<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 30, 1996
REGISTRATION NO. 333-3810
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
AMENDMENT NO. 2
TO
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
WATERS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 13-3668640 3826
(STATE OR OTHER (I.R.S. EMPLOYER (PRIMARY STANDARD
JURISDICTION OF IDENTIFICATION NO.) INDUSTRIAL CLASSIFICATION
INCORPORATION OR CODE NUMBER)
ORGANIZATION)
34 MAPLE STREET
MILFORD, MASSACHUSETTS 01757
TELEPHONE: 508-478-2000
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
PHILIP S. TAYMOR
WATERS CORPORATION
34 MAPLE STREET
MILFORD, MASSACHUSETTS 01757
TELEPHONE: 508-478-2000
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
---------------
COPIES TO:
LANCE C. BALK, ESQ. VALERIE FORD JACOB, ESQ.
KIRKLAND & ELLIS FRIED, FRANK, HARRIS, SHRIVER & JACOBSON
153 EAST 53RD STREET ONE NEW YORK PLAZA
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10004
TELEPHONE: 212-446-4800 TELEPHONE: 212-859-8000
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [X]
---------------
CALCULATION OF REGISTRATION FEE
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- -------------------------------------------------------------------------------
<TABLE>
<CAPTION>
PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE AMOUNT TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER SHARE(2) PRICE(2) FEE(3)
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<S> <C> <C> <C> <C>
Common Stock, par value
$0.01 per share........ 11,500,000 Shares $28.75 $330,625,000 $114,009
</TABLE>
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- -------------------------------------------------------------------------------
(1) Includes 1,500,000 shares that the Underwriters have the option to
purchase from the Selling Stockholders to cover over-allotments, if any.
(2) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), using the average of the high and low prices
reported on the New York Stock Exchange on April 12, 1996.
(3) Previously paid.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION
STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING
PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
EXPLANATORY NOTE
This Amendment No. 2 to the Registration Statement consists of the
Registration Statement facing page, this explanatory note, Part II to the
Registration Statement and certain exhibits being filed herewith. The
Prospectus has been omitted from this Amendment No. 2 as no changes have been
made to the Prospectus previously filed on May 10, 1996.
<PAGE>
PART II--INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following is a statement of estimated expenses of the issuance and
distribution of the securities being registered other than underwriting
compensation:
<TABLE>
<S> <C>
SEC registration fee............................................ $114,009
NASD filing fee................................................. 30,500
Blue sky fees and expenses (including attorneys' fees and
expenses)...................................................... 25,000
Printing and engraving expenses................................. 250,000
Transfer agent's fees and expenses.............................. 12,000
Accounting fees and expenses.................................... 150,000
Legal fees and expenses......................................... 150,000
Miscellaneous expenses.......................................... 18,491
--------
Total......................................................... $750,000
========
</TABLE>
All amounts are estimated except for the SEC registration fee and the NASD
filing fee.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company is incorporated under the laws of the State of Delaware. Section
145 of the General Corporation Law of the State of Delaware ("Section 145")
provides that a Delaware corporation may indemnify any person who is, or is
threatened to be made, a party to any threatened, pending or completed action,
suit or proceeding, whether civil, criminal, administrative or investigative
(other than an action by or in the right of such corporation), by reason of
the fact that such person was an officer, director, employee or agent of such
corporation, or is or was serving at the request of such corporation as a
director, officer, employee or agent of another corporation or enterprise. The
indemnity may include expenses (including attorneys' fees), judgments, fines
and amounts paid in settlement actually and reasonably incurred by such person
in connection with such action, suit or proceeding, provided such person acted
in good faith and in a manner he reasonably believed to be in or not opposed
to the corporation's best interests and, with respect to any criminal action
or proceeding, had no reasonable cause to believe that his conduct was
illegal. A Delaware corporation may indemnify any person who is, or is
threatened to be made, a party to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such
person was a director, officer, employee or agent of such corporation, or is
or was serving at the request of such corporation as a director, officer,
employee or agent of another corporation or enterprise. The indemnity may
include expenses (including attorneys' fees) actually and reasonably incurred
by such person in connection with the defense or settlement of such action or
suit, provided such person acted in good faith and in a manner he reasonably
believed to be in or not opposed to the corporation's best interests except
that no indemnification is permitted without judicial approval if the officer
or director is adjudged to be liable to the corporation. Where an officer or
director is successful on the merits or otherwise in the defense of any action
referred to above, the corporation must indemnify him against the expenses
which such officer or director has actually and reasonably incurred.
The Company's Second Amended and Restated Certificate of Incorporation
provides for the indemnification of directors and officers of the Company to
the fullest extent permitted by Section 145. In that regard, the Amended and
Restated Certificate of Incorporation provides that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in the right of the corporation) by reason of the fact that he is or was a
director or officer of such corporation, or is or was serving at the request
of such corporation as a director, officer or member of another corporation,
partnership, joint venture, trust or other enterprise, against expenses
(including attorneys' fees), judgments, fines and amounts paid
II-1
<PAGE>
in settlement actually and reasonably incurred by him in connection with such
action, suit or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interests of such
corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. Indemnification in
connection with an action or suit by or in the right of such corporation to
procure a judgment in its favor is limited to payment of settlement of such an
action or suit except that no such indemnification may be made in respect of
any claim, issue or matter as to which such person shall have been adjudged to
be liable for negligence or misconduct in the performance of his duty to the
indemnifying corporation unless and only to the extent that the Court of
Chancery of Delaware or the court in which such action or suit was brought
shall determine that, despite the adjudication of liability but in
consideration of all the circumstances of the case, such person is fairly and
reasonably entitled to indemnity for such expenses which the court shall deem
proper.
In addition, the by-laws of the Company provide that the Company shall
indemnify to the full extent authorized by law any person made or threatened
to be made a party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he, his testator
or intestate is or was a director, officer, employee or agent of the Company
or is or was serving, at the request of the Company, as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust or
other enterprise.
In addition, pursuant to certain Indemnification Agreements dated August 18,
1994 (the "Indemnification Agreements") between the Company and its directors
and executive officers, the Company agreed to indemnify such directors and
executive officers to the fullest extent permitted by the laws of the State of
Delaware. Among other things, the Indemnification Agreements provide
indemnification procedures, advancement of expenses during proceedings subject
to indemnification and mechanisms for reviewing executive conduct in
connection with a claim for indemnification.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
On August 18, 1994, WCD Investors Inc. sold (i) to Millipore Corporation 100
shares of Series A Preferred Stock with an aggregate liquidation value of
$10,000,000 as partial consideration for the Acquisition, (ii) to AEA
stockholders and AEA management an aggregate of 299,500 shares of its Class A
common stock, par value $.01, for an aggregate of $29,950,000 in cash, (ii) to
certain investment funds managed by Bain an aggregate of 299,500 shares of its
Class A common stock, par value $.01, for an aggregate of $29,950,000 in cash,
(iii) to Waters senior management an aggregate of 61,000 shares of its Class A
common stock, par value $.01, for an aggregate of $6,100,000 in cash and (iv)
to BT Investment Partners, Inc. an aggregate of 20,000 shares of its Class A
common stock, par value $.01 for an aggregate of $2,000,000 in cash. These
sales were made in reliance on the exemption from registration afforded by
section 4(2) of the Securities Act and regulation D promulgated thereunder.
On February 1, 1994, WCD Investors Inc. sold to AEA management an aggregate
of 2,550 shares of its Class B common stock, par value $.01 for an aggregate
of $286.31. On May 20, 1992, WCD Investors Inc. sold to AEA an aggregate of
2,450 shares of its Class B common stock, par value $.01 for an aggregate of
$286.31. On August 18, 1994, WCD Investors Inc. sold to certain investment
funds managed by Bain an aggregate of 5,000 shares of its Class B common
stock, par value $.01, for an aggregate of $600.00. These sales were made in
reliance on the exemption from registration afforded by Section 4(2) of the
Securities Act and regulation D promulgated thereunder.
On February 1, 1994, WCD Investors Inc. sold to AEA management an aggregate
of 40,236 shares of its Class C common stock, par value $.01, for an aggregate
of $4,713.69. On May 20, 1992 and August 1, 1994, WCD Investors Inc. sold to
AEA and AEA stockholders and AEA management, respectively, an
II-2
<PAGE>
aggregate of 40,336 shares of its Class C common stock, par value $.01, for an
aggregate of $4,713.69. On August 18, 1994, WCD Investors Inc. sold (i) to
certain investment funds managed by Bain an aggregate of 80,572 shares of its
Class C common stock, par value $.01, for an aggregate of $9,668.64 in cash,
(ii) to Waters senior management an aggregate of 17,428 shares of its Class C
common stock, par value $.01, for an aggregate of $2,091.36 in cash and (iii)
to BT Investment Partners, Inc. an aggregate of 5,714 shares of its Class C
common stock, par value $.01, for an aggregate of $685.68 in cash. These sales
were made in reliance on the exemption from registration afforded by Section
4(2) of the Securities Act and regulation D promulgated thereunder.
On August 18, 1994, WCD Investors Inc. issued to BT Securities Corporation
(i) warrants to purchase 33,684 shares of its Class A common stock and (ii)
warrants to purchase 9,624 shares of its Class C common stock as partial
consideration for acting as placement agent for the Senior Notes. These sales
were made in reliance on the exemption from registration afforded by Section
4(2) of the Securities Act and regulation D promulgated thereunder.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(a) Exhibits:
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
1.1 Form of U.S. Underwriting Agreement.
1.2 Form of International Underwriting Agreement.
3.1 Second Amended and Restated Certificate of Incorporation of Waters
Corporation, as amended to date.(1)
3.2 Amended and Restated Bylaws of Waters Corporation, as amended to
date.(1)
5.1 Opinion of Kirkland & Ellis.
10.1 Credit Agreement, dated as of November 22, 1995, among Waters
Corporation, Waters Technologies Corporation, Bankers Trust Company
and other Lenders party thereto.
10.2 First Amendment to Credit Agreement, dated as of March 6, 1996 among
Waters Corporation, Waters Technologies Corporation, Bankers Trust
Company and other Lenders party thereto.
10.3 Waters Corporation 1996 Long-Term Performance Incentive Plan.
Incorporated by reference to Exhibit A of the Proxy Statement for the
1996 Annual Meeting of Stockholders (the "Proxy Statement")
10.4 Waters Corporation 1996 Employee Stock Purchase Plan. Incorporated by
reference to Exhibit B of the Proxy Statement.
10.5 Waters Corporation 1996 Non-Employee Director Deferred Compensation
Plan. Incorporated by reference to Exhibit C of the Proxy Statement.
10.6 Waters Corporation 1996 Non-Employee Director Stock Option Plan.
Incorporated by reference to Exhibit C of the Proxy Statement.
10.7 Amended and Restated Purchase and Sale Agreement dated as of March 31,
1994 (as executed on June 28, 1994), as amended as of August 5, 1994,
August 11, 1994 and August 18, 1994, among Waters Holding Inc.,
Millipore Corporation and certain of its subsidiaries.(2)
10.8 WCD Investors Inc. Amended and Restated 1994 Stock Option Plan, as
amended (including Form of Amended and Restated Stock Option
Agreement).(2)
10.9 Waters Corporation Retirement Plan.(2)
10.10 Registration Rights Agreement made as of August 18, 1994, by and among
WCD Investors Inc., AEA Investors Inc., certain investment funds
controlled by Bain Capital, Inc. and other stockholders of Waters
Corporation.(2)
10.11 Form of Indemnification Agreement, dated as of August 18, 1994, between
WCD Investors Inc. and its directors and executive officers.(2)
10.12 Form of Management Subscription Agreement, dated as of August 18, 1994,
between WCD Investors Inc. and certain members of management.(2)
10.13 Agreement and Plan of Merger among Waters Corporation, TA Merger Sub,
Inc.and TA Instruments, Inc. dated as of March 28, 1996. Incorporated
by reference to the Registrant's Report on Form 8-K dated March 29,
1996.
11 Statement re Computation of Per Share Earnings.
</TABLE>
II-3
<PAGE>
<TABLE>
<CAPTION>
NUMBER DESCRIPTION
------ -----------
<C> <S>
21.1 Subsidiaries of Waters Corporation.(1)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Kirkland & Ellis (to be included in opinion to be filed as
Exhibit 5.1).
24.1 Powers of attorney (included on the signature page included in this
part II).
</TABLE>
- --------
(1) Incorporated by reference to the Registrant's Report on Form 10-K dated
March 29, 1996.
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 File No. 33-96934.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes to provide to the underwriter
at the closing specified in the underwriting agreement certificates in such
denominations and registered in such names as required by the underwriter to
permit prompt delivery to each purchaser.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of
this registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the Offerings of such securities at that time shall be
deemed to be the initial bona fide Offerings thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
HAS DULY CAUSED THIS REGISTRATION STATEMENT TO BE SIGNED ON ITS BEHALF BY THE
UNDERSIGNED, THEREUNTO DULY AUTHORIZED, IN THE CITY OF NEW YORK, STATE OF NEW
YORK ON MAY 30, 1996.
