of equity securities 35,594(1) 8,330 5,329 -- --
Other income (expense), net -- -- -- -- (10,800)(3)
Interest income 3,090 2,937 2,780 1,682 4,091
Interest expense (29,474) (30,484) (11,498) (10,623) (7,035)
-----------------------------------------------------------------------
Income (loss) from continuing operations before
income taxes 8,544 (18,110) 57,023 110,135 76,915
(Benefit) provision for income taxes (1,320) 20,674 13,401 24,781 17,306
-----------------------------------------------------------------------
Income (loss) from continuing operations 9,864 (38,784) 43,622 85,354 59,609
Loss on disposal of discontinued operations -- -- 2,036(4) -- 7,211(4)
-----------------------------------------------------------------------
Net Income (loss) $ 9,864 $ (38,784) $ 41,586 $ 85,354 $ 52,398
=======================================================================
Basic net income (loss) per share:
Income (loss) from continuing operations $ 0.22 $ (0.89) $ 1.00 $ 1.90 $ 1.09
Net income (loss) per share $ 0.22 $ (0.89) $ 0.95 $ 1.90 $ 0.96
Diluted net income (loss) per share:
Income (loss) from continuing operations $ 0.22 $ (0.89) $ 0.98 $ 1.86 $ 1.07
Net income (loss) per share $ 0.22 $ (0.89) $ 0.94 $ 1.86 $ 0.94
Cash dividends declared per share $ 0.43 $ 0.39 $ 0.35 $ 0.315 $ 0.295
Weighted average shares outstanding:
Basic 43,864 43,527 43,602 44,985 54,726
Diluted 44,289 43,527 44,457 45,887 55,644
Financial Data
Working capital $ 6,071 $ 36,169 $ 90,708 $ 88,160 $ 98,472
Total assets 762,440 772,301 682,387 529,849 535,884
Long-term debt 299,110 286,844 224,359 105,272 109,327
Shareholders' equity $ 136,908 $ 143,147 $ 211,758 $ 222,664 $ 217,466
==============================================================================================================================
</TABLE>
1. See Note B on page F-9 below, Note C on page F-10 below, Note D on page
F-11 below and Note M on page F-19 below of the Notes to the Financial
Statements.
2. See Note E on page F-12 below of the Notes to the Financial Statements.
3. The $10,800 reflects a litigation settlement which arose from the Company's
sales of its Process Water Division in 1989.
4. Represents a loss on the disposal of discontinued operations related to the
sale of its Waters Chromatography Division and certain assets of its
non-membrane bioscience business. See Note B on page F-9 below and Note D
on page F-11 below of the Notes to the Financial Statements.
14
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
The following Management's Discussion and Analysis of Financial Condition
and Results of Operations should be read in connection with Millipore's
Consolidated Financial Statements and related notes thereto and other
financial information included elsewhere in this Form 10-K report.
ACQUISITIONS
AMICON
On December 31, 1996, the Company acquired the net assets of the
Amicon Separation Science Business of W.R. Grace & Co. ("Amicon") for a
price of $129.3 million in cash, including transaction costs. The Amicon
acquisition was accounted for as a purchase and resulted in a write-off for
purchased in-process research and development ("IPR&D") of $68.3 million in
the fourth quarter of 1996. Since this transaction was completed on the
last business day of 1996, the accompanying 1996 consolidated statement of
income excludes all 1996 business activity conducted by Amicon.
The major IPR&D project acquired as a part of Amicon which was
included in the IPR&D write-off related to the development of a novel
sample preparation platform and had an estimated fair value of $48.3
million. If proven to be technologically feasible, the valuable element of
this project was that the technology represented a new approach to micro
sample handling, which was intended to address the shift in trends in the
analytical laboratory market toward smaller quantities of highly specific
samples. As of the acquisition date, the expected cost required to complete
this project was $0.5 million, the estimated time required to complete this
project was approximately four man years of technical and engineering time
(generally, the Company regards 2,000 hours as comprising one "man year")
and this project was expected to generate significant revenues over the
estimated life of the resulting products.
This project was written off because, as of December 31, 1996, the
project had not achieved technological feasibility and there were a large
number of obstacles facing the successful completion of the project
described above, including the fact that there existed a wide variety of
manufacturability, product cost, technology and application issues. Also
the technology underlying this project had no alternative future uses not
included in its estimated fair value within the markets served by the
Company. In addition, there was significant uncertainty as to whether the
production processes could be scaled up to a full scale commercial level of
manufacturing and as to whether these products could be made to conform to
laboratory standards for small sample sizes.
The first products derived from the novel sample preparation platform
were introduced in late 1998, approximately one year later than planned.
Although development is continuing, the estimated cost and time required to
achieve technological feasibility increased from $0.5 million and four man
years to $1.0 million and eight man years while the anticipated revenues
from this technology are now expected to be significantly less than
originally estimated. The actual costs
15
<PAGE>
incurred through December 31, 1998 were approximately $1.0 million. The
reduction in anticipated revenues is primarily a result of strategic
marketing decisions made after the acquisition of Amicon to focus this
technology on a limited number of served and strategically important
markets which eliminated potential revenue from the broader range of
applications originally envisioned.
In addition, the Amicon acquisition included ten other IPR&D projects,
with an aggregate value of $20 million, not considered to be individually
significant. These minor projects were expected to cost an aggregate of
$1.2 million and an aggregate of twelve and one-half man years to complete.
These projects were written off because technological feasibility had not
been demonstrated as of December 31, 1996. As of December 31, 1998, three
of these ten projects have been completed, three have been cancelled, three
are ongoing and one has been suspended. As of December 31, 1998, an
aggregate of $1.3 million had been invested on these individually
insignificant IPR&D projects and it was estimated that an additional $0.5
million would be required to achieve technological feasibility for the
three ongoing projects.
In order to integrate Amicon's business operations with those of
Millipore, a plan was adopted pursuant to which management undertook the
following activities: replacement of Amicon's business systems with the
Company's common business information systems, elimination of redundant
executive and administrative personnel, realignment of product distribution
channels to achieve compatibility with those of Millipore, termination of
supply agreements, resolution of redundant and overlapping product lines
and streamlining and consolidation of facilities. This plan provided for
the termination of 160 Amicon employees; this reduction in force was
implemented without alteration. As of December 31, 1998 the integration of
the Amicon business into Millipore was substantially completed except for
the relocation of certain manufacturing operations, which has been delayed
pending the construction of a facility to receive those operations, and the
resolution of a supply agreement termination dispute both of which the
Company expects to be completed during 2000.
TYLAN GENERAL, INC.
On January 22, 1997, the Company completed its cash tender offer for
all of the outstanding common shares of Tylan General, Inc. ("Tylan") for
$16.00 per share. Tylan became a wholly owned subsidiary of the Company on
January 27, 1997. The aggregate purchase price was $133.0 million, plus the
assumption of Tylan's outstanding debt, net of cash, totaling $23.6
million. This acquisition was accounted for as a purchase and resulted in a
write-off for IPR&D of $114.1 million in the first quarter of 1997.
Included in the IPR&D write-off were two major IPR&D projects acquired
as a part of Tylan. The first of these was a project to develop intracavity
laser spectroscopy technologies for application in semiconductor and
related industries. This project had an estimated fair value of $53.5
million, was expected to require the investment of an additional $3.2
million and twenty-two man years to complete. If proven to be
technologically feasible, it was expected that this project would yield a
break-through enabling technology and would become a major revenue source
for the Company. The products expected to result from this project were to
be used in
16
<PAGE>
monitoring moisture and other contaminant levels within vacuum deposition
chambers for semiconductor manufacturing. The valuable element of this
project was that the expected future products would be differentiated from
Tylan's current products, would offer enhanced sensitivity and the ability
to monitor corrosive gas streams and would also have applications for
different target gases and sample environments. While Tylan retained
management direction over this project, development was performed by a
third party pursuant to a development and license agreement.
Under the development and license agreement Tylan directed the
research with the objective of developing intracavity laser spectroscopy
technologies for application in semiconductor, flat panel, and fiber optic
manufacturing industries. According to this agreement, Tylan was to have
the rights and responsibilities to utilize the technology, were it to be
successfully developed, and to manufacture products for sale to the above
industries. This agreement provided for aggregate development fees of $8.0
million, payable $0.3 million at signing and the balance in equal quarterly
installments thereafter over the five year term of the agreement. The
agreement was terminable at will by Tylan but required the payment of a
termination fee equal to six quarters of development fees ($2.4 million).
Development fees were charged against research and development expense.
This project was written off because, at the time of the Tylan
acquisition, it was very early in the development process and had not
achieved technological feasibility. There was also significant uncertainty
as to the precise configuration and market requirements of the expected
products based on the intracavity laser spectroscopy technology. In
addition, there was considerable uncertainty as to how long it would take
to develop a commercializable product from this technology. Further,
technological feasibility for potential alternative future uses of this
technology had not been achieved.
As a result of the prolonged downturn in the microelectronics
industry, the Company has reprioritized research and development programs
and further development of this project was suspended in late 1997. This
resulted in a decision to terminate the third party development and license
agreement in December 1997 and the termination fee was charged to the
acquisition reserve. The Company retains certain post-termination residual
rights to this technology and is currently re-evaluating the future of this
project.
The second significant IPR&D project acquired with Tylan which has
been written off was the development of a new more versatile, sensitive and
easily manufactured transducer based on thin film technology. This project
had an estimated fair value of $15.0 million, was expected to require the
investment of an additional $1.2 million and ten man years to complete and
was anticipated to generate significant revenues over the estimated life of
the resulting products. If proven technologically feasible, the valuable
element of this project was that it was expected to generate a transducer
which was superior to current transducers in that it could operate in both
high and low pressure environments with enhanced sensitivity and would be
easier and less expensive to manufacture.
17
<PAGE>
This project was written off because, as of the date of the Tylan
acquisition, it was unknown whether or not the thin film transducer
technology could be manufactured successfully on a large scale. Significant
issues relating to manufacturability and whether product physical
dimensions and other product criteria could be achieved remained to be
resolved. In addition, there was uncertainty concerning customer acceptance
of this product. Further, the technology underlying this project had no
alternative future uses not included in its estimated fair value within the
markets served by the Company.
This project has successfully achieved technological feasibility and
has yielded one commercializable product which is expected to be launched
during 1999. However, the objective of ease and cost effectiveness to
manufacture continues to be a challenge. Accordingly, the current revenue
projection for the resulting products is approximately one-third of the
original estimate. The estimated cost to complete this project is currently
expected to be less than one-half of the original estimate.
In addition, to the foregoing IPR&D projects, the Tylan acquisition
included eight other IPR&D projects with an aggregate value of $45.6
million, not considered to be individually significant and which were
expected to cost an aggregate of $2.5 million and twenty-nine man years to
complete. These projects were written off because technological feasibility
had not been demonstrated as of the date of the acquisition of Tylan. As of
December 31, 1998, three of these eight projects have been completed, two
have been cancelled, one is ongoing, one has had a major change in its
scope and has been integrated into a post acquisition project and one has
been suspended. As of December 31, 1998, an aggregate of $4.9 million had
been invested on these individually insignificant Tylan IPR&D projects and
it was estimated that an additional $0.5 million would be required to
achieve technological feasibility for the one ongoing project. The reasons
for the aggregate increase in investment in these insignificant IPR&D
projects included the change in the direction of three of these IPR&D
projects to adapt to the evolving needs of the target customer base, the
unanticipated technical complexity in adapting promising miniaturization
technologies from other industries to Tylan product applications and the
expansion of the scope of certain of these projects since the date of the
Tylan acquisition.
In order to integrate Tylan's business operations with those of
Millipore, a plan was adopted pursuant to which management undertook the
following activities: replacement of Tylan's business systems with the
Company's common business information systems, elimination of redundant
executive and administrative personnel, realignment of product distribution
channels to achieve compatibility with those of Millipore, termination of
supply agreements, divestiture of non-strategic product lines and
consolidation of manufacturing plants in the U.S. and Japan. This
integration plan provided for the termination of 300 Tylan employees and
was extended to include additional U.S. manufacturing plants in the
consolidation. This extended integration plan was implemented with no major
change. As of December 31, 1998, the redundant Tylan facilities in the U.S.
had been closed and their operations consolidated into the Allen, Texas
facility. The integration activities for this acquisition are complete with
final cash payments for contractual agreements continuing through 2000.
18
<PAGE>
RESULTS OF OPERATIONS
The Company reported a profit of $0.22 per share for 1998 compared to a
loss of $0.89 per share for 1997 and a profit of $0.94 per share for 1996.
Excluding restructuring charges and unusual items, the Company would have
reported diluted earnings per share from continuing operations of $0.60, $1.65
and $2.06 for 1998, 1997 and 1996, respectively.
Restructuring Charges and Unusual Items
In the second quarter of 1998, the Company announced a restructuring
program to improve the competitive position of the Company by streamlining
worldwide operations and reducing the overall cost structure. The restructuring
program was initiated to bring operating costs in line with lower revenues
resulting from the financial difficulties in Asian economies, the strong U.S.
dollar and the continuation of the semiconductor industry slump.
Key initiatives include:
1. Discontinue non-strategic product lines and rationalize product
offerings to improve product line focus. The non-strategic product lines
consisted of high pressure liquid chromatography equipment, semiconductor
fab monitoring and control software and various filtration devices. The
rationalization of product offerings is a result of management's review
which identified specific products with limited profitability or products
which were inconsistent with current strategic marketing plans, such as
non-standard products. These actions to improve product line focus were
completed by September 30, 1998.
2. Consolidate certain manufacturing operations to eliminate duplicate
manufacturing processes. Identified manufacturing operations in Ireland and
the U.S. will be consolidated into existing facilities within the Company,
resulting in similar production activities occurring at the same locations.
The consolidation of manufacturing operations will be completed in 2000.
3. Realign European country organizational structure to focus on
operating business units and establish a regional transaction service
center, resulting in the consolidation of financial and administrative
activities into a single location. The Company plans to complete the
transition to the service center by the end of 1999.
4. Reduce administrative and management infrastructure costs in Asia.
These cost reductions will result in a lower overhead structure for
administrative and management infrastructure in Asia and will be achieved
through reduced facility costs and administrative positions as offices in
the region were consolidated during 1998.
5. Renegotiate marketing, research and development and supply
agreements. These agreements were amended to eliminate the cost of
maintaining certain exclusivity rights and to reduce purchasing commitments
for non-strategic products. These actions will be completed by the end of
1999.
19
<PAGE>
6. Streamline the supply chain management function through the
centralization of worldwide procurement functions and the consolidation of
vendors to significantly reduce the aggregate number of vendors, resulting
in cost savings and shorter cycle time within the procurement function as
well as materials cost reductions. These actions will be completed during
1999.
In the third quarter of 1998, the Company recorded an expense associated
with these activities of $42.8 million ($29.1 million after tax) including a
restructuring charge of $33.6 million and a $6.2 million charge for inventory
and $3.0 million of fixed asset write-offs against cost of sales. The $33.6
million restructuring charge included $18.3 million of employee severance costs,
$9.5 million write-off of real and intangible assets associated with
discontinued product lines and with the termination of certain rights under two
technology development collaborations, $3.8 million of lease cancellation costs
and $2.0 million of contract termination costs. During 1998, approximately $5.6
million of restructuring costs, consisting primarily of severance, were paid and
$18.5 million remains accrued and will be substantially paid in 1999 and with
the remainder in future years.
The restructuring initiatives combined with the consolidation of the
Company's Microelectronics plants will result in the elimination of 620
positions worldwide. Notification to employees was completed in the third
quarter of 1998, however a small number of these employees will continue in
their existing positions through 2000 with their related salary costs charged to
operations as incurred. Under the terms of the severance agreements, the Company
expects to pay severance and associated benefits through the early part of 2000.
When fully implemented the combination of the restructuring programs and
the Microelectronics consolidation are expected to yield annual savings of $38.0
million. The savings will result in reduced wages, facility related costs,
depreciation and amortization and will be primarily reflected as reductions in
cost of sales. The savings began in 1998 but will not be fully realized until
1999.
The Company also recorded an incremental provision for excess and obsolete
inventory of $6.0 million during the third quarter of 1998 in response to
adverse changes in demand attributable to declining business conditions in Asia
and the slowdown in the semiconductor industry.
See the discussion of Gross Margins, Gain on Sale of Equity Securities, Net
Loss on Disposal of Discontinued Operations and Legal Proceedings below for
additional information related to the other items on the following schedule.
20
<PAGE>
The summary of restructuring charges and unusual items is as follows:
<TABLE>
<CAPTION>
Summary of Restructuring Charges and Unusual Items: Year Ended
(In millions, except per share data) December 31,
1998 1997 1996
-----------------------------------
<S> <C> <C> <C>
Cost of sales
Write-off of inventory and manufacturing equipment $ 9.2 $ -- $ --
Provision for excess and obsolete inventory 6.0 --
Purchase accounting adjustment -- 5.0 --
-----------------------------------
Impact on gross margin (15.2) (5.0) --
Operating expenses
Purchased research and development expenses -- 114.1 68.3
Restructuring charges 33.6 -- --
Litigation settlements 11.8 -- --
-----------------------------------
Loss from continuing operations before income taxes (60.6) (119.1) (68.3)
Gain on sale of equity securities 35.6 8.3 5.3
-----------------------------------
Impact on loss from continuing operations before income taxes (25.0) (110.8) (63.0)
Tax impact of restructuring charges and unusual items (8.4) 1.2 (14.8)
-----------------------------------
Net loss from continuing operations (16.6) (112.0) (48.2)
Net loss on disposal of discontinued operations ($2.6 pre-tax) -- -- (2.0)
-----------------------------------
Net loss from restructuring charges and unusual items $ (16.6) $(112.0) $ (50.2)
===================================
Net loss per share from restructuring charges and unusual items $ (0.37) $ (2.54) $ (1.13)
===================================
</TABLE>
Local Currency Results
The following discussion of Net Sales, Gross Profit Margins and Operating
Expenses includes reference to revenue, margins and expenses in "local
currencies". For comparability of financial results, the foreign currency
balances, in all periods presented, are translated at Millipore's 1998 budgeted
exchange rates which differ from actual rates of exchange. This provides a
clearer presentation of underlying trends in the Company's business, before the
impact of foreign currency translation.
Net Sales
Consolidated net sales, measured in U.S. dollars, decreased 8 percent in
1998, compared to an increase of 23 percent in 1997, and an increase of 4
percent in 1996. The net sales decrease in 1998 compared to 1997 was primarily
due to the continued downturn in the semiconductor industry, the ongoing
economic difficulties in Asian markets and negative currency effects. The higher
sales growth rate in 1997 compared to 1996 was primarily attributable to the
acquisitions of Amicon and Tylan. Without these acquisitions, sales in 1997
declined by 1 percent from 1996 levels. Sales growth in 1997 was adversely
impacted by a cyclical downturn in the semiconductor industry, unfavorable
foreign currency exchange rate comparisons and certain other factors discussed
below.
During 1998 and 1997 the U.S. dollar strengthened against most of the
European and Asian currencies in which the Company transacts business. The net
effect of this currency movement in 1998 was to increase the rate of the sales
decline by 3 percentage points. In 1997 the stronger
21
<PAGE>
dollar decreased reported sales growth and sales growth excluding acquisitions
by 9 percentage points and 7 percentage points, respectively. The U.S. dollar
increased in value against the Japanese yen in 1996 with the net result of
decreasing the reported sales growth by 5 percentage points (approximately 22%
of Millipore's net sales are to customers in Japan). As a general matter, a
stronger U.S. dollar will adversely affect the sales growth of both business
segments. However, since the Microelectronics segment has a higher percentage of
sales in Asia, strengthening of the dollar against Asian currencies will have a
somewhat larger impact on that segment. Price changes have not significantly
affected the comparability of sales during the past three years.
Sales growth by business segment and geography, measured in local currencies and
U.S. dollars, is summarized in the table below.
<TABLE>
<CAPTION>
Sales Growth in Local Sales Growth in U.S. Dollars
--------------------- ----------------------------
Currencies
----------
With Without With Without
---- ------- ---- -------
Acquisitions Acquisitions Acquisitions Acquisitions
------------ ------------ ------------ ------------
1998 1997 1997 1996 1998 1997 1997 1996
---- ---- ---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Biopharmaceutical &
Research ........... 7% 19% 7% 10% 5% 12% (0)% 6%
Microelectronics ...... (28)% 64% 4% 7% (32)% 50% (4)% 0%
--- --- --- --- --- --- --- ---
Consolidated ....... (5)% 32% 6% 9% (8)% 23% (1)% 4%
--- --- --- --- --- --- --- ---
Americas .............. (9)% 48% 7% 7% (9)% 48% 6% 7%
Europe ................ 8% 28% 8% 6% 7% 15% (3)% 4%
Asia/Pacific .......... (13)% 15% 3% 14% (21)% 3% (8)% 2%
--- --- --- --- --- --- --- ---
Consolidated ....... (5)% 32% 6% 9% (8)% 23% (1)% 4%
--- --- --- --- --- --- --- ---
</TABLE>
Biopharmaceutical & Research sales, measured in local currencies, increased
7 percent in 1998 compared to 19 percent in 1997. The growth of the
Biopharmaceutical & Research segment in 1998 reflects the combination of
increased demand for consumable products and process equipment used in the
production of sterile drugs and analytical and water filtration devices used in
research laboratories. The growth in the Americas and Europe for this segment is
attributable to an increase in the number of new drugs developed through
synthetic and natural methods ("New Chemical Entities") approved and in
production. This segment was adversely affected in Asia by a decrease in demand
as a result of region-wide recessionary pressures.
Excluding the impact of the Amicon acquisition, sales to the
Biopharmaceutical & Research business segment grew 7 percent in 1997 in local
currencies compared to growth of 10 percent in 1996. Sales of large protein
processing systems in 1997 to biotechnology customers were level with those in
1996. In addition, sales to a beer-manufacturing customer in Japan were lower in
1997 as compared to 1996. These two factors, which were significant in boosting
the 1996 overall segment growth rate, combined to depress the sales growth rate
in 1997. New product introductions in 1997 and 1996, particularly for laboratory
water and applied microbiology products, and new distribution alliances launched
late in 1996 in the United States have enhanced sales growth in this market.
Sales growth in 1997 was strongest in Europe and the Americas.
22
<PAGE>
Microelectronics segment sales growth measured in local currency declined
28 percent in 1998 compared to an increase of 64 percent for 1997. Sales growth
for 1997 excluding the acquisition of Tylan was 4 percent. The decrease in 1998
sales was directly attributable to the continuation of the semiconductor
industry slump, which began in the middle of 1996. The reduction in
Microelectronics segment revenues generated from the sale of equipment was
adversely impacted in Asia and the Americas by a significant reduction in
semiconductor plant construction. Sales of consumable gas and liquid
purification devices declined to a lesser extent, consistent with lower
worldwide semiconductor plant capacity utilization. The moderate segment growth
of 4 percent before acquisitions in 1997 reflects the impact of the
aforementioned semiconductor downturn coupled with the Asian financial
difficulties which began late in that year.
Gross Profit Margins
Gross profit margins in local currencies were 48.0 percent in 1998, 53.1
percent in 1997, and 57.1 percent in 1996. Gross profit margins in 1998 were
50.1 percent excluding the effect of the $9.2 million charge for the write-off
of inventory and manufacturing equipment associated with product line
rationalization activities and a provision of $6.0 million for excess and
obsolete inventory. Local currency gross profit margins in 1997 were 53.8
percent excluding the effect of an inventory write-up to net realizable value of
$5.0 million related to acquisition accounting which in turn resulted in very
low margins when this inventory was sold. Gross profit margin percentages,
excluding these charges, were lower in 1998 than those in 1997 reflecting the
impact of significantly reduced volumes in the Company's manufacturing plants
serving the Microelectronics segment combined with duplicative manufacturing
costs resulting from concurrent operations at three existing plants located in
California and Texas and operations at the new manufacturing facility in Allen,
Texas. The redundant facilities were closed in September 1998 and their
operations consolidated into the Allen, Texas facility. The lower gross profit
margin in 1997 is primarily a result of the impact from the acquired companies.
The gross margin percentages of the acquired businesses, particularly Tylan,
were less than those of the pre-existing Company's businesses.
Operating Expenses
Selling, general and administrative ("S,G&A") expenses in local currencies
decreased 1 percent in 1998, and increased 29 percent in 1997. The decrease in
1998 is due to cost containment programs initiated as part of the restructuring
activities. The increase in 1997 is due to incremental expenses associated with
the acquired businesses. Despite the decrease in spending in 1998, the Company
continued to invest in sales, service and marketing resources focused on
maintaining or improving customer services, supporting the launch of new
products and development of future sales initiatives aimed at improving the
Company's competitive positions.
Research and development expenses in local currencies decreased 4 percent
in 1998, and increased 49 percent in 1997. The decrease in 1998 was primarily
due to the elimination of research and development expenses for non-strategic
product lines in the Microelectronics segment. The significant increase in 1997
was due to the addition of the acquired businesses.
23
<PAGE>
Litigation settlements totaling $11.8 million were recorded in the first
quarter of 1998 and are described in "Legal Proceedings" below.
Gain on Sale of Equity Securities
Gain on sale of equity securities in 1998 primarily reflects the sale of
the Company's holdings in PerSeptive Biosystems common shares. As of December
31, 1997, the Company held 2.2 million shares of PerSeptive Biosystems common
stock and 1,000 shares of PerSeptive Biosystems preferred stock. On January 22,
1998, PerSeptive merged with The Perkin-Elmer Corporation. Pursuant to the
merger, all of the Company's holdings of common and preferred shares in
PerSeptive were converted into an aggregate of 587,000 shares of Perkin-Elmer
common stock. In the first quarter of 1998, the Company sold all of its shares
of Perkin-Elmer stock for approximately $32.5 million in cash. The Company also
sold all of its common shares of Glyko Biomedical Ltd. in the first quarter of
1998 and recognized a gain of $3.1 million.
Gain on sale of equity securities in 1997 reflected the sale of a portion
of the Company's holdings in PerSeptive Biosystems common shares.
Gain on sale of equity securities in 1996 reflected the sale of a
significant portion of the Company's stock holdings in a Japanese company. The
Company sold these securities to fund a new headquarters and research and
development facility in Japan. The cost of moving to this new facility was $2.0
million and was recorded in S,G&A expense.
Net Interest Expense
Net interest expense in 1998 was $1.2 million less than 1997, primarily as
a result of a yen debt swap agreement entered into during December 1997. Net
interest expense in 1997 was significantly higher than net interest expense in
1996 due to increased borrowings, which were used to acquire both Amicon and
Tylan.
Provision for Income Taxes
The effective income tax rate in 1998, including the restructuring program,
was a benefit of 15.4 percent. Excluding the effect of the restructuring
program, the effective income tax rate was 21.0 percent. The Company's effective
income tax rate in 1997, excluding the non-tax deductible write-off of purchased
research and development associated with the Tylan acquisition, was 21.0 percent
compared to 23.5 percent in 1996. The lower effective tax rate in 1997 as
compared to 1996 reflected a higher proportion of income generated by low tax
rate manufacturing sites.
Net Loss on Disposal of Discontinued Operations
In 1994 the Company sold it's Waters Chromatography Division and, in a
separate transaction, sold certain assets of its non-membrane bioscience
business. During the third quarter of 1998, the Company completed a
comprehensive review of its accounting for these divestitures and recorded a
$5.8 million (after tax) net loss on the disposal of these businesses. As a
result of correspondence with the staff of the Securities and Exchange
Commission, the financial statements for all periods affected have been restated
to reflect a net loss on the disposal of
24
<PAGE>
discontinued operations, net of taxes, of $0 in 1998, $2.0 million in 1996 and
$3.8 million in 1994. This change reflects the corrected accounting of the
remaining assets and liabilities associated with these divested operations.
Earnings Per Share
Earnings per share in 1998 were impacted by restructuring charges and
several unusual items. Both 1997 and 1996 earnings per share included
significant write-offs of purchased research and development associated with the
Company's acquisition of Amicon and Tylan. Earnings per share in 1996 were also
impacted by the charge to discontinued operations discussed above. The impact of
these items is reflected in the above schedule of Restructuring Charges and
Unusual Items.
Additionally, earnings per share were adversely impacted by the
comparatively stronger U.S. dollar, reducing earnings by $0.33 per share in 1998
as compared to 1997 and $0.26 per share in 1997 as compared to 1996.
MARKET RISK
The Company is exposed to market risks, which include changes in interest
rates and changes in foreign currency exchange rates as measured both against
the U.S. dollar and each other. The Company manages these market risks through
its normal financing and operating activities and, when appropriate, through the
use of derivative financial instruments. The Company does not invest in
derivative financial instruments for speculative purposes.
Foreign Exchange
The Company derives approximately 60 percent of its revenues from customers
outside of the United States. This business is transacted through the Company's
network of international subsidiaries generally in the local currency. This
exposes the Company to risks associated with changes in foreign currency that
can impact revenues, net income and cash flow. Sourcing of product from
international subsidiary plants and active management of cross border currency
flows partially mitigates the impact of changes in foreign currency. However,
the Company has significant exposure to changes in the Japanese yen that can not
be mitigated through normal financing or operating activities. Accordingly, this
risk is managed through the use of derivative financial instruments. The income
and cash flow exposure is managed through the use of option contracts and the
net equity exposure is hedged through the use of debt swap agreements.
25
<PAGE>
The Company enters into foreign currency option contracts to sell yen on a
continuing basis in amounts and timing consistent with the underlying currency
transactions. The gains on these transactions, if any, partially offset the
realized foreign exchange losses on the underlying exposure. Gains, net of
premium costs, of $2.2 million in 1998, $4.4 million in 1997 and $2.7 million in
1996 were realized from these contracts and were recorded in cost of sales. At
December 31, 1998, the Company had open option contracts to sell yen aggregating
$47.3 million. All open options expire within 15 months. Premiums to purchase
foreign currency option contracts are amortized over the life of the contract.
Unamortized premiums of $1.4 million were included in other current assets as of
December 31, 1998.