Waters Corporation
/s/ Philip S. Taymor
By:_________________________________
NAME: PHILIP S. TAYMOR
TITLE: SENIOR VICE PRESIDENT,
FINANCE AND ADMINISTRATION
AND CHIEF FINANCIAL OFFICER
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED ON MAY 30, 1996, BY THE FOLLOWING PERSONS IN THE
CAPACITIES INDICATED WITH RESPECT TO WATERS CORPORATION:
SIGNATURE CAPACITY
* President, Chief Executive
------------------------------------- Officer, and Chairman of the
DOUGLAS A. BERTHIAUME Board of Directors (Principal
Executive Officer)
/s/ PHILIP S. TAYMOR Senior Vice President,
------------------------------------- Finance and Administration
PHILIP S. TAYMOR and Chief Financial Officer
(Principal Financial and
Accounting Officer)
* Director
-------------------------------------
JOSHUA BEKENSTEIN
* Director
-------------------------------------
CHARLES L. BROWN
* Director
-------------------------------------
PHILIP CALDWELL
* Director
-------------------------------------
EDWARD CONARD
* Director
-------------------------------------
THOMAS P. SALICE
* Director
-------------------------------------
MARC WOLPOW
*By: /s/ PHILIP S. TAYMOR Attorney-in-Fact
-------------------------------------
PHILIP S. TAYMOR
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION PAGE NO.
------- -------------------- --------
<C> <S> <C>
1.1 Form of U.S. Underwriting Agreement.
1.2 Form of International Underwriting Agreement.
3.1 Second Amended and Restated Certificate of Incorporation of
Waters Corporation, as amended to date.(1)
3.2 Amended and Restated Bylaws of Waters Corporation, as
amended to date.(1)
5.1 Opinion of Kirkland & Ellis.
10.1 Credit Agreement, dated as of November 22, 1995, among
Waters Corporation, Waters Technologies Corporation,
Bankers Trust Company and other Lenders party thereto.
10.2 First Amendment to Credit Agreement, dated as of March 6,
1996 among Waters Corporation, Waters Technologies
Corporation, Bankers Trust Company and other Lenders party
thereto.
10.3 Waters Corporation 1996 Long-Term Performance Incentive
Plan. Incorporated by reference to Exhibit A of the Proxy
Statement for the 1996 Annual Meeting of Stockholders (the
"Proxy Statement")
10.4 Waters Corporation 1996 Employee Stock Purchase Plan.
Incorporated by reference to Exhibit B of the Proxy
Statement.
10.5 Waters Corporation 1996 Non-Employee Director Deferred
Compensation Plan. Incorporated by reference to Exhibit C
of the Proxy Statement.
10.6 Waters Corporation 1996 Non-Employee Director Stock Option
Plan. Incorporated by reference to Exhibit C of the Proxy
Statement.
10.7 Amended and Restated Purchase and Sale Agreement dated as
of March 31, 1994 (as executed on June 28, 1994), as
amended as of August 5, 1994, August 11, 1994 and August
18, 1994, among Waters Holding Inc., Millipore Corporation
and certain of its subsidiaries.(2)
10.8 WCD Investors Inc. Amended and Restated 1994 Stock Option
Plan, as amended (including Form of Amended and Restated
Stock Option Agreement).(2)
10.9 Waters Corporation Retirement Plan.(2)
10.10 Registration Rights Agreement made as of August 18, 1994,
by and among WCD Investors Inc., AEA Investors Inc.,
certain investment funds controlled by Bain Capital, Inc.
and other stockholders of Waters Corporation.(2)
10.11 Form of Indemnification Agreement, dated as of August 18,
1994, between WCD Investors Inc. and its directors and
executive officers.(2)
10.12 Form of Management Subscription Agreement, dated as of
August 18, 1994, between WCD Investors Inc. and certain
members of management.(2)
10.13 Agreement and Plan of Merger among Waters Corporation, TA
Merger Sub, Inc.and TA Instruments, Inc. dated as of March
28, 1996. Incorporated by reference to the Registrant's
Report on Form 8-K dated March 29, 1996.
11 Statement re Computation of Per Share Earnings.
21.1 Subsidiaries of Waters Corporation.(1)
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Coopers & Lybrand L.L.P.
23.3 Consent of Arthur Andersen LLP
23.4 Consent of Kirkland & Ellis (to be included in opinion to
be filed as Exhibit 5.1).
24.1 Powers of attorney (included on the signature page included
in this part II).
</TABLE>
- --------
(1) Incorporated by reference to the Registrant's Report on Form 10-K dated
March 29, 1996.
(2) Incorporated by reference to the Registrant's Registration Statement on
Form S-1 File No. 33-96934.
<PAGE>
EXHIBIT 1.1
DRAFT 5/29/96
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
-----------------------
June __________, 1996
<PAGE>
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
U.S. PURCHASE AGREEMENT
-----------------------
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
As Representatives of the several U.S. Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1209
Ladies and Gentlemen:
Waters Corporation, a Delaware corporation (the "Company" or
"Waters"), Waters Technologies Corporation ("Technologies"), a Delaware
corporation, and the persons listed in Schedule A hereto (the "Selling
Stockholders") confirm their agreement with Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Alex. Brown & Sons Incorporated, CS First Boston Corporation
and Goldman, Sachs & Co., and each of the other Underwriters named in Schedule B
hereto (collectively, the "U.S. Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 11), for whom Merrill
Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons Incorporated, CS
First Boston Corporation and Goldman, Sachs & Co. are acting as representatives
(in such capacity, the "U.S. Representatives"), with respect to (i) the sale by
the Selling Stockholders and the purchase by the several U.S. Underwriters,
acting severally and not jointly, of an aggregate of 8,000,000 shares of Common
Stock, par
1
<PAGE>
value $.01 per share, of the Company (the "Common Stock"), in the
respective numbers set forth opposite the name of each Selling Stockholder in
Schedule A hereto and (ii) the grant by the Selling Stockholders to the U.S.
Underwriters, acting severally and not jointly, of the option described in
Section 2(e) hereof to purchase all or any part of 1,200,000 additional shares
of Common Stock to cover over-allotments. The 8,000,000 shares of Common Stock
(the "Initial U.S. Shares") and all or any part of the 1,200,000 shares of
Common Stock subject to the option described in Section 2(e) hereof (the "U.S.
Option Shares") to be purchased by the U.S. Underwriters are collectively
hereinafter called the "U.S. Shares."
It is understood that the Company, Technologies and the Selling
Stockholders are entering into an agreement, dated the date hereof (the
"International Purchase Agreement"), providing for the sale by the Selling
Stockholders of 2,000,000 shares of Common Stock (collectively, the "Initial
International Shares"), through arrangements with certain underwriters outside
the United States and Canada (the "Managers" and, together with the U.S.
Underwriters, the "Underwriters"), for whom Merrill Lynch International Limited,
Alex. Brown & Sons Incorporated, CS First Boston Limited and Goldman Sachs
International are acting as lead managers (the "Lead Managers") and the grant by
the Selling Stockholders to the Managers of an option to purchase all or any
part of 300,000 shares of Common Stock (the "International Option Shares") to
cover over-allotments. The Initial International Shares and the International
Option Shares are hereinafter called the "International Shares." The 1,500,000
shares of Common Stock subject to the options described in Section 2(e) hereof
are hereinafter collectively called the "Option Shares." It is understood that
the Selling Stockholders are not obligated to sell, and the U.S. Underwriters
are not obligated to purchase, any Initial U.S. Shares unless all of the Initial
International Shares are contemporaneously purchased by the Managers. The U.S.
Shares and the International Shares are hereinafter collectively referred to as
the "Offered Shares."
The Company, Technologies and the Selling Stockholders understand that
the U.S. Underwriters will simultaneously enter into an agreement with the
Managers dated the date hereof (the "Intersyndicate Agreement") providing for
the coordination of certain transactions among the U.S. Underwriters and the
Managers, under the direction of Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
You have advised us that you and the other U.S. Underwriters, acting
severally and not jointly, desire to purchase the Initial U.S. Shares and, if
the U.S. Underwriters so elect, the U.S. Option Shares, and that you have been
authorized by the other U.S. Underwriters to execute this Agreement and the U.S.
Price Determination Agreement referred to below on their behalf.
The initial public offering price per share for the U.S. Shares and
the purchase price per share for the U.S. Shares to be paid by the several U.S.
Underwriters
2
<PAGE>
shall be agreed upon by the Selling Stockholders and the U.S. Representatives,
acting on behalf of the several U.S. Underwriters, and such agreement shall be
set forth in a separate written instrument substantially in the form of Exhibit
A hereto (the "U.S. Price Determination Agreement"). The U.S. Price
Determination Agreement may take the form of an exchange of any standard form of
written telecommunication among the Company, Technologies, the Selling
Stockholders and the U.S. Representatives and shall specify such applicable
information as is indicated in Exhibit A hereto. The offering of the U.S. Shares
will be governed by this Agreement, as supplemented by the U.S. Price
Determination Agreement. From and after the date of the execution and delivery
of the U.S. Price Determination Agreement, this Agreement shall be deemed to
incorporate, and all references herein to "this Agreement" or "herein" shall be
deemed to include, the U.S. Price Determination Agreement.
The initial public offering price per share and the purchase price per
share for the International Shares to be paid by the Managers pursuant to the
International Purchase Agreement shall be set forth in a separate agreement (the
"International Price Determination Agreement"), the form of which is attached to
the International Purchase Agreement. The purchase price per share for the
International Shares to be paid by the several Managers shall be identical to
the purchase price per share for the U.S. Shares to be paid by the several U.S.
Underwriters hereunder.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-3810) covering the registration of the Offered Shares under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectuses, and either (A) has prepared and proposes to file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including final prospectuses, or (B) if the Company has elected to
rely upon Rule 430A ("Rule 430A") of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), will prepare and file
prospectuses, in accordance with the provisions of Rule 430A and Rule 424(b)
("Rule 424(b)") of the 1933 Act Regulations, promptly after execution and
delivery of the U.S. Price Determination Agreement. Additionally, if the
Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, the Company will prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). Two forms of
prospectus are to be used in connection with the offering and sale of the
Offered Shares: one relating to the U.S. Shares (the "Form of U.S. Prospectus")
and one relating to the International Shares (the "Form of International
Prospectus"). The Form of International Prospectus is identical to the Form of
U.S. Prospectus, except for the front cover page, the section captioned
"Underwriting" and the back cover page. The information, if any, included in
such prospectuses that was omitted from any prospectus included in such
registration statement at the time it
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becomes effective but that is deemed (a) pursuant to Rule 430A(b) to be part of
such registration statement at the time it becomes effective is referred to
herein as the "Rule 430A Information," and (b) pursuant to Rule 434 to be part
of such registration statement at the time it becomes effective is referred to
herein as the "Rule 434 Information." Each Form of U.S. Prospectus and Form of
International Prospectus used before the time such registration statement
becomes effective, and any Form of U.S. Prospectus and Form of International
Prospectus that omits the Rule 430A Information or the Rule 434 Information, as
applicable, that is used after such effectiveness and prior to the execution and
delivery of the U.S. Price Determination Agreement or the International Price
Determination Agreement, respectively, is herein called a "preliminary
prospectus." Such registration statement, including the exhibits thereto, as
amended at the time it becomes effective and including, if applicable, the Rule
430A Information and the Rule 434 Information, is herein called the "Original
Registration Statement." Any registration statement filed pursuant to Rule
462(b) of the 1933 Act Regulations is herein referred to as the "Rule 462(b)
Registration Statement," and the Original Registration Statement and any Rule
462(b) Registration Statement are herein referred to collectively as the
"Registration Statement." The Form of U.S. Prospectus and Form of International
Prospectus included in the Original Registration Statement at the time it
becomes effective are herein called the "U.S. Prospectus" and the "International
Prospectus," respectively, and, collectively, the "Prospectuses" and,
individually, a "Prospectus," except that, (y) if the final U.S. Prospectus or
International Prospectus, as the case may be, first furnished to the U.S.
Underwriters or the Managers after the execution of the U.S. Price Determination
Agreement or the International Price Determination Agreement for use in
connection with the offering of the Offered Shares differs from the prospectuses
included in the Registration Statement at the time it becomes effective (whether
or not such prospectuses are required to be filed pursuant to Rule 424(b)), the
terms "U.S. Prospectus," "International Prospectus," "Prospectuses" and
"Prospectus" shall refer to the final U.S. Prospectus or International
Prospectus, as the case may be, first furnished to the U.S. Underwriters or the
Managers, as the case may be, for such use and (z) if Rule 434 is relied on, the
terms "U.S. Prospectus," "International Prospectus," "Prospectuses" and
"Prospectus" shall refer to the preliminary U.S. Prospectus and/or International
Prospectus last furnished to the U.S. Underwriters and/or Managers, as the case
may be, in connection with the offering of the Offered Shares together with the
Term Sheet. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the U.S. Prospectus, the International
Prospectus or any Term Sheet, or any amendment or supplement to any of the
foregoing, shall be deemed to include the copy filed with the Commission
pursuant to its Electronic Data Gathering, Analysis and Retrieval system
("EDGAR").
The Company, Technologies and the Selling Stockholders understand that
the U.S. Underwriters propose to make a public offering of the U.S. Shares as
soon as you deem advisable after the Registration Statement becomes effective
and the U.S. Price Determination Agreement has been executed and delivered.
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Section 1. Representations and Warranties. (a) The Company and
------------------------------
Technologies, jointly and severally, represent and warrant to and agree with
each of the U.S. Underwriters that:
(i) At the time the Registration Statement becomes effective, and
if the Company has elected to rely upon Rule 430A, on the date of the U.S.
Price Determination Agreement, and on the effective or issue date of each
amendment or supplement to the Registration Statement or the Prospectuses,
and at the Closing Time referred to below, and if any U.S. Option Shares
are purchased, up to and including the Date of Delivery referred to below,
(A) the Registration Statement and any amendments and supplements thereto
will comply in all material respects with the requirements of the 1933 Act
and the 1933 Act Regulations; (B) neither the Registration Statement nor
any amendment or supplement thereto will contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (C)
neither of the Prospectuses nor any amendment or supplement to either of
them will include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading; and
(D) if Rule 434 is relied upon, the Prospectuses shall not be "materially
different," as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it becomes effective.
Notwithstanding the foregoing, this representation and warranty does not
apply to statements or omissions from the Registration Statement or the
Prospectuses or any amendments or supplements thereto made in reliance upon
and in conformity with information furnished or confirmed in writing to the
Company by or on behalf of any Underwriter through you or the Lead Managers
expressly for use in the Registration Statement or the Prospectuses or any
amendments or supplements thereto. Each preliminary prospectus and the
Prospectuses delivered to the Underwriters for use in connection with this
offering was identical to the electronically transmitted copies thereof
filed with the Commission pursuant to EDGAR, except to the extent permitted
by Regulation S-T.
(ii) Each of Coopers & Lybrand L.L.P. and Arthur Andersen LLP,
who are reporting upon the audited consolidated financial statements and
schedules included in the Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) The Company and Technologies have all necessary corporate
power and authority to execute, deliver and perform their respective
obligations under this Agreement, the U.S. Price Determination Agreement,
the International Purchase Agreement and the International Price
Determination Agreement, and
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this Agreement and the International Purchase Agreement have been, and the
U.S. Price Determination Agreement and the International Price
Determination Agreement on the date thereof will be, duly authorized,
executed and delivered by the Company and Technologies.
(iv) The consolidated financial statements of the Company
included in the Registration Statement and the Prospectuses, together with
the related schedules and notes, present fairly the financial position of
the Company and its Subsidiaries (as hereinafter defined) and their
predecessors as of the dates indicated and the consolidated results of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries and their predecessors for the periods specified. The
consolidated financial statements of TA Instruments, Inc. ("TAI") included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of TAI
and its subsidiaries and their predecessors as of the dates indicated and
the consolidated results of operations, stockholders' equity and cash flows
of TAI and its subsidiaries and their predecessors for the periods
specified. The financial statements of the Company and its Subsidiaries
and their predecessors, and of TAI and its subsidiaries and predecessors,
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements
included in the Registration Statement. The selected financial data
included in the Prospectuses present fairly in accordance with GAAP the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included in the
Registration Statement. The pro forma financial statements and other pro
forma financial information included in the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions or circumstances referred to
therein.
(v) The Company and Technologies are corporations duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware with the requisite corporate power and authority under
such laws to own, lease and operate their respective properties and to
conduct their respective business as described in the Prospectuses and to
enter into and perform its obligations under this Agreement, the U.S. Price
Determination Agreement, the
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International Purchase Agreement and the International Price Determination
Agreement; and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the condition (financial and otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise.
(vi) The Company's only direct and indirect subsidiaries are
listed on Schedule C hereto (collectively, the "Subsidiaries"). The
Company's only subsidiaries which had, at December 31, 1995, assets in
excess of 5% of the consolidated assets of the Company and its
subsidiaries, considered as one enterprise, or had, for the twelve months
then ended, net sales in excess of 5% of the consolidated net sales of the
Company and its subsidiaries, considered as one enterprise, for such period
are listed on Schedule D hereto (collectively, "Material Subsidiaries").
For purposes of the definition of "Material Subsidiary", any subsidiary or
assets acquired after December 31, 1995 shall be deemed to have been
acquired as of January 1, 1995. Each Material Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation with the requisite corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectuses; and each Material
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise. Except as disclosed in the Prospectuses, all of the
outstanding shares of capital stock of each Material Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company, directly or through one or more Material
Subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, mortgage or encumbrance of any kind; and none of the
outstanding shares of capital stock of the Material Subsidiaries was issued
in violation of the preemptive or other similar rights of any stockholder
of such corporation.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization," and the Offered Shares will
conform in all material
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respects to the description thereof contained under the caption
"Description of Capital Stock" in the Prospectuses.
(viii) The Offered Shares to be sold pursuant to this Agreement
and the International Purchase Agreement have been duly authorized by the
Company and are validly issued, fully paid and non-assessable; and such
Offered Shares are not subject to the preemptive or other similar rights of
any stockholder of the Company.
(ix) Except as disclosed in the Prospectuses, there are no
outstanding options, warrants or other rights calling for issuance of, and
no commitments, obligations, plans or arrangements to issue, any shares of
capital stock of the Company or any of its Subsidiaries or any security
convertible into or exchangeable for capital stock of the Company or any of
its Subsidiaries.
(x) All of the issued and outstanding shares of capital stock of
the Company, including the Offered Shares to be sold by the Selling
Stockholders pursuant to this Agreement and the International Purchase
Agreement, have been duly authorized and validly issued and are fully paid
and non-assessable; and none of the outstanding shares of capital stock of
the Company was issued in violation of the preemptive or other similar
rights of any stockholder of the Company.
(xi) Except as described in the Prospectuses, since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) any transaction entered into by the Company or any
Subsidiary, other than in the ordinary course of business, that is material
to the Company and its Subsidiaries, considered as one enterprise, or (C)
any dividend or distribution of any kind declared, paid or made by the
Company or Technologies on any class of its respective capital stock.
(xii) Neither the Company nor any Material Subsidiary is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject,
except as disclosed in the Prospectuses and except for such defaults that
would not in the aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one enterprise. The
execution, delivery and performance of this Agreement, the U.S.
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Price Determination Agreement, the International Purchase Agreement, the
International Price Determination Agreement and the Custody Agreements and
Powers of Attorney among the Company, each of the Selling Stockholders, The
First National Bank of Boston, as Depositary and the Attorneys-in-Fact
named therein, as Attorneys-in-Fact for the Selling Stockholders (all such
agreements collectively, the "Custody Agreement and Power of Attorney"), by
the Company or Technologies, as the case may be, the consummation of the
transactions contemplated in this Agreement, the International Purchase
Agreement and the Registration Statement and compliance by the Company or
Technologies, as the case may be, with the foregoing have been duly
authorized by all necessary corporate action on the part of the Company or
Technologies, as the case may be, and do not and will not result in any
violation of the charter or by-laws of the Company or any Material
Subsidiary, and do not and will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien or encumbrance
upon any property or assets of the Company or any Material Subsidiary under
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company, or any Material Subsidiary is a party or by which any of them is
bound or to which any of their respective properties or assets are subject,
or (B) any applicable law, statute, rule, regulation, judgment, order,
writ, injunction or decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any
Material Subsidiary or any of their respective properties, assets or
operations, except for conflicts, breaches, violations, defaults, liens or
encumbrances under clause (A) or (B) which would not have, individually or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise.
(xiii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than as required under the 1933 Act, the
1934 Act, the 1933 Act Regulations, the 1934 Act Regulations and the
securities or blue sky laws of the various states in connection with the
sale of the Offered Shares) is necessary in connection with the due
authorization, execution, delivery and performance of this Agreement, the
U.S. Price Determination Agreement, the International Purchase Agreement,
the International Price Determination Agreement and the Custody Agreement
and Power of Attorney by the Company or Technologies, as the case may be,
for the sale and delivery of the Offered Shares or the consummation by the
Company and Technologies of the transactions contemplated in this Agreement
and the International Purchase Agreement except such as have been obtained.
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(xiv) Except as disclosed in the Prospectuses, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Registration
Statement or Prospectuses.
(xv) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement that are not so described
or filed (including filings deemed made by incorporation by reference).
(xvi) The Company and each of its Material Subsidiaries are in
compliance with, and each such entity has not received any notice of any
outstanding violation of, all laws, ordinances, rules, regulations,
judgments, decrees, orders and statutes applicable to it and its operations
except, in either case, where any failure by the Company or any Material
Subsidiary to comply with any such law, regulation, ordinance or rule would
not have, individually or in the aggregate, a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xvii) The Company and each of its Material Subsidiaries have
good and marketable title to all properties and assets owned by them, free
and clear of all liens, encumbrances or restrictions, except such as (A)
are described in the Prospectuses or (B) do not materially impair or
interfere with the current use made of such properties or (C) are neither
material in amount nor materially significant, in each case in relation to
the business of the Company and its Subsidiaries, considered as one
enterprise; all of the leases and subleases material to the businesses of
the Company and its Subsidiaries, considered as one enterprise, and under
which the Company or any Material Subsidiary holds properties described in
the Prospectuses, are in full force and effect except to the extent that
such failure would not have, individually or in the aggregate, a material
adverse effect on the condition (financial or otherwise), earnings,
business affairs or business prospects of the Company and its subsidiaries,
considered as one enterprise and, except as disclosed in the Prospectuses,
neither the Company nor any Material Subsidiary has received any notice of
any claim of any sort that has been asserted by anyone adverse to the
rights of the Company or any Material Subsidiary under any of the leases or
subleases mentioned above or affecting or questioning the rights of the
Company or any Material Subsidiary to the continued possession of the
leased or subleased premises under any such lease or sublease, which
claims, in the aggregate, might be expected to have, individually or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), earnings, business affairs
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or business prospects of the Company and its Subsidiaries, considered as
one enterprise.
(xviii) The Company and each of its Material Subsidiaries own or
possess all foreign and domestic governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
(collectively, "Governmental Licenses") necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to own or possess such
Governmental Licenses could not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise; and neither the Company
nor any Material Subsidiary has received any notice of proceedings relating
to revocation or modification of any such Governmental Licenses that,
singly or in the aggregate, could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xix) The Company and each of its Material Subsidiaries own or
possess, or can acquire on reasonable terms, adequate foreign and domestic
patents, patent rights, licenses, trademarks, service marks, trade names,
inventions, copyrights and know-how (including trade secrets and other
unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) (collectively, "intellectual property") necessary to
carry on their businesses as presently conducted except to the extent that
the failure to obtain such intellectual property could reasonably be
expected to have, individually or in the aggregate, a material adverse
effect on the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, and neither the Company nor any of its
Material Subsidiaries has received any notice of any infringement of or
conflict with asserted rights of others with respect to any intellectual
property which would render any intellectual property invalid or inadequate
to protect the interest of the Company or any Material Subsidiaries therein
and which infringement or conflict, singly or in the aggregate, could
reasonably be expected to have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one enterprise.
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(xx) The Company and each of its Material Subsidiaries comply
with all Environmental Laws (as defined below) except to the extent that
failure to comply with such Environmental Laws would not have, individually
or in the aggregate, a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise. Except as
disclosed in the Prospectuses, neither the Company nor any of its Material
Subsidiaries (i) is the subject of any pending or, to the knowledge of the
Company, threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any Material Subsidiary is
needed to respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or any of its
Material Subsidiaries' business operations or ownership or possession of
any of their properties or assets or (ii) is in contravention of any
Environmental Laws that, in the case of (i) or (ii), might be expected to
have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise. Neither the Company nor any Material Subsidiary has received
any notice or claim, nor are there pending or, to the knowledge of the
Company, threatened lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous
Material into the environment that, individually or in the aggregate, are
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise. As used herein,
"Environmental Laws" means any foreign, federal, state or local law or
regulation applicable to the Company's or any of its Material Subsidiaries'
business operations or ownership or possession of any of their properties
or assets relating to environmental matters, and "Hazardous Materials"
means those substances that are regulated by or form the basis of liability
under any Environmental Laws.
(xxi) No labor dispute exists with the Company's employees or
with employees of its Material Subsidiaries or, to the knowledge of the
Company, is imminent that could reasonably be expected to materially and
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise; the Company is not aware of any existing or
imminent labor disturbance by the employees of its principal suppliers
which could reasonably be expected to result in any material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise; and the Company is in compliance with all applicable federal,
state, and local laws relating to the payment of wages to employees
(including, without limitation, the Fair Labor Standards Act, as
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amended), except insofar as the failure to comply with such laws would not
reasonably be expected to result in any material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xxii) Neither the Company nor any of its affiliates has taken
or will take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock; and neither the Company nor any of its
affiliates has distributed or will distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection with
the offering and sale of the Offered Shares other than any preliminary
prospectus filed with the Commission or the Prospectuses or other material
permitted by the 1933 Act or the 1933 Act Regulations.