The Company's net equity exposure to the Japanese yen has been effectively
hedged through debt swap agreements covering both principal and interest.
Pursuant to these agreements $110,000 of debt with a weighted average fixed
interest rate of 6.7 percent was swapped for an equivalent value of yen at a
weighted average exchange rate of 114.6 yen to the dollar and a weighted average
fixed interest rate of 3.6 percent. The swap agreements mature in 2003 and 2004.
Although the Company mitigates its foreign currency exchange risk through
the above activities, when the U.S. dollar strengthens against currencies in
which the Company transacts its business, sales and net income will be adversely
impacted.
Credit Risk
The Company is exposed to concentrations of credit risk in cash and cash
equivalents, trade receivables and derivative financial instruments.
Cash and cash equivalents are placed with major financial institutions with
high quality credit ratings. The amount placed with any one institution is
limited by policy.
Trade receivables credit risk exposure is limited due to the large number
of customers and their dispersion across different industries and geographies.
The Company is exposed to credit related risks associated with the
potential nonperformance by counterparties to the debt swap agreements. The
counterparties to these contracts are major financial institutions. The Company
continually monitors its positions and the credit ratings of its counterparties
and limits the amount of contracts it enters into with any one party.
CAPITAL RESOURCES AND LIQUIDITY
Cash flow provided from operations was $51.5 million in 1998, $54.0 million
in 1997 and $102.2 million in 1996. Reported cash flow from operations was
reduced by $28.1 million in 1998 and $23.3 million in 1997 for costs associated
with the 1998 restructuring activities and the integration of the Amicon and
Tylan acquisitions. Excluding the restructuring and acquisition related
expenditures, cash flow from operations was $79.6 million in 1998 and $77.3
million in 1997.
The improvement in 1998 cash flow from operations over 1997, excluding the
restructuring and acquisition related expenditures, is the result of a decrease
in working capital offset by a significant decline in operating income before
restructuring charges and unusual items. The favorable working capital
comparisons were a combination of a decrease in accounts receivable balances,
lower inventory levels and a reduction in other current assets. The improvement
in receivables reflects the impact of the lower sales volume and improved
collection experience. The improvement in inventory utilization was attributable
to asset management initiatives launched in
26
<PAGE>
1998 and reserve actions taken as part of the 1998 restructuring program. The
reduction in other current assets reflects the sale of equity securities in
1998. The decline in operating income resulted from the downturn in the
semiconductor industry, the financial difficulties in Asia and the strength of
the U.S. dollar.
The decrease in cash flow in 1997, excluding the expenditures related to
the Amicon and Tylan acquisitions, compared to that of 1996 is attributable to
higher levels of working capital and an increase in interest cost. Operating
income before these acquisition related charges in 1997 was slightly less than
that of 1996. The increase in working capital comparisons were a combination of
increases in both accounts receivable balances and inventory levels as a result
of the Tylan acquisition in January 1997 and an increase in other current
assets. The increase in accounts receivable was attributable to significantly
higher revenues in the fourth quarter of 1997 versus the comparable period of
the prior year. The increase in fourth quarter 1997 revenues was principally
attributable to the acquisition of Tylan in the first quarter of 1997. Inventory
balances increased in anticipation of future demand from customers in the
semiconductor market which failed to materialize. The increase in other current
assets reflects the pending sale of equity securities in the first quarter of
1998. These securities had previously been recorded in other assets. The
increase in interest expense in 1997 is directly related to borrowings used for
the acquisition of Amicon and Tylan.
During 1999 the Company expects to spend approximately $17.0 million in
cash for costs accrued in connection with the restructuring program and for
costs to complete the integration of Amicon and Tylan. This will be funded by
cash flow from operating activities.
Cash generated by the Company during 1998 was used to invest in property,
plant and equipment, and to pay dividends. Property, plant and equipment
expenditures for 1998 exceeded 1997 expenditures by $18.7 million primarily due
to $10.0 million spent for the expansion of the Biopharmaceutical membrane
manufacturing facility in Cork, Ireland and $24.4 million spent for the
construction of the new Microelectronics manufacturing facility in Allen, Texas.
The total cost of the Allen facility will be approximately $28.0 million. The
Company expects capital expenditures for 1999 to be in the range of $40.0 to
$45.0 million. Depreciation expense in 1999 is expected to be slightly higher
than in 1998 as a result of the increased capital expenditures in 1998. The
Company has no significant commitments for capital expenditures at December 31,
1998.
In 1997, cash generated from operating activities, along with increased
borrowings, was used for the acquisition of Tylan, the purchase of certain
assets and technology of FAStar Ltd. and FAS Holding Company, and capital
expenditures. In 1996 the Company used $58.4 million of cash from operations to
purchase shares of its outstanding common stock. During 1997 and 1996 the
Company continued to invest in capacity expansions and the upgrade of
manufacturing facilities and in information technology systems and equipment.
The net cash outflow of $2.2 million and $3.5 million in 1998 and 1997,
respectively, for operations discontinued in 1994 were in line with the
Company's expectations. At December 31,
27
<PAGE>
1998, the Company had no significant remaining obligations related to these
discontinued operations.
In May 1998, the Company reduced the maximum funds available under its
unsecured Revolving Credit Agreement, dated January 22, 1997 (the "Credit
Agreement") from $350 million to $250 million.
The Company's financial results for the quarter ended September 30, 1998
made it necessary for the Company to renegotiate certain financial covenants
relating to operating cash flow and interest coverage under the Credit
Agreement, and under the $100 million 6.88 percent note due in 2004 (the "2004
note"). Pursuant to this renegotiation, the lenders involved waived defaults
under those covenants and accepted less restrictive operating cash flow and
interest coverage covenants for 1999 and a portion of 2000. The Company agreed
to an additional minimum earnings covenant, the payment of amendment fees
totaling approximately $0.6 million, and to increases in both the interest rate
and the facility fees thereunder. Interest is payable under the Credit Agreement
at a floating U.S. dollar deposit rate, defined as LIBOR, plus a margin. The
Company agreed to an increase in this margin from a range of 0.18 to 0.65
percent to a range of 0.23 to 1.125 percent. The Company also agreed to an
increase in the facility fee under the Credit Agreement from a rate ranging from
0.10 to 0.25 percent to a rate ranging from 0.125 to 0.375 percent. The interest
rate under the 2004 note also increased from 6.88 percent to 7.23 percent as of
November 2, 1998.
In November 1998 Moody's Investor Services downgraded the Company's debt
rating to Ba2 from Baa3; a rating which Moody's characterizes as below
"investment grade". Standard & Poors Corporation also downgraded the Company's
debt rating from BBB- to BB+. The Company expects that this development may make
it more difficult for the Company to access money markets should it become
necessary to do so.
The use of debt to finance the acquisitions of Amicon and Tylan
substantially increased the Company's debt to equity ratio. In the first quarter
of 1997, the Company successfully completed a public debt offering. Proceeds
from the offering of $197.9 million were used to repay borrowings outstanding
under the Credit Agreement.
At December 31, 1998, the Company had additional borrowing capacity of
$80.0 million under its Credit Agreement.
The Company believes that its balances of cash and cash equivalents,
funds available under the Credit Agreement and cash flows expected to be
generated by future operating activities will be sufficient to meet its cash
requirements over the next twelve to twenty-four months. However, given the
Company's current debt ratings, if the Company should need to obtain additional
borrowings, there can be no assurance that such borrowings could be obtained at
favorable rates.
DIVIDENDS
28
<PAGE>
The quarterly dividend was increased in the second quarter of 1998 from
$0.10 to $0.11 per share. Dividends paid in 1998 were $18.4 million.
EURO
On January 1, 1999, several member countries of the European Union
established fixed conversion rates between their existing sovereign "legacy"
currencies, and adopted the Euro as their new common legal currency. As of that
date, the Euro began trading on currency exchanges and the legacy currencies
will remain legal tender in the participating countries for a transition period
between January 1, 1999 and January 1, 2002.
The Euro conversion may affect cross-border competition by creating greater
cross-border price transparency. The Company is assessing its pricing/marketing
strategy in order to ensure that it remains competitive in a broader European
market. The Company has assessed its information technology systems to allow for
transactions to take place in both the legacy currencies and the Euro and the
eventual elimination of the legacy currencies, and is reviewing whether certain
existing customer pricing and vendor contracts will need to be modified. The
currency risk and risk management for operations in participating countries may
be reduced as the legacy currencies are converted to the Euro. Final accounting,
tax and governmental legal and regulatory guidance are not available. The
Company is evaluating issues involving introduction of the Euro. The Company
began processing customer orders and invoicing in Euro during the first week of
January 1999. Based on current information and current assessments, the Company
does not expect that the Euro conversion will have a material adverse effect on
its business or financial condition.
YEAR 2000
The Company is aware of the "Year 2000" issue that will affect certain
products and systems that were not designed to properly handle the transition
between the twentieth and twenty-first centuries. The Company has recognized the
need to ensure that its business operations will not be adversely impacted by
the Year 2000. Accordingly, the Company has authorized an internal team to
assess the Company's Year 2000 readiness and to determine the steps necessary to
address its Year 2000 issues. Among the areas that have been or are being
assessed are the Company's internal information systems, its manufacturing
equipment, its facilities and its products. In addition, the team has begun the
assessment of the Year 2000 readiness of the Company's key suppliers and
financial institutions.
As part of the assessment of its Year 2000 readiness, the Company has
identified and substantially completed testing of its key internal information
systems (which includes order entry, manufacturing and financial systems) as
well as its facilities, manufacturing and other key systems for Year 2000
compliance. The testing to date has identified no significant issues. By
mid-1999, the Company expects to complete implementation of all modifications or
replacements necessary to make all key systems Year 2000 compliant.
29
<PAGE>
The Company has nearly completed its testing of the Year 2000 compliance of
its products. A large majority of the Company's products do not present Year
2000 compliance issues, and for those products that do present issues the
Company has communicated with its customers regarding appropriate solutions.
In addition to testing of the Company's internal systems and its products,
the Company has begun implementing its plan of communication with its suppliers
and financial institutions regarding their Year 2000 readiness and the Year 2000
compliance of the products and services that they provide to the Company. As of
December 31, 1998 the Company has not identified any important Year 2000
readiness issues of its key supply-chain partners. The Company expects to
substantially complete its risk analysis and to develop contingency plans where
reasonably possible for dealing with any risks raised by such non-readiness
before July 1999.
The Company currently estimates that the total costs that will be incurred
in its Year 2000 assessment and remediation program will be in the range of $1.0
million to $3.0 million, of which approximately $0.5 million has been incurred
through December 31, 1998. Incremental spending has not been and is not expected
to be material because most Year 2000 readiness costs will be met with amounts
that are normally budgeted for procurement and maintenance of the Company's
information systems and infrastructure. However, the redirection of spending to
the implementation of its Year 2000 readiness program may in some instances
delay productivity improvements.
The Year 2000 presents a number of risks and uncertainties that could
affect the Company notwithstanding the successful implementation of its Year
2000 readiness program. Those risks and uncertainties include, but are not
limited to, failure of utilities or transportation systems, competition for
personnel skilled in remediation of Year 2000 issues, and the nature of
government responses to the Year 2000.
Though the Company continues to believe that the Year 2000 will not have a
material impact on its business, financial condition or results of operations,
the occurrence of any of the above risks or uncertainties or the failure to
successfully implement the Company's Year 2000 readiness program could result in
such a material impact.
LEGAL PROCEEDINGS
On May 2, 1997, the Environmental Quality Board ("EQB") of Puerto Rico
served an administrative order on Millipore Cidra, Inc., a wholly-owned
subsidiary of the Company. The administrative order ("EQB order") alleged: (i)
that the nitrocellulose filter membrane scrap produced by Millipore Cidra's
manufacturing operations is a hazardous waste as defined in EQB regulations;
(ii) that Millipore Cidra, Inc. failed to manage, transport and dispose of the
nitrocellulose membrane scrap as a hazardous waste; and (iii) that such failure
violated EQB regulations. The EQB order proposed penalties in the amount of
$96.5 million and ordered Millipore Cidra, Inc. to manage the nitrocellulose
membrane scrap as a hazardous waste. The Company recorded a charge of $5.0
million in the first quarter of 1998 reflecting its costs to settle this matter.
30
<PAGE>
The Company also recorded a charge of $3.1 million in the first quarter of
1998 reflecting its costs to settle a separate lawsuit with an intervening party
in the EQB administrative case described above.
The Company recorded a charge of $3.7 million in the first quarter of
1998 to settle a patent lawsuit with Mott Metallurgical Corporation. In the
lawsuit, each party claimed infringement of one of its patents by the other. As
part of the settlement, the parties agreed to cross license the two patents at
issue.
The Company and Waters Corporation were engaged in an arbitration
proceeding and a related litigation in the Superior Court, Middlesex,
Massachusetts, both of which commenced in the second quarter of 1995 with
respect to the amount of assets required to be transferred by the Company's
Retirement Plan in connection with the Company's divestiture of its former
Chromatography Division. In the second quarter of 1996, Waters filed a Complaint
in the Federal District Court of Massachusetts alleging that the Company's
operation of its Retirement Plan violated ERISA and certain sections of the
Internal Revenue Code. Judgments in the Company's favor were handed down by both
the Massachusetts Superior Court and the Federal District Court in May 1997 and
July 1997, respectively. Waters appealed the federal court judgment, which was
affirmed by the United States Court of Appeals for the First Circuit by opinion
dated April 3, 1998. On June 2, 1998, the Company transferred $2.4 million
(including interest through the date of transfer) from its Retirement Plan to
the Waters Retirement Plan as provided by the amended and restated Purchase and
Sale Agreement. In order to fund the transfer, in the second quarter of 1998 the
Company made a contribution of $2.2 million to its Retirement Plan in accordance
with ERISA funding requirements.
BUSINESS OUTLOOK AND UNCERTAINTIES
The following statements are based on current expectations. These
statements are forward looking and actual results may differ materially.
Sales: The semiconductor industry in which the Microelectronics business segment
participates is highly cyclical. The current downturn began in the middle of
1996 and is expected to continue into 1999. Independent market research for the
semiconductor industry suggests that a moderate growth cycle will begin in the
second half of 1999 with stronger growth in 2000. However, capital equipment
sales, which represents approximately 40 percent of the Microelectronics segment
revenues, could lag the industry upturn due to excess capacity in certain
segments of the market.
The Biopharmaceutical & Research segment has demonstrated relatively stable
patterns of revenue growth. Customers in this segment, particularly those
involved in the production of sterile drugs, purchase standardized products for
use in validated production processes. Accordingly, it is important to
participate in the development of new drugs / New Chemical Entities in order to
be designed into the ultimate manufacturing process. Adoption of new
technologies and products requires a lengthy validation process prior to
adoption. The growth of
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<PAGE>
this segment is highly leveraged on the development and approval of New Chemical
Entities. It is difficult to ascertain the number or timing of such approvals,
however, the number of drugs at various stages in the approval process has
increased significantly over the past two years. The remaining driver of this
segment is research and development spending which has been relatively stable
and is expected to continue with growth in the mid single digits.
Both of the Company's business segments were adversely impacted by the
financial difficulties in the Asian economies, which began in late 1997 and
continued through 1998. The continuation of these conditions would moderate the
growth rate of both segments.
Approximately 60 percent of the Company's sales are to customers outside of
the United States and are generally made in local currency. As previously noted,
1998 sales and earnings were negatively impacted by a strong US dollar,
particularly against the Japanese yen and the Korean won. Late in 1998, both of
these currencies began to show signs of strengthening. However, in early 1999,
European currencies have weakened offsetting the impact of the stronger Asian
currencies. Therefore if foreign exchange rates remain at the March 3, 1999
level, there will be a minimal foreign exchange impact on first quarter 1999 and
full-year 1999 reported sales growth as compared to 1998. Any change in foreign
exchange rates will be reflected in the results of operations.
Gross Margins: The Company expects gross margin percentages in 1999 to improve
as compared with those of 1998. Margins will benefit from the impact of various
restructuring programs and the increased volume in the Company's manufacturing
plants to support anticipated sales growth. To the extent that foreign currency
exchange rates relative to the U.S. dollar remain at March 3, 1999 levels, first
quarter 1999 and full year margins will not be significantly impacted from
foreign currency exchange rate fluctuations.
Operating Expenses: The Company expects that operating expenses in local
currencies, as a percentage of sales, in 1999 will be consistent with the
percentage achieved in previous years.
Interest Expense: The Company expects net interest expense in 1999 will be
slightly higher than 1998 as a result of the revised terms for the Credit
Agreement and the 2004 note, as previously noted, net of the impact of
anticipated reduced short-term borrowings.
Provision for Income Taxes: The effective tax rate in 1999 is projected to be in
the range of 21 percent; consistent with the effective rate for 1998, excluding
the effect of the restructuring program. The tax rate estimate is based on the
Company's current expectations for 1999 income and current tax law and,
therefore, is subject to change. At December 31, 1998, the Company had a net
deferred tax asset of $108.5 million. Although realization of the asset is not
assured, the Company believes it is more likely than not that this net deferred
tax asset will be realized. The amount of the deferred tax asset considered
realizable, however, could be reduced if the near term estimates of future
taxable income are reduced, which could result in the Company's 1999 effective
tax rate increasing above the expected range of 21 percent.
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<PAGE>
Capital Spending: The Company expects to spend between $40.0 to $45.0 million
for fixed asset additions in 1999. The Company does not believe it needs to
significantly expand or add manufacturing capacity in 1999 to handle its
anticipated 1999 sales growth. The Company will continue to invest in tooling
within its manufacturing plants and in information technology. Accordingly, the
Company also expects that 1999 depreciation expense will be higher than 1998
depreciation expense.
FORWARD-LOOKING STATEMENTS
The matters discussed herein, as well as in future oral and written statements
by management of the Company, that are forward-looking statements, are based on
current management expectations that involve substantial risks and uncertainties
which could cause actual results to differ materially from the results expressed
in, or implied by, these forward-looking statements. When used herein or in such
statements, the words "anticipate", "believe", "estimate", "expect", "may",
"will", "should" or the negative thereof and similar expressions as they relate
to the Company or its management are intended to identify such forward-looking
statements. In addition to the matters discussed herein, potential risks and
uncertainties that could affect the Company's future operating results include,
without limitation, foreign exchange rates; increased regulatory concerns on the
part of the biopharmaceutical industry; further consolidation of drug
manufacturers; competitive factors such as new membrane technology, and/or a new
method of chip manufacture which relies less heavily on purified chemicals and
gases; availability of component products on a timely basis; inventory risks due
to shifts in market demand; change in product mix; conditions in the economy in
general, including uncertainties in selected Asian economies, and in the
microelectronics manufacturing market in particular; the difficulty in
integrating acquired companies; the failure to realize the savings contemplated
by certain restructuring activities; potential environmental liabilities; the
inability to utilize technology in current or planned products due to overriding
rights by third parties, and the other risk factors described elsewhere in this
Form 10-K/A Annual Report, and in particular the matters described in Item 1
above under the heading "Environmental Matters". Specific reference is also made
to the risks and uncertainties described in the Registration Statement on Form
S-3 (Registration 333-23025) filed by the Company in connection with its
offering of $300 million of Debt Securities in May 1997 ( in particular, to
those risks described under "Factors Which May Affect Future Results"). See also
"Legal Proceedings" and "Business Outlook and Uncertainties" above.
Item 7A. Quantitative and Qualitative Disclosures About Market Risk.
The information called for by this item is set forth under the heading
"Market Risk" in Management's Discussion and Analysis contained in Item 7 above
which information is hereby incorporated by reference.
Item 8. Financial Statements and Supplementary Data.
The information called for by this item is set forth in the Financial
Statements at the end of this report commencing at the pages indicated below:
<TABLE>
<S> <C>
Consolidated Statements of Income for the three years ended
December 31, 1998, 1997 and 1996............................................F-2
</TABLE>
33
<PAGE>
<TABLE>
<S> <C>
Consolidated Balance Sheets for the years ended December 31, 1998 and 1997......F-3
Consolidated Statements of Shareholders' Equity for the three
years ended December 31, 1998, 1997 and 1996................................F-4
Consolidated Statements of Cash Flows for the three years
ended December 31, 1998, 1997 and 1996......................................F-5
Notes to Consolidated Financial Statements......................................F-6
Report of Independent Accountants...............................................F-29
Quarterly Results (Unaudited)...................................................F-30
</TABLE>
All of the foregoing Financial Statements are hereby incorporated by reference.
Item 9. Disagreements on Accounting and Financial Disclosure.
This item is not applicable.
34
<PAGE>
PART III
Item 10. Directors and Executive Officers of Millipore.
The information called for by this item with respect to registrant's
directors and compliance with Section 16(a) of the Securities Exchange Act of
1934 as amended is set forth under the caption "Management and Election of
Directors--Nominees for Election as Directors" in Millipore's definitive Proxy
Statement for Millipore's Annual Meeting of Stockholders to be held on April 22,
1999, and to be filed with the Securities and Exchange Commission on or about
March 19, 1999, which information is hereby incorporated herein by reference.
Information called for by this item with respect to registrant's executive
officers is set forth under "Executive Officers of Millipore" in Item 1 of this
report.
Item 11. Executive Compensation.
The information called for by this item is set forth under the caption
"Management and Election of Directors-Executive Compensation" in Millipore's
definitive Proxy Statement for Millipore's Annual Meeting of Stockholders to be
held on April 22, 1999, and to be filed with the Securities and Exchange
Commission on or about March 19, 1999, which information is hereby incorporated
herein by reference.
Item 12. Security Ownership of Certain Beneficial Owners and Management.
The information called for by this item is set forth under the caption
"Ownership of Millipore Common Stock" in Millipore's definitive Proxy Statement
for Millipore's Annual Meeting of Stockholders to be held April 22, 1999, and to
be filed with the Securities and Exchange Commission on or about March 19, 1999,
which information is hereby incorporated herein by reference.
Item 13. Certain Relationships and Related Transactions.
This item is not applicable.
35
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a) The following documents are filed as a part of this Report:
1. Financial Statements.
The following Financial Statements are filed as part of this
report (See index on page F-1):
Consolidated Statements of Income for the three years ended December
31, 1998, 1997 and 1996
Consolidated Balance Sheets for the years ended December 31, 1998 and
1997
Consolidated Statements of Shareholders' Equity for the three years
ended December 31, 1998, 1997 and 1996
Consolidated Statements of Cash Flows for the three years ended
December 31, 1998, 1997 and 1996
Notes to Consolidated Financial Statements
Report of Independent Accountants
Quarterly Results (Unaudited)
2. Financial Statement Schedules.
No financial statement schedules have been included because they
are not applicable or not required under Regulation S-X.
3. List of Exhibits.
A. The following exhibits are incorporated by reference:
<TABLE>
<CAPTION>
Reg. S-K
Item 601(b) Referenced Document on
Reference Document Incorporated file with the Commission
- --------- --------------------- ------------------------
<S> <C> <C>
(3) (i) Restated Articles of Organization, Form 10-K Report for year ended December
as amended May 6, 1996 31, 1996 [Commission File No. 0-1052]
(ii) By Laws, as amended Form 10-K Report for year ended December
31, 1990 [Commission File No. 0-1052]
(4) Indenture dated as of May 3, 1995, Registration Statement on Form S-4
relating to the issuance of $100,000,000 (No. 33-58117) and an accompanying
principal amount of Company's Form T-1)
6.78% Senior Notes due 2004
(4) Indenture dated as of April 1, 1997, Registration Statement on Form S-3
relating to the issuance of Debt (No. 333-23025) and an accompanying
Securities in Series Form T-1)
</TABLE>
36
<PAGE>
<TABLE>
<CAPTION>
Reg. S-K
Item 601(b) Referenced Document on
Reference Document Incorporated file with the Commission
- --------- --------------------- ------------------------
<S> <C> <C>
(10) Shareholder Rights Agreement Form 8-K Report for April, 1998
[cont'd] dated as of April 15, 1988, as amended [Commission File No. 0-1052]
and restated April 16, 1998
between Millipore and The
First National Bank of Boston
Distribution Agreement, dated as of Form 10-K Report for the year
July 1, 1996, by and among Company ended December 31, 1996
and Fisher Scientific Company [Commission File No. 0-1052]
Revolving Credit Agreement, dated as of Form 10-K Report for the year
January 22, 1997, among Millipore ended December 31, 1996
Corporation and The First National [Commission File No. 0-1052]
Bank of Boston, ABM AMRO Bank N.V.
and certain other lending institutions
Long Term Restricted Stock (Incentive) Form 10-K Report for the year ended
Plan for Senior Management* December 31,1984 [Commission File No. 0-1052]
1995 Combined Stock Option Plan, Form 10-K Report for the year ended
as amended* December 31, 1997 [Commission File
No. 0-1052]
1985 Combined Stock Option Plan* Form 10-K Report for the year ended
December 31, 1985 [Commission File
No. 0-1052]
Supplemental Savings and Retirement Form 10-K Report for the year
Plan for Key Salaried Employees of ended December 31, 1984
Millipore Corporation* [Commission File No. 0-1052]
Executive Termination Form 10-K Report for the year
Agreement* ended December 31, 1984
[Commission File No. 0-1052]
1995 Employee Stock Purchase Plan Form 10-K Report for the year
ended December 31, 1994
[Commission File No. 0-1052]
1995 Management Incentive Plan* Form 10-K Report for the year
ended December 31, 1994
[Commission File No. 0-1052]
</TABLE>
- --------------------------------------------------------------------------------
* A "management contract or compensatory plan"
37
<PAGE>
<TABLE>
<CAPTION>
Reg. S-K
Item 601(b) Referenced Document on
Reference Document Incorporated file with the Commission
- --------- --------------------- ------------------------
<S> <C> <C>
(10) Second Amendment, effective as of Form 10-K Report for the year
[cont'd] September 30, 1998, to Revolving ended December 31, 1998
Credit Agreement, dated as of [Commission File No. 0-1052]
January 22, 1997, among Millipore
Corporation and The First National Bank
of Boston, ABM AMRO Bank N.V.
and certain other lending institutions
Note Purchase and Exchange Agreement, Form 10-K Report for the year
as amended through November 2, 1998, ended December 31, 1998
between Millipore Corporation and [Commission File No. 0-1052]
Metropolitan Life Insurance Company
Form of letter agreement with directors Form 10-K Report for the year
relating to the deferral of directors fees ended December 31, 1998
and conversion into phantom stock units* [Commission File No. 0-1052]
1989 Stock Option Plan for Form 10-K Report for the year
Non-Employee Directors* ended December 31, 1998
[Commission File No. 0-1052]
1989 Stock Option Plan Form 10-K Report for the year
for Non-Employee Directors* ended December 31, 1998
[Commission File No. 0-1052]
Commercial Lease Agreement Form 10-K Report for the year
between EBP 3, Ltd. and ended December 31, 1998
Millipore Corporation with respect [Commission File No. 0-1052]
to Premises located in Allen, Texas
(11) Computation of Per Share Earnings The computation can be clearly
determined from the material set
forth in Note F to the Financial
Statements contained on page F-14
(21) Subsidiaries of Millipore Form 10-K Report for the year
ended December 31, 1998
[Commission File No. 0-1052]
</TABLE>
- --------------------------------------------------------------------------------
* A "management contract or compensatory plan"
38
<PAGE>
B. The following Exhibits are filed herewith:
Reg. S-K
Item 601(b)
Reference Documents Filed Herewith
- --------- ------------------------
(10) ISDA Master Agreement, dated January 27, 1994, as amended, with Morgan
Guaranty Trust Company of New York
(23) Consent of Independent Accountants relating to the incorporation of
their report on the Consolidated Financial Statements into
Company's Securities Act Registration Nos. 2-72124, 2-85698,
2-91432, 2-97280, 33-37319, 33-37323, 33-11-790, 33-59005,
33-10801, 333-79227 and 333-90127 on Form S-8, Securities Act
Registration Nos. 2-84252, 33-9706, 33-22196, 33-47213 and
333-23025 on Form S-3, Securities Act Registration No. 333-80781 on
Form S-3/A and Securities Act Registration No. 33-58117 on Form
S-4.
(24) Power of Attorney
(27) Financial Data Schedule
(b) Reports on Form 8-K.
No reports on Form 8-K have been filed by Registrant during the
last quarter of the fiscal year ended December 31, 1998.
(c) Exhibits.
The Company hereby files as exhibits to this Annual Report on
Form 10-K/A those exhibits listed in Item 14(a)(3)(B) above, which
are attached hereto.
(d) Financial Statement Schedules.
No financial statement schedules have been included because they
are not applicable or are not required under Regulation S-X.
39
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities
Exchange Act of 1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
MILLIPORE CORPORATION
Dated: November 12, 1999 By /s/ JEFFREY RUDIN
-----------------------------
Jeffrey Rudin, Vice President
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacity and on the dates indicated.