(xxiii) All United States federal income tax returns of the
Company and the Material Subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are
due and payable, have been paid, except for such taxes or tax assessments,
if any, as are being contested in good faith and as to which adequate
reserves, to the extent required by GAAP, have been provided. All other
tax returns (including franchise and income tax returns) of the Company and
the Material Subsidiaries required to be filed pursuant to applicable
foreign, state or local law have been filed, except insofar as the failure
to file such returns would not have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, and all taxes shown on such
returns or otherwise assessed which are due and payable have been paid,
except for such taxes or tax assessments, if any, as are being contested in
good faith and as to which adequate reserves, to the extent required by
GAAP, have been provided. The charges, accruals and reserves on the books
of the Company and the Material Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally determined or
with respect to which the applicable statute of limitations has not expired
are believed to be adequate to meet any assessments or re-assessments for
additional income or corporate franchise tax for any years not finally
determined.
(xxiv) The Company has obtained the written agreements of each
Selling Stockholder, executive officer, and director, certain other members
of management of the Company and certain other stockholders of the Company,
in the forms previously furnished to you, that, for a period of 90 days (in
the case of Selling Stockholders and certain members of management of the
Company) or 75 days (in the case of executive officers, non-selling
directors, certain other members
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of management of the Company and certain other stockholders of the
Company), such parties will not, without the prior written consent of
Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill Lynch") on
behalf of the Underwriters, directly or indirectly, sell, offer to sell,
grant any option for the sale of, or otherwise dispose of, or exercise any
registration rights with respect to, any shares of Common Stock or
securities or rights convertible into or exercisable or exchangeable for
Common Stock other than the sale of the Offered Shares pursuant to this
Agreement and the International Purchase Agreement. The Company has waived,
and has obtained the written waivers by the holders of a majority of each
of the AEA Registrable Securities and the Bain Registrable Securities (as
such terms are defined in the Registration Rights Agreement, dated as of
August 18, 1994, among the Company and certain of its stockholders (the
"Registration Rights Agreement")) of, any and all of their respective
rights under each of Sections 1(a) (in connection with their right to
receive written notice) and 2(e) (in connection with the restriction on a
registered offering by the Company within six months of another registered
offering) under the Registration Rights Agreement.
(xxv) There are no holders of securities (debt or equity) of the
Company or any of the Subsidiaries, or holders of rights (including,
without limitation, preemptive rights), warrants or options to obtain
securities of the Company or its Subsidiaries, who have the right to
request the Company or any of the Subsidiaries to register securities held
by them under the 1933 Act, other than holders who have waived such rights
or will not have such rights for the 180 days after the date hereof.
(xxvi) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
and specific authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorizations;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvii) Neither the Company nor any of its Subsidiaries is an
investment company or is controlled by an investment company or investment
companies within the meaning of the Investment Company Act of 1940, as
amended.
(xxviii) The Company has all necessary corporate power and
authority to execute, deliver and perform its obligations under the Custody
Agreement and Power of
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Attorney; and the Custody Agreement and Power of Attorney has been duly
authorized, executed and delivered by the Company and constitutes the valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
principles of equity.
(b) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, each of the U.S. Underwriters as follows:
(i) At the time the Registration Statement becomes effective, and
at all times subsequent thereto up to the Closing Time, and, if any U.S.
Option Shares are purchased, up to the Date of Delivery, (A) the
information furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement and any
amendments and supplements thereto do not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements regarding such Selling
Stockholder therein not misleading and (B) the information furnished in
writing by or on behalf of such Selling Stockholder expressly for use in
the Prospectuses do not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
regarding such Selling Stockholder therein, in the light of the
circumstances under which they were made, not misleading.
(ii) Such Selling Stockholder has full right, power and authority
to execute, deliver and perform its obligations under this Agreement, the
International Purchase Agreement, the U.S. Price Determination Agreement,
the International Price Determination Agreement and the Custody Agreement
and Power of Attorney, and to sell, transfer and deliver the Offered Shares
pursuant to this Agreement; and this Agreement, the International Purchase
Agreement and the Custody Agreement and Power of Attorney have been, and
the U.S. Price Determination Agreement and the International Price
Determination Agreement on the date thereof will be, duly authorized,
executed and delivered by or on behalf of such Selling Stockholder and a
valid and binding agreement of such Selling Stockholder, enforceable
against such Selling Stockholder in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting enforcement
of creditors' rights generally or by general principles of equity.
(iii) There is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of such Selling Stockholder, threatened, to
which
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such Selling Stockholder is or would be a party or of which the
property of such Selling Stockholder is or may be subject, that (i) seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
sale of Offered Shares by such Selling Stockholder or any of the other
transactions contemplated hereby or (ii) questions the legality or validity
of any such transactions or seeks to recover damages or obtain other relief
in connection with any such transactions.
(iv) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than under the 1933 Act and the 1933 Act
Regulations and the securities or blue sky laws of the various states in
connection with the sale of the Offered Shares), domestic or foreign, is
required by reason of facts specifically pertaining to such Selling
Stockholder or its legal or regulatory status in connection with the due
authorization, execution and delivery by such Selling Stockholder of this
Agreement, the International Purchase Agreement, the U.S. Price
Determination Agreement, the International Price Determination Agreement or
the Custody Agreement and Power of Attorney and the valid sale and delivery
of the Offered Shares to be sold by such Selling Stockholder hereunder and
thereunder.
(v) The execution, delivery and performance of this Agreement,
the International Purchase Agreement, the U.S. Price Determination
Agreement, the International Price Determination Agreement and the Custody
Agreement and Power of Attorney by such Selling Stockholder, the sale of
the Offered Shares by such Selling Stockholder hereunder and thereunder,
the consummation by such Selling Stockholder of the transactions herein and
therein contemplated and the compliance by such Selling Stockholder with
all the provisions of this Agreement, the International Purchase Agreement,
the U.S. Price Determination Agreement, the International Price
Determination Agreement and the Custody Agreement and Power of Attorney
will not result in a violation of the charter or bylaws of such Selling
Stockholders which are corporations or the partnership agreement or
certificate of limited partnership, if applicable, of such Selling
Stockholders which are partnerships and will not conflict with or result in
a breach or violation of any of the terms or provisions of, or constitute a
default under, any material agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is bound, nor
will such action result in any violation of the provisions of any statute
relating to such Selling Stockholders or its legal or regulatory status or
any judgment, order, rule or regulation of any court or governmental agency
or body having jurisdiction over such Selling Stockholder.
(vi) Such Selling Stockholder has, and will at the Closing Time
have, and, if any U.S. Option Shares or International Option Shares are
purchased,
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will on the Date of Delivery have, valid and marketable title to the
Offered Shares to be sold by the Selling Stockholder pursuant to this
Agreement and the International Purchase Agreement, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of
any kind; and, at the Closing Time and, if any Option Shares are purchased,
at the Date of Delivery, upon delivery of the Offered Shares to be sold by
such Selling Stockholder and payment of the purchase price therefor as
contemplated in this Agreement and the International Purchase Agreement,
each of the Underwriters will receive good and marketable title to the
Offered Shares purchased by it from such Selling Stockholder, free and
clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind.
(vii) Certificates for all of the Offered Shares to be sold by
such Selling Stockholder pursuant to this Agreement and the International
Purchase Agreement, in suitable form for transfer by delivery or
accompanied by duly executed instruments of transfer or assignment in blank
with signatures guaranteed, have been placed in custody with The First
National Bank of Boston for delivery to the U.S. Underwriters pursuant to
this Agreement and the Managers pursuant to the International Purchase
Agreement.
(viii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price
of the Common Stock; and such Selling Stockholder has not distributed and
will not distribute any prospectus (as such term is defined in the 1933 Act
and the 1933 Act Regulations) in connection with the offering and sale of
the Offered Shares other than any preliminary prospectus filed with the
Commission or the Prospectuses or other material permitted by the 1933 Act
or the 1933 Act Regulations.
(c) Any certificate signed by any officer of the Company and delivered
to you or to Fried, Frank, Harris, Shriver & Jacobson as counsel for the
Underwriters at or prior to the Closing Time pursuant to this Agreement or the
transactions contemplated hereby shall be deemed a representation and warranty
by the Company to each U.S. Underwriter as to the matters covered thereby; and
any certificate signed by or on behalf of the Selling Stockholders as such and
delivered to you or to counsel for the Underwriters at or prior to the Closing
Time pursuant to the terms of this Agreement or the transactions contemplated
hereby shall be deemed a representation and warranty by such Selling
Stockholders to each U.S. Underwriter, as to the matters covered thereby.
Section 2. Sale and Delivery to the U.S. Underwriters; Closing. (a)
---------------------------------------------------
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each U.S. Underwriter, severally and not
jointly, and each U.S. Underwriter agrees,
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<PAGE>
severally and not jointly, to purchase from each Selling Stockholder, at the
purchase price per share set forth in the U.S. Price Determination Agreement,
that proportion of the number of Initial U.S. Shares being sold by each such
Selling Stockholder set forth on Schedule A opposite the name of each such
Selling Stockholder which the number of Initial U.S. Shares set forth in
Schedule B opposite the name of such U.S. Underwriter (plus such additional
number of Initial U.S. Shares that such U.S. Underwriter may become obligated to
purchase pursuant to Section 11 hereof) bears to the total number of Initial
U.S. Shares, subject, in each case, to such adjustments as the U.S. Underwriters
in their discretion shall make to eliminate any sales or purchases of fractional
shares.
(b) If the Company has elected not to rely upon Rule 430A, the public
offering price per share for the Initial U.S. Shares and the purchase price per
share for the Initial U.S. Shares to be paid by the several U.S. Underwriters
shall be agreed upon and set forth in the U.S. Price Determination Agreement,
dated the date hereof, and an amendment to the Original Registration Statement
containing such per share price information will be filed before the Original
Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A, the public
offering price per share for the Initial U.S. Shares and the purchase price per
share for the Initial U.S. Shares to be paid by the several U.S. Underwriters
shall be agreed upon and set forth in the U.S. Price Determination Agreement.
In the event that the U.S. Price Determination Agreement has not been executed
by the close of business on the fourteenth business day following the later of
the date on which the Original Registration Statement and any Rule 462(b)
Registration Statement becomes effective, this Agreement shall terminate
forthwith, without liability of any party to any other party except that
Sections 7, 8 and 9 shall remain in effect.
(d) In addition, on the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Selling Stockholders hereby grant an option to the Underwriters,
severally and not jointly, to purchase up to the additional number of Option
Shares set forth opposite such Selling Stockholder's name in the appropriate
column of Schedule A, or 1,500,000 shares of Common Stock in the aggregate, at
the same purchase price per share as shall be applicable to the Initial U.S.
Shares, of which 1,200,000 shares shall be the pro rata portion of the U.S.
Underwriters and 300,000 shares shall be the pro rata portion of the Managers.
The option hereby granted to the U.S. Underwriters will expire 30 days after the
later of the date upon which the Original Registration Statement and any Rule
462(b) Registration Statement becomes effective or, if the Company has elected
to rely upon Rule 430A, the date of the U.S. Price Determination Agreement, and
may be exercised in whole or from time to time in part only for the purpose of
covering over-allotments that may be made in connection with the offering and
distribution of the Initial Shares upon notice by you and the Lead Managers to
the Company setting forth the number of Option
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<PAGE>
Shares as to which the several U.S. Underwriters are exercising the option, and
the time and date of payment and delivery thereof. Such time and date of
delivery (the "Date of Delivery") shall be determined by you but shall not be
later than three or four full business days after the exercise of such option,
nor in any event prior to the Closing Time, unless otherwise agreed by Merrill
Lynch and the Company. If the option is exercised as to all or any portion of
the Option Shares, the U.S. Option Shares as to which the option is exercised
shall be purchased by the U.S. Underwriters, severally and not jointly, in the
respective proportions that bear the same relationship to the number of U.S.
Option Shares to be purchased at the Date of Delivery as the number of Initial
U.S. Shares set forth opposite the name of each U.S. Underwriter in Schedule B
hereto bears to the total number of Initial U.S. Shares (such proportions are
hereinafter referred to as each U.S. Underwriter's "underwriting obligation
proportions").
(e) Payment of the purchase price for, and delivery of certificates
for, the Initial U.S. Shares shall be made at the offices of Fried, Frank,
Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004, or at
such other place as shall be agreed upon by the Company, the Selling
Stockholders and you, at 10:00 A.M. either (i) on the third or fourth full
business day after the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement (in either case, as
permitted under Rule 15c6-1 under the Securities Exchange Act of 1934, as
amended (the "1934 Act")), or (ii) if the Company has elected to rely upon Rule
430A, on the third or fourth full business day after execution of the U.S. Price
Determination Agreement (as permitted under Rule 15c6-1 under the 1934 Act)
(unless, in either case, postponed pursuant to Section 11 or 12), or at such
other time not more than ten full business days thereafter as you, the Company
and the Selling Stockholders shall determine (such date and time of payment and
delivery being herein called the "Closing Time"). In addition, in the event
that any or all of the U.S. Option Shares are purchased by the U.S.
Underwriters, payment of the purchase price for, and delivery of certificates
for, such U.S. Option Shares shall be made at the offices of Fried, Frank,
Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004, or at
such other place as the Selling Stockholders and you shall determine, on the
Date of Delivery as specified in the notice from you to the Selling
Stockholders. Payment shall be made to the Selling Stockholders by certified or
official bank check or checks in New York Clearing House funds payable to the
order of the Selling Stockholders (or such other person as may be designated
pursuant to the Custody Agreement and Power of Attorney), as the case may be,
against delivery to you for the respective accounts of the several U.S.
Underwriters of certificates for the U.S. Shares to be purchased by them.
(f) Certificates for the Initial U.S. Shares and U.S. Option Shares to
be purchased by the U.S. Underwriters shall be in such denominations and
registered in such names as you may request in writing at least one business day
before the Closing Time or the Date of Delivery, as the case may be. The
certificates for the Initial U.S. Shares and
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<PAGE>
U.S. Option Shares will be made available in New York City for examination and
packaging by you not later than 10:00 A.M. on the business day prior to the
Closing Time or the Date of Delivery, as the case may be.
(g) It is understood that each U.S. Underwriter has authorized you,
for its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the U.S. Shares that it has agreed to purchase. You,
individually and not as U.S. Representatives, may (but shall not be obligated
to) make payment of the purchase price for the Initial U.S. Shares or U.S.
Option Shares to be purchased by any U.S. Underwriter whose check or checks
shall not have been received by the Closing Time or the Date of Delivery, as the
case may be.
(h) The several and not joint obligations of the Selling Stockholders
to sell to each U.S. Underwriter the Initial U.S. Shares and the Option Shares
and the several and not joint obligations of the U.S. Underwriters to purchase
and pay for the U.S. Shares, upon the terms and subject to the conditions of
this Agreement, are subject to the concurrent closing of the sale of the
International Shares to the Managers pursuant to the terms of the International
Purchase Agreement.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with each U.S. Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule 430A
and subject to Section 3(b), will comply with the requirements of Rule 430A and
will notify you promptly, (i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission to amend the Registration Statement, to amend or
supplement any Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Offered
Shares for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes. The Company will make
every reasonable effort to prevent the issuance of any such stop order or of any
order preventing or suspending such use and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, the Company will use
a term sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations. If the Company elects not to rely on Rule 434, the Company will
provide the U.S. Underwriters with copies of the U.S. Prospectus, in such number
as the U.S. Underwriters may reasonably request, and file or transmit for filing
with the
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<PAGE>
Commission such U.S. Prospectus in accordance with Rule 424(b) of the
1933 Act Regulations by the close of business in New York on the business day
immediately succeeding the date of the U.S. Price Determination Agreement. If
the Company elects to rely on Rule 434 of the 1933 Act Regulations, the Company
will provide the U.S. Underwriters with copies of the term sheet and the
remainder of the U.S. Prospectus, in such number as the U.S. Underwriters may
reasonably request, and file or transmit for filing with the Commission a U.S.
Prospectus complying with Rule 434(c)(2) of the 1933 Act Regulations in
accordance with Rule 424(b) of the 1933 Act Regulations by the close of business
in New York or the business day immediately succeeding the date of the U.S.
Price Determination Agreement. If the Company uses Rule 434, the Prospectuses
will not be "materially different," as such term is used in Rule 434, from the
prospectuses included in the Registration Statement at the time it becomes
effective.
(b) The Company will not at any time file or make any amendment to the
Registration Statement (including any filing under Rule 462(b)), file a Term
Sheet or file or make any amendment or supplement (i) if the Company has not
elected to rely upon Rule 430A, to the Prospectuses or (ii) if the Company has
elected to rely upon Rule 430A, to either of the prospectuses included in the
Original Registration Statement at the time it becomes effective or to the
Prospectuses, of which you shall not have previously been advised and furnished
a copy or to which you or Fried, Frank, Harris, Shriver & Jacobson as counsel
for the U.S. Underwriters shall have reasonably objected.
(c) The Company has furnished or will furnish to you and your counsel,
without charge, one signed copy of the Registration Statement as originally
filed and of all amendments thereto (including exhibits filed therewith),
whether filed before or after the Registration Statement becomes effective, and
copies of all exhibits and documents filed therewith, and signed copies of all
accountants consents and certificates of experts, if any, and has furnished or
will furnish to you, for each other U.S. Underwriter, one conformed copy of the
Registration Statement as originally filed and each amendment thereto. If
applicable, the copies of the Registration Statement and each amendment thereto
furnished to the U.S. Underwriters will be identical to the electronically
transmitted copies thereof filed with the Commission pursuant to EDGAR, except
to the extent permitted by Regulation S-T.
(d) The Company will deliver to each U.S. Underwriter, without charge,
from time to time until the later of the effective date of the Original
Registration Statement and any Rule 462(b) Registration Statement (or, if
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<PAGE>
the Company has elected to rely upon Rule 430A, until the time the U.S. Price
Determination Agreement is executed and delivered), as many copies of each
preliminary prospectus as such U.S. Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will deliver to each U.S. Underwriter, without charge, as
soon as the Registration Statement shall have become effective (or, if the
Company has elected to rely upon Rule 430A, as soon as practicable after the
U.S. Price Determination Agreement has been executed and delivered) and
thereafter from time to time as requested during the period when the
Prospectuses are required to be delivered under the 1933 Act, such number of
copies of the Prospectuses (as supplemented or amended) as such U.S. Underwriter
may reasonably request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations") so as to permit the
completion of the distribution of the Offered Shares as contemplated in this
Agreement, the International Purchase Agreement and the Prospectuses. If at any
time when a prospectus is required by the 1933 Act to be delivered in connection
with sales of the Offered Shares any event shall occur or condition exist as a
result of which it is necessary, in the opinion of counsel for the U.S.
Underwriters, to amend the Registration Statement or amend or supplement any
Prospectus in order that the Prospectuses will not include an untrue statement
of a material fact or omit to state a material fact necessary in order to make
the statements therein not misleading in the light of the circumstances existing
at the time it is delivered to a purchaser, or if it shall be necessary, in the
opinion of such counsel, at any such time to amend the Registration Statement or
amend or supplement any Prospectus in order to comply with the requirements of
the 1933 Act or the 1933 Act Regulations, the Company will promptly prepare and
file with the Commission, subject to Section 3(b), such amendment or supplement
as may be necessary to correct such untrue statement or omission or to make the
Registration Statement or the Prospectuses comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
U.S. Underwriters, to qualify the Offered Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement; provided, however, that
-------- -------
neither the Company nor any Subsidiary shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the Offered
Shares have been qualified as above provided.
(g) The Company will timely file such reports pursuant to the 1934 Act
as are necessary in order to make generally available to its security holders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
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(h) For a period of 90 days from the date hereof, the Company will
not, without the prior written consent of Merrill Lynch on behalf of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock, other than (i)
any shares of Common Stock sold by the Company upon the exercise of any option
outstanding at the Closing Time granted under the stock option plans of the
Company existing at the Closing Time and (ii) issuances by the Company of
employee stock options pursuant to the Company's employee stock option plans
pursuant to the terms thereof as in effect on the date hereof and the number of
shares of Common Stock covered thereby.
(i) The Company will use its best efforts to maintain the listing of
the Common Stock on the New York Stock Exchange on the date of the U.S. Price
Determination Agreement.
(j) If the Company has elected to rely upon Rule 430A, it will take
such steps as it deems necessary to ascertain promptly whether the forms of
prospectuses transmitted for filing under Rule 424(b) were received for filing
by the Commission and, in the event that they were not, it will promptly file
such prospectuses.
(k) If the Company has elected to rely on Rule 434, it will comply
with the requirements of Rule 434, and the Prospectuses will not be "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it becomes effective.
(l) If the Company has elected to rely upon Rule 462(b), the Company
will file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the time confirmations are sent or given, as specified
by Rule 462(b)(2).
(m) For a period of five years after the Closing Time, the Company
will furnish to you and to each U.S. Underwriter that so requests copies of all
annual reports, quarterly reports and current reports filed with the Commission
on Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other documents, reports and information relating to
the Company's business or finances as shall be furnished by the Company to its
stockholders generally.
(n) The Company has complied, and will comply, with all of the
provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to issuers
or their affiliates
23
<PAGE>
doing business with the government of Cuba or with any person or affiliate
located in Cuba.
(o) The Company, during the period when the Prospectuses are required
to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
Section 4. Payment of Expenses. (a) The Company will pay all
-------------------
expenses incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement and the International Purchase
Agreement, including (i) the printing and filing of the Registration Statement
(including financial statements and exhibits), as originally filed and as
amended, the preliminary prospectuses and the Prospectuses and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the
Underwriters, (ii) the copying and distribution of this Agreement (including the
U.S. Price Determination Agreement), the Intersyndicate Agreement, the
International Purchase Agreement (including the International Price
Determination Agreement), the Agreement among Managers, the certificates for the
Offered Shares and a survey of state securities or blue sky laws (the "Blue Sky
Survey"), (iii) the delivery of the certificates for the Offered Shares to the
Underwriters, including any capital duties, stamp duties and stock or other
transfer taxes payable upon the sale of the Offered Shares to the Underwriters
and the transfer of the Offered Shares between the U.S. Underwriters and the
Managers, (iv) the fees and disbursements of the Company's and the Selling
Stockholders' counsel and accountants, (v) the qualification of the Offered
Shares under the applicable securities laws in accordance with Section 3(f) and
any filing fee related to the review of the offering by the National Association
of Securities Dealers, Inc. (the "NASD"), and filing fees and reasonable fees
and disbursements of Fried, Frank, Harris, Shriver & Jacobson as counsel for the
Underwriters in connection therewith and in connection with the Blue Sky Survey,
(vi) the fees and expenses of any transfer agent or registrar for the Offered
Shares and (vii) the listing fees and expenses incurred in connection with
listing the Offered Shares on the New York Stock Exchange.
(b) The Company will pay any transfer taxes attributable to the sale
by the Selling Stockholders of the Offered Shares and any fees and disbursements
of their counsel and accountants, if any.
(c) If this Agreement is terminated by you in accordance with the
provisions of Section 5, 10(a)(i) and (ii) or 12, the Company shall reimburse
the U.S. Underwriters through you for all their out-of-pocket expenses,
including the reasonable fees and disbursements of Fried, Frank, Harris, Shriver
& Jacobson as counsel for the U.S. Underwriters.
24
<PAGE>
Section 5. Conditions of U.S. Underwriters' Obligations. In addition
--------------------------------------------
to the execution and delivery of the U.S. Price Determination Agreement, the
obligations of the several U.S. Underwriters to purchase and pay for the U.S.
Shares that they have respectively agreed to purchase hereunder (including any
U.S. Option Shares as to which the option granted in Section 2(e) has been
exercised in the event the Date of Delivery determined by you is the same as the
Closing Time) are subject to the accuracy of the representations and warranties
contained herein (including those contained in the U.S. Price Determination
Agreement) or in certificates of any officer of the Company and the Selling
Stockholders delivered pursuant to the provisions hereof, to the performance by
the Company and the Selling Stockholders of their respective obligations
hereunder, and to the following further conditions:
(a) The Original Registration Statement shall have become effective
not later than 5:30 P.M. on the date of this Agreement or, with your consent, at
a later time and date not later, however, than 5:30 P.M. on the first business
day following the date hereof, or at such later time or on such later date as
you may agree to in writing with the approval of a majority in interest of the
several U.S. Underwriters; if the Company has elected to rely upon Rule 462(b),
the Rule 462(b) Registration Statement shall have become effective not later
than the time confirmations are sent or given, as specified by Rule 462(b)(2);
and at the Closing Time no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company or any of its Subsidiaries,
shall have been threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Fried, Frank, Harris, Shriver & Jacobson as counsel
for the U.S. Underwriters. If the Company has elected to rely upon Rule 430A,
Prospectuses containing the Rule 430A Information shall have been filed with the
Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A). If the Company has elected to
rely upon Rule 434, a Term Sheet, which together with the preliminary
prospectuses last furnished to the Underwriters in connection with the offering
of the Offered Shares shall not be "materially different" as such term is used
in Rule 434 from the prospectuses included in the Original Registration
Statement at the time it becomes effective, shall have been filed with the
Commission in accordance with Rule 424(b).
(b) At the Closing Time, you shall have received signed opinions of
(i) Kirkland & Ellis, special counsel for the Company and the Selling
Stockholders, to the effect set forth on Exhibit B hereto, (ii) Christine
J. Smith, General Counsel of AEA Investors Inc., to the effect set forth on
Exhibit C hereto, and (iii) counsel for each of the next ten largest
Selling Stockholders (other than individuals), in each case dated as of the
Closing Time, together with reproduced copies of such opinions for each of
the other U.S.
25
<PAGE>
Underwriters, in form and substance reasonably satisfactory to Fried,
Frank, Harris, Shriver & Jacobson as counsel for the U.S. Underwriters. In
giving their opinions Kirkland & Ellis and Christine J. Smith may rely, as
to all matters governed by the laws of jurisdictions other than the federal
law of the United States, the law of the State of New York and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate representatives
of the Company, the Subsidiaries and the Selling Stockholders and
certificates of public officials.