SIGNATURE TITLE DATE
- --------- ----- ----
C.WILLIAM ZADEL* Chairman, President, November 12, 1999
- ----------------------- Chief Executive Officer,
C. William Zadel and Director
/s/ FRANCIS J. LUNGER Vice President, November 12, 1999
- ----------------------- Chief Financial Officer
Francis J. Lunger
/s/ KATHLEEN B. ALLEN Corporate Controller November 12, 1999
- -----------------------
Kathleen B. Allen
SAMUEL C. BUTLER* Director November 12, 1999
- -----------------------
Samuel C. Butler
ROBERT C. BISHOP* Director November 12, 1999
- -----------------------
Robert C. Bishop
ROBERT E. CALDWELL* Director November 12, 1999
- -----------------------
Robert E. Caldwell
ELAINE L. CHAO* Director November 12, 1999
- -----------------------
Elaine L. Chao
MAUREEN A. HENDRICKS* Director November 12, 1999
- -----------------------
Maureen A. Hendricks
40
<PAGE>
Director November 12, 1999
- -----------------------
Mark Hoffman
Director November 12, 1999
- -----------------------
Thomas O. Pyle
/s/ RICHARD J. LANE* Director November 12, 1999
- -----------------------
Richard J. Lane
Director November 12, 1999
- -----------------------
John F. Reno
*By /s/ JEFFREY RUDIN
- ---------------------------------
Jeffrey Rudin, Attorney-in-Fact
41
<PAGE>
MILLIPORE CORPORATION
INDEX TO FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
Consolidated Statements of Income
for the three years ended December 31, 1998, 1997 and 1996...........F-2
Consolidated Balance Sheets
for the years ended December 31, 1998 and 1997.....................F-3
Consolidated Statements of Shareholders' Equity
for the three years ended December 31, 1998, 1997 and 1996...........F-4
Consolidated Statements of Cash Flows
for the three years ended December 31, 1998, 1997 and 1996...........F-5
Notes to Consolidated Financial Statements..............................F-6
Report of Independent Accountants.......................................F-29
Quarterly Results (Unaudited)...........................................F-30
F-1
<PAGE>
MILLIPORE CORPORATION
CONSOLIDATED STATEMENTS OF INCOME
<TABLE>
<CAPTION>
Year ended December 31
------------------------------------
1998 1997 1996
--------- --------- ---------
(In thousands except per share data)
<S> <C> <C> <C>
Net sales ....................................................... $ 699,307 $ 758,919 $ 618,735
Cost of sales ................................................... 364,467 342,237 249,443
--------- --------- ---------
Gross profit ............................................... 334,840 416,682 369,292
Selling, general and administrative expenses .................... 236,521 245,585 202,140
Research and development expenses ............................... 53,578 55,899 38,429
Purchased research and development expense ...................... -- 114,091 68,311
Restructuring charges ........................................... 33,641 -- --
Settlement of litigation ........................................ 11,766 -- --
--------- --------- ---------
Operating (loss) income .................................... (666) 1,107 60,412
Gain on sale of equity securities ............................... 35,594 8,330 5,329
Interest income ................................................. 3,090 2,937 2,780
Interest expense ................................................ (29,474) (30,484) (11,498)
--------- --------- ---------
Income (loss) from continuing operations before income taxes .... 8,544 (18,110) 57,023
(Benefit) provision for income taxes ............................ (1,320) 20,674 13,401
--------- --------- ---------
Net income (loss) from continuing operations .................... 9,864 (38,784) 43,622
Net loss on disposal of discontinued operations ................. -- -- 2,036
--------- --------- ---------
Net income (loss) ............................................... $ 9,864 $ (38,784) $ 41,586
========= ========= =========
Basic net income (loss) per share
Income (loss) from continuing operations ................... $ 0.22 $ (0.89) $ 1.00
Net income (loss) per share ................................ $ 0.22 $ (0.89) $ 0.95
Diluted net income (loss) per share
Income (loss) from continuing operations ................... $ 0.22 $ (0.89) $ 0.98
Net income (loss) per share ................................ $ 0.22 $ (0.89) $ 0.94
Weighted average shares outstanding
Basic ...................................................... 43,864 43,527 43,602
Diluted .................................................... 44,289 43,527 44,457
</TABLE>
The accompanying notes are an integral part of the consolidated
financial statements.
F-2
<PAGE>
MILLIPORE CORPORATION
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
December 31
---------------------
1998 1997
--------- ---------
(In thousands)
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents ...................................................... $ 36,022 $ 20,269
Accounts receivable (less allowance for doubtful accounts of $3,149 in 1998
and $3,010 in 1997) ......................................................... 154,258 176,585
Inventories .................................................................... 107,241 127,192
Other current assets ........................................................... 7,231 28,362
--------- ---------
Total current assets ...................................................... 304,752 352,408
Property, plant and equipment, net .................................................. 237,414 220,094
Intangible assets (less accumulated amortization of $17,289 in 1998 and $10,000
in 1997) . 76,507 77,394
Deferred income taxes ............................................................... 108,545 90,455
Other assets . 35,222 31,950
--------- ---------
Total assets .............................................................. $ 762,440 $ 772,301
========= =========
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Notes payable .................................................................. $ 171,340 $ 165,576
Accounts payable ............................................................... 39,729 46,088
Accrued expenses ............................................................... 75,544 79,660
Dividends payable .............................................................. 4,847 4,369
Accrued retirement plan contributions .......................................... 6,931 7,088
Accrued income taxes payable ................................................... 290 13,458
--------- ---------
Total current liabilities ................................................. 298,681 316,239
Long-term debt ...................................................................... 299,110 286,844
Other liabilities ................................................................... 27,741 26,071
Commitments and contingent liabilities .............................................. -- --
Shareholders' equity:
Common stock, par value $1.00 per share, 120,000 shares authorized;
56,988 shares issued as of December 31, 1998 and 1997 ....................... 56,988 56,988
Additional paid-in capital ..................................................... 11,780 10,927
Retained earnings .............................................................. 472,746 484,442
Accumulated other comprehensive loss ........................................... (27,668) (21,720)
--------- ---------
513,846 530,637
Less: Treasury stock at cost, 12,921 and 13,291 shares as of December 31,
1998 and 1997, respectively (376,938) (387,490)
--------- ---------
Total shareholders' equity ................................................ 136,908 143,147
--------- ---------
Total liabilities and shareholders' equity .......................................... $ 762,440 $ 772,301
========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated
financial statements
F-3
<PAGE>
MILLIPORE CORPORATION
CONSOLIDATED STATEMENTS OF SHAREHOLDERS' EQUITY
YEAR ENDED DECEMBER 31, 1998, 1997 AND 1996
(In thousands, except per share data)
<TABLE>
<CAPTION>
Accumulated Other
-----------------
Comprehensive Income (Loss)
---------------------------
Common Stock
------------
Additional Unrealized
---------- ----------
Par Paid-in Retained gain (loss) on
--- ------- -------- --------------
Shares Value Capital Earnings securities
------ ----- ------- -------- ----------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1995.......................... 56,988 $ 56,988 $ -- $ 519,822 $ --
====== ========== ========= ========== ===========
Comprehensive income:
Net income........................................ 41,586
Unrealized holding gains arising during
period, net of tax of $9,075............... 13,613
Less: reclassification adjustment for
gains realized in net income, net of
tax of $1,252............................... (4,077)
-----------
Net unrealized gain on securities
available for sale, net of income tax
expense of $6,358........................... 9,536
Translation adjustments........................
Total comprehensive income........................
Cash dividends declared, $0.35 per share.............. (15,261)
Treasury stock acquired...............................
Impact of stock plans................................. (3,396)
U.S. tax benefit from stock plan activity............. 8,800
--------- ---------- -----------
Balance at December 31, 1996.......................... 56,988 $ 56,988 $ 8,800 $ 542,751 $ 9,536
====== ========== ========= ========== ===========
Comprehensive loss:
Net loss.......................................... (38,784)
Unrealized holding gains arising during
period, net of tax of $10,107............... 15,160
Less: reclassification adjustment for
gains realized in net income, net of
tax of $1,749............................... (6,581)
-----------
Net unrealized gain on securities
available for sale, net of income tax
expense of $5,719........................... 8,579
Translation adjustments........................
Total comprehensive loss..........................
Cash dividends declared, $0.39 per share.............. (17,028)
Impact of stock plans................................. (2,497)
U.S. tax benefit from stock plan activity............. 2,127
--------- ---------- -----------
Balance at December 31, 1997.......................... 56,988 $ 56,988 $ 10,927 $ 484,442 $ 18,115
====== ========== ========= ========== ===========
Comprehensive loss:
Net income........................................ 9,864
Unrealized holding gains arising during
period, net of tax of $6,564................ 9,846
Less: reclassification adjustment for
gains realized in net income, net of
tax of $7,475............................... (28,119)
-----------
Net unrealized loss on securities
available for sale, net of income tax
benefit of $(12,182)........................ (18,273)
Translation adjustments........................
Total comprehensive loss..........................
Cash dividends declared, $0.43 per share.............. (18,905)
Impact of stock plans................................. (2,655)
U.S. tax benefit from stock plan activity............. 853
--------- ---------- -----------
Balance at December 31, 1998.......................... 56,988 $ 56,988 $ 11,780 $ 472,746 $ (158)
====== ========== ========= ========== ===========
<CAPTION>
Accumulated Other
-----------------
Comprehensive Income (Loss)
---------------------------
Treasury Stock
--------------
Translation Total
----------- Shareholders'
Adjustments Total Shares Cost Equity
----------- ----- ------ ---- ------
<S> <C> <C> <C> <C> <C>
Balance at December 31, 1995.......................... $ 375 $ 375 (12,727) $ (354,521) $ 222,664
========= ========= ======= ========== =========
Comprehensive income:
Net income........................................ 41,586
Unrealized holding gains arising during
period, net of tax of $9,075...............
Less: reclassification adjustment for
gains realized in net income, net of
tax of $1,252...............................
Net unrealized gain on securities
available for sale, net of income tax
expense of $6,358........................... 9,536 9,536
Translation adjustments........................ (8,655) (8,655) (8,655)
---------
Total comprehensive income........................ 42,467
Cash dividends declared, $0.35 per share.............. (15,261)
Treasury stock acquired............................... (1,462) (58,362) (58,362)
Impact of stock plans................................. 523 14,846 11,450
U.S. tax benefit from stock plan activity............. 8,800
--------- --------- ---------- ---------
Balance at December 31, 1996.......................... $ (8,280) $ 1,256 (13,666) $ (398,037) $ 211,758
========= ========= ======= ========== =========
Comprehensive loss:
Net loss.......................................... (38,784)
Unrealized holding gains arising during
period, net of tax of $10,107...............
Less: reclassification adjustment for
gains realized in net income, net of
tax of $1,749...............................
Net unrealized gain on securities
available for sale, net of income tax
expense of $5,719........................... 8,579 8,579
Translation adjustments........................ (31,555) (31,555) (31,555)
---------
Total comprehensive loss.......................... (61,760)
Cash dividends declared, $0.39 per share.............. (17,028)
Impact of stock plans................................. 375 10,547 8,050
U.S. tax benefit from stock plan activity............. 2,127
--------- --------- ------- ---------- ---------
Balance at December 31, 1997.......................... $ (39,835) $ (21,720) (13,291) $ (387,490) $ 143,147
========= ========= ======= ========== =========
Comprehensive loss:
Net income........................................ 9,864
Unrealized holding gains arising during
period, net of tax of $6,564................
Less: reclassification adjustment for
gains realized in net income, net of
tax of $7,475...............................
Net unrealized loss on securities
available for sale, net of income tax
benefit of $(12,182)........................ (18,273) (18,273)
Translation adjustments........................ 12,325 12,325 12,325
---------
Total comprehensive loss.......................... 3,916
Cash dividends declared, $0.43 per share.............. (18,905)
Impact of stock plans................................. 370 10,552 7,897
U.S. tax benefit from stock plan activity............. 853
--------- --------- ---------- ---------
Balance at December 31, 1998.......................... $ (27,510) $ (27,668) (12,921) $ (376,938) $ 136,908
========= ========= ======= ========== =========
</TABLE>
The accompanying notes are an integral part of the consolidated
financial statements.
F-4
<PAGE>
MILLIPORE CORPORATION
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Year ended December 31
---------------------------------------
1998 1997 1996
--------- --------- ---------
(In thousands)
<S> <C> <C> <C>
Cash Flows from Operating Activities:
Net income (loss) ......................................................... $ 9,864 $ (38,784) $ 41,586
Adjustments to reconcile net income (loss) to net cash provided by
operating activities:
Restructuring charges ................................................ 42,816 -- --
Net loss on disposal of discontinued operations ...................... -- -- 2,036
Purchased research and development expense ........................... -- 114,091 68,311
Write-off of acquired inventory step-up .............................. -- 5,000 --
Gain on sale of securities ........................................... (35,594) (8,330) (5,329)
Depreciation and amortization ........................................ 44,409 40,661 30,587
Deferred income tax (benefit) provision .............................. (12,762) 5,835 (8,212)
Change in operating assets and liabilities:
Decrease (increase) in accounts receivable ...................... 32,327 (24,468) 247
Decrease (increase) in inventories .............................. 21,053 (13,361) (11,612)
Decrease (increase) in other current assets ..................... 3,558 (6,937) 1,661
(Increase) in other assets ...................................... (267) (8,648) (8,747)
(Decrease) in accounts payable and accrued expenses ............. (37,972) (21,629) (11,087)
(Decrease) increase in accrued retirement plan contributions .... (342) 2,557 (36)
(Decrease) increase in accrued income taxes ..................... (15,545) 1,050 1,723
Other ........................................................... (10) 6,942 1,058
--------- --------- ---------
Net cash provided by operating activities ................................. 51,535 53,979 102,186
Cash Flows from Investing Activities:
Additions to property, plant and equipment ................................ (59,787) (41,063) (30,427)
Additions to intangible assets ............................................ (3,953) (6,135) (1,760)
Acquisitions, net of cash acquired ........................................ -- (159,158) (122,576)
Other investments ......................................................... -- (1,646) (4,010)
Net cash used by discontinued businesses .................................. (2,255) (3,516) (7,939)
Proceeds from sale of securities .......................................... 35,594 8,330 5,745
--------- --------- ---------
Net cash used in investing activities ..................................... (30,401) (203,188) (160,967)
Cash Flows from Financing Activities:
Treasury stock acquired ................................................... -- -- (58,362)
Issuance of treasury stock under stock plans .............................. 6,274 6,956 11,450
Net change in short-term debt ............................................. 5,821 65,036 20,045
Proceeds from issuance of long-term debt .................................. -- 197,950 124,397
Payments on long-term debt ................................................ -- (126,018) --
Dividends paid ............................................................ (18,427) (16,558) (14,899)
--------- --------- ---------
Net cash (used by) provided by financing activities ....................... (6,332) 127,366 82,631
Effect of foreign exchange rates on cash and cash equivalents ............. 951 (4,758) (738)
--------- --------- ---------
Net increase (decrease) in cash and cash equivalents ...................... 15,753 (26,601) 23,112
Cash and cash equivalents on January 1 .................................... 20,269 46,870 23,758
--------- --------- ---------
Cash and cash equivalents on December 31 .................................. $ 36,022 $ 20,269 $ 46,870
========= ========= =========
</TABLE>
The accompanying notes are an integral part of the consolidated
financial statements.
F-5
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(In thousands except share and per share data)
NOTE A-- Summary of Significant Accounting Policies
Nature of Operations
Millipore Corporation and its subsidiaries are engaged primarily in the
development, manufacture and sale of products which are based on separations
technology and which are used for the analysis, identification, monitoring and
purification of liquids and gasses. To a lesser extent, Millipore also generates
revenues from the manufacture and sale of products based on electro-mechanical
and pressure differential technologies to control critical aspects of the
manufacturing process for integrated circuits (semiconductors). Millipore is an
integrated multinational manufacturer and markets its products throughout the
world. The principal customer groups to which the Company's products are sold
include pharmaceutical companies, biotechnology companies, food and beverage
companies, university and government laboratories and research institutes as
well as semiconductor fabrication companies and OEM and material suppliers to
the semiconductor industry.
Principles of Consolidation
The consolidated financial statements include the accounts of the Company
and its subsidiaries, all of which are wholly-owned. Intercompany balances and
transactions have been eliminated.
Translation of Foreign Currencies
For all of the Company's foreign subsidiaries, assets and liabilities are
translated at exchange rates prevailing on the balance sheet date, revenues and
expenses are translated at average exchange rates prevailing during the period,
and elements of shareholders' equity are translated at historical rates. Any
resulting translation gains and losses are reported separately in shareholders'
equity. The aggregate transaction gains and losses included in the consolidated
statements of income are not material.
Cash Equivalents
Cash equivalents consisting primarily of time deposits, are classified as
available for sale and are carried at cost plus accrued interest, which
approximates market value. All cash equivalents have maturities of three months
or less.
Inventories
The Company values its inventories at actual cost on a first-in, first-out
(FIFO) basis.
Property, Plant and Equipment
Property, plant and equipment is recorded at cost. Expenditures for
maintenance and repairs are charged to expense while the costs of significant
improvements which extend the life of the underlying asset are capitalized.
Assets are primarily depreciated using straight-line methods. Upon retirement or
sale, the cost of assets disposed and the related accumulated depreciation are
eliminated and related gains or losses reflected in income.
The estimated useful lives of the Company's depreciable assets are as
follows:
Leasehold Improvements..........................Life of the Lease
Buildings and Improvements......................10-40 Years
Production and Other Equipment..................3-15 Years
F-6
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Intangible Assets
Intangible assets consist primarily of patents, acquired technology, trade
names, licenses and goodwill. The assets are recorded at cost and amortized on a
straight-line basis over periods ranging from 3 to 20 years. On a periodic basis
the value of the intangible assets is reviewed to determine if impairment has
taken place due to changed business conditions or technological obsolescence.
The amount of such impairment, if any, is computed by comparing the present
value of the future cash flows associated with the underlying intangible asset
to the then current net book value. If an impairment exists, the net book value
of the intangible asset is reduced accordingly.
Marketable Securities
The Company's investments in equity securities are categorized as
available-for-sale as defined by Statement of Financial Accounting Standards
(SFAS) No. 115, "Accounting for Certain Investments in Debt and Equity
Securities". Equity securities are included in both Other current assets and
Other assets in the accompanying consolidated balance sheets and are recorded at
fair value. The cost of each investment is determined primarily on a specific
identification method. Unrealized holding gains and losses are reflected, net of
income tax, as a separate component of accumulated other comprehensive loss.
Marketable securities had a fair value of $2,078 as of December 31, 1998 which
approximated cost.
Financial Instruments
The Company has entered into U.S. dollar to Japanese Yen debt swap
agreements and foreign exchange option contracts to manage interest and foreign
currency exchange rate exposures. The Company does not hold or issue derivative
financial instruments for trading purposes.
The cash differential paid or received under the interest rate component of
the debt swap agreements are accrued and recognized as an adjustment to interest
expense. Net amounts receivable or payable to counterparties are included in
Other Current Assets or Accrued Expenses. Cash flows related to the interest
rate swap are classified as part of Operating Activities in the Consolidated
Statement of Cash Flows consistent with the interest payments on the underlying
debt. The U.S. dollar to Japanese yen principal swap is designated and is
effective as a hedge of the Company's net investment exposure. Unrealized gains
and losses are recorded as an adjustment of the underlying Long-Term Debt and
the cumulative Translation Adjustments in Shareholders' Equity. The ultimate
gain or loss realized upon maturity of the agreements is recognized as a
translation adjustment in Shareholders' Equity.
The Company has entered into option contracts to hedge against significant
fluctuations in the value of the U.S. dollar versus the Japanese yen. Gains
realized on the exercise of the option contracts are recorded as an offset to
the loss on the underlying transactions. Contract premiums are recorded in Other
Current Asset and amortized over the term of the contract. The realized gains
and the amortization of the contract premiums are recorded in cost of sales.
Cash flows related to the exercise of the option contracts are included in
Operating Activities in the Consolidated Statement of Cash Flows.
Income Taxes
Deferred tax assets reflect the net tax effects of temporary differences
between the carrying amounts of assets and liabilities for financial statement
purposes and the amounts used for income tax purposes. With respect to the
unremitted earnings of the Company's foreign and Puerto Rican subsidiaries,
deferred taxes are provided only on amounts expected to be repatriated.
F-7
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Treasury Stock
Treasury stock is recorded at its cost on the date acquired and is relieved
at its weighted average cost upon reissuance. The excess of cost over the
proceeds of reissued treasury stock is charged to retained earnings.
Net Income (Loss) Per Share
Basic net income (loss) per share is calculated by dividing the net income
(loss) for the period by the weighted average number of shares outstanding for
the period. Diluted net income (loss) per share is calculated by considering the
impact of common stock equivalents (outstanding stock options) as if they were
converted into common stock at the beginning of the period. Common stock
equivalents are not included in periods of net losses as they are anti-dilutive.
Revenue Recognition
Sales of products and services are recorded principally at the time of
product shipment or performance of services. Certain contract revenues
associated with the Company's process equipment business are recorded on the
percentage of completion method. Revenue is recognized based on the ratio of
hours expended compared to the total estimated hours to complete the
construction of the process equipment. The cumulative impact of any revisions in
estimates of the percent complete is reflected in the period in which the
changes become known.
Concentration of Credit Risk
Financial instruments which potentially subject the Company to
concentrations of credit risk consist principally of temporary cash and cash
equivalents, accounts receivable and derivative financial instruments.
The Company places its temporary cash and cash equivalents with high credit
qualified financial institutions, and, by policy, limits the amount of credit
exposure to any one financial institution.
Concentrations of credit risk with respect to accounts receivable is
limited due to the large number of customers comprising the Company's customer
base, and their dispersion across different industries and geographies. The
Company performs ongoing credit evaluations of its customers and generally does
not require collateral.
The Company is exposed to credit-related losses in the event of
nonperformance by counterparties to hedging instruments. The counterparties to
these contracts are major financial institutions. The Company continually
monitors its positions and the credit ratings of its counterparties and limits
the amount of contracts it enters into with any one party.
Use of Estimates in the Preparation of Financial Statements
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Reclassifications
Certain reclassifications have been made to prior years' financial
statements to conform with the 1998 presentation.
F-8
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
New Accounting Pronouncements
In 1998, the Company adopted SFAS No. 130, "Reporting Comprehensive
Income". This statement establishes rules for the reporting of comprehensive
income and its components. Comprehensive income consists of net income or loss,
unrealized gain or loss on securities available for sale and foreign currency
translation adjustments and is presented in the Consolidated Statements of
Shareholders' Equity. The adoption of SFAS 130 had no impact on total
shareholders' equity.
In 1998, the Company adopted SFAS No. 131, "Disclosures about Segments of
an Enterprise and Related Information" which specifies revised guidelines for
determining an entity's operating segments and the type and level of financial
information to be disclosed. SFAS 131 establishes a new framework on which to
base segment reporting. Note Q reflects the Company's segment disclosure in
accordance with SFAS 131.
In 1998, the Company adopted SFAS No. 132, "Employers' Disclosures about
Pensions and Other Postretirement Benefits" which establishes new increased
requirements for disclosure of a Company's pensions and other postretirement
benefit obligations. The Company adopted and included the increased disclosure
requirements of SFAS No. 132 in Note P.
In 1998, the Company adopted Statement of Position 98-1, "Accounting for
the Cost of Computer Software Developed or Obtained for Internal Use" ("SOP
98-1"), which provides guidance on applying generally accepted accounting
principles in addressing whether and under what conditions the costs of
internal-use software should be capitalized. The adoption of SOP 98-1 was not
material to the results of operations for 1998.
In June 1998, the FASB issued SFAS No. 133, "Accounting for Derivative
Instruments and Hedging Activities" effective January 1, 2000 for the Company.
SFAS 133 establishes accounting and reporting standards requiring that every
derivative instrument, including certain derivative instruments embedded in
other contracts, be recorded in the balance sheet as either an asset or
liability measured at its fair value. The statement also requires that changes
in the derivative's fair value be recognized in earnings unless specific hedge
accounting criteria are met. The Company is currently assessing the impact of
this new statement on its consolidated financial position, liquidity and results
of operations.
NOTE B--Subsequent Event
On February 5, 1999, the Company received a letter from the staff of
the Securities and Exchange Commission in which the staff inquired, among other
things, about certain charges taken in 1997 and 1996 for purchased research and
development expenses recorded in connection with the Amicon and Tylan
acquisitions as discussed in Note E. The Company has exchanged correspondence
with the staff of the Commission concerning these charges as well as other
accounting matters including the charge for the loss on the sale of discontinued
operations. As a result of this correspondence, the Company has revised certain
disclosures and has restated its financial statements to recognize the charges
relating to discontinued operations in prior periods as follows and as described
in Note D below. No further comments of the Commission staff are pending and the
Company believes that all questions raised by the staff have been resolved.
F-9
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------
Consolidated Statements of Income
- --------------------------------------------------------------------------------------------------------------------
December 31, 1998 December 31, 1996 December 31, 1994
- --------------------------------------------------------------------------------------------------------------------
Previously As Previously As Previously As Restated
Reported Restated Reported Restated Reported
- --------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C> <C>
Net loss on disposal of
discontinued operations $ 5,847 $ -- $ -- $ 2,036 $ 3,400 $ 7,211
- --------------------------------------------------------------------------------------------------------------------
Net income 4,017 9,864 43,622 41,586 56,209 52,398
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
Net income per share:
- --------------------------------------------------------------------------------------------------------------------
Basic $ 0.09 $ 0.22 $ 1.00 $ 0.95 $ 1.03 $ 0.96
- --------------------------------------------------------------------------------------------------------------------
Diluted $ 0.09 $ 0.22 $ 0.98 $ 0.94 $ 1.01 $ 0.94
- --------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------
</TABLE>
- ----------------------------------------------------------------
Consolidated Balance Sheets
- ----------------------------------------------------------------
Year ended December 31, 1997
- ----------------------------------------------------------------
Previously
Reported As Restated
- ----------------------------------------------------------------
- ----------------------------------------------------------------
Total assets $772,806 $772,301
- ----------------------------------------------------------------
Accrued expenses 74,856 79,660
- ----------------------------------------------------------------
Other liabilities 25,533 26,071
- ----------------------------------------------------------------
Retained earnings 490,289 484,442
- ----------------------------------------------------------------
Shareholders' equity 148,994 143,147
- ----------------------------------------------------------------
NOTE C--Restructuring Charges and Provision for Excess Inventory
In the second quarter of 1998, the Company announced a restructuring
program which was undertaken to improve the competitive position of the Company
by streamlining worldwide operations and reducing the overall cost structure.
The program includes the consolidation of certain manufacturing operations,
realignment of various international subsidiary organizations to focus on
operating business units, discontinuance of non-strategic product lines and the
rationalization of its product offerings to improve product line focus. This
rationalization process included a management review of product offerings to
identify and eliminate specific products with limited profitability as well as
products which were inconsistent with current strategic marketing plans, such as
non-standard products. In the third quarter of 1998, the Company recorded an
expense associated with these activities of $42,816 ($29,115 after tax)
including a restructuring charge of $33,641 and a $6,244 charge against cost of
sales for inventory provisions and $2,931 for fixed asset write-offs. The
non-strategic product lines consisted of high pressure liquid chromatography
equipment, semiconductor fab monitoring and control software and various
filtration devices. The $33,641 restructuring charge included $18,290 of
employee severance costs, $3,847 of lease cancellation costs, $2,049 of
marketing, research and supply contract termination costs, $7,667 for the
write-off of intangible assets including those associated with the discontinued
product lines consisting of both unpatented completed technology and tradenames
as well as with termination of certain rights under two technology development
collaborations and $1,788 for the write-off of fixed assets. As of September
30,1998, there were no assets that remained in use which had been written off.
During the fourth quarter of 1998 assets which had been held for disposal
relating to one of the non-strategic product lines were divested. There are no
remaining assets being held for disposal.
The restructuring initiatives combined with the consolidation of the
Company's microelectronics plants will result in the elimination of 620
positions worldwide (400 positions in manufacturing operations, 160 in selling,
general and administrative positions and 60 in research and development).
Notification to employees was completed in 1998, although a small number of the
employees affected will continue working in their existing positions through
1999 with their related salary costs charged to operations as incurred. As of
December 31, 1998, 490 employees had left the Company pursuant to this
initiative. Under the terms of the severance agreements, the Company expects to
pay severance and associated benefits through the early part of 2000.
F-10
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Following is a summary of the restructuring charges and related reserve
balances at December 31, 1998:
<TABLE>
<CAPTION>
1998 1998 1998 Balance at
---- ---- ---- ----------
Restruc- Other Cash December 31,
-------- ----- ---- ------------
turing Activity Disbursements 1998
------ -------- ------------- ----
Charge
------
<S> <C> <C> <C> <C>
Employee severance costs ................ $18,290 $ -- $ 5,447 $12,843
Lease cancellation costs ................ 3,847 -- 169 3,678
Contract terminations and other costs ... 2,049 86 -- 1,963
Write-off of intangible assets .......... 7,667 7,667 -- --
Write-off of fixed assets ............... 1,788 1,788 -- --
------- ------- ------- -------
Total .............................. $33,641 $ 9,541 $ 5,616 $18,484
======= ======= ======= =======
</TABLE>
The Company also recorded an incremental provision for excess and obsolete
inventory of $6,000 during the third quarter of 1998 in response to adverse
changes in demand attributable to recessionary conditions in Asia and the
slowdown in the semiconductor industry.
NOTE D--Discontinued Operations
In August 1994 the Company sold it's Waters Chromatography Division and, in
a separate transaction, sold certain assets of its non-membrane bioscience
business. At that time the Company recorded a $69,000 reserve in connection with
these transactions representing the estimate of costs to abandon facilities,
terminate employees, transfer employee benefit obligations and to provide
ongoing administrative and contract support services.
During the third quarter of 1998 the Company completed a comprehensive
review of its accounting for these divestitures; as a result of this review a
$7,542 additional charge ($5,847 net of income taxes) on the disposal of
discontinued operations was recorded. This charge reflects the corrected
accounting of the remaining assets and liabilities associated with these
divested operations. This charge is comprised of numerous different items, which
may be grouped into three general categories: $2,200 of manufacturing assets
previously used by the combined operations of Millipore and the Waters Division
in Puerto Rico prior to the divestiture of the Waters Division; these assets
were not sold to Waters as a part of the divestiture and ultimately had no
further use to Millipore after the divestiture; $4,842 of costs associated with
the divestiture of the non-membrane bioscience business; and $500 of retirement
benefits for Japanese employees of the Waters Chromatography Division. As a
result of correspondence with the staff of the Securities and Exchange
Commission, the Company restated its financial statements to recognize the
$5,847 charge to discontinued operations in prior periods as follows: $2,036 in
1996 and $3,811 in 1994.
In partial consideration for the sale of its non-membrane bioscience
instrument division in 1994, the Company received four thousand shares of
preferred stock of PerSeptive Biosystems, Inc ("PerSeptive"). The preferred
stock was redeemable in four equal annual installments of $10,000, commencing in
August 1995, in the equivalent value as of each redemption date in common stock,
$0.01 par value of PerSeptive. Effective January 22, 1998, PerSeptive completed
a merger with The Perkin-Elmer Corporation ("Perkin-Elmer") pursuant to which
PerSeptive became a wholly-owned subsidiary of Perkin-Elmer. Pursuant to this
merger all of the Company's remaining holdings in PerSeptive, which consisted of
2,213,357 shares of common stock and the one thousand shares of preferred stock
were converted into 586,541 shares of Perkin-Elmer common stock. The Company
sold all 586,541 shares of Perkin-Elmer common stock in the first quarter of
1998 and recorded a gain on the sale of these securities of $32,500.