(c) At the Closing Time, you shall have received the favorable opinion
of Fried, Frank, Harris, Shriver & Jacobson as counsel for the U.S.
Underwriters, dated as of the Closing Time, together with reproduced copies of
such opinion for each of the other U.S. Underwriters, to the effect that the
opinions delivered pursuant to Section 5(b) appear on their face to be
appropriately responsive to the requirements of this Agreement except,
specifying the same, to the extent waived by you, and with respect to the legal
existence of the Company, the Offered Shares, this Agreement and the
International Purchase Agreement, the Registration Statement, the Prospectuses
and such other related matters as you may require. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the federal law of the United States, the law of the State of New York and
the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate representatives of
the Company, the Subsidiaries and the Selling Stockholders and certificates of
public officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectuses, as they may then be amended or supplemented, shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with Rule
430A and Rule 434 (if it shall have elected to rely thereon), the Registration
Statement, as it may then be amended or supplemented, shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements in the Registration
Statement not misleading, and the Prospectuses shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements in the Prospectuses, in light
of the circumstances under which they were made, not misleading, (ii) there
shall not have been, since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall
26
<PAGE>
be pending or, to the knowledge of the Company, threatened against the Company
or any Subsidiary that would be required to be set forth in the Prospectuses
other than as set forth therein and no proceedings shall be pending or, to the
knowledge of the Company, threatened against the Company or any Subsidiary
before or by any federal, state or other commission, board or administrative
agency that could reasonably be expected to materially and adversely affect the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one enterprise,
other than as set forth in the Prospectuses, (iv) the Company shall have
complied with all agreements and satisfied all conditions on their parts to be
performed or satisfied at or prior to the Closing Time and (v) the other
representations and warranties of the Company and Technologies, set forth in
Section 1(a) shall be accurate as though expressly made at and as of the Closing
Time. At the Closing Time, you shall have received a certificate of the
President or Vice President and the chief financial officer or chief accounting
officer of the Company, dated as of the Closing Time, to such effect. As used in
Section 5(d)(ii) and (iii), the term "Prospectuses" means the Prospectuses in
the form first used to confirm sales of the Offered Shares.
(e) At the Closing Time, (i) the representations and warranties of the
Selling Stockholders set forth in Section 1(b) and in any certificates by or on
behalf of the Selling Stockholders delivered pursuant to the provisions hereof
shall be accurate as though expressly made at and as of the Closing Time, (ii)
the Selling Stockholders shall have performed their obligations under this
Agreement and the International Purchase Agreement and (iii) you shall have
received a certificate of the Selling Stockholders, dated as of the Closing
Time, to the effect set forth in subsections (i) and (ii) of this Section 5(e).
(f) At the time that this Agreement is executed by the Company, you
shall have received from Coopers & Lybrand L.L.P. a letter, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such letter for each of the other U.S. Underwriters, confirming that
they are independent public accountants with respect to the Company and the
predecessor of the Company within the meaning of the 1933 Act and the applicable
published 1933 Act Regulations, and stating in effect that, except as set forth
in such letter:
(i) in their opinion, the audited financial statements and the
related financial statement schedules included in the Registration
Statement and the Prospectuses comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of the
27
<PAGE>
Company and the predecessor of the Company included in the Registration
Statement and the Prospectuses, a reading of the minutes of all meetings of
the stockholders and directors of the Company and the Subsidiaries and each
committee of the board of directors of each of the Company and the
Subsidiaries, inquiries of certain officials of the Company and the
Subsidiaries responsible for financial and accounting matters and such
other inquiries and procedures, including a limited review of such
statements under Statement of Accounting Standards 71, as may be specified
in such letter, nothing came to their attention that caused them to believe
that:
(A) the unaudited financial statements as of and for the
three-month periods ended March 31, 1996 and 1995 included in the
Registration Statement and the Prospectuses do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement; or
(B) at April 30, 1996, there was (i) any change in the
capital stock or consolidated stockholders' equity, (ii) any decrease
in consolidated current assets, working capital and total assets or
(iii) any increase in long-term debt of the Company and its
Subsidiaries as compared with the amounts shown in the latest balance
sheet included in the Registration Statement, except in each case for
changes, decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(C) at a specified date not more than five days prior to
the date of this Agreement, there was (i) any change in the capital
stock, (ii) any decrease in total assets or (iii) any increase in
long-term debt (excluding capital lease obligations) of the Company
and its Subsidiaries as compared with the amounts shown in the latest
balance sheet included in the Registration Statement, except in each
case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(D) for the period from April 1, 1996 to April 30, 1996,
there was any decrease in consolidated net sales, income from
operations, or in the total or per-share amounts of consolidated
income from continuing operations before income taxes or of
consolidated net income or in other items specified by the U.S.
Representatives, in each case as compared with the comparable period
in the preceding year, except in each case for any
28
<PAGE>
decreases that the Registration Statement discloses have occurred or
may occur; or
(E) for the period from May 1, 1996 to a specified date not
more than five days prior to the date of this Agreement, there was any
decrease in consolidated net sales or in other items specified by the
U.S. Representatives, in each case as compared with the comparable
period in the preceding year, except in each case for any decreases
that the Registration Statement discloses have occurred or may occur;
(iii) they are unable to and do not express any opinion on the
pro forma capitalization or Pro Forma Consolidated Financial Statements of
the Company or on the pro forma adjustments applied to the historical
amounts included in such statements (the "Pro Forma Information"); however,
for purposes of such letter they have:
(A) read the Pro Forma Information;
(B) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and whether
the Pro Forma Information above complies in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X;
(C) compared the historical amounts in the Pro Forma
Information with the Company's audited financial statements or
accounting records; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Information; and
on the basis of such procedures, and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that the Pro Forma Information included in the
Registration Statement does not comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X and that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements; and
(iv) in addition to the procedures referred to in clauses (ii)
and (iii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement, which have previously been
29
<PAGE>
specified by you and which shall be specified in such letter, and have
compared such items with, and have found such items to be in agreement
with, the accounting and financial records of the Company and its
Subsidiaries.
(g) At the time that this Agreement is executed by the Company, you
shall have received from Arthur Andersen LLP a letter, dated such date, in form
and substance satisfactory to you, together with signed or reproduced copies of
such letter for each of the other U.S. Underwriters, confirming that they are
independent public accountants with respect to TAI and subsidiaries within the
meaning of the 1933 Act and the applicable published 1933 Act Regulations, and
stating in effect that, except as set forth in such letter:
(i) in their opinion, the audited financial statements of TAI and
subsidiaries included in the Registration Statement and the Prospectuses
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of TAI and subsidiaries included in the Registration Statement
and the Prospectuses, a reading of the minutes of all meetings of the
stockholders and directors of TAI and each committee of the board of
directors of TAI, inquiries of certain officials of TAI who have
responsibility for financial and accounting matters and such other
inquiries and procedures, including a limited review of such statements
under Statement of Accounting Standards 71, as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements as of and for the
three-month periods ended March 31, 1996 and 1995 included in the
Registration Statement and the Prospectuses do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement;
(B) at April 30, 1996, there was (i) any change in the
capital stock or consolidated stockholders' equity (deficit), (ii) any
decrease in consolidated current assets or (iii) any increase in long-
term debt of TAI and subsidiaries as compared with the amounts shown
in the latest balance sheet included in the Registration Statement,
except in each
30
<PAGE>
case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from April 1, 1996 to April 30, 1996,
there was any decrease in consolidated net sales, operating profit, or
loss before taxes or in other items specified by the U.S.
Representatives, in each case as compared with the comparable period
in the preceding year, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clauses (ii)
above, they have performed other specified procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement, which have
previously been specified by you and which shall be specified in such letter,
and have compared such items with, and have found such items to be in agreement
with, the accounting and financial records of TAI and subsidiaries.
(h) At the Closing Time, you shall have received from each of Coopers
& Lybrand L.L.P. and Arthur Andersen LLP a letter, in form and substance
satisfactory to you and dated as of the Closing Time, and to the effect that
they reaffirm the statements made in the letter furnished pursuant to Sections
5(f) and 5(g), except that the specified date referred to shall be a date not
more than five days prior to the Closing Time. In the event the Company relies
on Rule 430A and the final Prospectuses furnished to the Underwriters in
connection with the offering of the Offered Shares differ from the Prospectuses
included in the Registration Statement at the time of effectiveness, such letter
shall update the procedures referred to in clauses 5(f)(ii), (iii) and (iv) with
respect to Coopers and Lybrand L.L.P. and clauses 5(g)(ii) and (iii) with
respect to Arthur Andersen LLP.
(i) At the Closing Time, you shall have received a certificate of the
Chief Financial Officer of the Company as to certain agreed upon accounting
matters.
(j) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Offered Shares as contemplated in this Agreement and the
International Purchase Agreement and the matters referred to in Section 5(c) and
in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company and the Selling
Stockholders, the performance of any of the covenants of the Company and the
Selling Stockholders, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Selling Stockholders
at or prior to the
31
<PAGE>
Closing Time in connection with the authorization, issuance and sale of the
Offered Shares as contemplated in this Agreement and the International Purchase
Agreement shall be reasonably satisfactory in form and substance to you and to
Fried, Frank, Harris, Shriver & Jacobson as counsel for the Underwriters.
(k) Each Selling Stockholder shall have delivered to you on or prior
to the Closing Time a copy of a properly completed and executed United States
Treasury Department Form W-9 or W-8 (or other applicable form or statement
specified by Treasury Department regulations).
(l) The "lock-up" agreements between you and each Selling Stockholder,
executive officer and director, certain other members of management of the
Company and certain other stockholders of the Company, delivered to you on or
before the date hereof, shall be in full force and effect at the Closing Time.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you upon notice to the Company and the Selling
Stockholders at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 herein. Notwithstanding any such termination, the provisions of
Sections 7 and 8 herein shall remain in effect.
Section 6. Conditions to Purchase of U.S. Option Shares. In the
--------------------------------------------
event that the U.S. Underwriters exercise their option granted in Section 2 to
purchase all or any of the U.S. Option Shares and the Date of Delivery
determined by you pursuant to Section 2 is later than the Closing Time, the
obligations of the several U.S. Underwriters to purchase and pay for the U.S.
Option Shares that they shall have respectively agreed to purchase pursuant to
this Agreement are subject to the accuracy of the representations and warranties
of the Company, Technologies and the Selling Stockholders herein contained, to
the performance of the Company, Technologies and the Selling Stockholders of
their respective obligations hereunder and to the following further conditions:
(a) The Registration Statement shall remain effective at the Date of
Delivery, and at the Date of Delivery no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company or the Selling Stockholders,
shall have been threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Fried, Frank, Harris, Shriver & Jacobson as counsel
for the U.S. Underwriters.
32
<PAGE>
(b) At the Date of Delivery, the provisions of Section 5(d) shall have
been complied with at and as of the Date of Delivery and, at the Date of
Delivery, you shall have received a certificate of the President or Vice
President and the chief financial officer or chief accounting officer of the
Company with respect to the provisions of Section 5(d), dated as of the Date of
Delivery, to such effect.
(c) At the Date of Delivery, you shall have received the favorable
opinions of Kirkland & Ellis, special counsel for the Company and the Selling
Stockholders, and Christine J. Smith, General Counsel of AEA Investors Inc.,
together with reproduced copies of such opinions for each of the other U.S.
Underwriters in form and substance satisfactory to Fried, Frank, Harris, Shriver
& Jacobson as counsel for the Underwriters, dated as of the Date of Delivery,
relating to the Option Shares and otherwise to the same effect as the opinions
required by Section 5(b).
(d) At the Date of Delivery, you shall have received the favorable
opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel for the U.S.
Underwriters, dated as of the Date of Delivery, relating to the U.S. Option
Shares and otherwise to the same effect as the opinion required by Section 5(c).
(e) At the Date of Delivery, you shall have received a letter from
each of Coopers & Lybrand L.L.P. and Arthur Andersen LLP, in form and substance
satisfactory to you and dated as of the Date of Delivery, to the effect that
they reaffirm the statements made in the letter furnished pursuant to Section
5(h), except that the specified date referred to shall be a date not more than
five days prior to the Date of Delivery.
(f) At the Date of Delivery, the provisions of Section 5(e) shall have
been complied with at and as of the Date of Delivery and, at the Date of
Delivery, you shall have received a certificate from the Selling Stockholders
with respect to the provisions of Section 5(e), dated as of the Date of
Delivery, to such effect.
(g) At the Date of Delivery, Fried, Frank, Harris, Shriver & Jacobson
as counsel for the U.S. Underwriters shall have been furnished with all such
documents, certificates and opinions as they may reasonably request for the
purpose of enabling them to pass upon the issuance and sale of the Option Shares
as contemplated in this Agreement and the matters referred to in Section 6(d)
and in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company, Technologies and the
Selling Stockholders, the performance of any of the covenants of the Company and
the Selling Stockholders, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Selling
Stockholders, at or prior to the Date of Delivery in connection with the
authorization, issuance and sale of the Option Shares as contemplated in this
Agreement shall be
33
<PAGE>
reasonably satisfactory in form and substance to you and to Fried, Frank,
Harris, Shriver & Jacobson as counsel for the U.S. Underwriters.
Section 7. Indemnification. (a) The Company and Technologies,
---------------
jointly and severally, agree to indemnify and hold harmless each U.S.
Underwriter (including any U.S. Underwriter in its role as qualified independent
underwriter pursuant to the rules of the NASD) and each person, if any, who
controls any U.S. Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
an untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if Rule 434 is used, if either of the Prospectuses are "materially
different," as such term is used in Rule 434, from the prospectus included
in the Original Registration Statement at the time it becomes effective;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission;
(iii) against any and all expense whatsoever, as incurred
(including, subject to the last sentence of Section 7(d), fees and disbursements
of counsel chosen by you to represent the U.S. Underwriters), reasonably
incurred in investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information
34
<PAGE>
furnished or confirmed in writing to the Company by or on behalf of any U.S.
Underwriter through you or the Lead Managers expressly for use in the
Registration Statement (or in any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto);
provided, further, that such indemnity with respect to any preliminary
- -------- -------
prospectus shall not inure to the benefit of any U.S. Underwriter (or any
persons controlling such U.S. Underwriter) from whom the person asserting such
loss, claim, damage or liability purchased the Offered Shares which are the
subject thereof if such person did not receive a copy of the U.S. Prospectus (or
the U.S. Prospectus as amended or supplemented) at or prior to the confirmation
of the sale of such Offered Shares to such person in any case where such
delivery is required by the 1933 Act and the untrue statement or omission or
alleged untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the U.S. Prospectus (or the U.S.
Prospectus as amended or supplemented).
(b) The Company and Technologies, jointly and severally, agree to
indemnify and hold harmless each of the Selling Stockholders and each person, if
any, who controls any Selling Stockholder within the meaning of Section 15 of
the 1933 Act and Section 20 of the 1934 Act to the same extent that the Company
and Technologies have agreed to indemnify and hold harmless each U.S.
Underwriter pursuant to the preceding paragraph; provided, however, the Company
and Technologies shall not be liable under this paragraph to the extent any
loss, liability, claim, damage or expense described in the preceding paragraph
arises out of or is based upon an untrue statement, alleged untrue statement,
omission or alleged omission based upon information relating to such Selling
Stockholder expressly for use in the Registration Statement, any preliminary
prospectus, the Prospectuses or any amendments or supplements thereto.
(c) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each U.S. Underwriter (including any U.S.
Underwriter in its role as qualified independent underwriter pursuant to the
rules of the NASD) and each person, if any, who controls any U.S. Underwriter
within the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act,
the Company, its directors, its officers who sign the Registration Statement,
and any person who controls the Company within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act to the same extent as the foregoing
indemnity from the Company to each U.S. Underwriter; provided, however, that
-----------------
with respect to each Selling Stockholder, the indemnification provision in this
paragraph (c) shall be only with respect to the information furnished in writing
by or on behalf of such Selling
35
<PAGE>
Stockholder expressly for use in the Registration Statement (or any amendment
thereto), including Rule 430A Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto); and
provided, further, that the aggregate liability of any Selling Stockholder
- ------------------
pursuant to this paragraph (c) shall be limited to the net proceeds received by
such Selling Stockholder from the Offered Shares purchased by the Underwriters
from such Selling Stockholder pursuant to this Agreement, the U.S. Price
Determination Agreement, the International Purchase Agreement and the
International Price Determination Agreement; and provided, further, that no
-------- -------
Selling Stockholder shall be liable for any untrue statement, alleged untrue
statement, omission or alleged omission of any other Selling Stockholder.
(d) Each U.S. Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, each person, if any, who controls the Company within the
meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act and each
Selling Stockholder and each person, if any, who controls such Selling
Stockholder within the meaning of Section 15 of the 1933 Act and Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in Section 7(a), as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto) in reliance upon and in conformity with information
furnished or confirmed in writing to the Company by or on behalf of such U.S.
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto), including the Rule 430A Information and the Rule 434
Information, if applicable, or such preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto).
(e) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably satisfactory to
such indemnified party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of counsel for the indemnified parties incurred thereafter in connection with
such action. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel at any time, and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest or (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it
36
<PAGE>
and/or other indemnified parties which are different from or additional to those
available to the indemnifying party. In no event shall the indemnifying party or
parties be liable for the fees and expenses of more than one counsel (in
addition to local counsel) for all indemnified parties in connection with any
one action or separate but similar or related actions in the same jurisdictions
arising out of the same general allegations or circumstances.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. No indemnifying party shall be liable for any settlement of any
action or claim for monetary damages which an indemnified party may effect
without the written consent of the indemnifying party.
Section 8. Contribution. If the indemnification provided for in
------------
Section 7 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
Technologies and the Selling Stockholders, on the one hand, and the U.S.
Underwriters on the other hand from the offering of the Securities pursuant to
this Agreement or (ii) if the allocation provided by clause (i) is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Company, Technologies and the Selling Stockholders, on the one hand, and of
the U.S. Underwriters on the other hand in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, Technologies and the
Selling Stockholders, on the one hand, and the U.S. Underwriters on the other
hand in connection with the offering of the Securities pursuant to this
Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Securities pursuant to this Agreement
(before deducting expenses) received by the Company, Technologies and the
Selling Stockholders and the total underwriting discount received by the U.S.
Underwriters, in each case as set forth on the cover of the Prospectus, or, if
Rule 434 is used, the corresponding location on the Term Sheet, bear to the
aggregate initial public offering price of the Securities as set forth on such
cover.
37
<PAGE>
The relative fault of the Company, Technologies and the Selling
Stockholders, on the one hand, and the U.S. Underwriters on the other hand shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, Technologies or
the Selling Stockholders or by the U.S. Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Company, Technologies, the Selling Stockholders and the U.S.
Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
U.S. underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this Section 8. The aggregate amount of losses,
liabilities, claims, damages and expenses incurred by an indemnified party and
referred to above in this Section 8 shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue or alleged untrue statement or
omission or alleged omission.
Notwithstanding the provisions of this Section 8, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the Offered
Shares purchased from such Selling Stockholder and (ii) no U.S. Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price to the public at which the Offered Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such U.S. Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission;
provided, however, that no person guilty of fraudulent misrepresentation (within
- -------- -------
the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section, each person, if any, who controls a U.S. Underwriter
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
shall have the same rights to contribution as such U.S. Underwriter, and each
director of the Company, each officer of the Company who signed the Registration
Statement, each person who controls the Company within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, and each person who controls a
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company and
the Selling Stockholders. The Underwriters' respective obligations to
contribute pursuant to this Section 8 are several in proportion to the number of
Initial Securities set forth opposite their respective names in Schedule B
hereto and not joint.
38
<PAGE>
Section 9. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. The representations, warranties, indemnities and agreements of the
- --------
Company, Technologies and the Selling Stockholders contained in this Agreement
and the U.S. Price Determination Agreement, or contained in certificates of
officers of the Company or its Subsidiaries or the Selling Stockholders
submitted pursuant hereto, will remain operative and in full force and effect
regardless of any investigation made by or on behalf of the Company,
Technologies, the Selling Stockholders or any U.S. Underwriter or controlling
person and will survive delivery of and payment for the Offered Shares.
Section 10. Termination of Agreement. (a) You may terminate this
------------------------
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to the Closing Time (i) if there has been, since the respective dates
as of which information is given in the Prospectuses, any material adverse
change in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company or its Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if a
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, or any such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (iii) if there has occurred any material
adverse change in the financial markets in the United States or internationally
or any outbreak of hostilities or escalation of existing hostilities or other
calamity or crisis the effect of which is such as to make it, in your reasonable
judgment, impracticable to market the U.S. Shares or enforce contracts for the
sale of the U.S. Shares, (iv) if trading in any securities of the Company has
been suspended by the Commission, the New York Stock Exchange or the National
Association of Securities Dealers, Inc., or if trading generally on either the
American Stock Exchange or the New York Stock Exchange or in the over-the-
counter market has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of such exchanges or by order of the Commission, the National Association
of Securities Dealers, Inc. or any other governmental authority, (v) if a
banking moratorium has been declared by either federal or New York authorities,
or (vi) if there has occurred any change or development involving a prospective
change in national or international political, financial or economic controls,
which in your opinion is likely to have a material adverse effect on the market
for the Offered Shares. As used in this Section 10(a), the term "Prospectuses"
means the Prospectuses in the form first used to confirm sales of the Offered
Shares.
(b) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
to the extent
39
<PAGE>
provided in Section 4. Notwithstanding any such termination, the provisions of
Sections 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 2(d), with the effect stated in such Section.
Section 11. Default by One or More of the U.S. Underwriters. If one
-----------------------------------------------
or more of the U.S. Underwriters shall fail at the Closing Time to purchase the
Initial U.S. Shares that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted U.S. Shares"), you shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
U.S. Underwriters, or any other underwriters, to purchase all, but not less than
all, of the Defaulted U.S. Shares in such amounts as may be agreed upon and upon
the terms set forth in this Agreement; if, however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the number of Defaulted U.S. Shares does not exceed 10% of the
total number of Initial U.S. Shares, the non-defaulting U.S. Underwriters shall
be obligated to purchase the full amount thereof in the proportions that their
respective Initial U.S. Shares underwriting obligation proportions bear to the
underwriting obligation proportions of all non-defaulting U.S. Underwriters, or
(b) if the number of Defaulted U.S. Shares exceeds 10% of the total
number of Initial U.S. Shares, this Agreement shall terminate without liability
on the part of any non-defaulting U.S. Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
U.S. Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you, the Company or the Selling Stockholders shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the
term "U.S. Underwriter" includes any person substituted for a U.S. Underwriter
under this Section 11.
Section 12. Default by the Company or the Selling Stockholders. (a)
--------------------------------------------------
If any Selling Stockholder shall fail at the Closing Time to sell and deliver
the number of Offered Shares that it is obligated to sell, then the U.S.
Representatives may, at their option, by notice to the Company and the Selling
Stockholders, either (i) terminate this Agreement without any liability on the
part of any non-defaulting party except to the extent provided in Section 4 and
except that the provisions of Sections 7 and 8 shall remain in effect or (ii)
elect to purchase the Offered Shares which the non-defaulting
40
<PAGE>
party has agreed to sell hereunder. No action taken pursuant to this Section
shall relieve such Selling Stockholder from liability, if any, in respect of
such default.
Section 13. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication
(notices transmitted by telecopier to be promptly confirmed in writing).
Notices to you or the U.S. Underwriters shall be directed to you c/o Merrill
Lynch, Pierce, Fenner & Smith Incorporated at Merrill Lynch World Headquarters,
North Tower, World Financial Center, New York, New York 10281, attention of
Gregory L. Wright, with a copy to Fried, Frank, Harris, Shriver & Jacobson, One
New York Plaza, New York, New York 10004, attention of Valerie Ford Jacob, Esq.;
notices to the Company and Technologies shall be directed to the Company and
Technologies at 34 Maple Street, Milford, MA 01757, attention of Douglas A.
Berthiaume, with a copy to Kirkland & Ellis at Citicorp Center, 153 East 53rd
Street, New York, New York 10022-4675, attention of Lance C. Balk, Esq.; and
notices to the Selling Stockholders shall be directed to Bain Capital, Inc., Two
Copley Place, Boston, MA 02116, attention of Joshua Bekenstein, and AEA
Investors Inc. at 65 East 55th Street, New York, New York 10022, attention of
Christine J. Smith, Esq., with a copy to Kirkland & Ellis at Citicorp Center,
153 East 53rd Street, New York, New York 10022-4675, attention of Lance C.
Balk, Esq.
Section 14. Parties. This Agreement is made solely for the benefit
-------
of the several U.S. Underwriters, the Company, Technologies, the Selling
Stockholders and, to the extent expressed, any person controlling the Company,
Technologies, the Selling Stockholders or any of the U.S. Underwriters, and the
directors of the Company, its officers who have signed the Registration
Statement, and their respective executors, administrators, successors and
assigns and, subject to the provisions of Section 11, no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include any purchaser, as such purchaser,
from any of the several U.S. Underwriters of the U.S. Shares. All of the
obligations of the U.S. Underwriters hereunder are several and not joint.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. SPECIFIED TIMES OF THE DAY REFER TO NEW YORK CITY TIME.
Section 16. Jurisdiction. Each of the undersigned hereby irrevocably
------------
submits in any suit, action or proceeding arising out of or in relation to this
Agreement, or any of the transactions contemplated hereby, to the jurisdiction
and venue of any federal or state court in the Borough of Manhattan, City of New
York, State of New York.
41
<PAGE>
Section 17. Counterparts. This Agreement may be executed in one or
------------
more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
42
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Stockholders a
counterpart hereof, whereupon this instrument will become a binding agreement
among the Company, the Selling Stockholders and the several U.S. Underwriters in
accordance with its terms.