At December 31, 1997, the 2,213,375 shares of PerSeptive common stock were
considered available for sale in accordance with SFAS No. 115. These shares of
common stock were recorded at a fair value of $16,766, net of taxes, in Other
Current Assets. The $27,944 of gross unrealized gain related to these shares was
recorded in Shareholder's Equity, net of taxes of $11,178.
F-11
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
NOTE E--Acquisitions
On December 31, 1996, the Company acquired the net assets of the Amicon
Separation Science Business of W.R. Grace & Co. (Amicon) for approximately
$129,265 in cash, including transaction costs. Amicon manufactures protein
purification tools for the research laboratory and for biotechnology
manufacturing. The acquisition was accounted for as a purchase, and accordingly,
the purchase price has been allocated to the identifiable tangible and
intangible assets based on estimated fair market values of those assets. The
Company accrued approximately $27,000 for additional costs associated with the
acquisition. These costs included severance payable to Amicon employees,
abandonment of duplicate Amicon manufacturing and sales facilities, and
termination of certain Amicon contractual obligations. The facilities abandoned
were leased sales offices in Europe and Asia as well as an owned manufacturing
facility in England. The terminated contractual obligations included a supply
agreement. The purchase included, at estimated fair value, current assets of
$30,328, property, plant and equipment of $15,474, other assets of $596 and the
assumption of liabilities of $9,197. Identifiable intangible assets were valued
at $50,753 and included $25,046 of tradenames and $6,857 of patented and $18,850
of unpatented completed technology. These intangible assets will be amortized
over their estimated useful lives ranging from five to twenty years. In-process
research and development valued at $68,311 was charged to earnings in the fourth
quarter of 1996. This charge was taken because neither the projects nor any
potential alternative future uses for the technology on which the projects were
based had achieved technological feasibility. The purchase was financed through
the Company's Revolving Credit Agreement as discussed in Notes I and J. As of
December 31, 1998 the integration activities relating to the Amicon business
were substantially completed except for the integration of the manufacturing
operations from England to the U.S. which was delayed pending the construction
of a facility to receive this manufacturing operation, and the resolution of
certain vendor agreement termination disputes both of which the Company expects
to be completed in 2000. The remaining liability as of December 31, 1998
consists of $1,200 of employee severance costs, $1,000 of costs associated with
the termination of an Amicon pre-acquisition supply agreement, $485 for the
write-off of assets and $315 of other integration costs.
On January 22, 1997, the Company completed a cash tender offer for all of
the outstanding common shares of Tylan General, Inc. (Tylan). Tylan, which
became a wholly-owned subsidiary on January 27, 1997, supplies precision mass
flow controllers, and pressure and vacuum measurement and control equipment to
the semiconductor industry. The aggregate purchase price, including the
assumption of Tylan debt and transaction costs, was $163,371. The acquisition
was accounted for as a purchase, and accordingly, the purchase price has been
allocated to the identifiable tangible and intangible assets based on estimated
fair market values of those assets. The Company accrued approximately $32,000
for additional integration costs associated with the acquisition. These costs
included severance costs, abandonment and consolidation of facilities, and
termination of certain Tylan contractual obligations. The facilities abandonment
and consolidation costs include the closure of all of the acquired Tylan
manufacturing facilities in the U.S. and the transfer of those operations to a
new facility in Allen, Texas. All of the vacated facilities were under long-term
operating lease agreements. The contractual obligations included payouts with
respect to two former officers of Tylan, the termination of supply agreements
and the termination of a third party research and development agreement. The
final adjusted purchase price included at estimated fair value, current assets
of $42,544, property and equipment of $15,559, other assets of $16,477 and
liabilities of $22,042. Intangible assets were valued at $28,742 and included
$2,717 of tradenames, $5,698 of patented and $7,995 of unpatented completed
technology and $12,332 of goodwill. These intangible assets are being amortized
over their estimated useful lives ranging from five to twenty years. In-process
research and development valued at $114,091 was charged to earnings in the first
quarter of 1997. This charge was taken because neither the projects nor any
potential alternative future uses for the technology on which the projects were
based had achieved technological feasibility. The purchase was financed through
the Company's Revolving Credit Agreement discussed in Notes I and J. As of
December 31, 1998, the redundant Tylan facilities were closed and their
operations consolidated into the Allen, Texas facility. The integration
activities for this acquisition are complete with final cash payments for
contractual agreements continuing through 2000. The remaining
F-12
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
liability as of December 31, 1998 consists of $2,300 of employee severance
costs, $890 of contract termination costs and $914 of facility related costs.
The integration of the Amicon business was accomplished as originally
planned but the employee severance and facility related costs for this
integration were $15,000 less than accrued. As the Company undertook
implementation of the integration plan during 1997 it was determined that the
plan could be completed with significantly less cost. Among the factors which
contributed to these savings were the cultural compatibility of the two
organizations which permitted the assignment of certain Amicon personnel to
vacancies within the Millipore organization as an alternative to termination and
the proximity of the Amicon facilities to those of the Company which facilitated
the use of those facilities for other Millipore operations.
The integration plan for the Tylan business was completed by December 31,
1997. During this year the scope of the U.S. manufacturing consolidation was
extended from a consolidation of four existing plants into two existing
facilities to the consolidation of all existing plants into a new facility. The
finalization of the plan to integrate the Tylan business resulted in additional
costs totaling $15,000 primarily for additional employee costs relating to the
closure of all Tylan manufacturing facilities. These amounts included additional
employee retention costs necessary to maintain the Tylan manufacturing
facilities until the Allen, Texas site was operational and additional employee
relocation and severance costs.
At December 31,1997, no purchase accounting adjustments for either
acquisition were recorded as the incremental effect to the Company's financial
position and results of operations in 1997 related to the acquisitions of Amicon
and Tylan was immaterial. The final integration plan with respect to the Amicon
and Tylan acquisitions included the termination of an aggregate of 460
employees. As of December 31, 1998, the Company had terminated 450 employees in
connection with these acquisitions (of which 300 where involved with
manufacturing operations and 150 with general and administrative functions).
There have been no significant changes to the combined integration plans or to
the aggregate costs of integrating these acquisitions.
Following is a summary of the acquisition reserve for 1997 and 1998. The
beginning reserve balance represents the acquisition reserve accruals for both
Tylan and Amicon:
<TABLE>
<CAPTION>
Beginning
---------
Reserve
-------
Balance Cash Payments Asset Write-offs
------- ------------- ----------------
Reserve
Balance at
----------
Tylan Amicon Tylan Amicon December 31, 1997
----- ------ ----- ------ -----------------
<S> <C> <C> <C> <C> <C> <C>
Employee costs .............. $31,903 $10,808 $ 3,993 $ -- $ -- $17,102
Facilities-related costs .... 6,963 600 842 -- -- 5,521
Contract termination costs .. 5,431 199 1,085 -- -- 4,147
Write-off of assets ......... 6,594 -- -- 1,591 999 4,004
Other integration expenses .. 8,109 4,225 1,590 -- -- 2,294
------- ------- ------- ------- ------- -------
Total . $59,000 $15,832 $ 7,510 $ 1,591 $ 999 $33,068
======= ======= ======= ======= ======= =======
</TABLE>
F-13
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
<TABLE>
<CAPTION>
Reserve
-------
Balance at Reserve
---------- -------
December 31, Cash Payments Asset Write-offs Balance at
------------ ------------- ---------------- ----------
1997 December 31,
---- ------------
1998
----
Tylan Amicon Tylan Amicon
----- ------ ----- ------
<S> <C> <C> <C> <C> <C> <C>
Employee costs .................. $17,102 $13,207 $ 395 $ -- $ -- $ 3,500
Facilities-related costs ........ 5,521 4,424 183 -- -- 914
Contract termination costs ...... 4,147 2,257 -- -- -- 1,890
Write-off of assets ............. 4,004 -- -- 3,276 243 485
Other integration expenses ...... 2,294 1,824 155 -- -- 315
------- ------- ------- ------- ------- -------
Total . $33,068 $21,712 $ 733 $ 3,276 $ 243 $ 7,104
======= ======= ======= ======= ======= =======
</TABLE>
The acquisitions of Amicon and Tylan each included in-process research and
development for which technological feasibility had not been achieved resulting
in charges to earnings of $68,300 in the fourth quarter of 1996 and of $114,000
in the first quarter of 1997, respectively. The estimation of the fair value of
the purchased in-process research and development is primarily the
responsibility of management. In determining the valuation of in-process
research and development projects for both acquisitions, the discounted cash
flow approach was used. A range of discount rates from 25 percent to 35 percent
was applied depending upon the relative risk of the in-process technology and
the market risks for the related product. Revenue projections reflected the
estimated useful life of the technology and ranged from 5 to 12 years. Cash
flows were reduced in contemplation of on-going operating needs (including
working capital) to support the technology and by amounts associated with the
use of "core technology" in products under development. The assumptions made
regarding pricing, margins and expenses were consistent with the acquired
companys' historical trends.
The following table reflects unaudited pro forma combined results for 1996
of the Company, Amicon and Tylan on the basis that both acquisitions had taken
place on January 1, 1996.
1996
----------
Revenues................................... $ 824,555
Net Income................................. $ 24,139
Net Income per common share--Basic.......... $ 0.55
Shares used in computation................. 43,602
These pro forma results are not necessarily indicative of what the actual
consolidated results of operations might have been if the acquisitions had been
effective at the beginning of 1996. Pro forma results for 1997 resulting from
the acquisition of Tylan would not have been materially different from the
results reported.
F-14
<PAGE>
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
NOTE F--Basic and Diluted Earnings per Share
For 1997, basic and diluted earnings per share are the same, as the Company
was in a loss position. The following table sets forth the computation of basic
and diluted earnings per share for 1998, 1997 and 1996:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
Numerator:
Net income (loss) ................................. $9,864 $(38,784) $41,586
======== ======== ========
Denominator:
Basic weighted average shares outstanding ......... 43,864 43,527 43,602
Effect of dilutive securities-stock options ....... 425 -- 855
-------- -------- --------
Diluted weighted average shares outstanding ....... 44,289 43,527 44,457
======== ======== ========
Net income (loss) per share:
Basic ............................................. $0.22 $(0.89) $0.95
Diluted ........................................... $0.22 $(0.89) $0.94
</TABLE>
NOTE G--Inventories
Inventories at December 31, stated at the lower of first-in, first-out
(FIFO) cost or market, consisted of the following:
1998 1997
--------- ---------
Raw materials....... $ 35,433 $ 42,518
Work in process..... 18,620 16,545
Finished goods...... 53,188 68,129
--------- ---------
$107,241 $ 127,192
========= =========
NOTE H--Property, Plant and Equipment
Property, plant and equipment at December 31 consisted of the following:
1998 1997
--------- ---------
Land................................ $ 9,248 $ 8,750
Leasehold improvements.............. 30,154 18,846
Buildings and improvements.......... 132,783 118,923
Production and other equipment...... 229,115 223,720
Construction in progress............ 24,375 16,440
--------- ---------
425,675 386,679
Less: accumulated depreciation...... 188,261 166,585
--------- ---------
$ 237,414 $ 220,094
========= =========
Depreciation expense for the years ended 1998, 1997, and 1996 was $36,778,
$32,797 and $27,972, respectively.
F-15
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
NOTE I--Notes Payable
Short-term borrowings and related lines of credit at December 31 are
summarized as follows:
<TABLE>
<CAPTION>
1998 1997
----------- --------
<S> <C> <C>
Notes payable................................................... $ 171,340 $165,576
----------- --------
Unused lines of credit.......................................... $ 80,000 $204,424
Average amount outstanding at month-end during the year......... $ 184,239 $226,379
Maximum amount outstanding at month-end during the year......... $ 214,113 $392,817
Weighted average interest rate during the year.................. 6.1% 6.0%
Weighted average interest rate at year-end...................... 6.3% 6.1%
</TABLE>
On January 22, 1997, the Company entered into an unsecured Revolving Credit
Agreement with a group of banks. The agreement allowed for borrowings of up to
$450,000 and expires on January 22, 2002. In July, 1997, the Company reduced the
maximum funds available under the agreement from $450,000 to $350,000 and in
May, 1998, the amount was reduced from $350,000 to $250,000. Individual
borrowings under the Revolving Credit Agreement are made on terms not to exceed
six months. At December 31, 1998 the Company had $80,000, available under this
facility. Interest is payable on outstanding borrowings at a floating rate
defined in the agreement as LIBOR plus a margin. The agreement also calls for a
facility fee. The exact amount of the margin and the facility fee is dependent
on the Company's debt rating. The agreement calls for the Company to maintain
certain financial covenants in the areas of operating cash flow and interest
coverage. At December 31, 1998 the Company also had $1,340 of other short-term
borrowings.
The Company's financial results for the quarter ended September 30, 1998
made it necessary for the Company to renegotiate certain financial covenants
relating to operating cash flow and interest coverage under the agreement.
Pursuant to this renegotiation, the lenders involved waived defaults under those
covenants and accepted less restrictive operating cash flow and interest
coverage covenants for 1999 and a portion of 2000. The Company agreed to an
additional minimum earnings covenant, the payment of amendment fees totaling
$647, and to increases in both the interest rate margin and the facility rate
thereunder. The Company agreed to an increase in the interest rate from a margin
range over LIBOR of 0.18 to 0.65 percent to a range of 0.23 to 1.125 percent.
The Company also agreed to an increase in the facility rate under the agreement
from a rate ranging from 0.10 to 0.25 percent to a rate ranging from 0.125 to
0.375 percent.
In addition, at December 31, 1997, the Company had access to a $20,000
short-term unused line of credit which was cancelled during 1998.
NOTE J--Long-term Debt
Long-term debt at December 31 consisted of the following:
<TABLE>
<CAPTION>
1998 1997
-------- --------
<S> <C> <C>
7.23% unsecured notes due in 2002........................... $100,000 $100,000
7.60% unsecured notes due in 2007........................... 100,000 100,000
7.23% notes payable due in 2004............................. 100,000 100,000
Unrealized gain on revaluation of yen-denominated debt...... (890) (13,156)
-------- --------
Long-term debt.............................................. $299,110 $286,844
======== ========
</TABLE>
F-16
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
In March, 1997, the Company sold $100,000 of 7.23 percent unsecured notes
due in 2002 and $100,000 of 7.60 percent unsecured notes due in 2007, pursuant
to a public offering. Net proceeds from the offering of $197,950 were used to
repay borrowings outstanding under the Company's revolving credit agreement.
Interest on the new notes is payable semi-annually in April and October. At
December 31, 1998, these notes had a fair market value of $94,020 and $86,770,
respectively.
The Company's financial results for the fiscal quarter September 30, 1998
made it necessary for the Company to renegotiate certain financial covenants
relating to operating cash flow and interest coverage under the $100,000 note
due in 2004. Pursuant to this renegotiation, the lender involved waived defaults
under those covenants and accepted less restrictive operating cash flow and
interest coverage covenants for 1999 and a portion of 2000. The Company agreed
to an increase in the interest rate on the $100,000 note due in 2004 from 6.88
percent to 7.23 percent as of November 2, 1998. The interest on these notes is
payable semi-annually in March and September. As these notes are not publicly
traded, a determination of their fair value is not readily determinable.
However, the Company believes that the carrying values approximate fair value.
In January, 1994, the Company exchanged $80,000 of dollar debt service
obligations for a yen denominated obligation of 8,760,000 yen, which bears
interest at a rate of 4.49 percent. This swap matures in 2004. In December 1997,
the Company entered into a currency swap maturing in 2003. Under the terms of
this swap, the Company exchanged $30,000 of dollar debt service obligations for
a yen-denominated obligation of 3,840,000 yen, which bears interest at a rate of
1.39 percent. The Company's foreign currency obligations had U.S. dollar
effective weighted average interest rates of 4.60 and 4.53 percent in 1998 and
1997, respectively. The effect of foreign currency exchange rate fluctuations
resulting from the yen swap agreements open at December 31, 1998 are included in
translation adjustments.
The Company capitalized interest costs associated with the construction of
certain capital assets of $1,282 in 1998, $753 in 1997 and $785 in 1996.
Interest paid on short-term and long-term debt during 1998, 1997, and 1996
amounted to $30,690, $25,579 and $12,171 respectively.
NOTE K--Foreign Exchange
A significant volume of the Company's business is transacted in currencies
other than the U.S. dollar. This exposes the Company to risks associated with
currency rate fluctuations which impact the Company's sales and net income. The
Company has entered into foreign currency option contracts to sell yen, on a
continuing basis in amounts and timing consistent with the underlying currency
exposure so that gains on these transactions partially offset the realized
foreign exchange losses on the underlying exposure. The Company realized gains,
net of premiums, of $2,232 in 1998, $4,375 in 1997 and $2,687 in 1996 relating
to these contracts. At December 31, 1998, the Company has only option contracts
to sell yen aggregating $47,288. In the event of a significant strengthening of
the U.S. dollar against the yen, the exercise of these options will partially
mitigate losses which would be incurred by the Company on the underlying
currency exposure. The unamortized premiums associated with these option
contracts was $1,389 as of December 31, 1998.
F-17
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
NOTE L--Income Taxes
Income taxes have been provided in accordance with the provisions of SFAS
No. 109. The Company's provisions for income taxes are summarized as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
Domestic and foreign income before income taxes:
<S> <C> <C> <C>
Domestic .................................................. $(27,116) $(69,479) $ (2,432)
Foreign ................................................... 35,660 51,369 56,828
-------- -------- --------
8,544 (18,110) 54,396
Less: Income (loss) on disposal of discontinued operations ...... -- -- (2,627)
-------- -------- --------
Income (loss) from continuing operations before income
taxes .................................................. $ 8,544 $(18,110) $ 57,023
======== ======== ========
Domestic and foreign provisions for income taxes:
Domestic .................................................. $ (4,801) $ 6,873 $ (2,953)
Foreign ................................................... 3,295 13,011 15,427
State ..................................................... 186 790 336
-------- -------- --------
(1,320) 20,674 12,810
Less: portion applied to discontinued operations .......... -- -- (591)
-------- -------- --------
$ (1,320) $ 20,674 $ 13,401
======== ======== ========
Current and deferred provisions for income taxes:
Current ................................................... $ 9,747 $ 14,839 $ 21,613
Deferred .................................................. (11,067) 5,835 (8,803)
-------- -------- --------
$ (1,320) $ 20,674 $ 12,810
-------- -------- --------
</TABLE>
A summary of the differences between the Company's consolidated effective
tax rate and the United States statutory federal income tax rate is as follows:
<TABLE>
<CAPTION>
1998 1997 1996
-------- -------- --------
<S> <C> <C> <C>
U.S. statutory income tax rate .................................. 35.0% 35.0% 35.0%
Puerto Rico tax rate benefits ................................... (10.8) (4.0) (6.4)
Ireland tax rate benefits ....................................... (25.8) (8.2) (11.0)
State income tax, net of federal income tax benefit ............. 1.4 .5 .4
Foreign Sales Corporation income not taxed ...................... (15.2) (2.3) (4.0)
Change in valuation allowance ................................... -- -- 9.5
-------- -------- --------
Effective tax rate applicable to operations ..................... (15.4) 21.0 23.5
Non-deductible charge for purchased research and development .... -- 93.2 --
-------- -------- --------
Effective tax rate .............................................. (15.4)% 114.2% 23.5%
======== ======== ========
</TABLE>
Tax exemptions relating to Puerto Rico and Ireland operations are effective
through 2004 and 2010, respectively. Income taxes paid (net of refunds) during
1998, 1997, and 1996 were $20,359, $18,704, and $24,228, respectively.
F-18
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
The Company has not recorded deferred income taxes applicable to
undistributed earnings of foreign subsidiaries that are indefinitely reinvested
in foreign operations. These earnings amounted to approximately $135,968 at
December 31, 1998. If earnings of such foreign subsidiaries were not
indefinitely reinvested, a deferred tax liability of approximately $37,769 would
have been required.
At December 31, 1998, the Company has foreign tax credit carryforwards of
approximately $9,300 that expire in the years 1999 through 2003. General
business credit carryforwards of approximately $5,900 expire in the years 2001
through 2010. Net operating loss carryforwards of $86,854 expire through the
year 2013. In addition, the Company has alternative minimum tax credit
carryforwards of approximately $15,166 which can be carried forward
indefinitely.
Significant components of the Company's net deferred tax assets are as
follows:
<TABLE>
<CAPTION>
1998 1997
--------- ---------
<S> <C> <C>
Intercompany and inventory related transactions .............. $ 18,467 $ 15,962
Postretirement benefits other than pensions .................. 3,555 3,605
Tax credits (including foreign tax credits on unremitted
earnings) ................................................. 44,396 50,064
Net operating loss carryforwards ............................. 30,399 10,750
Deferred gain on sale of securities .......................... -- 8,750
Restructuring and divestiture related costs .................. 12,484 --
Amortization of intangible assets ............................ 20,483 22,247
Depreciation ................................................. (4,610) (3,756)
Other, net ................................................... (3,508) 4,968
--------- ---------
121,666 112,590
Valuation allowance .......................................... (13,121) (22,135)
--------- ---------
Net deferred tax asset ....................................... $ 108,545 $ 90,455
========= =========
</TABLE>
The valuation allowance is provided primarily against foreign tax credit
carryforwards and foreign tax credits on unremitted earnings which can be
utilized against future taxable income in the United States. The change in
valuation allowance for the year results from the write down of certain tax
credits for which the valuation allowance had been previously established. These
tax credits have expired and are no longer available to the Company. Although
realization is not assured, the Company believes it is more likely than not that
the remainder of the deferred tax asset, net of the valuation allowance, will be
realized primarily because of the anticipated increase of taxable income in the
U.S. The amount of the deferred tax asset considered realizable, however, could
be reduced in the near term if estimates of future taxable income are reduced.
NOTE M--Legal Proceedings
On May 2, 1997, the Environmental Quality Board ("EQB") of Puerto Rico
served an administrative order on Millipore Cidra, Inc., a wholly-owned
subsidiary of the Company. The administrative order ("EQB order") alleged: (i)
that the nitrocellulose filter membrane scrap produced by Millipore Cidra's
manufacturing operations is a hazardous waste as defined in EQB regulations;
(ii) that Millipore Cidra, Inc. failed to manage, transport and dispose of the
nitrocellulose membrane scrap as a hazardous waste; and (iii) that such failure
violated EQB regulations. The EQB order proposed penalties in the amount of
$96,500 and ordered Millipore Cidra, Inc. to manage the nitrocellulose membrane
scrap as a hazardous waste. The Company recorded a charge of $5,000 in the first
quarter of 1998 reflecting its costs to settle this matter.
F-19
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
The Company also recorded a charge of $3,100 in the first quarter of 1998
reflecting its costs to settle a separate lawsuit with an intervening party in
the EQB administrative case described above.
The Company recorded a charge of $3,666 in the first quarter of 1998 to
settle a patent lawsuit with Mott Metallurgical Corporation. In the lawsuit,
each party claimed infringement of one of its patents by the other. As part of
the settlement, the parties agreed to cross license the two patents at issue.
The Company and Waters Corporation were engaged in an arbitration
proceeding and a related litigation in the Superior Court, Middlesex,
Massachusetts, both of which commenced in the second quarter of 1995 with
respect to the amount of assets required to be transferred by the Company's
Retirement Plan in connection with the Company's divestiture of its former
Chromatography Division. In the second quarter of 1996, Waters filed a Complaint
in the Federal District Court of Massachusetts alleging that the Company's
operation of the Retirement Plan violated ERISA and certain sections of the
Internal Revenue Code. Judgments in the Company's favor were handed down by both
the Massachusetts Superior Court and the Federal District Court in May 1997 and
July 1997, respectively. Waters appealed the federal court judgment, which was
affirmed by the United States Court of Appeals for the First Circuit by opinion
dated April 3, 1998. On June 2, 1998, the Company transferred $2,439 (including
interest through the date of transfer) from its Retirement Plan to the Waters
Retirement Plan as provided by the amended and restated Purchase and Sale
Agreement. In order to fund the transfer, in the second quarter of 1998 the
Company made a contribution of $2,255 to its Retirement Plan in accordance with
ERISA funding requirements.
In the past the Company has been named as a potentially responsible party
by the Environmental Protection Agency ("EPA") at twelve hazardous waste
("Superfund") sites and prior to 1995, the Company had paid $14,000 to settle
claims at those sites. However, as is typical with settlements in such Superfund
proceedings, EPA and the relevant state agencies reserved the right to maintain
actions against the settling parties, including the Company, in the event
certain actions occur or do not occur. Due to the fact that Superfund sites at
which the Company was named a potentially responsible party are in the late
stages of remedy and a significant portion of the remedy cost has already been
funded, the Company believes that its probable future financial obligation at
December 31, 1998 will not materially affect its future financial condition and
results of operations. Amounts paid by the Company in 1998 and 1997 with respect
to the Superfund obligations were insignificant.
During 1998 the Company was named as a potentially responsible party in a
Massachusetts proceeding with respect to two sites to which chemical wastes from
one of the above federal Superfund sites were transshipped. Massachusetts law
imposes joint and several liability for cleanup costs incurred on potentially
responsible parties at state designated hazardous waste sites, without regard to
fault or negligence, analogous to federal law. Although the full cost of
remediation at these sites has yet to be determined, Millipore believes
that the aggregate of any future potential liabilities should not have a
material adverse effect on Millipore's financial condition or results of
operations. This belief is based on the following factors: (i) the number and
size of financially solvent corporations which have also been named potentially
responsible parties with respect to these sites; (ii) the volume of Millipore
waste alleged to have been sent to these sites, and (iii) Millipore's belief
that the remedies required at these sites will be modest.
The Company is also subject to a number of other claims and legal
proceedings which, in the opinion of the Company's management, are incidental to
the Company's normal business operations. In the opinion of the Company,
although final settlement of these suits and claims may impact the Company's
financial statements in a particular period, they will not, in the aggregate,
have a material adverse effect on the Company's financial condition and results
of operations.
F-20
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
NOTE N--Leases
Operating lease agreements cover sales offices, manufacturing and
warehouse space. These leases have expiration dates through 2008. Certain land
and building leases contain renewal options for periods ranging from one to ten
years and purchase options at fair market value. Rental expense was $12,033 in
1998, $11,849 in 1997, and $9,034 in 1996. At December 31, 1998 future minimum
rents payable under noncancelable leases with initial terms exceeding one year
were as follows:
1999.......... $11,684
2000.......... 8,957
2001.......... 4,509
2002.......... 3,973
2003.......... 3,317
2004-2008..... 9,672
At December 31, 1998, the Company had long-term lease obligations related
to three Tylan manufacturing sites vacated as part of the Tylan integration.
Amounts associated with these leases are excluded from the above presentation.
Costs expected to be incurred by the Company to vacate these premises prior to
completion of each respective lease term are accrued as discussed in Note E.
As part of the announced restructuring program, the Company plans to
establish regional transaction service centers resulting in the elimination of
duplicate facilities. The Company will vacate these facilities by 2000.
Accordingly, future rents payable under these leases are included for 1999
through 2000. Costs expected to be incurred by the Company to vacate these
premises prior to completion of each respective lease term are accrued, as
discussed in Note C.
NOTE O--Stock Plans
Stock Option Plans
The Company has two fixed option plans which reserve shares of common stock
for issuance to key employees and directors, respectively. The Company also has
a stock purchase plan which allows employees to purchase shares of the Company's
common stock as discussed below. The Company has adopted the disclosure-only
provisions of SFAS No. 123 "Accounting for Stock-Based Compensation."
Accordingly, no compensation cost has been recognized. Had compensation cost
been determined based on the fair value at the grant date consistent with the
provisions of SFAS 123, the Company's net income and basic earnings per share
would have been reduced by $3,748 or $0.08 per share in 1998, $2,112 or $0.05
per share in 1997, and $1,015 or $0.02 per share in 1996. The weighted average
fair value of options granted under the stock option plan was $8.29 in 1998,
$11.13 in 1997, and $12.48 in 1996. The weighted average fair value of shares
issued under the employee stock purchase plan was $4.61 in 1998 and 1997, and
$3.97 in 1996. The pro forma expense amounts assume that the fair value assigned
to the option grants was amortized over the vesting period of the
F-21
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
options, which is four years, while the fair value assigned to grants under the
stock purchase plan is recognized in full at the date of grant.
The fair value of each option grant is estimated on the date of the grant
using the Black-Scholes model with the following assumptions in 1998, 1997 and
1996: expected life of five years and an expected annual dividend increase of
$.04 per year. The expected volatility was 30 percent in 1998 and 25 percent in
1997 and 1996. The weighted average risk-free interest rate was 4.5 percent in
1998, 5.9 percent in 1997 and 6.1 percent in 1996. This rate approximated that
of 5 year U.S. government interest bearing securities.
1995 Combined Stock Option Plan
During 1996, the Company adopted the "1995 Combined Stock Option Plan",
which replaced the "1985 Combined Stock Option Plan". The terms of the 1995 Plan
are substantially similar to those of the 1985 Plan. In conjunction with the
adoption of the 1995 Plan, shares authorized for issuance under the Plan, when
aggregated with shares authorized under the 1985 Plan, were increased from
8,100,000 to 9,131,000. The Plan provides that the option price per share may
not be less than the fair market value of the stock at the time the option is
granted and that options must expire not later than 10 years from the date of
grant.
Non-Employee Director Stock Option Plan
Under the Company's Non-Employee Director Stock Option Plan, each eligible
director receives an option to purchase 4,000 shares of Millipore common stock
on the date of his or her first election, and thereafter automatically receives
an additional option to purchase 2,000 shares at the first board of directors
meeting following the Annual Meeting of Shareholders. The plan provides that the
option price per share may not be less than the fair market value of the stock
at the time the option is granted. At December 31, 1998, 153,500 options are
both issued and outstanding.
Stock activity under both the 1995 Combined Stock Option Plan and the
Non-Employee Director Stock Option Plan is presented as follows:
<TABLE>
<CAPTION>
Weighted Average
----------------
Option Option Exercise Price
------ ------ --------------
Shares Price Per Share
------ ----- ---------
<S> <C> <C> <C>
Outstanding at December 31, 1995............. 3,056,000 $13.56-$37.63 $ 20.76
Granted................................ 479,000 $37.63-$42.00 $ 41.29
Exercised.............................. (384,000) $13.56-$37.63 $ 17.37
Canceled............................... (62,000) $16.88-$37.63 $ 25.06
--------- ------------- ----------
Outstanding at December 31, 1996............. 3,089,000 $13.81-$42.00 $ 24.28
--------- ------------- ----------
Granted................................ 699,000 $36.94-$44.13 $ 37.98
Exercised.............................. (303,000) $13.81-$37.63 $ 18.25
Canceled............................... (24,000) $17.44-$42.00 $ 29.19
--------- ------------- ----------
Outstanding at December 31, 1997............. 3,461,000 $13.81-$44.13 $ 27.54
--------- ------------- ----------
Granted................................ 884,000 $18.88-$48.13 $ 29.07
Exercised.............................. (155,000) $14.50-$23.69 $ 17.32
Canceled............................... (79,000) $17.25-$43.50 $ 36.74
--------- ------------- ----------
Outstanding at December 31, 1998............. 4,111,000 $13.81-$48.13 $ 28.08
--------- ------------- ----------
Exercisable at:
December 31, 1998...................... 2,408,000
December 31, 1997...................... 2,092,000
December 31, 1996...................... 1,926,000
</TABLE>
F-22
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
The following table summarizes information about stock options at December
31, 1998:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
---------------------------------------------------------- ------------------------------
Weighted
--------
Average Weighted
------- --------
Options Remaining Average Weighted
------- --------- ------- --------
Range of Outstanding Contractual Exercise Exercisable Average
-------- ----------- ----------- -------- ----------- -------
Exercise Price at 12/31/98 Life Price at 12/31/98 Exercise Price
-------------- ----------- ---- ----- ----------- --------------
<S> <C> <C> <C> <C> <C>
$13.81-$23.69 1,771,000 5 $ 18.68 1,763,000 $ 18.67
$26.38-$37.50 1,431,000 10 $ 32.06 148,000 $ 36.27
$37.63-$48.13 909,000 8 $ 40.14 497,000 $ 39.61
------------- --------- ---------
$13.81-$48.13 4,111,000 2,408,000
</TABLE>
Employees' Stock Purchase Plan
Under the Company's Employees' Stock Purchase Plan, all employees of the
Company and its subsidiaries who have 90 days continuous service prior to the
beginning of the plan year, May 1, may purchase shares of Millipore common stock
by payroll deduction. The purchase price per share during the plan year is the
lesser of the fair market value of the common stock at the time of purchase or
on May 1.
In 1998, 1997 and 1996, shares issued under the Plan were 38,000, 33,000
and 72,000, respectively. As of December 31, 1998, 225,000 shares of Millipore
common stock were available for sale to employees under the Plan.
Incentive Plan for Senior Management
Under this plan, Millipore common stock is awarded to key members of senior
management at no cost to them. The stock cannot be sold, assigned, transferred
or pledged during a restriction period which is normally four years but in some
cases may be less. In most instances, shares are subject to forfeiture should
employment terminate during the restriction period.
The stock issued under the plan is recorded at its fair market value on the
award date; the related deferred compensation is amortized to selling, general
and administrative expenses over the restriction period. At the end of 1998,
1997, and 1996, 139,000, 117,000 and 119,000 shares, respectively, were
outstanding under the plan. Plan expense was $800 in 1998, $657 in 1997 and $559
in 1996. As of December 31, 1998, 9,500 shares of Millipore common stock were
available for future awards under this plan.
NOTE P--Employee Retirement Plans
Participation and Savings Plan
The Millipore Corporation Employees' Participation and Savings Plan
("Participation and Savings Plan"), maintained for the benefit of all U.S.
employees, combines both a defined contribution plan ("Participation Plan") and
an employee savings plan ("Savings Plan"). Contributions to the Participation
Plan are allocated among the U.S. employees of the Company who have completed at
least two years of continuous service on the basis of the compensation they
received during the year for which the contribution is made. The Savings Plan
allows employees with one year of continuous service to make certain
tax-deferred voluntary contributions which the Company matches with a 25 percent
contribution (50 percent contribution for employees with 10 or more years of
service). Total expense under the Participation and Savings Plan was $7,392 in
1998, $6,700 in 1997 and $4,866 in 1996.
F-23
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Retirement Plan
The Company's Retirement Plan for Employees of Millipore Corporation
("Retirement Plan") is a defined benefit plan for all U.S. employees which
provides benefits to the extent that assets of the Participation Plan, described
above, do not provide guaranteed retirement income levels. Guaranteed retirement
income levels are determined based on years of service and salary level as
integrated with Social Security benefits. Employees are eligible under the
Retirement Plan after one year of continuous service and are vested after five
years of service. For accounting purposes, the Company uses the projected unit
credit method of actuarial valuation. The actuarial method for funding purposes
is the entry age normal method. The Company contributes annually to the
Retirement Plan, subject to Internal Revenue Service and ERISA funding
limitations. No contributions were required for 1998, 1997 and 1996. Plan assets
are invested primarily in mutual funds and money market funds.
In addition to the Retirement Plan, the Company sponsors several unfunded
defined benefit postretirement plans covering all U.S. employees, which are
included in Other Benefits. The plans provide medical and life insurance
benefits and are, depending on the plan, either contributory or
non-contributory.
Plan data as of December 31, 1997 includes assets and obligations
pertaining to employees of the Company's former Waters Division, as the assets
subject to these former employees had not yet been transferred to Waters
Corporation. In the second quarter of 1998, the Company transferred $2,440 of
plan assets (including interest through the date of the transfer) and $400 of
benefit obligations from its Retirement Plan to the Waters Retirement Plan. In
order to fund the transfer, the Company made a contribution of $2,255 to its
Retirement Plan in accordance with ERISA funding requirements. These amounts had
been previously accrued and included in net loss on disposal of discontinued
operations in 1994.
The following tables summarize the funded status of the Employee Retirement
Plans and amounts reflected in the Company's consolidated balance sheets at
December 31, based on Statement No. 132, Employers' Disclosures about Pensions
and Other Postretirement Benefits.
F-24
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
---------------- --------------
1998 1997 1998 1997
-------- -------- -------- --------
<S> <C> <C> <C> <C>
Change in benefit obligation:
Benefit obligation at beginning of year .......... $ 7,824 $ 7,022 $ 6,584 $ 6,809
Service cost ..................................... 27 270 379 317
Interest cost .................................... 524 523 448 418
Plan participants' contributions ................. 321 245 75 71
Actuarial loss (gain) ............................ 552 423 515 (777)
Acquisitions ..................................... -- -- -- 150
Benefits paid .................................... (1,006) (659) (428) (404)
Settlement ....................................... (400) -- -- --
-------- -------- -------- --------
Benefit obligation at end of year ................ $ 7,842 $ 7,824 $ 7,573 $ 6,584
======== ======== ======== ========
Change in plan assets:
Fair value of plan assets at beginning of year ... $ 8,794 $ 7,657 $ -- $ --
Actual return on plan assets ..................... 1,311 1,551 -- --
Company contributions ............................ 2,255 -- 353 333
Plan participant contribution .................... 321 245 75 71
Benefits paid .................................... (1,006) (659) (428) (404)
Settlement ....................................... (2,440) -- -- --
-------- -------- -------- --------
Fair value of plan assets at end of year ......... $ 9,235 $ 8,794 $ -- $ --
======== ======== ======== ========
Funded status ........................................... $ 1,394 $ 970 $ (7,573) $ (6,584)
Unrecognized net loss (gain) ............................ 2,235 2,542 (2,939) (3,587)
Unrecognized prior service cost ......................... 89 100 -- --
Unrecognized net transition obligation .................. (311) (411) -- --
-------- -------- -------- --------
Prepaid (accrued) benefit cost .......................... $ 3,407 $ 3,201 $(10,512) $(10,171)
======== ======== ======== ========
</TABLE>
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
---------------- --------------
1998 1997 1996 1998 1997 1996
---- ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Weighted average assumptions as of December 31:
Discount rate................................ 6.5% 7.0% 7.5% 6.5% 7.0% 7.5%
Expected return on plan assets............... 8.0% 8.0% 8.0% N/A N/A N/A
Rate of compensation increase................ 5.0% 5.0% 5.0% N/A N/A N/A
</TABLE>
For measurement purposes, a 6 percent annual rate of increase in the per
capita cost of covered health care benefits was assumed for 1999. The rate was
assumed to decrease gradually to 5 percent for 2000 and remain at that level
thereafter.
<TABLE>
<CAPTION>
Pension Benefits Other Benefits
---------------- --------------
1998 1997 1996 1998 1997 1996
----- ----- ----- ----- ----- -----
<S> <C> <C> <C> <C> <C> <C>
Components of net periodic benefit cost:
Service cost (benefit) ................... $ 27 $ 270 $ (29) $ 379 $ 317 $ 298
Interest cost ............................ 524 523 499 449 418 453
Expected return on plan assets ........... (690) (589) (569) -- -- --
Amortization of unrecognized gain ........ (82) (84) (84) (133) (166) (205)
Amortization of prior service cost ....... 11 11 11 -- -- --
Recognized actuarial loss ................ 121 187 274 -- -- --
----- ----- ----- ----- ----- -----
Net periodic benefit cost ................ $ (89) $ 318 $ 102 $ 695 $ 569 $ 546
===== ===== ===== ===== ===== =====
</TABLE>
F-25
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Assumed health care cost trend rates have a significant effect on the
amounts reported for the health care plans. A one-percentage-point change in the
assumed health care cost trend rates would have the following effects.
<TABLE>
<CAPTION>
1% Point 1% Point
-------- --------
Increase Decrease
-------- --------
<S> <C> <C>
Effect on total of services and interest cost components... $ 133 $ (114)
Effect on postretirement benefit obligations............... 960 (852)
</TABLE>
NOTE Q--Business Segment Information
The Company adopted Financial Accounting Standards No. 131 "Disclosures
about Segments of an Enterprise and Related Information" (FAS 131) as of
December 31, 1998 and prior year information was restated in conformity with
this accounting standard. The Company has two reportable business segments as
defined by the FAS 131--Biopharmaceutical & Research and Microelectronics.
The Biopharmaceutical & Research segment develops, manufactures and sells
consumable products and capital equipment to pharmaceutical companies,
biotechnology companies, food and beverage companies, university and government
laboratories and research institutes. The segment also provides process design,
engineering and repair services to it customers. The product offering of the
Biopharmaceutical & Research segment include membranes, membrane based filter
and separation devices, test kits, laboratory water purification systems, resin
based cartridge filters, laboratory test equipment and manufacturing process
equipment. The segment's products are used in laboratory and research
applications for detecting and identifying molecules, compounds or
micro-organisms in a fluid sample. Filters, separation devices and process
equipment sold by the segment are used in manufacture of pharmaceutical
products, diagnostic devices and beverages to isolate and purify specific
components or to remove contaminants in a fluid stream. The products are sold
worldwide principally through a direct sales force. Distributors are used in
selected regions for specific product lines.
The Microelectronics segment develops, manufactures and sells consumables
and capital equipment to semiconductor fabrication companies as well as OEM
suppliers to those companies. The segment also provides capital equipment
warranty and repair services to its customers. Microelectronics products include
membrane and metal based filters, housings, precision liquid dispense filtration
pumps, resin based gas purifiers and mass flow and pressure controllers. The
segment's products are used by customers in manufacturing operations to remove
contaminants in process fluid streams and process gas applications to purify
process gases, to measure and control flow rates in process gas streams and to
control and monitor pressure and vacuum levels in process chambers. The products
are sold worldwide through a direct sales force.
The operating segment results for Biopharmaceutical & Research,
Microelectronics and Corporate included below are presented in "local
currencies". For comparability of financial results, the foreign currency
balances, in all periods presented, are translated at Millipore's 1998 budgeted
exchange rates which differ from actual rates of exchange. The foreign exchange
impact is shown separately and reconciles the local currency reporting to the
consolidated results at the actual rates of exchange. This provides a clearer
presentation of underlying trends in the Company's business, before the impact
of foreign currency translation.
F-26
<PAGE>
MILLIPORE CORPORATION
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(In thousands except share and per share data)
Operating Segments:
<TABLE>
<CAPTION>
Consolidated Net Sales
------------------------------------
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
Biopharmaceutical & Research ............... $ 526,982 $ 491,369 $ 409,831
Microelectronics ........................... 188,222 261,810 159,944
Foreign exchange ........................... (15,897) 5,740 48,960
---------- ---------- ----------
Total net sales ....................... $ 699,307 $ 758,919 $ 618,735
========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
Consolidated Operating (Loss) Income
------------------------------------
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
Biopharmaceutical & Research ............... $ 107,932 $ 100,190 $ 82,292
Microelectronics ........................... (16,627) 33,748 40,021
Corporate .................................. (26,820) (27,726) (23,366)
Restructuring and unusual charges .......... (60,582) (119,091) (68,311)
Foreign exchange ........................... (4,569) 13,986 29,776
---------- ---------- ----------
Total operating (loss) income ......... $ (666) $ 1,107 $ 60,412
========== ========== ==========
</TABLE>
<TABLE>
<CAPTION>
Depreciation and Amortization Expense,
--------------------------------------
included in Operating (Loss) Income
-----------------------------------
1998 1997 1996
---------- ---------- ----------
<S> <C> <C> <C>
Biopharmaceutical & Research ............... $ 18,013 $ 15,200 $ 13,420
Microelectronics ........................... 12,567 9,892 3,847
Corporate .................................. 13,109 14,504 10,334
Foreign exchange ........................... 720 1,065 2,986
---------- ---------- ----------
Total depreciation and amortization ... $ 44,409 $ 40,661 $ 30,587
========== ========== ==========
</TABLE>
Segment Assets--
----------------
Inventory only
--------------
1998 1997
--------- ---------
Biopharmaceutical & Research....... $ 77,274 $ 82,245
Microelectronics................... 28,368 37,578
Corporate.......................... (1,083) 11,095
Foreign exchange................... 2,682 (3,726)
--------- ---------
Total segment assets.......... $ 107,241 $ 127,192
========= =========
F-27
<PAGE>
Geographical Segments:
The Company attributes net sales and long-lived assets to different
geographic areas on the basis of the location of the customer. The Company has
three geographic regions. The United States represents greater than 90% of the
Americas region. Net sales and long-lived asset information by geographic area
in U.S. dollars as of December 31, 1998, 1997 and 1996 and for each of the three
years ended December 31, 1998 is presented as follows:
Net Sales
------------------------------
1998 1997 1996
-------- -------- --------
Americas........... $292,173 $321,634 $217,700
Europe . 237,786 222,452 192,827
Japan and Asia..... 169,348 214,833 208,208
-------- -------- --------
Total......... $699,307 $758,919 $618,735
======== ======== ========
Long-Lived Assets
-------------------
1998 1997
-------- --------
Americas........... $254,017 $246,264
Europe . 58,179 50,002
Japan and Asia..... 36,947 33,172
-------- --------
Total......... $349,143 $329,438
======== ========
F-28
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Shareholders and Directors of Millipore Corporation:
In our opinion, the accompanying consolidated balance sheets and the
related consolidated statements of income, shareholders' equity, and of cash
flows, after the restatement described in Note B, present fairly, in all
material respects, the financial position of Millipore Corporation and its
subsidiaries at December 31, 1998 and 1997, and the results of their operations
and their cash flows for each of the three years in the period ended December
31, 1998, in conformity with generally accepted accounting principles. These
financial statements are the responsibility of the Company's management; our
responsibility is to express an opinion on these financial statements based on
our audits. We conducted our audits of these statements in accordance with
generally accepted auditing standards which require that we plan and perform the
audit to obtain reasonable assurance about whether the financial statements are
free of material misstatement. An audit includes examining, on a test basis,
evidence supporting the amounts and disclosures in the financial statements,
assessing the accounting principles used and significant estimates made by
management, and evaluating the overall financial statement presentation. We
believe that our audits provide a reasonable basis for the opinion expressed
above.
PRICEWATERHOUSECOOPERS LLP
Boston, Massachusetts
January 20, 1999, except for Note B,
for which the date is November 12, 1999
F-29
<PAGE>
Quarterly Results (Unaudited)
The Company's unaudited quarterly results are summarized below.
<TABLE>
<CAPTION>
First Second Third Fourth
Quarter Quarter Quarter Quarter Year
--------- --------- --------- --------- ---------
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
1998
Net sales ........................................ $ 185,662 $ 175,172 $ 159,181 $ 179,292 $ 699,307
Cost of sales .................................... 86,429 85,507 101,493 91,038 364,467
--------- --------- --------- --------- ---------
Gross profit ................................ 99,233 89,665 57,688 88,254 334,840
Selling, general and administrative expenses ..... 61,687 60,809 56,588 57,437 236,521
Research and development expenses ................ 13,135 13,910 13,301 13,232 53,578
Restructuring charges ............................ -- -- 33,641 -- 33,641
Settlement of litigation ......................... 11,766 -- -- -- 11,766
--------- --------- --------- --------- ---------
Operating income (loss) ..................... 12,645 14,946 (45,842) 17,585 (666)
Gain on sale of equity securities ................ 35,594 -- -- -- 35,594
Interest income .................................. 614 761 877 838 3,090
Interest expense ................................. (7,073) (7,058) (7,098) (8,245) (29,474)
--------- --------- --------- --------- ---------
Income (loss) before income taxes ........... 41,780 8,649 (52,063) 10,178 8,544
Provision (benefit) for income taxes ............. 10,370 1,816 (15,643) 2,137 (1,320)
--------- --------- --------- --------- ---------
Net income (loss) ............................. $ 31,410 $ 6,833 $ (36,420) $ 8,041 $ 9,864
========= ========= ========= ========= =========
Net income (loss) per share:
Basic ....................................... $ 0.72 $ 0.16 $ (0.83) $ 0.18 $ 0.22
Diluted ..................................... $ 0.71 $ 0.15 $ (0.83) $ 0.18 $ 0.22
Weighted average shares outstanding
Basic ....................................... 43,727 43,819 43,891 44,005 43,864
Diluted ..................................... 44,307 44,327 43,891 44,294 44,289
1997
Net sales . $ 178,839 $ 192,498 $ 184,544 $ 203,038 $ 758,919
Cost of sales .................................... 80,634 86,424 82,372 92,807 342,237
--------- --------- --------- --------- ---------
Gross profit ................................ 98,205 106,074 102,172 110,231 416,682
Selling, general and administrative expenses ..... 59,777 63,273 58,965 63,570 245,585
Research and development expenses ................ 13,151 15,003 14,353 13,392 55,899
Purchased research and development expense ....... 114,091 -- -- -- 114,091
--------- --------- --------- --------- ---------
Operating (loss) income ..................... (88,814) 27,798 28,854 33,269 1,107
Gain on sale of equity securities ................ 1,769 -- 5,304 1,257 8,330
Interest income .................................. 761 636 708 832 2,937
Interest expense ................................. (6,024) (8,159) (8,026) (8,275) (30,484)
--------- --------- --------- --------- ---------
(Loss) income before income taxes ........... (92,308) 20,275 26,840 27,083 (18,110)
Provision (benefit) for income taxes ............. 5,454 3,894 5,637 5,689 20,674
--------- --------- --------- --------- ---------
Net (loss) income ........................... $ (97,762) $ 16,381 $ 21,203 $ 21,394 $ (38,784)
========= ========= ========= ========= =========
Net (loss) income per share:
Basic .................................... $ (2.25) $ 0.38 $ 0.49 $ 0.49 $ (0.89)
Diluted .................................. $ (2.25) $ 0.37 $ 0.48 $ 0.48 $ (0.89)
Weighted average shares outstanding
Basic ....................................... 43,391 43,512 43,565 43,629 43,527
Diluted ..................................... 43,391 44,274 44,428 44,344 43,527
</TABLE>
F-30
<PAGE>
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K/A
ANNUAL REPORT
OF
MILLIPORE CORPORATION
For the Fiscal Year Ended December 31, 1998
****************
EXHIBITS
****************
- --------------------------------------------------------------------------------
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
Exhibit Volume
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
3.1 Restated Articles of Organization, as amended May 6, 1996......... **
3.2 By Laws, as amended............................................... **
4.1 Indenture dated as of May 3, 1995, relating to the issuance of
$100,000,000 principal amount of Company's 6.78% Senior
Notes due 2004.................................................... **
4.2 Indenture dated as of April 1, 1997, relating to
the issuance Debt Securities in Series............................ **
10.1 Distribution Agreement, dated as of July 1, 1996, by and
among the Company and Fisher Scientific Company................... **
10.2 Revolving Credit Agreement, dated as of January 22, 1997, among
Millipore Corporation and The First National Bank of Boston,
ABM AMRO Bank N.V. and certain other lending institutions
which are or become parties thereto............................... **
10.3 Shareholder Rights Agreement, dated as of April 15, 1988,
between Millipore and The First National Bank of Boston........... **
10.4 Long Term Restricted Stock (Incentive) Plan for Senior Management **
10.5 1985 Combined Stock Option Plan................................... **
10.6 Supplemental Savings and Retirement Plan for Key
Salaried Employees of Millipore Corporation....................... **
10.7 Executive Termination Agreement................................... **
10.8 Executive "Sale of Business" Incentive Termination Agreements..... **
10.9 1995 Employee Stock Purchase Plan................................. **
10.10 1995 Management Incentive Plan.................................... **
10.11 1995 Combined Stock Option Plan, as amended....................... **
10.12 Second Amendment, effective as of September 30, 1998,
to Revolving Credit Agreement, dated as of January 22, 1997,
among Millipore Corporation and The First National Bank
of Boston, ABM AMRO Bank N.V. and certain other lending
institutions...................................................... **
10.13 Note Purchase and Exchange Agreement, as amended through
November 2, 1998, between Millipore Corporation and
Metropolitan Life Insurance Company............................... **
</TABLE>
- --------------------------------------------------------------------------------
** Incorporated by Reference to a prior filing with the Commission
<PAGE>
INDEX TO EXHIBITS [Cont'd]
<TABLE>
<CAPTION>
Exhibit Volume
Exhibit No. Description Page No.
- ----------- ----------- --------
<S> <C> <C>
10.14 Form of letter agreement with directors relating to the
deferral of directors fees and conversion into phantom
stock units....................................................... **
10.15 1989 Stock Option Plan for Non-Employee Directors................. **
10.16 Commercial Lease Agreement between EBP 3, Ltd. and
Millipore Corporation with respect to Premises located
in Allen, Texas................................................... **
10.17 ISDA Master Agreement, dated January 27, 1994, as amended,
with Morgan Guaranty Trust Company of New York.................... 5
11 Computation of Per Share Earnings................................. *+
21 Subsidiaries of Millipore Corporation............................. **
23 Consent of Coopers & Lybrand L.L.P............................... 65
24 Power of Attorney................................................. 67
27 Financial Data Schedule........................................... 70++++
</TABLE>
- --------------------------------------------------------------------------------
*+ Incorporated by reference to Note F to Financial Statements on page F-13
++++ EDGAR Filing only
<PAGE>
EXHIBIT 10.17
ISDA(R)
InterNational Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of January 27, 1994
MORGAN GUARANTY TRUST COMPANY OF NEW YORK ("MORGAN") AND MILLIPORE CORPORATION
(THE "COUNTERPARTY") have entered and/or anticipate entering into one or more
transactions (each a "Transaction") that are or will he governed by this Master
Agreement which includes the schedule (the "Schedule"), and the documents and
other confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) DEFINITIONS. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) INCONSISTENCY. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the
Schedule will prevail. In the event of any inconsistency between the
provisions of any Confirmation and this Master Agreement (including the
Schedule), such Confirmation will prevail for the purpose of the relevant
Transaction.
(c) SINGLE AGREEMENT. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single
agreement between the parties (collectively referred to as this
"Agreement"), and the parties would not otherwise enter into any
Transactions.
2. OBLIGATIONS
(a) GENERAL CONDITIONS.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
<PAGE>
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other than
by payment), such delivery will be made for receipt on the due date in the
manner customary for the relevant obligation unless otherwise specified in
the relevant Confirmation or elsewhere in this Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to
(1) the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is continuing,
(2) the condition precedent that no Early Termination Date in respect of
the relevant Transaction has occurred or been effectively designated and
(3) each other applicable condition precedent specified in this Agreement.
(b) CHANGE OF ACCOUNT. Either Party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to
which such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) NETTING. If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make Payment of any such amount will be automatically satisfied and
discharged and, if the aggregate amount that would otherwise have been
payable by one party exceeds the aggregate amount that would otherwise have
been payable by the other party, replaced by an obligation upon the party
by whom the larger aggregate amount would have been payable to pay to the
other party the excess of the larger aggregate amount over the smaller
aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same
date in the same currency in respect of such Transactions, regardless of
whether such amounts are payable in respect of the same Transaction. The
election may be made in the Schedule or a Confirmation by specifying that
subparagraph (ii) above will not apply to the Transactions identified as
being subject to the election, together with the starting date (in which
case subparagraph (ii) above will not, or will cease to, apply to such
Transactions from such date). This election may be made separately for
different groups of Transactions and will apply separately to each pairing
of Offices through which the parties make and receive payments or
deliveries.
<PAGE>
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such deduction
or withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, then in effect.
If a party is so required to deduct or withhold, then that party ("X")
will:-
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be deducted
or withheld from any additional amount paid by X to Y under this
Section 2(d)) promptly upon the earlier of determining that such
deduction or withholding is required or receiving notice that such amount
has been assessed against Y:
(3) promptly forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such payment
to such authorities: and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount actually
received by Y (free and clear of Indemnifiable Taxes. Whether assessed
against X or Y) will equal the full amount Y would have received had no
such deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that it would
not he required to be paid but for:-
(A) the failure by Y to comply with or perform any agreement contained
in Section 4(a)(i), 4(a)(iii) or 4(d): or
(B) the failure of a representation made by Y pursuant to Section 3(f)
to be accurate and true unless such failure would not have occurred but
for (1) any action taken by a taxing authority, or brought in a court
of competent jurisdiction, on or after the date on which a Transaction
is entered into (regardless of whether such action is taken or brought
with respect to a party to this Agreement) or (11) a Change in Tax Law.
(ii) LIABILITY. If:-
(1) X is required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, to make any deduction
or withholding, in respect of which X would not be required to pay an
additional amount to Y under Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
<PAGE>
(3) a liability resulting from such Tax is assessed directly against
X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such
liability (including any related liability for interest, but including any
related liability for penalties only if Y has failed to comply with or
perform any agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant
Transaction, a party that defaults in the performance of any payment
obligation will, to the extent permitted by law and subject to Section
6(c), be required to pay interest (before as well as after judgment) on the
overdue amount to the other party on demand in the same currency as such
overdue amount, for the period from (and including) the original due date
for payment to (but excluding) the date of actual payment, at the Default
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed. If, prior to the occurrence or
effective designation of an Early Termination Date in respect of the
relevant Transaction, a party defaults in the performance of any obligation
required to be settled by delivery, it will compensate the other party on
demand if and to the extent provided for in the relevant Confirmation or
elsewhere in this Agreement.
3. REPRESENTATIONS.
Each party represents to the other party (which representations will be deemed
to be repeated by each party on each date on which a Transaction is entered into
and, in the case of the representations in Section 3(l). at all times until the
termination of this Agreement) that:-
(A) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organised and validly existing under the laws of
the jurisdiction of its organisation or incorporation and, if relevant
under such laws, in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver
this Agreement and any other documentation relating to this Agreement that
it is required by this Agreement to deliver and to perform its obligations
under this Agreement and any obligations it has under any Credit Support
Document to which it is a party and has taken all necessary action to
authorise such execution, delivery and performance;
<PAGE>
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and performance
do not violate or conflict with any law applicable to it, any provision of
its constitutional documents, any order or judgment of any court or other
agency of government applicable to it or any of its assets or any
contractual restriction binding on or affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit
Support Document to which it is a party have been obtained and are in full
force and effect and all conditions of any such consents have been complied
with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid
and binding obligations, enforceable in accordance with their respective
terms (subject to applicable bankruptcy, reorganisation, insolvency,
moratorium or similar laws affecting creditors' rights generally and
subject, as to enforceability, to equitable principles of general
application (regardless of whether enforcement is sought in a proceeding in
equity or at law)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding
at law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) PAYER TAX REPRESENTATION. Each representation specified in the Schedule as
being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(f) is accurate and true.
<PAGE>
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may have
any obligation under this Agreement or under any Credit Support Document to
which it is a party:-
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or, in
certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such
other party or its Credit Support Provider to make a payment under this
Agreement or any applicable Credit Support Document without any deduction
or withholding for or on account of any Tax or with such deduction or
withholding at a reduced rate (so long as the completion, execution or
submission of such form or document would not materially prejudice the
legal or commercial position of the party in receipt of such demand), with
any such form or document to be accurate and completed in a manner
reasonably satisfactory to such other party and to be executed and to be
delivered with any reasonably required certification,
in each case by the date specified in the Schedule or such Confirmation or, if
none is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORISATIONS. It will use all reasonable efforts to maintain in
full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or
any Credit Support Document to which it is a party and will use all
reasonable efforts to obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to
comply would materially impair its ability to perform its obligations under
this Agreement or any Credit Support Document to which it is a party.
<PAGE>
(d) TAX AGREEMENT. It will give notice of any failure of a representation made
by it under Section 3(f) to be accurate and true promptly upon learning of
such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of
this Agreement by a jurisdiction in which it is incorporated, organised,
managed and controlled, or considered to have its seat, or in which a
branch or office through which it is acting for the purpose of this
Agreement is located ("Stamp Tax Jurisdiction") and will indemnify the
other party against any Stamp Tax levied or imposed upon the other party or
in respect of the other party's execution or performance of this Agreement
by any such Stamp Tax Jurisdiction which is not also a Stamp Tax
Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:-
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e)
required to be made by it if such failure is not remedied on or before the
third Local Business Day after notice of such failure is given to the
party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment
under this Agreement or delivery under Section 2(a)(i) or 2(e) or to give
notice of a Termination Event or any agreement or obligation under Section
4(a)(i), 4(a)(iii) or 4(d)) to be complied with or performed by the party
in accordance with this Agreement if such failure is not remedied on or
before the thirtieth day after notice of such failure is given to the
party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such party
to comply with or perform any agreement or obligation to be complied
with or performed by it in accordance with any Credit Support Document
if such failure is continuing after any applicable grace period has
elapsed;
(2) the expiration or termination of such Credit Support Document or
the failing or ceasing of such Credit Support Document to be in full
force and effect for the purpose of this Agreement (in
<PAGE>
either case other than in accordance with its terms) prior to the
satisfaction of all obligations of such party under each Transaction to
which such Credit Support Document relates without the written consent
of the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity
of, such Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation
under Section 3(e) or (f)) made or repeated or deemed to have been made or
repeated by the party or any Credit Support Provider of such party in this
Agreement or any Credit Support Document proves to have been incorrect or
misleading in any material respect when made or repeated or deemed to have
been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party (1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation
of an acceleration of obligations under, or an early termination of, that
Specified Transaction, (2) defaults, after giving effect to any applicable
notice requirement or grace period, in making any payment or delivery due
on the last payment, delivery or exchange date of, or any payment on early
termination of a Specified Transaction (or such default continues for at
least three Local Business Days if there is no applicable notice
requirement or grace period) or (3) disaffirms, disclaims, repudiates or
reject, in whole or in part, a Specified Transaction (or such action is
taken by any person or entity appointed or empowered to operate it or act
on its behalf);
(vi) CROSS DEFAULT. If "Cross Default" is specified in the Schedule as
applying to the party, the occurrence or existence of (1) a default, event
or default or other similar condition or event (however described) in
respect of such party, any Credit Support Provider of such party or any
applicable Specified Entity of such party under one or more agreements or
instruments relating to Specified Indebtedness of any of them (individually
or collectively) in an aggregate amount of not less than the applicable
<PAGE>
Threshold Amount (as specified in the Schedule) which has resulted in such
Specified Indebtedness becoming, or becoming capable at such time of being
declared, due and payable under such agreements or instruments, before it
would otherwise have been due and payable or (2) a default by such party,
such Credit Support Provider or such Specified Entity (individually or
collectively) in making one or more payments on the due date thereof in an
aggregate amount of not less than the applicable Threshold Amount under
such agreements or instruments (after giving effect to any applicable
notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:-
(1) is dissolved (other than pursuant to a consolidation, amalgamation
or merger); (2) becomes insolvent or is unable to pay its debts or fails
or admits in writing its inability generally to pay its debts as they
become due; (3) makes a general assignment, arrangement or composition
with or for the benefit of its creditors; (4) institutes or has
instituted against it a proceeding seeking a judgment of insolvency or
bankruptcy or any other relief under any bankruptcy or insolvency law or
other similar law affecting creditors' rights, or a petition is
presented for its winding-up or liquidation, and, in the case of any
such proceeding or petition instituted or presented against it, such
proceeding or petition (A) results in a judgment of insolvency or
bankruptcy or the entry of an order for relief or the making of an order
for its winding-up or liquidation or (B) is not dismissed, discharged,
stayed or restrained in each case within 30 days of the institution or
presentation thereof; (5) has a resolution passed for its winding-up,
official management or liquidation (other than pursuant to a
consolidation, amalgamation or merger); (6) seeks or becomes subject to
the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for
it or for all or substantially all its assets; (7) has a secured party
take possession of all or substantially all its assets or has a
distress, execution, attachment, sequestration or other legal process
levied enforced or sued on or against all or substantially all its
assets and such secured party maintains possession, or any such process
is not dismissed, discharged, stayed or restrained, in each case within
30 days thereafter; (8) causes or is subject to any event with respect
to it which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or indicating
its consent to, approval of, or acquiescence in, any of the foregoing
acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support
Provider of such party consolidates or amalgamates with, or merges with
or into, or transfers all or substantially all its assets to, another
entity and, at the time of such consolidation, amalgamation, merger or
transfer:-
(1) the resulting surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this
Agreement or any Credit Support Document to which it or its
<PAGE>
predecessor was a party by operation of law or pursuant to an agreement
reasonably satisfactory to the Other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without
the consent of the other party) to the performance by such resulting,
surviving or transferee entity of its obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party or,
if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an illegality
if the event is specified in (i) below, a Tax Event if the event is
specified in (ii) below or a Tax Event Upon Merger if the event is
specified in (iii) below, and, if specified to be applicable. a Credit
Event Upon Merger if the event is specified pursuant to (iv) below or an
Additional Termination Event if the event is specified pursuant to (v)
below:-
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court,
tribunal or regulatory authority with competent jurisdiction of any
applicable law after such date, it becomes unlawful (other than as a result
of a breach by the party of Section 4(b)) for such party (which will be the
Affected Party);-
(1) to perform any absolute or contingent obligation to make a payment
or delivery or to receive a payment or delivery in respect of such
Transaction or to comply with any other material provision of this
Agreement relating to such Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform any contingent or other obligation which the party (or such
Credit Support Provider) has under any Credit Support Document relating
to such Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a tax authority, or
brought in a court of competent jurisdiction, on or after the date on
which a Transaction is entered into (regardless of whether such action is
taken or brought with respect to a party to this Agreement) or (y) a
Change in Tax Law, the party (which will be the Affected Party) will, or
there is a substantial likelihood that it will, on the next succeeding
Scheduled Payment Date (1) be required to pay to the other party an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount is required to be
deducted or withheld for
<PAGE>
or on account of a Tax (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) and no additional amount is required to be paid in
respect of such Tax under Section 2(d)(i)(4) (other than by reason of
Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section
2(d)(i)(4) (except in respect of interest under Section 2(e), 6(d)(ii) or
6(e)) or (2) receive a payment from which an amount has been deducted or
withheld for or on account of any Indemnifiable Tax in respect of which the
other party is not required to pay an additional amount (other than by
reason of Section 2(d)(i)(4)(A) or (B)), in either case as a result of a
party consolidating or amalgamating with, or merging with or into, or
transferring all or substantially all its assets to, another entity (which
will be the Affected Party) where such action does not constitute an event
described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit
Support Provider of X or any applicable Specified Entity of X consolidates
or amalgamates with, or merges with or into, or transfers all or
substantially all its assets to another entity and such action does not
constitute an event described in Section 5(a)(viii) but the
creditworthiness of the resulting, surviving or transferee entity is
materially weaker than that of X, such Credit Support Provider or such
Specified Entity, as the case may be, immediately prior to such action
(and, in such event, X or its successor or transferee, as appropriate, will
be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence
of such event (and, in such event, the Affected Party or Affected Parties
shall be as specified for such Additional Termination Event in the Schedule
or such Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which would
otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute
an Event of Default.
<PAGE>
6. EARLY TERMINATION
(a) RIGHT TO TERMINATE FOLLOWING EVENT OF DEFAULT. If at any time an Event of
Default with respect to a party (the "Defaulting Party") has occurred and
is then continuing, the other party (the "Non-defaulting Party") may, by
not more than 20 days notice to the Defaulting Party specifying the
relevant Event of Default, designate a day not earlier than the day such
notice is effective as an Early Termination Date in respect of all
outstanding Transactions. If, however, "Automatic Early Termination" is
specified in the Schedule as applying to a party, then an Early Termination
Date in respect of all outstanding Transactions will occur immediately upon
the occurrence with respect to such party of an Event of Default specified
in Section 5(a )(vii)(1), (3), (5), (6) or, to the extent analogous
thereto, (8), and as of the time immediately preceding the institution of
the relevant proceeding or the presentation of the relevant petition upon
the occurrence with respect to such party of an Event of Default specified
in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) RIGHT TO TERMINATE FOLLOWING TERMINATION EVENT.
(i) NOTICE. If a Termination Event occurs, an Affected Party will,
promptly upon becoming aware of it, notify the other party, specifying the
nature of that Termination Event and each Affected Transaction and will
also give such other information about that Termination Event as the other
party may reasonably require.
(ii) TRANSFER TO AVOID TERMINATION EVENT. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected
Party, or if a Tax Event Upon Merger occurs and the Burdened Party is the
Affected Party, the Affected Party will, as a condition to its right to
designate an Early Termination Date under Section 6(b)(iv), use all
reasonable efforts (which will not require such party to incur a loss,
excluding immaterial, incidental expenses) to transfer within 20 days after
it gives notice under Section 6(b)(i) all its rights and obligations under
this Agreement in respect of the Affected Transactions to another of its
Offices or Affiliates so that such Termination Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period,
whereupon the other party may effect such a transfer within 30 days after
the notice is given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which
consent will not be withheld if such other party's policies in effect at
such time would permit it to enter into transactions with a transferee on
the terms proposed.
<PAGE>
(iii) TWO AFFECTED PARTIES. If an Illegality under Section 5(b)(i)(1) or a
Tax Event occurs and there are two Affected Parties, each party will use
all reasonable efforts to reach agreement within 30 days after notice
thereof is given under Section 6(b)(i) on action to avoid that Termination
Event.
(iv) Right to Terminate. If:-
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to all
Affected Transactions within 30 days after an Affected Party gives notice
under Section 6(b)(i); or
(2) an Illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or
an Additional Termination Event occurs, or a Tax Event Upon Merger occurs
and the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event
or an Additional Termination Event if there is more than one Affected
Party, or the party which is not the Affected Party in the case of a Credit
Event Upon Merger or an Additional Termination Event if there is only one
Affected Party may, by not more than 20 days notice to the other party and
provided that the relevant Termination Event is then continuing, designate
a day not earlier than the day such notice is effective as an Early
Termination Date in respect of all Affected Transactions.
(c) EFFECT OF DESIGNATION.
(i) If notice designating an Early Termination Date is given under
Section 6(a) or (b), the Early Termination Date will occur on the date so
designated, whether or not the relevant Event of Default or Termination
Date will occur on the date so designated, whether or not the relevant
Event of Default or Termination Event is then continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in
respect of the Terminated Transactions will be required to be made, but
without prejudice to the other provisions of this Agreement. The amount,
if any, payable in respect of an Early Termination Date shall be determined
pursuant to Section 6(e).
(d) CALCULATIONS.
(i) STATEMENT. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the
<PAGE>
calculations on its part, if any, contemplated by Section 6(e) and will
provide to the other party a statement (1) showing, in reasonable detail,
such calculations (including all relevant quotations and specifying any
amount payable under Section 6(e)) and (2) giving details of the relevant
account to which any amount payable to it is to be paid. In the absence of
written confirmation from the source of a quotation obtained in determining
a Market Quotation the records of the party obtaining such quotation will
be conclusive evidence of the existence and accuracy of such quotation.
(ii) PAYMENT DATE. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that
notice of the amount payable is effective (in the case of an Early
Termination Date which is designated or occurs as a result of an Event of
Default) and on the day which is two Local Business Days after the day on
which notice of the amount payable is effective (in the case of an Early
Termination Date which is designated as a result of a Termination Event).
Such amount will be paid together with (to the extent permitted under
applicable law) interest thereon (before as well as after judgment) in the
Termination Currency, from (and including) the relevant Early Termination
Date to (but excluding) the date such amount is paid, at the Applicable
Rate. Such interest will be calculated on the basis of daily compounding
and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following Provisions shall apply based on the parties' election in the
Schedule of a payment measure, either "Market Quotation" or "Loss", and a
payment method either the "First Method" or the "Second Method". If the
parties fail to designate a payment measure or payment method in the
Schedule, it will be deemed that "Market Quotation" or the "Second Method",
as the case may be, shall apply. The amount, if any, payable in respect of
an Early Termination Date and determined pursuant to this Section will be
subject to any Set-off.
(i) EVENTS OF DEFAULT. If the Early Termination Date results from an Event
of Default:-
(1) FIRST METHOD AND MARKET QUOTATION. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting
Party the excess, if a positive number of (A) the sum of the Settlement
Amount (determined by the Non-defaulting Party) in respect of the
Terminated Transactions and the Termination Currency Equivalent of the
Unpaid Amounts owing to the Non-defaulting Party over (B) the
Termination Currency Equivalent of the Unpaid Amounts owing to the
Defaulting Party.
<PAGE>
(2) FIRST METHOD AND LOSS. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive
number, the Non-defaulting Party's Loss in respect of this Agreement.
(3) SECOND METHOD AND MARKET QUOTATION. If the Second Method and
Market Quotation apply, an amount will be payable equal to (A) the sum
of the Settlement Amount (determined by the Non-defaulting Party) in
respect of the Terminated Transactions and the Termination Currency
Equivalent of the Unpaid Amounts owing to the Non-defaulting Party less
(B) the Termination Currency Equivalent of the Unpaid Amounts owing to
the Defaulting Party. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(4) SECOND METHOD AND LOSS. If the Second Method and Loss apply, an
amount will be payable equal to the Non-defaulting Party's Loss in
respect of this Agreement. If that amount is a positive number, the
Defaulting Party will pay it to the Non-defaulting Party; if it is a
negative number, the Non-defaulting Party will pay the absolute value
of that amount to the Defaulting Party.
(ii) TERMINATION EVENTS. If the Early Termination Date results from a
Termination Event:-
(1) ONE AFFECTED PARTY. If there is one Affected Party, the amount
payable will be determined in accordance with Section 6(e)(i)(3), if
Market Quotation applies, or Section 6(e)(i)(4), if Loss applies,
except that, in either case, references to the Defaulting Party and to
the Non-defaulting Party will be deemed to be references to the
Affected Party and the party which is not the Affected Party,
respectively, and. if Loss applies and fewer than all the Transactions
are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) TWO AFFECTED PARTIES. If there are two Affected Parties:-
(A) if Market Quotation applies, each party will determine a
Settlement Amount in respect of the Terminated Transactions, and an
amount will be payable equal to (i) the sum of (a) one-half of the
difference between the Settlement Amount of the party with the
higher Settlement Amount ("X") and the Settlement Amount of the
party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X
less (ii) the Termination Currency Equivalent of the Unpaid Amounts
owing to Y; and
<PAGE>
(B) if Loss applies, each party will determine its Loss in respect
of this Agreement (or, if fewer than all the Transactions are being
terminated, in respect of all Terminated Transactions) and an
amount will be payable equal to one-half of the difference between
the Loss of the party with the higher Loss ("X") and the Loss of
the party with the lower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X. If it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) ADJUSTMENT FOR BANKRUPTCY. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in
respect of a party, the amount determined under this Section 6(e) will be
subject to such adjustments as are appropriate and permitted by law to
reflect any payments or deliveries made by one party to the other under
this Agreement (and retained by such other party) during the period from
the relevant Early Termination Date to the date for payment determined
under Section 6(d)(ii).
(iv) PRE-ESTIMATE. The parties agree that if Market Quotation applies in
amount recoverable under this Section 6(e) is a reasonable pre-estimate of
loss and not a penalty. Such amount is payable for the loss of bargain and
the loss of protection against future risks and except as otherwise
provided in this Agreement neither party will be entitled to recover any
additional damages as a consequence of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of
all or substantially all its assets to, another entity (but without
prejudice to any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(c).
Any purported transfer that is not in compliance with this Section will be
void.
<PAGE>
8. CONTRACTUAL CURRENCY
(a) PAYMENT IN THE CONTRACTUAL CURRENCY. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the
Contractual Currency will not be discharged or satisfied by any tender in
any currency other than the Contractual Currency, except to the extent such
tender results in the actual receipt by the party to which payment is owed,
acting in a reasonable manner and in good faith in converting the currency
so tendered into the Contractual Currency, of the full amount in the
Contractual Currency of all amounts payable in respect of this Agreement.
If for any reason the amount in the Contractual Currency so received falls
short of the amount in the Contractual Currency payable in respect of this
Agreement the party required to make the payment will, to the extent
permitted by applicable law, immediately pay such additional amount in the
Contractual Currency as may be necessary to compensate for the shortfall.
If for any reason the amount in the Contractual Currency so received
exceeds the amount in the Contractual Currency payable in respect of this
Agreement, the party receiving the payment will refund promptly the amount
of such excess.
(b) JUDGMENTS. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is
rendered (i) for the payment of any amount owing in respect of this
Agreement, (ii) for the payment of any amount relating to any early
termination in respect of this Agreement or (iii) in respect of a judgment
or order of another court for the payment of any amount described in (i) or
(ii) above, the party seeking recovery, after recovery in full of the
aggregate amount to which such party is entitled pursuant to the judgment
or order, will be entitled to receive immediately from the other party the
amount of any shortfall of the Contractual Currency received by such party
as a consequence of sums paid in such other currency and will refund
promptly to the other party any excess of the Contractual Currency received
by such party as a consequence of sums paid in such other currency if such
shortfall or such excess arises or results from any variation between the
rate of exchange at which the Contractual Currency is converted into the
currency of the judgment or order for the purposes of such judgment or
order and the rate of exchange at which such party is able, acting in a
reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with
the amount of the currency of the judgment or order actually received by
such party. The term "rate of exchange" includes, without limitation, any
premiums and costs of exchange payable in connection with the purchase of
or conversion into the Contractual Currency.
(c) SEPARATE INDEMNITIES. To the extent permitted by applicable law,
these indemnities constitute separate and independent obligations from the
other obligations in this Agreement, will be enforceable as separate and
independent causes of action, will apply notwithstanding any indulgence
granted by the party to
<PAGE>
which any payment is owed and will not be affected by judgment being
obtained or claim or proof being made for any other sums payable in respect
of this Agreement.
(d) EVIDENCE OF LOSS. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss
had an actual exchange or purchase been made.
9. MISCELLANEOUS
(a) ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and
understanding of the parties with respect to its subject matter and
supersedes all oral communication and prior writings with respect thereto.
(b) AMENDMENTS. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing
evidenced by a facsimile transmission) and executed by each of the parties
or confirmed by an exchange of telexes or electronic messages on an
electronic messaging system.
(c) SURVIVAL OF OBLIGATIONS. Without prejudice to Sections 2(a)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive
the termination of any Transaction.
(d) REMEDIES CUMULATIVE. Except as provided in this Agreement, the
rights, powers, remedies and privileges provided in this Agreement are
cumulative and not exclusive of any rights, powers, remedies and privileges
provided by law.
(e) COUNTERPARTS AND CONFIRMATIONS.
(i) This Agreement (and each amendment, modification and waiver in
respect of it) may be executed and delivered in counterparts
(including by facsimile transmission), each of which will be deemed an
original.
(ii) The parties intend that they are legally bound by the terms of
each Transaction from the moment they agree to those terms (whether
orally or otherwise). A Confirmation shall be entered into as soon as
practicable and may be executed and delivered in counterparts
(including by facsimile transmission) or be created by an exchange of
telexes or by an exchange of electronic messages on an electronic
messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The
parties will specify therein or through another effective means that
any such counterpart, telex or electronic message constitutes a
Confirmation.
<PAGE>
(f) NO WAIVER OF RIGHTS. A failure or delay in exercising any right,
power or privilege in respect of this Agreement will not be presumed to
operate as a waiver, and a single or partial exercise of any right, power
or privilege will not be presumed to preclude any subsequent or further
exercise of that right, power or privilege or the exercise of any other
right, power or privilege.
(g) HEADINGS. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to he taken
into consideration in interpreting this Agreement.
10. OFFICES: MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying each party
that enters into a Transaction through an Office other than its head or
home office represents to the other party that, notwithstanding the place
of booking office or jurisdiction of incorporation or organisation of such
party, the obligations of such party are the same as if it had entered into
the Transaction through its head or home office. This representation will
be deemed to be repeated by such party on each date on which a Transaction
is entered into.
(b) Neither party may change the Office through which it makes and
receives payments or deliveries for the purpose of a Transaction without
the prior written consent of the other party.
(c) If a party is specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office
through which it makes and receives payments or deliveries with respect to
a Transaction will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other party
for and against all reasonable out-of-pocket expenses, including 1egal fees and
Stamp Tax incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) EFFECTIVENESS. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice
or other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
<PAGE>
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:-
(i) if in writing and delivered in person or by courier, on the date
it is delivered;
(ii) if sent by telex, on the date the recipient's answerback is
received;
(iii) if sent by facsimile transmission, on the date that transmission
is received by a responsible employee of the recipient in legible form
(it being agreed that the burden of proving receipt will be on the
sender and will not be met by a transmission report generated by the
sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail, if overseas) or
the equivalent (return receipt requested) on the date that mail is
delivered or its delivery is attempted; or
(v) if sent by electronic massaging system, on the date that
electronic message is received, unless the date of that delivery (or
attempted delivery) or that receipt, as applicable, is not a Local
Business Day or that communication is delivered (or attempted) or
received, as applicable, after the close of business on a Local
Business Day, in which case that communication shall be deemed given
and effective on the first following day that is a Local Business Day.
(b) CHANGE OF ADDRESSES. Either party may by notice to the other change
the address, telex or facsimile number or electronic massaging system
details at which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) GOVERNING LAW. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) JURISDICTION. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:-
(i) submits to the jurisdiction of the English courts, if this
Agreement is expressed to be governed by English law or to the
nonexclusive jurisdiction of the courts of the State of New York and
the United States District Court located in the Borough of Manhattan
in New York City, if this Agreement is expressed to be governed by the
laws of the State of New York; and
<PAGE>
(ii) waives any objection which it may have at any time to the laying
of venue of any Proceedings brought in any such court waives any claim
that such Proceedings have been brought in an inconvenient forum and
further waives the right to object, with respect to such Proceedings,
that such court does not have any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1(3)
of the Civil Jurisdiction and Judgments Act 1982 or any modification,
extension or re-enactment thereof for the time being in force) nor will the
bringing of Proceedings in any one or more jurisdictions preclude the
bringing of Proceedings in any other jurisdiction.
(c) SERVICE OF PROCESS. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and
on its behalf, service of process in any Proceedings. If for any reason any
party's Process Agent is unable to act as such, such party will promptly
notify the other party and within 30 days, appoint a substitute process
agent acceptable to the other party. The parties irrevocably consent to
service of process given in the manner provided for notices in Section 12.
Nothing in this Agreement will affect the right of either party to serve
process in any other manner permitted by law.
(d) WAIVER OF IMMUNITIES. Each party irrevocably waives to the fullest
extent permitted by applicable law, with respect to itself and its revenues
and assets (irrespective of their use or intended use), all immunity on the
grounds of sovereignty or other similar grounds from (i) suit, or
jurisdiction of any court, (iii) relief by way of injunction, order for
specific performance or for recovery or property, (iv) attachment of its
assets (whether before or after judgment) and (v) execution or enforcement
of any judgment to which it or its revenues or assets might otherwise be
entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agrees, to the extent permitted by applicable law, that it will
not claim any such immunity in any Proceedings.
14. DEFINITIONS
AS USED IN THIS AGREEMENT:-
"ADDITIONAL TERMINATION EVENT" has the meaning specified in Section 5(b).
"AFFECTED PARTY" has the meaning specified in Section 5(b).
"AFFECTED TRANSACTIONS" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
<PAGE>
Transactions affected by the occurrence of such Termination Event and
(b) with respect to any other Termination Event all Transactions.
"AFFILIATE" means subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, by the person, any entity that
controls, directly or indirectly, the person or any entity directly or
indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power of
the entity or person.
"APPLICABLE RATE" means:-
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii)) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(c) of either
party from and after the date (determined in accordance with Section
6(d)(ii)) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii)) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases the Termination Rate.
"BURDENED PARTY" has the meaning specified in Section 5(b).
"CHANGE IN TAX LAW" means the enactment promulgation, execution or
ratification of, or any change in or amendment to, any law (or in the
application or official interpretation of any law) that occurs on or after
the date on which the relevant Transaction is entered into.
"CONSENT" includes a consent, approval, action, authorisation, exemption,
notice, filing, registration or exchange control consent.
"CREDIT EVENT UPON MERGER" has the meaning specified in Section 5(b).
"CREDIT SUPPORT DOCUMENT" means any agreement or instrument that is specified
as such in this Agreement.
"CREDIT SUPPORT PROVIDER" has the meaning specified in the Schedule.
<PAGE>
"DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"DEFAULTING PARTY" has the meaning specified in Section 6(a).
"EARLY TERMINATION DATE" means the date determined in accordance with Section
6(a) or 6(b)(iv).
"EVENT OF DEFAULT" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"ILLEGALITY" has the meaning specified in Section 5(b).
"INDEMNIFIABLE TAX" means any Tax other than a Tax that would not be imposed
in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to
such recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organised, present or engaged in a trade
or business in such jurisdiction, or having had a permanent establishment or
fixed place of business in such jurisdiction, but excluding a connection
arising solely from such recipient or related person having executed,
delivered, performed its obligations or received a payment under, or enforced,
this Agreement or a Credit Support Document).
"LAW" includes any treaty, law. rule or regulation (as modified in the case of
tax matters by the practice of any relevant governmental revenue authority)
and "lawful" and "unlawful" will be construed accordingly.
"LOCAL BUSINESS DAY" means subject to the Schedule, a day on which commercial
banks open for business (including dealings in foreign exchange and foreign
currency deposits) (a) in relation to any obligation under Section 2(a)(i), in
the place(s) specified in the relevant Confirmation or, if not so specified,
as otherwise agreed by the parties in writing or determined pursuant to
provisions contained or incorporated by reference in this Agreement, (b) in
relation to any other payment, in the place where the relevant account is
located and, if different, in the principal financial centre, if any, of the
currency of such payment, (c) in relation to any notice or other
communication, including notice contemplated under Section 5(a)(i), in the
city specified in the address for notice provided by the recipient and, in the
case of a notice contemplated by Section 2(b), in the place where the relevant
new account is to be located and (d) in relation to Section 5(a)(v)(2), in the
relevant locations for performance with respect to such Specified Transaction.
<PAGE>
"LOSS" means, with respect to this Agreement or one, or more Terminated
Transactions as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be
its total losses and costs (or gain, in which case expressed as a negative
number) in connection with this Agreement or that Terminated Transaction or
group of Terminated Transactions, as the case may be, including any loss of
bargain, cost of funding or, at the election of such party but without
duplication, loss or cost incurred as a result of its terminating,
liquidating, obtaining or re-establishing any hedge or related trading
position (or any gain resulting from any of them). Loss includes losses and
costs (or gains) in respect of any payment or delivery required to have been
made (assuming satisfaction of each applicable condition precedent) on or
before the relevant Early Termination Date and not made except so as to avoid
duplication, if Section 6(e)(i)(1) or (3) or 6(e)(ii)(2)(A) applies. Loss
does not include a party's legal fees and out-of-pocket expenses referred to
under Section 11. A party will determine its Loss as of the relevant Early
Termination Date, or, if that is not reasonably practicable, as of the
earliest date thereafter as is reasonably practicable. A party may (but need
not) determine its Loss by reference to quotations of relevant rates or prices
from one or more leading dealers in the relevant markets.
"MARKET QUOTATION" means, with respect to one or more Terminated Transactions
and a party making the determination, an amount determined on the basis of
quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of
an agreement between such party (taking into account any existing Credit
Support Document with respect to the obligations of such party) and the
quoting Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such Party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the "satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in
respect of such Terminated Transaction or group of Terminated Transactions
that would, but for the occurrence of the relevant Early Termination Date,
have been required after that date. For this purpose, Unpaid Amounts in
respect of the Terminated Transaction or group of Terminated Transactions are
to be excluded but, without limitation, any payment or delivery that would,
but for the relevant Early Termination Date, have been required (assuming
satisfaction of each applicable condition precedent) after that Early
Termination Date is to be included. The Replacement Transaction would be
subject to such documentation as such party and the Reference Market-maker
may, in good faith, agree. The party making the determination (or its agent)
will request each Reference Market-maker to provide its quotation to the
extent reasonably practicable as of the same day and time (without regard to
different time zones) on or as soon as
<PAGE>
reasonably practicable after the relevant Early Termination Date. The day and
time as of which those quotations are to be obtained will be selected in good
faith by the party obliged to make a determination under Section 6(e), and, if
each party is so obliged, after consultation with the other. If more than
three quotations are provided, the Market Quotation will be the arithmetic
mean of the quotations, without regard to the quotations having the highest
and lowest values. If exactly three such quotations are provided, the Market
Quotation will be the quotation remaining after disregarding the highest and
lowest quotations. For this purpose, if more than one quotation has the same
highest value or lowest value, then one of such quotations shall be
disregarded. If fewer than three quotations are provided, it will be deemed
that the Market Quotation in respect of such Terminated Transaction or group
of Terminated Transactions cannot be determined.
"NON-DEFAULT RATE" means a rate per annum equal to the cost (without proof or
evidence of any actual cost) to the Non-defaulting Party (as certified by it)
if it were to fund the relevant amount.
"NON-DEFAULTING PARTY" has the meaning specified in Section 6(a).
"OFFICE" means a branch or office of a party, which may be such party's head
or home office.
"POTENTIAL EVENT OF DEFAULT" means any event which, with the giving of notice
or the lapse of time or both, would constitute an Event of Default.
"REFERENCE MARKET-MAKERS" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria
that such party applies generally at the time in deciding whether to offer or
to make an extension of credit and (b) to the extent practicable, from among
such dealers having an office in the same city.
"RELEVANT JURISDICTION" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organised, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment from or through
which such payment is made.
"SCHEDULED PAYMENT DATE" means a date on which a payment or delivery is to be
made under Section 2(a)(i) with respect to a Transaction.
"SET-OFF" means set-off, offset, combination of accounts, right of retention
or withholding or similar right or requirement to which the payer of an amount
under Section 6 is entitled or subject (whether arising under this Agreement,
another contract, applicable law or otherwise) that is exercised by, or
imposed on such payer.
<PAGE>
"SETTLEMENT AMOUNT" means, with respect to a party and any Early Termination
Date, the sum of:--
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation is determined; and
(b) such party's Loss (whether positive or negative and without reference to
any Unpaid Amounts) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation cannot be determined or would not
(in the reasonable belief of the party making the determination) produce a
commercially reasonable result.
"SPECIFIED ENTITY" has the meaning specified in the Schedule.
"SPECIFIED INDEBTEDNESS" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"SPECIFIED TRANSACTION" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter
entered into between one party to this Agreement (or any Credit Support
Provider of such party or any applicable Specified Entity of such party) and
the other party to this Agreement (or any Credit Support Provider of such
other party or any applicable Specified Entity of such other group) which is a
rate swap transaction, basis swap, forward rate transaction, commodity swap,
commodity option, equity or equity index swap, equity or equity index option,
bond option, interest rate option, foreign exchange transaction, cap
transaction, floor transaction, collar transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions),
(b) any combination of these transactions and (c) any other transaction
identified as a Specified Transaction in this Agreement or the relevant
confirmation.
"STAMP TAX" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge, assessment
or fee of any nature (including interest, penalties and additions thereto)
that is imposed by any government or other taxing authority in respect of any
payment under this Agreement other than a stamp, registration, documentation
or similar tax.
"TAX EVENT" has the meaning specified in Section 5(b).
<PAGE>
"TAX EVENT UPON MERGER" has the meaning specified in Section 5(b).
"TERMINATED TRANSACTIONS" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and
(b) if resulting from an Event of Default, all Transactions (in either case)
in effect immediately before the effectiveness of the notice designating that
early Termination Date (or, if "Automatic Early Termination" applies,
immediately before that Early Termination Date).
"TERMINATION CURRENCY" has the meaning specified in the Schedule.
"TERMINATION CURRENCY EQUIVALENT" means, in respect of any amount denominated
in the Termination Currency, such Termination Currency amount and, in respect
of any amount denominated in a currency other than the Termination Currency
(the "Other Currency"), the amount in the Termination Currency determined by
the party making the relevant determination as being required to purchase such
amount of such Other Currency as at the relevant Early Termination Date, or,
if the relevant Market Quotation or Loss (as the case may be), is determined
as of a later date that later date, with the Termination Currency at the rate
equal to the spot exchange rate of the foreign exchange agent (selected as
provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:00a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"TERMINATION EVENT" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"TERMINATION RATE" means a rate per annum equal to the arithmetic mean of the
cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"UNPAID AMOUNTS" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become
payable but for Section 2(a)(iii)) to such party under Section 2(a)(i) on or
prior to such Early Termination Date and which remain unpaid as at such Early
Termination Date and (b) in respect of each Terminated Transaction, for each
obligation under Section 2(a)(i) which was (or would have been but for Section
2(a)(iii)) required to be settled by delivery to such party on or prior to
such Early Termination Date and which has not been so settled
<PAGE>
as at such Early Termination Date, an amount equal to the fair market value of
that which was (or would have been) required to be delivered as of the
originally scheduled date for delivery, in each case together with (to the
extent permitted under applicable law) interest in the currency of such
amounts, from (and including) the date such amounts obligations were or would
have been required to have been paid or performed to (but excluding) such
Early Termination Date, at the Applicable Rate. Such amounts of interest will
be calculated on the basis of daily compounding and the actual number of days
elapsed. The fair market value of any obligation referred to in clause (b)
above shall he reasonably determined by the party obliged to make the
determination under Section 6(e) or, if each party is so obliged, it shall be
the average of the Termination Currency Equivalents of the fair market values
reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the respective
dates specified below with effect from the date specified on the first page of
this document.
MORGAN GUARANTY TRUST MILLIPORE CORPORATION
COMPANY OF NEW YORK
By: /s/ Michael Y. Leder By: /s/ Geoffrey Nunes
--------------------------- ----------------------------
Name: Michael Y. Leder Name: Geoffrey Nunes
Title: Vice President Title: Senior Vice President and
Date: General Counsel
Date: April 4, 1994
<PAGE>
ISDA
INTERNATIONAL SWAPS AND DERIVATIVES ASSOCIATION, INC.
CREDIT SUPPORT ANNEX
to the Schedule to the
MASTER AGREEMENT
dated as of January 27, 1994
between
Morgan Guaranty Trust Company Millipore Corporation
of New York ("Morgan") and ("Party B")
("Party A")
This Annex supplements, forms part of, and is subject to, the above-referenced
Agreement, is part of its Schedule and is a Credit Support Document under this
Agreement with respect to each party.
Accordingly, the parties agree as follows:-
PARAGRAPH 1. INTERPRETATION
(a) DEFINITIONS AND INCONSISTENCY. Capitalized terms not otherwise defined
herein or elsewhere in this Agreement have the meanings specified pursuant
to Paragraph 12, and all references in this Annex to Paragraphs are to
Paragraphs of this Annex. In the event of any inconsistency between this
Annex and the other provisions of this Schedule, this Annex will prevail,
and in the event of any inconsistency between Paragraph 13 and the other
provisions of this Annex, Paragraph 13 will prevail.
(b) SECURED PARTY AND PLEDGOR. All references in this Annex to the "Secured
Party" will be to either party when acting in that capacity and all
corresponding references to the "Pledgor" will be to the other party when
acting in that capacity; provided, however, that if Other Posted Support is
held by a party to this Annex, all references herein to that party as the
Secured Party with respect to that Other Posted Support will be to that
party as the beneficiary thereof and will not subject that support or that
party as the beneficiary thereof to provisions of law generally relating to
security interests and secured parties.
PARAGRAPH 2. SECURITY INTEREST
Each party, as the Pledgor, hereby pledges to the other party, as the Secured
Party, as security for its Obligations, and grants to the Secured Party a first
priority continuing
<PAGE>
security interest in, lien on and right of Set-off against all Posted Collateral
Transferred to or received by the Secured Party hereunder. Upon the Transfer by
the Secured Party to the Pledgor of Posted Collateral, the security interest and
lien granted hereunder on that Posted Collateral will be released immediately
and, to the extent possible, without any further action by either party.
PARAGRAPH 3. CREDIT SUPPORT OBLIGATIONS
(a) DELIVERY AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by
the Secured Party on or promptly following a Valuation Date, if the
Delivery Amount for that Valuation Date equals or exceeds the Pledgor's
Minimum Transfer Amount, then the Pledgor will Transfer to the Secured
Party Eligible Credit Support having a Value as of the date of Transfer at
least equal to the applicable Delivery Amount (rounded pursuant to
Paragraph 13). Unless otherwise specified in Paragraph 13, the "DELIVERY
AMOUNT" applicable to the Pledgor for any Valuation Date will equal the
amount by which:
(i) the Credit Support Amount
exceeds
(ii) the Value as of that Valuation Date of all Posted Credit Support
held by the Secured Party.
(b) RETURN AMOUNT. Subject to Paragraphs 4 and 5, upon a demand made by the
Pledgor on or promptly following a Valuation Date, if the Return Amount for
that Valuation Date equals or exceeds the Secured Party's Minimum
Transferred Amount then the Secured Party will Transfer to the Pledgor
Posted Credit Support specified by the Pledgor in that demand having a
Value as of the date of Transfer as close as practicable to the applicable
Return Amount (rounded pursuant to Paragraph 13). Unless otherwise
specified in Paragraph 13, the "RETURN AMOUNT" applicable to the Secured
Party for any Valuation Date will equal the amount by which:
(i) the Value as of that Valuation Date of all Posted Credit
Support held by the Secured Party
exceeds
(ii) the Credit Support Amount.
"CREDIT SUPPORT AMOUNT" means, unless otherwise specified in Paragraph 13,
for any
<PAGE>
Valuation Date (i) the Secured Party's Exposure for that Valuation Date
plus (ii) the aggregate of all Independent Amounts applicable to the
Pledgor, if any, minus (iii) all Independent Amounts applicable to the
Secured Party, if any, minus (iv) the Pledgor's Threshold; provided,
however, that the Credit Support Amount will be deemed to be zero whenever
the calculation of Credit Support Amount yields a number less than zero.
PARAGRAPH 4. CONDITIONS PRECEDENT, TRANSFER TIMING, CALCULATIONS AND
SUBSTITUTIONS
(a) CONDITIONS PRECEDENT. Each Transfer obligation of the Pledgor under
Paragraphs 3 and 5 and of the Secured Party under Paragraphs 3, 4(d)(ii), 5
and 6(d) is subject to the conditions precedent that:
(i) no Event of Default, Potential Event of Default or Specified Condition
has occurred and is continuing with respect to the other party; and
(ii) no Early Termination Date for which any unsatisfied payment
obligations exist has occurred or been designated as the result of an Event
of Default or Specified Condition with respect to the other party.
(b) TRANSFER TIMING. Subject to Paragraphs 4(a) and 5 and unless otherwise
specified, if a demand for the Transfer of Eligible Credit Support or
Posted Credit Support is made by the Notification Time, then the relevant
Transfer will be made not later than the close of business on the next
Local Business Day, if a demand is made after the Notification Time, then
the relevant Transfer will be made not later than the close of business on
the second Local Business Day thereafter.
(c) CALCULATIONS. All calculations of Value and Exposure for purposes of
Paragraphs 3 and 6(d) will be made by the Valuation Agent as of the
Valuation Time. The Valuation Agent will notify each party (or the other
party, if the Valuation Agent is a party) of its calculations not later
than the Notification Time on the Local Business Day following the
applicable Valuation Date (or in the case of Paragraph 6(d), following the
date of calculation).
(d) SUBSTITUTIONS.
(i) unless otherwise specified in Paragraph 13, upon notice to the Secured
Party specifying the items of Posted Credit Support to be exchanged, the
Pledgor may, on any Local Business Day, Transfer to the Secured Party
substitute Eligible Credit Support (the "Substitute Credit Support");
and (ii) subject to Paragraph 4(a), the Secured Party will Transfer to the
Pledgor the items of Posted Credit Support specified by the Pledgor in its
notice not later than the Local Business Day following the date on which
the Secured Party receives the Substitute Credit Support, unless otherwise
specified in Paragraph 13 (the
<PAGE>
"Substitution Date"); provided that the Secured Party will only be
obligated to Transfer Posted Credit Support with a Value as of the date of
Transfer of that Posted Credit Support equal to the Value as of that date
of the Substitute Credit Support.
PARAGRAPH 5. DISPUTE RESOLUTION
If a party (a "Disputing Party") disputes (I) the Valuation Agent's
calculation of a Delivery Amount or a Return Amount or (II) the Value of any
Transfer of Eligible Credit Support or Posted Credit Support, then (1) the
Disputing Party will notify the other party and the Valuation Agent (if the
Valuation Agent is not the other party) not later than the close of business
on the Local Business Day following (X) the date that the demand is made
under Paragraph 3 in the case of (I) above or (Y) the date of Transfer in
the case of (II) above, (2) subject to Paragraph 4(a), the appropriate party
will Transfer the undisputed amount to the other party not later than the
close of business on the Local Business Day following (X) the date that the
demand is made under Paragraph 3 in the case of (I) above or (Y) the date of
Transfer in the case of (II) above, (3) the parties will consult with each
other in an attempt to resolve the dispute and (4) if they fail to resolve
the dispute by the Resolution Time, then:(i) In the case of a dispute
involving a Delivery Amount or Return Amount, unless otherwise specified in
Paragraph 13, the Valuation Agent will recalculate the Exposure and the
Value as of the Recalculation Date by:(A) utilizing any calculations of
Exposure for the Transactions (or Swap Transactions) that the parties have
agreed are not in dispute;(B) calculating the Exposure for the Transactions
(or Swap Transactions) in dispute by seeking four actual quotations at mid-
market from Reference Market-makers for purposes of calculating Market
Quotation, and taking the arithmetic average of those obtained; provided
that if four quotations are not available for a particular Transaction (or
Swap Transaction), then fewer than four quotations may be used for that
Transaction (or Swap Transaction); and if no quotations are available for a
particular Transaction (or Swap Transaction), then the Valuation Agent's
original calculations will be used for that Transaction (or Swap
Transaction); and (C) utilizing the procedures specified in Paragraph 13 for
calculating the Value, if disputed, of Posted Credit Support.(ii) In the
case of a dispute involving the Value of any Transfer of Eligible Credit
Support or Posted Credit Support, the Valuation Agent will recalculate the
Value as of the date of Transfer pursuant to Paragraph 13. Following a
recalculation pursuant to this Paragraph, the Valuation Agent will notify
each party (or the other party, if the Valuation Agent is a party) not later
than the
<PAGE>
Notification Time on the Local Business Day following the Resolution Time.
The appropriate party will, upon demand following that notice by the
Valuation Agent or a resolution pursuant to (3) above and subject to
Paragraphs 4(a) and 4(b), make the appropriate Transfer.
PARAGRAPH 6. HOLDING AND USING POSTED COLLATERAL
(a) CARE OF POSTED COLLATERAL. Without limiting the Secured Party's rights
under Paragraph 6(c), the Secured Party will exercise reasonable care to
assure the safe custody of all Posted Collateral to the extent required by
applicable law, and in any event the Secured Party will be deemed to have
exercised reasonable care if it exercises at least the same degree of care
as it would exercise with respect to its own property. Except as specified
in the preceding sentence, the Secured Party will have no duty with respect
to Posted Collateral, including, without limitation, any duty to collect
any Distributions, or enforce or preserve any rights pertaining thereto.
(b) ELIGIBILITY TO HOLD POSTED COLLATERAL; CUSTODIANS.
(i) GENERAL. Subject to the satisfaction of any conditions specified in
Paragraph 13 for holding Posted Collateral, the Secured Party will be
entitled to hold Posted Collateral or to appoint an agent (a "Custodian")
to hold Posted Collateral for the Secured Party. Upon notice by the Secured
Party to the Pledgor of the appointment of a Custodian, the Pledgor's
obligations to make any Transfer will be discharged by making the Transfer
to that Custodian. The holding of Posted Collateral by a Custodian will be
deemed to be the holding of that Posted Collateral by the Secured Party for
which the Custodian is acting.
(ii) FAILURE TO SATISFY CONDITIONS. If the Secured Party or its Custodian
fails to satisfy any conditions for holding Posted Collateral, then upon a
demand made by the Pledgor, the Secured Party will, not later than five
Local Business Days after the demand, Transfer or cause its Custodian to
Transfer all Posted Collateral held by it to a Custodian that satisfies
those conditions or to the Secured Party if it satisfies those conditions.
(iii) LIABILITY. The Secured Party will be liable for the acts or
omissions of its Custodian to the same extent that the Secured Party would
be liable hereunder for its own acts or omissions.
(c) USE OF POSTED COLLATERAL. Unless otherwise specified in Paragraph 13 and
without limiting the rights and obligations of the parties under Paragraphs
3, 4(d)(ii), 5, 6(d) and 8, if the Secured Party is not a Defaulting Party
or an Affected Party with respect to a Specified Condition and no Early
Termination Date has occurred or been designated as
<PAGE>
the result of an Event of Default or Specified Condition with respect to
the Secured Party, then the Secured Party will, notwithstanding Section 9-
207 of the New York Uniform Commercial Code. have the right to:
sell, pledge, rehypothecate, assign, invest, use, commingle or otherwise
dispose of, or otherwise use in its business any Posted Collateral it
holds, free from any claim or right of any nature whatsoever of the
Pledgor, including any equity or right of redemption by the Pledgor;
and register any Postal Collateral in the name of the Secured Party, its
Custodian or a nominee for either.
For purposes of the obligation to Transfer Eligible Credit Support or
Posted Credit Support pursuant to Paragraphs 3 and 5 and any rights or
remedies authorized under this Agreement, the Secured Party will be deemed
to continue to hold all Posted Collateral and to receive Distributions made
thereon, regardless of whether the Secured Party has exercised any rights
with respect to any Posted Collateral pursuant to (i) or (ii) above.
(d) DISTRIBUTIONS AND INTEREST AMOUNT.
(i) Distributions. Subject to Paragraph 4(a), if the Secured Party
receives or is deemed to receive Distributions on a Local Business Day, it
will Transfer to the Pledgor not later than the following Local Business
Day any Distributions it receives or is deemed to receive to the extent
that a Delivery Amount would not be created or increased by that Transfer,
as calculated by the Valuation Agent (and the date of calculation will be
deemed to be a Valuation Date for this purpose).
(ii) Interest Amount. Unless otherwise specified in Paragraph 13 and
subject to Paragraph 4(a), in lieu of any interest, dividends or other
amounts paid or deemed to have been paid with respect to Posted Collateral
in the form of Cash (all of which may be retained by the Secured Party),
the Secured Party will Transfer to the Pledgor at the times specified in
Paragraph 13 the Interest Amount to the extent that a Delivery Amount would
not be created or increased by that Transfer, as calculated by the
Valuation Agent (and the date of calculation will be deemed to be a
Valuation Date for this purpose). The Interest Amount or portion thereof
not Transferred pursuant to this Paragraph will constitute Posted
Collateral in the form of Cash and will be subject to the security interest
granted under Paragraph 2.
PARAGRAPH 7. EVENTS OF DEFAULT
For purposes of Section 5(a)(iii)(1) of this Agreement, an Event of Default will
exist with respect to a party if:
(i) that party fails (or fails to cause its Custodian) to make, when due,
any Transfer of Eligible Collateral, Posted Collateral or the Interest
Amount, as
<PAGE>
applicable, required to be made by it and that failure continues for two
Local Business Days after notice of that fail are is given to that party;
(ii) that party fails to comply with any restriction or prohibition
specified in this Annex with respect to any of the rights specified in
Paragraph 6(c) and that failure continues for five Local Business Days
after notice of that failure is given to that party; or
(iii) that party fails to comply with or perform any agreement or
obligation other than those specified in Paragraphs 7(i) and 7(ii) and that
failure continues for 30-days after notice of that failure is given to that
party.
PARAGRAPH 8. CERTAIN RIGHTS AND REMEDIES
- -----------------------------------------
(a) SECURED PARTY'S RIGHTS AND REMEDIES. If at any time (1) an Event of
Default or Specified Condition with respect to the Pledgor has occurred and
is continuing or (2) an Early Termination Date has occurred or been
designated as the result of an Event of Default or Specified Condition with
respect to the Pledgor, then, unless the Pledgor has paid in full all of
its Obligations that are then due, the Secured Party may exercise one or
more of the following rights and remedies:
(i) all rights and remedies available to a secured party under applicable
law with respect to Posted Collateral held by the Secured Party;
(ii) any other rights and remedies available to the Secured Party under the
terms of Other Posted Support, if any;
(iii) the right to Set-off any amounts payable by the Pledgor with respect
to any Obligations against any Posted Collateral or the Cash equivalent of
any Posted Collateral held by the Secured Party (or any obligation of the
Secured Party to Transfer that Posted Collateral); and
(iv) the right to liquidate any Posted Collateral held by the Secured Party
through one or more public or private sales or other dispositions with such
notice, if any, as may be required under applicable law, free from any
claim or right of any nature whatsoever of the Pledgor, including any
equity or right of redemption by the Pledgor (with the Secured Party having
the right to purchase any or all of the Posted Collateral to be sold) and
to apply the proceeds (or the Cash equivalent thereof) from the liquidation
of the Posted Collateral to any amounts payable by the Pledgor with respect
to any Obligations in that order as the Secured Party may elect.
Each party acknowledges and agrees that Posted Collateral in the form of
securities may decline speedily in value and is of a type customarily sold on a
recognized market, and, accordingly, the Pledgor is not entitled to prior notice
of any sale of that Posted Collateral
<PAGE>
by the Secured Party, except any notice that is required under applicable law
and cannot be waived.
(b) PLEDGOR'S RIGHTS AND REMEDIES. If at any time an Early Termination Date
has occurred or been designated as the result of an Event of Default or
Specified Condition with respect to the Secured Party, then (except in the
case of an Early Termination Date relating to less than all Transactions
(or Swap Transactions) where the Secured Party has paid in full all of its
obligations that are then due under Section 6(e) of this Agreement):
(i) the Pledgor may exercise all rights and remedies available to a pledgor
under applicable law with respect to Posted Collateral held by the Secured
Party;
(ii) the Pledgor may exercise any other rights and remedies available to
the Pledgor under the terms of Other Posted Support, if any;the Secured
Party will be obligated immediately to Transfer all Posted Collateral and
the Interest Amount to the Pledgor; and
to the extent that posted Collateral or the Interest Amount is not so
Transferred pursuant to (iii) above, the Pledgor may:
(A) Set-off any amounts payable by the Pledgor with respect to any Obligations
against any Posted Collateral or the Cash equivalent of any Posted
Collateral held by the Secured Party (or any obligation of the Secured
Party to Transfer that Posted Collateral); and
(B) to the extent that the Pledgor does not Set-off under (iv)(A) above,
withhold payment of any remaining amounts payable by the Pledgor with
respect to any Obligations, up to the Value of any remaining Posted
Collateral held by the Secured Party, until that Posted Collateral is
Transferred to the Pledgor.
(c) DEFICIENCIES AND EXCESS PROCEEDS. The Secured Party will Transfer to the
Pledgor any proceeds and Posted Credit Support remaining after liquidation,
Set-off and/or application under Paragraphs 8(a) and 8(b) after
satisfaction in full of all amounts payable by the Pledgor with respect to
any Obligations; the Pledgor in all events will remain liable for any
amounts remaining unpaid after any liquidation, Set-off and/or application
under Paragraphs 8(a) and 8(b).
(d) FINAL RETURNS. When no amounts are or thereafter may become payable by the
Pledgor with respect to any Obligations (except for any potential liability
under Section 2(d) of this Agreement), the Secured Party will Transfer to
the Pledgor all Posted Credit Support and the Interest Amount, if any.
PARAGRAPH 9. REPRESENTATIONS
Each party represents to the other party (which representations will be
deemed to be
<PAGE>
repeated as of each date on which it, as the Pledgor, Transfers Eligible
Collateral) that:
(i) it has the power to grant a security interest in and lien on any Eligible
Collateral it Transfers as the Pledgor and has taken all necessary actions to
authorize the granting of that security interest and lien;
(ii) it is the sole owner of or otherwise has the right to Transfer all Eligible
Collateral it Transfers to the Secured Party hereunder, free and clear of any
security interest, lien, encumbrance or other restrictions other than the
security interest and lien granted under Paragraph 2;
(iii) upon the Transfer of any Eligible Collateral to the Secured Party under
the terms of this Annex, the Secured Party will have a valid and perfected first
priority security interest therein (assuming that any central clearing
corporation or any third-party financial intermediary or other entity not within
the control of the Pledgor involved in the Transfer of that Eligible Collateral
gives the notices and takes the action required of it under applicable law for
perfection of that interest); and
(iv) the performance by it of its obligations under this Annex will not result
in the creation of any security interest, lien or other encumbrance on any
Posted Collateral other than the security interest and lien granted under
Paragraph 2.
PARAGRAPH 10. EXPENSES
(a) GENERAL. Except as otherwise provided in Paragraphs 10(b) and 10(c), each
party will pay its own costs and expenses in connection with performing its
obligations under this Annex and neither party will be liable for any costs and
expenses incurred by the other party in connection herewith.
(b) POSTED CREDIT SUPPORT. The Pledgor will promptly pay when due all taxes,
assessments or charges of any nature that are imposed with respect to Posted
Credit Support held by the Secured Party upon becoming aware of the same,
regardless of whether any portion of that Posted Credit Support is subsequently
disposed of under Paragraph 6(c), except for those taxes, assessments and
charges that result from the exercise of the Secured Party's rights under
Paragraph 6(c).
(c) LIQUIDATION/APPLICATION OF POSTED CREDIT SUPPORT. All reasonable costs and
expenses incurred by or on behalf of the Secured Party or the Pledgor in
connection with the liquidation and/or application of any Posted Credit Support
under Paragraph 8 will be payable, on demand and pursuant to the Expenses
Section of this Agreement, by the Defaulting Party or, if there is no Defaulting
Party, equally by the parties.
PARAGRAPH 11. MISCELLANEOUS
(a) DEFAULT INTEREST. A Secured Party that fails to make, when due, any
Transfer of
<PAGE>
Posted Collateral or the Interest Amount will be obligated to pay the Pledgor
(to the extent permitted under applicable law) an amount equal to interest at
the Default Rate multiplied by the Value of the items of property that were
required to be Transferred, from (and including) the date that Posted Collateral
or Interest Amount was required to be Transferred to (but excluding) the date of
Transfer of that Posted Collateral or Interest Amount. This interest will be
calculated on the basis of daily compounding and the actual number of days
elapsed.
(b) FURTHER ASSURANCES. Promptly following a demand made by a party, the other
party will execute, deliver, file and record any financing statement, specific
assignment or other document and take any other action that may be necessary or
desirable and reasonably requested by that party to create, preserve, perfect or
validate any security interest or lien granted under Paragraph 2, to enable that
party to exercise or enforce its rights under this Annex with respect to Posted
Credit Support or an Interest Amount or to effect or document a release of a
security interest on Posted Collateral or an Interest Amount.
(c) FURTHER PROTECTION. The Pledgor will promptly give notice to the Secured
Party of, and defend against any suit, action, proceeding or lien that involves
Posted Credit Support Transferred by the Pledgor or that could adversely affect
the interest and then granted by it under Paragraph 2, unless that suit, action,
proceeding or lien results from the exercise of the Secured Party's rights under
Paragraph 6(c).
(d) GOOD FAITH AND COMMERCIALLY REASONABLE MANNER. Performance of all
obligations under this Annex, including, but not limited to, all calculations,
valuations and detentions by either party, will be made in good faith and in a
commercially reasonable manner.
(e) DEMANDS AND NOTICE. All demands and notices made by a party under this
Annex will be made as specified in the Notices Section of this Agreement, except
as otherwise provided in Paragraph 13.
(f) SPECIFICATIONS OF CERTAIN MATTERS. Anything referred to in this Annex as
being specified in Paragraph 13 also may be specified in one or more
Confirmations or other documents and this Annex will be construed accordingly.
PARAGRAPH 12. DEFINITIONS
As used in this Annex:-
"CASH" means the lawful currency of the United States of America.
"CREDIT SUPPORT AMOUNT" has the meaning specified in Paragraph 3.
"CUSTODIAN" has the meaning specified in Paragraphs 6(b)(i) and 13.
<PAGE>
"DELIVERY AMOUNT" has the meaning specified in Paragraph 3(a).
"DISPUTING PARTY" has the meaning specified in Paragraph 5.
"DISTRIBUTIONS" means with respect to Posted Collateral other than Cash, all
principal, interest and other payments and distributions of cash or other
property with respect thereto, regardless of whether the Secured Party has
disposed of that Posted Collateral under Paragraph 6(c). Distributions will not
include any item of property acquired by the Secured Party upon any disposition
or liquidation of Posted Collateral or, with respect to any Posted Collateral in
the form of Cash, any distributions on that collateral, unless otherwise
specified herein.
"ELIGIBLE COLLATERAL" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"ELIGIBLE CREDIT SUPPORT" means Eligible Collateral and Other Eligible Support.
"EXPOSURE" means for any Valuation Date or other date for which Exposure is
calculated and subject to Paragraph 5 in the case of a dispute, the amount, if
any, that would be payable to a party that is the Secured Party by the other
party (expressed as a negative number) pursuant to Section 6(e)(ii)(2)(A) of
this Agreement as if all Transactions (or Swap Transactions) were being
terminated as of the relevant Valuation Time; provided that Market Quotation
will be determined by the Valuation Agent using its estimates at mid-market of
the amounts that would be paid for Replacement Transactions (as the term is
defined in the definitions of "Market Quotation").
"INDEPENDENT AMOUNT" means, with respect to a party, the amount specified as
such for that party in Paragraph 13; if no amount is specified, zero.
"INTEREST AMOUNT" means, with respect to an Interest Period, the aggregate sum
of the amounts of interest calculated for each day in that Interest Period on
the principal amount of Posted Collateral in the form of Cash held by the
Secured Party on that day, determined by the Secured Party for each such day as
follows:
(x) the amount of that Cash on that day; multiplied by
(y) the Interest Rate in effect for that day; divided by
(z) 360.
"INTEREST PERIOD" means the period from (and including) the last Local Business
Day on which an Interest Amount was Transferred (or, if no Interest Amount has
yet been Transferred, the Local Business Day on which Posted Collateral in the
form of Cash was
<PAGE>
Transferred to or received by the Secured Party) to (but excluding) the Local
Business Day on which the current Interest Amount is to be Transferred.
"INTEREST RATE" means the rate specified in Paragraph 13.
"Local Business Day", unless otherwise specified in Paragraph 13, has the
meaning specified in the Definitions Section of this Agreement, except that
references to a payment in clause (b) thereof will be deemed to include a
Transfer under this Annex.
"MINIMUM TRANSFER AMOUNT" means, with respect to a party, the amount specified
as such for that party in Paragraph 13; if no amount is specified, zero.
"NOTIFICATION TIME" has the meaning specified in Paragraph 13.
"OBLIGATIONS" means, with respect to a party, all present and future obligations
of that party under this Agreement and any additional obligations specified for
that party in Paragraph 13.
"OTHER ELIGIBLE SUPPORT" means, with respect to a party, the items, if any,
specified as such for that party in Paragraph 13.
"OTHER POSTED SUPPORT" means all Other Eligible Support Transferred to the
Secured Party that remains in effect for the benefit of that Secured Party.
"PLEDGOR" means either party, when that party (i) receives a demand for or is
required to Transfer Eligible Credit Support under Paragraph 3(a) or (ii) has
Transferred Eligible Credit Support under Paragraph 3(a).
"POSTED COLLATERAL" means all Eligible Collateral, other property,
Distributions, and all proceeds thereof that have been Transferred to or
received by the Secured Party under this Annex and not Transferred to the
Pledgor pursuant to Paragraph 3(b), 4(d)(ii) or 6(d)(i) or released by the
Secured Party under Paragraph 8. Any Interest Amount or portion thereof not
Transferred pursuant to Paragraph 6(d)(ii) will constitute Posted Collateral in
the form of Cash.
"POSTED CREDIT SUPPORT" means Posted Collateral and Other Posted Support.
"RECALCULATION DATE" means the Valuation Date that gives rise to the dispute
under Paragraph 5; provided, however, that if a subsequent Valuation Date occurs
under Paragraph 3 prior to the resolution of the dispute, then the
"Recalculation Date" means the most recent Valuation Date under Paragraph 3.
"RESOLUTION TIME" has the meaning specified in Paragraph 13.
<PAGE>
"RETURN AMOUNT" has the meaning specified in Paragraph 3(b).
"SECURED PARTY" means either party, when that party (i) makes a demand for or is
entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii) holds
or is deemed to hold Posted Credit Support.
"SPECIFIED CONDITION" means, with respect to a party, any event specified as
such for that party in Paragraph 13.
"SUBSTITUTE CREDIT SUPPORT" has the meaning specified in Paragraph 4(d)(i).
"SUBSTITUTION DATE" has the meaning specified in Paragraph 4(d)(ii).
"THRESHOLD" means, with respect to a party, the amount specified as such for
that party in Paragraph 13; if no amount is specified, zero.
"TRANSFER" means with respect to any Eligible Credit Support, Posted Credit
Support or Interest Amount and in accordance with the instructions of the
Secured Party, Pledgor or Custodian as applicable:
(i) in the case of Cash, payment or delivery by wire transfer into one or
more bank accounts specified by the recipient;
(ii) in the case of certificated securities that cannot be paid or
delivered by book-entry payment or delivery in appropriate physical form to
the recipient or its account accompanied by any duly executed instruments
of transfer, assignments in blank, transfer tax stamps and any other
documents necessary to constitute a legally valid transfer to the
recipient;
(iii) in the case of securities that can be paid or delivered by book-
entry, the giving of written instructions to the relevant depository
institution or other entity specified by the recipient, together with a
written copy thereof to the recipient, sufficient if complied with to
result in a legally effective transfer of the relevant interest to the
recipient; and
(iv) in the case of Other Eligible Support or Other Posted Support as
specified in Paragraph 13.
"VALUATION AGENT" has the meaning specified in Paragraph 13.
"VALUATION DATE" means each date specified in or otherwise determined pursuant
to paragraph 13.
<PAGE>
"VALUATION PERCENTAGE" means, for any item of Eligible Collateral, the
percentage specified in Paragraph 13.
"VALUATION TIME" has the meaning specified in Paragraph 13.
"VALUE" means for any Valuation Date or other date for which Value is calculated
and subject to Paragraph 5 in the case of a dispute, with respect to:
(i) Eligible Collateral or Posted Collateral that is:
(A) Cash, the amount thereof; and
(B) a security, the bid price obtained by the Valuation Agent
multiplied by the applicable Valuation Percentage, if any;
(ii) Posted Collateral that consists of items that are not specified as
Eligible Collateral, zero; and
(iii) Other Eligible Support and Other Posted Support, as specified in
Paragraph 13.
<PAGE>
CREDIT SUPPORT ANNEX
to the Schedule to the
Master Agreement
dated as of January 27, 1994
between
Morgan Guaranty Trust and Millipore Corporation
Company of New York (the "Counterparty")
("Morgan")
PARAGRAPH 13. ELECTIONS AND VARIABLES
(a) Security Interest for "Obligations". The term "Obligations" as used in
-----------------------------------
this Annex includes no additional obligations with respect to Morgan and
the Counterparty.
(b) Credit Support Obligations.
--------------------------
(i) Delivery Amount, Return Amount and Credit Support Amount.
--------------------------------------------------------
(A) "Delivery Amount" will have the meaning specified in Paragraph
3(a).
(B) "Return Amount" will have the meaning specified in Paragraph
3(b).
(C) "Credit Support Amount" will have the meaning specified in
Paragraph 3(b).
(ii) Eligible Collateral. The following items will qualify as "Eligible
-------------------
Collateral":
<TABLE>
<CAPTION>
"Valuation
Counterparty Percentage"
------------ ----------
<S> <C> <C>
(A) Cash X [100]%
(B) negotiable debt obligations issued
by the U.S. Treasury Department
having an original maturity at
issuance of not more than one year
("Treasury Bills") X [98]%
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
"Valuation
Counterparty Percentage"
------------ ----------
<S> <C> <C>
(C) negotiable debt obligations issued
by the U.S. Treasury Department
having an original maturity at
issuance of more than one year but
not more than ten years ("Treasury
Notes") X [95]%
(D) negotiable debt obligations issued
by the U.S. Treasury Department
having an original maturity at
issuance of more than ten years
("Treasury Bonds") X [95]%
(E) Other: Agency Securities having an
original maturity at issuance of
not more than ten years. X [98]%
Agency Securities having an
original maturity at issuance of
more than ten years. X [95]%
</TABLE>
As used herein, "Agency Securities" means negotiable debt obligations which are
fully guaranteed as to both principal and interest by the Federal National
Mortgage Association, the Government National Mortgage Corporation or the
Federal Home Loan Mortgage Corporation, but excluding (i) interest only and
principal only securities and (ii) Collateralized Mortgage Obligations, Real
Estate Mortgage Investment Conduits and similar derivative securities.
(iii) Other Eligible Support. There shall be no "Other Eligible Support" for
-----------------------
either party for purposes of this Annex.
(iv) Thresholds.
----------
(A) "Independent Amount" shall not apply for purposes of this Annex.
(B) "Threshold" means the amounts determined on the basis of the lower
of the Long Term Debt Ratings set forth in the following table,
provided, however, that if (i) the Counterparty has no Long Term
-------- -------
Debt Rating, or (ii) an Event of Default has occurred and is
continuing with respect to the Counterparty, the Threshold shall be
U.S.$0:
<PAGE>
<TABLE>
<CAPTION>
LONG TERM DEBT RATING THRESHOLD
(S&P/Moody's) Counterparty
--------------------- ------------
<S> <C>
A-/A3 and above infinity
BBB+/Baal US$15,000,000
BBB/Baa2 US$10,000,000
BBB-/Baa3 US$5,000,000
Below BBB-/Baa3 zero
</TABLE>
As used herein:
"Long Term Debt Rating" means, with respect to the Counterparty,
the rating assigned by either S&P or Moody's to the long term,
unsecured and unsubordinated indebtedness of the Counterparty, or, if
applicable, the Credit Support Provider of the Counterparty.
"S&P" means Standard & Poor's Ratings Group.
"Moody's" means Moody's Investors Service, Inc.
(C) "Minimum Transfer Amount" means U.S.$100,000, provided, however,
that if an Event of Default has occurred and is continuing with
respect to the Counterparty, the Minimum Transfer Amount shall be
U.S.$0.
(D) Rounding. The Delivery Amount and the Return Amount will be rounded up and
down respectively to -the nearest integral multiple of U.S.$10,000.
(c) Valuation and Timing.
---------------------
(i) "Valuation Agent" means Morgan.
(ii) "Valuation Date" means any Local Business Day.
(iii) "Valuation Time" means the close of business in the city of the
Valuation Agent on the Valuation Date or date of calculation, as
applicable;
provided that the calculations of Value and Exposure will be made as of
--------
approximately the same time on the same date.
<PAGE>
(iv) "Notification Time" means by 1:00 p.m., New York time, on a Local
Business Day.
(d) Conditions Precedent. With respect to Morgan, an Illegality (if Morgan is
----------
the Affected Party with respect to such Termination Event) will be a
"Specified Condition". With respect to the Counterparty, an Illegality
and any Additional Termination Event (if the Counterparty is the Affected
Party with respect to such Termination Events) will be a "Specified
Condition".
(e) Substitution.
------------
(i) "Substitution Date" has the meaning specified in Paragraph 4(d)(ii).
(ii) Consent. Inapplicable.
-------
(f) Dispute Resolution.
------------------
(i) "Resolution Time" means 1:00 p.m., New York time, on the Local
Business Day following the date on which notice is given that gives rise
to a dispute under Paragraph 5.
(ii) Value. For the purpose of Paragraphs 5(i)(C) and 5(ii), the Value of
-----
Posted Credit Support other than Cash will be calculated as follows:
(A) with respect to any Treasury Bills, Treasury Notes, Treasury
Bonds or Agency Securities (referred to herein as "Government
Obligations"), the sum of (I) (x) the mean of the high bid and low
asked prices quoted on such date by any principal market maker for
such Government Obligations chosen by the Disputing Party, or (y) if
no quotations are available from a principal market maker for such
date, the mean of such high bid and low asked prices as of the day,
next preceding such date, on which such quotations were available,
plus (II) the accrued interest on such Government Obligations
(except to the extent Transferred pursuant to any applicable
provision of this Agreement or included in the applicable price
referred to in (I) of this clause (A)) as of such date
(iii) The provisions of Paragraph 5 will apply.
(g) Holding and Using Posted Collateral.
-----------------------------------
(i) Eligibility to Hold Posted Collateral; Custodians. Morgan will be
-------------------------------------------------
entitled to hold Posted Collateral itself or through a Custodian pursuant
to Paragraph 6(b), provided that the following conditions applicable to it
--------
are satisfied:
<PAGE>
(1) Morgan is not a Defaulting Party
(2) The Custodian is a Bank (as defined in the Federal Deposit
insurance Act) whose rating with respect to its long term
unsecured,
unsubordinated indebtedness is at least BBB+ by S&P or Baal by
Moody's.
(ii) Use of Posted Collateral. The provisions of Paragraph 6(C) will not
apply to Morgan or the Counterparty.
(h) Distributions and Interest Amount.
---------------------------------
(i) Interest Rate. The "Interest Rate" will be 0% unless the parties
-------------
shall otherwise agree.
(ii) Transfer of Interest Amount. The provisions of Paragraph 6(d)(ii)
----------------------------
will not apply.
(i) Additional Representations.
---------------------------
None.
(j) Other Eligible Support and Other Posted Support.
------------------------------------------------
(i) "Value" shall have no meaning with respect to Other Eligible Support
and Other Posted Support.
(ii) "Transfer" shall have no meaning with respect to Other Eligible
Support and Other Posted Support.
(k) Demands and Notices.
-------------------
All demands, specifications and notices made by a party to this Annex will be
made pursuant to the Notices Section of this Agreement, unless otherwise
specified here:
With respect to Morgan.
Morgan Guaranty Trust Company of New York Collateral Operations
Department 36th Floor
60 Wall Street
New York, N.Y. 10260-0060
Attention: Susan Mcgillion
Telephone: (212) 648 4603
(l) Other Provisions.
-----------------
<PAGE>
(i) Modification to Paragraph 1: The following subparagraph (b) is
----------------------------
substituted for subparagraph (b) of the Annex:
"(b) Secured Party and Pledgor. All references in this Annex to the
-------------------------
"Secured Party" will be to Morgan and all corresponding references to the
"Pledgor" will be to the Counterparty; provided, however, that if Other Posted
-------- -------
Support is held by a party to this Annex, all references herein to that party as
the Secured Party with respect to that Other Posted Support will be to that
party as the beneficiary thereof and will not subject that support or that party
as beneficiary thereof to provisions of law generally relating to security
interests and secured parties."
(ii) Modification to Paragraph 2: The following Paragraph 2 is substituted for
----------------------------
Paragraph 2 of this Annex:
"PARAGRAPH 2. SECURITY INTEREST. The Pledgor hereby pledges to the Secured
Party, as security for its Obligations, and grants to the Secured Party a first
priority continuing security interest in, lien on and right of Set-off against
all Posted Collateral Transferred to or received by the Secured Party hereunder.
Upon the Transfer by the Secured Party to the Pledgor of Posted Collateral, the
security interest and lien granted hereunder on that Posted Collateral will be
released immediately and, to the extent possible, without any further action by
either party."
(iii) Modification to Paragraph 9: The following first clause of Paragraph 9 is
----------------------------
substituted for the first clause of this Annex:
"PARAGRAPH 9. REPRESENTATIONS. The Pledgor represents to the Secured Party
(which representations will be deemed to be repeated as of each date on which it
Transfers Eligible Collateral) that:"
(iv) Modifications to Paragraph 12: The following definitions of "Pledgor" and
------------------------------
"Secured Party" are substituted for the definitions of those terms
contained in Paragraph 12 of this Annex:
"PLEDGOR" means the Counterparty, when that party (i) receives a demand for
or is required to Transfer Eligible Credit Support under Paragraph 3 (a) or (ii)
has Transferred Eligible Credit Support under Paragraph 3(a).
"SECURED PARTY" means Morgan, when that party (i) makes a demand for or is
entitled to receive Eligible Credit Support under Paragraph 3(a) or (ii) holds
or is deemed to hold Posted Credit Support.
<PAGE>
Please confirm your agreement to the terms of the foregoing Paragraph 13 by
signing below.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Don Thompson
------------------------------------------------
Name: Don Thompson
Title: Vice President and Assistant General Counsel
MILLIPORE CORPORATION
By: /s/ Francis J. Lunger
------------------------------------------------
Name: Francis J. Lunger
Title: Vice President & CFO
<PAGE>
SCHEDULE TO THE
MASTER AGREEMENT
DATED AS OF JANUARY 27, 1994
between
MORGAN GUARANTY TRUST AND MILLIPORE CORPORATION
COMPANY OF NEW YORK (THE "COUNTERPARTY")
("MORGAN")
PART 1
Termination Provisions
----------------------
In this Agreement:-
(1) "Specified Entity" means:
(a) in relation to Morgan, any Affiliate of Morgan for purposes of
Section 5 (a)(v) and shall not apply for purposes of any other
provision; and
(b) in relation to the Counterparty, any Affiliate of the Counterparty
for purposes of Sections 5(a)(v), (vi) and (vii) and shall not apply
for purposes of any other provision.
(2) "Specified Transaction, "will have the meaning specified in Section 14.
(3) The "Cross Default" provisions of Section 5(a)(vi) will apply to Morgan,
the Counterparty and any applicable Specified Entity, for such purpose:
(a) "Specified Indebtedness" will have the meaning specified in
Section 14;
(b) "Threshold Amount" means, with respect to the Counterparty an
amount equal to 3% of the Counterparty's issued share capital and
retained earnings (as specified from time to time in its most
recently published audited annual accounts); and
(c) Section 5 (a) (vi) will be deemed to be amended to include the
following Clause "(3)":
<PAGE>
entity to terminate its commitment under any agreement to lend or advance or
make available funds to a party (or any applicable Specified Entity) in respect
of an aggregate amount in excess of the Threshold Amount."
(4) "Termination Currency" means United States Dollars.
(5) The "Credit Event Upon Merger" provisions of Section 5(b)(iv) will not
apply to Morgan. The Credit Event Upon Merger provisions of Section
5(b)(iv) will apply to the Counterparty and any applicable Specified Entity
of the Counterparty.
(6) The "Automatic Early Termination", provisions of Section 6(a) will not
apply to Morgan or the Counterparty.
(7) For purposes of computing amounts payable on early termination:
(a) Market Quotation will apply to this Agreement; and
(b) The Second Method will apply to this Agreement.
PART 2
------
Tax Representations
-------------------
Representations of Morgan
- -------------------------
(1) Payer Tax Representation. For the purpose of Section 3(e), Morgan hereby
------------------------
makes the following representation:
(i) It is not required by any applicable law, as modified by the practice
of any relevant governmental revenue authority, of any Relevant
Jurisdiction to make any deduction or withholding for or on account of
any Tax from any payment (other than interest under Section 2(e),
6(d)(ii) or 6(e)) to be made by it to the Counterparty under this
Agreement. In making this representation, it may rely on:
(a) the accuracy of any representations made by the Counterparty
pursuant to Section 3(f);
(b) the satisfaction of the agreement of the Counterparty contained in
section 4 (a) (i) or 4(a) (iii) and the accuracy and effectiveness
of any document provided by the Counterparty pursuant to Section
4(a)(i) or 4(a)(iii); and
<PAGE>
(c) the satisfaction of the agreement of the Counterparty contained in
Section 4(d), provided that it shall not be a breach of this
representation where reliance is placed on clause (b) and the
Counterparty does not deliver a form or document under Section
4(a)(iii) by reason of material prejudice to its legal or
commercial position.
(ii) It (A) is entering into such Swap Transaction in the ordinary course
of its trade as, and is, either (x) a recognized U.K. bank or (y) a
recognized U.K. swaps dealer (in either case (x) or (y)), for purposes
of the United Kingdom Inland Revenue Extra Statutory Concession on
interest and currency swaps dated March 14, 1989), and (B) will bring
into account payments made and received in respect of such Swap
Transaction in computing its income for United Kingdom tax purpose.
(2) Payee Tax Representations. For the purpose of Section 3(f), Morgan makes
-------------------------
the representations specified below:
(i) It (A) is entering into such Swap Transaction in the ordinary course
of its trade as, and is, either (x) a recognized U.K. bank or (y) a
recognized U.K. swaps dealer (in either case (x) or (y)), for purposes
of the United Kingdom Inland Revenue Extra Statutory Concession on
interest and currency swaps dated March 14, 1989), and (B) will bring
into account payments made and received in respect of such Swap
Transaction in computing its income for United Kingdom tax purpose.
(ii) It is a banking corporation organized under the laws of the State of
New York and is not a foreign corporation within the meaning of
Section 7701(a)(5) of the United States Internal Revenue Code.
Representations of the Counterparty
- -----------------------------------
(1) Payer Tax representation. For the purpose of Section 3(e), the Counterparty
------------------------
hereby makes the following representation:
It is not required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, of any Relevant Jurisdiction to
make any deduction or withholding for or on account of any Tax from any
payment (other than interest under Section 2(e), 6(d)(ii) or 6(e)) to be
made by it to Morgan under this Agreement. In making this representation,
it may rely on:
<PAGE>
(a) the accuracy of any representation made by Morgan pursuant to
Section 3(f);
(b) the satisfaction of the agreement of Morgan contained in Section
4 (a) (i) or 4(a)(iii) and the accuracy and effectiveness of any
document provided by Morgan pursuant to Section 4 (a) (i) or 4
(a) (iii); and
(c) the satisfaction of the agreement of Morgan contained in
Section 4(d),
provided that it shall not be a breach of this representation where
reliance is placed on clause (b) and Morgan does not deliver a form or
document under Section 4(a)(iii) by reason of material prejudice to its
legal or commercial position.
(2) Payee Tax Representations. For the purpose of Section 3(f), the
-------------------------
Counterparty makes the representation specified below:
(i) It is a corporation organized under the laws of the State of
Massachusetts.
Part 3
Agreement to Deliver Documents
For the purpose of Sections 4 (a) (i) and (ii), each party agrees to deliver
the following documents, as applicable:
(1) Morgan will, on demand, deliver a certificate (or, if available, the
current authorized signature book of Morgan) specifying the names, title
and specimen signatures of the persons authorized to execute this Agreement
and each Confirmation on its behalf.
(2) The Counterparty will, on demand, deliver a certificate (or, if available,
the current authorized signature book of the Counterparty) specifying the
names, title and specimen signatures of the persons authorized to execute
this Agreement and each Confirmation on its behalf.
Each of the foregoing documents is covered by the representation contained in
Section 3(d) of this Agreement.
<PAGE>
PART 4
Miscellaneous
-------------
(1) Governing Law. This Agreement will be governed by and construed in
-------------
accordance with the laws of the State of New York without reference to choice
of law doctrine.
(2) Notices.
-------
(a) In connection with Section 12(a), all notices to Morgan shall, with
respect to any particular Transaction, be sent to the address, telex
number or facsimile number specified in the relevant Confirmation and
any notice for purposes of Sections 5 or 6 of the Agreement shall be
sent to the address or telex number specified below:
Morgan Guaranty Trust Company of New York
60 Wall Street
New York, New York 10260
Attention: Global Swaps
Facsimile No.: (212) 648-5922
(b) In connection with Section 12 (a), all notices to the Counterparty
shall, with respect to any particular Transaction, be sent to the
address, telex number or facsimile number specified in the relevant
Confirmation and any notice for purposes of Sections 5 or 6 of the
Agreement shall be sent to the address or telex number specified below:
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts
Attention: Treasurer
Facsimile No.: (781) 275-1071
Telephone No.: (781) 275-9200
(3) Netting of Payments. Subparagraph (ii) of Section 2(c) will not apply for
-------------------
the purpose of Section 2(c) with respect to all Transactions under this
Agreement with effect from the date of this Agreement.
(4) Offices: Multibranch Party. For purposes of Section 10:
---------------------------
<PAGE>
(a) Section 10(a) shall apply to Morgan; and
(b) For the purpose of section 10(c):
(i) Morgan is a Multibranch Party and may act through its London and
New York offices.
(ii) The Counterparty is not a Multibranch Party.
(5) Credit Support Documents. The Security Agreement between the Counterparty
------------------------
and Morgan dated as of the date hereof, substantially in the form attached
hereto as Exhibit B, shall be a Credit Support Document with respect to
the Counterparty for all purposes hereof.
Part 5
- ------
Other Provisions
----------------
(1) ISDA Definitions. Reference is hereby made to the 1991 ISDA Definitions
----------------
(the "1991 Definitions") and the 1992 ISDA FX and Currency Option
Definitions (the "FX Definitions"), each as published by the International
Swap Dealers Association, Inc., which are hereby incorporated by reference
herein. Any terms used and not otherwise defined herein which are contained
in the 1991 Definitions or the FX Definitions shall have the meaning set
forth therein.
(2) Scope of Agreement. Notwithstanding anything contained in the Agreement to
------------------
the contrary, if the parties enter into any Specified Transaction, such
Specified Transaction shall be subject to, governed by and construed in
accordance with the terms of this Agreement unless the Confirmation
relating thereto shall specifically state to the contrary. Each such
Specified Transaction shall be a Transaction for the purposes of this
Agreement.
(3) Inconsistency. In the event of any inconsistency between any of the
-------------
following documents, the relevant document first listed below shall govern:
(i) a Confirmation; (ii) the Schedule; (iii) the 1991 Definitions or the FX
Definitions; and (iv) the printed form of ISDA Master Agreement.
(4) Right of Setoff. Without affecting the provisions of this Agreement
---------------
requiring the calculation of certain net payment amounts, all payments
under this Agreement shall be made without setoff or counterclaim and will
not be subject to any conditions except as provided in Section 2 of this
Agreement and except as provided in the following clauses (i) and (ii):
<PAGE>
(i) if there is a Defaulting Party, the Non-Defaulting Party will have the
right to setoff, counterclaim or withhold payment in respect of any
default by the Defaulting Party under this Agreement or any other
agreement, whether matured or unmatured, between the parties,
regardless in each case of the office or branch through which a party
is acting, and the Non-Defaulting Party's obligations hereunder to the
Defaulting Party shall be deemed to be satisfied and discharged to the
extent of such setoff, counterclaim or withholding; and
(ii) any obligation of a Non-Defaulting Party to make a payment to a
Defaulting Party hereunder shall in any event be conditioned upon and
subject to the condition precedent that and shall arise only upon the
date that all indebtedness and obligations, whether matured or
unmatured, of the Defaulting Party to the Non-Defaulting Party shall
have been paid in full.
(5) Calculation Agent. The Calculation Agent will be Morgan.
-----------------
(6) Waiver of Jury Trial. Each party waives, to the fullest extent permitted
--------------------
by applicable law, any right it may have to a trial by jury in respect of any
suit, action or proceeding relating to this Agreement or any Credit Support
Document. Each party (i) certifies that no representative, agent or attorney
of the other party or any Credit Support Provider has represented, expressly or
otherwise, that such other party would not, in the event of such a suit, action
or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that
it and the other party have been induced to enter into this Agreement and
provide for any Credit support Document, as applicable, by, among other things,
the mutual waivers and certifications in this Section.
(7) Severability. In the event any one or more of the provisions contained in
------------
this Agreement should be held invalid, illegal, or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby. The
parties shall endeavour, in good faith negotiations, to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect
of which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
<PAGE>
Please confirm your agreement to the terms of the foregoing Schedule by
signing below.
MORGAN GUARANTY TRUST COMPANY OF NEW YORK
By: /s/ Michael Y. Leder
--------------------
Name: Michael Y. Leder
Title: Vice President
MILLIPORE CORPORATION
By: /s/ Geoffrey Nunes
---------------------
Name: Geoffrey Nunes
Title: Senior Vice President and
General Counsel
<PAGE>
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts
Attention: Treasurer
AMENDMENT
TO ISDA MASTER AGREEMENT
Dear Ladies/Gentlemen:
Reference is made to the ISDA Master Agreement between Morgan Guaranty
Trust Company of New York ("Morgan") and Millipore Corporation (the
"Counterparty") dated as of January 27, 1994 (the "Agreement").
The parties hereby agree to amend the Agreement as follows:
1. CREDIT SUPPORT DOCUMENT. Part 4, paragraph (5) of the Schedule to
-----------------------
the Agreement is modified to read in its entirety as follows:
"(5) CREDIT SUPPORT DOCUMENT. The ISDA Credit Support Annex and
supplemental "Paragraph 13 Elections & Variables" dated as of January
27, 1994 in the form appended hereto will constitute a "Credit
Support Document" for all purposes of this Agreement with respect to
all of the obligations of each party hereunder, respectively."
2. AGREEMENT TO DELIVER DOCUMENTS. Part 3 of the Schedule to the
------------------------------
Agreement is modified by adding the following new paragraph "(3)":
"(3) Both Morgan and the Counterparty will deliver the fully-executed
Credit Support Document identified in Part 4, paragraph (5) of the
Schedule to this Agreement, together with a certificate (or, if
available, its current authorized signature book) bearing the
name(s), title(s) and specimen signature(s) of the person(s)
authorized to execute such Credit Support Document on behalf of the
party."
This Amendment shall be governed by, and construed in accordance
with the law specified as the Governing Law in the Schedule to the Agreement
and will be effective as of the date of the Agreement.
<PAGE>
In all other respects, the Agreement, as amended, shall remain in
full force and effect.
Very truly yours,
MORGAN GUARANTY TRUST
COMPANY OF NEW YORK
By: /s/ Don Thompson
---------------------------------------
Name: Don Thompson
Title: Vice President and
Assistant General Counsel
Confirmed and agreed to as of
The date first above written:
MILLIPORE CORPORATION
By: /s/ Francis J. Lunger
-------------------------------
Name: Francis J. Lunger
Title: Vice President, Treasurer &
Chief Financial Officer
<PAGE>
EXHIBIT 23
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the registration
statements on Form S-8 (File Nos. 2-91432, 2-72124, 2-85698, 2-97280, 33-37319,
33-37323, 33-59005, 33-10801, 33-11790, 333-79227, 333-90127) on Form S-3 (File
Nos. 2-84252, 33-9706, 33-22196, 33-47213, 333-23025) on Form S-3/A (File No.
333-80781) and on Form S-4 (File No. 33-58117) of Millipore Corporation of our
report dated January 20, 1999, except for Note B, for which the date is
November, 12, 1999 relating to the financial statements, which is incorporated
in this Annual Report on Form 10-K/A.
Boston, Massachusetts
November 12, 1999
/s/ PriceWaterhouseCoopers LLP
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned Directors and Officers
of Millipore Corporation (the "Corporation"), do hereby constitute and appoint
C. William Zadel, Francis J. Lunger and Jeffrey Rudin and each of them
individually, their true and lawful attorneys and agents to execute on behalf of
the Corporation the Form 10-K/A Annual Report of the Corporation for the fiscal
year ended December 31, 1998, and all such additional instruments related
thereto which such attorneys and agents may deem to be necessary and desirable
to enable the Corporation to comply with the requirements of the Securities
Exchange Act of 1934, as amended, and any regulations, orders, or other
requirements of the United States Securities and Exchange Commission thereunder
in connection with the preparation and filing of said Form 10-K/A Annual Report,
including specifically, but without limitation of the foregoing, power and
authority to sign the names of each of such Directors and Officers on his
behalf, as such Director or Officer, as indicated below to the said Form 10-K/A
Annual Report or documents filed or to be filed as a part of or in connection
with such Form 10-K/A Annual Report; and each of the undersigned hereby ratifies
and confirms all that said attorneys and agents shall do or cause to be done by
virtue thereof.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- ----
<S> <C> <C>
/s/ C. WILLIAM ZADEL Chairman, President November 12, 1999
- -------------------- Chief Executive Officer
C. William Zadel and Director
/s/ ROBERT C. BISHOP Director November 12, 1999
- --------------------
Robert C. Bishop
/s/ SAMUEL C. BUTLER Director November 12, 1999
- --------------------
Samuel C. Butler
/s/ ROBERT E. CALDWELL Director November 12, 1999
- ----------------------
Robert E. Caldwell
/s/ ELAINE L. CHAO Director November 12, 1999
- ------------------------
Elaine L. Chao
/s/ MAUREEN A. HENDRICKS Director November 12, 1999
- ------------------------
Maureen A. Hendricks
Director November 12, 1999
- -----------------------
Mark Hoffman
/s/ RICHARD J. LANE Director November 12, 1999
- ----------------------
Richard J. Lane
Director November 12, 1999
- ---------------------
Thomas O. Pyle
Director November 12, 1999
- ---------------------
John F. Reno
</TABLE>
<TABLE> <S> <C>
<PAGE>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 36,022
<SECURITIES> 0
<RECEIVABLES> 157,407
<ALLOWANCES> 3,149
<INVENTORY> 107,241
<CURRENT-ASSETS> 304,752
<PP&E> 425,675
<DEPRECIATION> 188,261
<TOTAL-ASSETS> 762,440
<CURRENT-LIABILITIES> 298,681
<BONDS> 0
56,988
0
<COMMON> 0
<OTHER-SE> 79,920
<TOTAL-LIABILITY-AND-EQUITY> 762,440
<SALES> 699,307
<TOTAL-REVENUES> 699,307
<CGS> 364,467
<TOTAL-COSTS> 364,467
<OTHER-EXPENSES> 335,506
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 29,474
<INCOME-PRETAX> 8,544
<INCOME-TAX> (1,320)
<INCOME-CONTINUING> 9,864
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,864
<EPS-BASIC> 0.22
<EPS-DILUTED> 0.22
</TABLE>