Very truly yours,
WATERS CORPORATION
By
---------------------------
Name: Philip S. Taymor
Title: Senior Vice President, Finance and
Administration and Chief Financial
Officer, Treasurer and Assistant
Secretary
WATERS TECHNOLOGIES CORPORATION
By
---------------------------
Name: Philip S. Taymor
Title:
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 1 OF SCHEDULE A HERETO
By
---------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 2 OF SCHEDULE A HERETO
By
---------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 3 OF SCHEDULE A HERETO
By
---------------------------
Name:
Title: Attorney-in-Fact
43
<PAGE>
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By:
---------------------------
Name: Karen B. Harris
Title: Vice President
For themselves and as U.S. Representatives of the
- -------------------------------------------------
other U.S. Underwriters named in Schedule B.
- --------------------------------------------
[106017]
44
<PAGE>
SCHEDULE A
Number of Initial U.S. Maximum Number of U.S.
Selling Stockholder Shares to be Sold Option Shares to be Sold
Total....................... 8,000,000 1,200,000
<PAGE>
SCHEDULE B
NUMBER OF
INITIAL U.S. SHARES
U.S. UNDERWRITERS TO BE PURCHASED
----------------- -------------------
Merrill Lynch, Pierce, Fenner & Smith
Incorporated................................
Alex. Brown & Sons Incorporated..............
CS First Boston Corporation..................
Goldman, Sachs & Co..........................
Total................................ 8,000,000
<PAGE>
SCHEDULE C
Subsidiaries Place of Incorporation
- ------------ ----------------------
Waters Technologies Corporation Delaware
Waters Investments Limited Delaware
TA Instruments, Inc. Delaware
Extrel F.T.M.S. Delaware
Nihon Waters Limited Delaware
Nihon Waters K.K. Japan
Waters Asia Limited Delaware
Waters China Limited Hong Kong
Waters Operating Corp. Delaware
Waters Australia Pty. Ltd. Australia
Waters NV Belgium
Waters Ltda. Brazil
Waters Limited/Waters Limitee Canada
Waters A/S Denmark
Waters Oy Finland
Waters France Holding Corp. Delaware
Waters Holding SA France
Waters SA France
Waters GmbH Germany
Waters S.r.l. Italy
Waters SA de CV Mexico
Waters Chromatography BV Netherlands
Waters Chromatography Europe BV Netherlands
Waters Chromatografia SA Spain
Waters Sverige AB Sweden
Waters AG Switzerland
Waters GesMBH Austria
Waters Kft Hungary
Waters Sp.Zo.o Poland
Waters Ltd. U.K.
Phase Separations Ltd. U.K.
Phase Separations EURL France
Phase Separations B.V. Netherlands
Phase Separations Inc. Connecticut
<PAGE>
SCHEDULE D
Material Subsidiaries Place of Incorporation
- --------------------- ----------------------
Waters Technologies Corporation Delaware
Waters Investments Limited Delaware
TA Instruments, Inc. Delaware
Waters Holding SA France
Waters SA. France
Waters GmbH Germany
Waters Ltd. U.K.
<PAGE>
Exhibit A
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
U.S. PRICE DETERMINATION AGREEMENT
----------------------------------
June ________, 1996
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
As Representatives of the several U.S. Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, New York 10281-1201
Ladies and Gentlemen:
Reference is made to the U.S. Purchase Agreement dated June _________,
1996 (the "U.S. Purchase Agreement") among Waters Corporation (the "Company"),
Waters Technologies Corporation ("Technologies"), the Selling Stockholders
listed in Schedule A thereto and hereto (the "Selling Stockholders") and the
several U.S. Underwriters named in Schedule B thereto and hereto (the "U.S.
Underwriters"), for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Alex. Brown & Sons Incorporated, CS First Boston Corporation and Goldman, Sachs
& Co. are acting as representatives (the "U.S. Representatives"). The U.S.
Purchase Agreement provides for the purchase by the U.S. Underwriters from the
Selling Stockholders, subject to the terms and conditions set forth therein, of
an aggregate of 8,000,000 shares (the "Initial U.S. Shares") of the Company's
common stock, par value $.01 per share. This Agreement is the U.S. Price
Determination Agreement referred to in the U.S. Purchase Agreement.
<PAGE>
Pursuant to Section 2 of the U.S. Purchase Agreement, the undersigned
agree with the U.S. Representatives as follows:
1. The initial public offering price per share for the Initial
U.S. Shares shall be $_____________.
2. The purchase price per share for the Initial U.S. Shares to be
paid by the several U.S. Underwriters shall be $___________,
representing an amount equal to the initial public offering price set
forth above, less $_______ per share.
The Company and Technologies, jointly and severally, represent and
warrant to each of the U.S. Underwriters that the representations and warranties
of the Company and Technologies set forth in Section 1(a) of the U.S. Purchase
Agreement are accurate as though expressly made at and as of the date hereof.
Additionally, if the Company elects to rely upon Rule 462(b), the
Company represents and warrants to each of the Underwriters that:
(a) the Company has filed a Rule 462(b) Registration Statement
in compliance with and that is effective upon filing pursuant to Rule
462(b) and has received confirmation of its receipt; and
(b) the Company has given irrevocable instruments for
transmission of the applicable filing fee in connection with the filing
of the Rule 462(b) Registration Statement, in compliance with Rule 111
of the 1933 Act Regulations, or the Commission has received payment of
such filing fee.
Each Selling Stockholder, severally and not jointly, represents and
warrants to each of the U.S. Underwriters that the representations and
warranties of such Selling Stockholder set forth in Section 1(b) of the U.S.
Purchase Agreement are accurate as though expressly made at and as of the date
hereof.
This Agreement shall be governed by the laws of the State of New York,
without regard to principles of conflicts of laws.
A-2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company, Technologies and the Selling
Stockholders a counterpart hereof, whereupon this instrument along with all
counterparts and together with the U.S. Purchase Agreement shall be a binding
agreement among the U.S. Underwriters, the Company, Technologies and the Selling
Stockholders in accordance with its terms and the terms of the U.S. Purchase
Agreement.
Very truly yours,
WATERS CORPORATION
By
--------------------------
Name:
Title:
WATERS TECHNOLOGIES CORPORATION
By
--------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 1 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 2 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 3 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
A-3
<PAGE>
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
By: MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By
--------------------------
Name: Karen B. Harris
Title: Vice President
For themselves and as U.S. Representatives of the other
- --------------------------------------------------------
U.S. Underwriters named in Schedule B attached hereto.
- ------------------------------------------------------
A-4
<PAGE>
Exhibit B
Form of Opinion of Kirkland & Ellis Pursuant to
Section 5(b) of the U.S. Purchase Agreement
June ____________, 1996
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
and the other U.S. Underwriters
(as defined below)
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281-1209
MERRILL LYNCH INTERNATIONAL LIMITED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
and the other International Managers
(as defined below)
c/o Merrill Lynch International Limited
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
ENGLAND
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware
corporation (the "Company"), Waters Technologies Corporation, a Delaware
corporation ("Technologies") and certain of the Selling Stockholders, including
Bain Capital Fund IV, L.P., Bain Capital Fund IV-B, L.P., BCIP Associates and
BCIP Trust Associates, L.P. (collectively, the "Bain Capital Entities"), in
connection with the sale, (i) pursuant to the U.S. Purchase Agreement (the "U.S.
<PAGE>
Purchase Agreement") dated June ______________, 1996, among the Company,
Technologies, the selling stockholders named in Schedule A thereto (the "Selling
Stockholders"), and the U.S. underwriters named in Schedule B thereto (the "U.S.
Underwriters"), of 9,200,000 shares by the Selling Stockholders, consisting of
8,000,000 shares (the "Initial U.S. Shares") and 1,200,000 shares (the "U.S.
Option Shares" and, together with the Initial U.S. Shares, the "U.S. Shares"),
of the Company's common stock, par value $0.01 per share ("Common Stock"), and
the related U.S. Price Determination Agreement (the "U.S. Price Determination
Agreement") dated June ______________, 1996 among the Company, Technologies, the
Selling Stockholders and the U.S. Underwriters, and (ii) pursuant to the
International Purchase Agreement (the "International Purchase Agreement") dated
June ____________, 1996 among the Company, Technologies, the Selling
Stockholders and the managers named in Schedule B thereto (the "Managers"), of
2,300,000 shares by the Selling Stockholders, consisting of 2,000,000 shares
(the "Initial International Shares") and 300,000 shares (the "International
Option Shares" and, together with the Initial International Shares, the
"International Shares"), of Common Stock and the related International Price
Determination Agreement (the "International Price Determination Agreement")
dated June ___________, 1996 among the Company, Technologies, the Selling
Stockholders and the Managers. In addition, we have also issued opinions herein
on behalf of all of the Selling Stockholders. The U.S. Purchase Agreement and
the International Purchase Agreement are collectively referred to as the
"Purchase Agreements." The U.S. Price Determination Agreement and the
International Price Determination Agreement are collectively referred to as the
"Price Determination Agreements." The U.S. Underwriters and the Managers are
collectively referred to as the "Underwriters." The U.S. Shares and the
International Shares are collectively referred to as the "Offered Shares."
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the U.S. Purchase Agreement.
We have examined, among other things, the following:
(1) copies of the Registration Statement on Form S-1 (No. 333-3810)
filed by the Company with the Commission on April 19, 1996 for the purpose of
registering the offering of the Offered Shares under the Securities Act, as
amended on May 10, 1996 and __________, 1996, in each case including all
exhibits thereto (as amended to the date hereof, the "Registration Statement");
(2) a copy of the Company's preliminary prospectus dated May 10, 1996
relating to the U.S. Shares and a copy of the Company's final prospectus dated
June __________, 1996, relating to the U.S. Shares (the final U.S. prospectus,
the "U.S. Prospectus");
(3) a copy of the Company's preliminary prospectus dated May 10, 1996
relating to the International Shares, and a copy of the Company's final
prospectus dated June _________, 1996 relating to the International Shares (the
final international prospectus, the "International Prospectus"; together with
the U.S. Prospectus, the "Prospectuses");
B-2
<PAGE>
(4) a copy of each of the Purchase Agreements and the Price
Determination Agreements;
(5) a copy of the Custody Agreement and Power of Attorney, dated as of
April 23, 1996, by and among the Company, the Selling Stockholders, the
Attorneys-in-Fact named therein and The First National Bank of Boston (all such
agreements collectively, the "Custody Agreement and Power of Attorney");
(6) certain letter agreements between certain stockholders of the
Company in favor of the Underwriters (the "Lock-up Agreements");
(7) the Registration Rights Agreement made as of August 18, 1994 by
and among the Company and certain stockholders of the Company (the "Registration
Rights Agreement");
(8) copies of the certificates of incorporation and byaws of the
Company, and Technologies, as amended to date; and
(9) copies of a unanimous written consent signed by each member of the
Board of Directors of the Company on April 16, 1996 and a unanimous written
consent signed by each member of the Board of Directors of Technologies on
_______________, 1996;.
The Purchase Agreements, the Price Determination Agreements, and the
Custody Agreement and Power of Attorney are collectively referred to as the
"Transaction Agreements." The Purchase Agreements, the Price Determination
Agreements and the Custody Agreement and Power of Attorney are collectively
referred to as the "Selling Stockholder Agreements."
In addition, we have examined and relied, to the extent we deemed
proper, on the originals or copies certified or otherwise identified to our
satisfaction of all such corporate or partnership records of the Company and the
Bain Capital Entities and such other instruments and certificates of public
officials, officers and representatives of the Company and the Bain Capital
Entities and other persons, and we have made such investigations of law as we
have deemed appropriate. We have assumed the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as copies, and the
authenticity of the originals of all documents submitted to us as copies. In
our examination, we have assumed the genuineness of the signatures of persons
purportedly signing all documents and instruments, the authority and capacity of
such persons signing on behalf of the parties thereto other than the Company and
the Bain Capital Entities and the due authorization, execution and delivery of
all documents by the parties thereto other than the Company and the Bain Capital
Entities.
As to matters of fact, we have relied (without independent
investigation) upon oral or written statements or representations of officers of
the Company, the Selling Stockholders
B-3
<PAGE>
and the Bain Capital Entities. Nothing has been brought to our attention which
causes us to believe, however, that such statements or representations are
misleading.
To the extent it may be relevant to the opinions expressed herein, (i)
we have assumed that the Power of Attorney and Custody Agreement of each Selling
Stockholder other than the Bain Capital Entities has been duly authorized,
executed and delivered by each party thereto and constitutes a valid and binding
agreement of each party thereto other than such Selling Stockholder and the
Company and (ii) we are relying upon oral advice of the staff of the Securities
and Exchange Commission (the "Commission") that the Commission has issued an
order declaring the Registration Statement effective.
Whenever any statement contained herein with respect to the existence
or absence of facts is indicated to be based on our knowledge or awareness, we
are referring to the actual knowledge of those Kirkland & Ellis attorneys who
have represented the Company and the Bain Capital Entities. Except as expressly
set forth herein, where our opinion is based upon our "knowledge," we have not
undertaken any independent investigation (other than inquiries of senior
officers of the Company and the Bain Capital Entities) to determine the
existence or absence of such facts and no inference as to our knowledge
concerning such facts should be drawn from the fact of our representation of
such entities.
Subject to the foregoing and to the further assumptions, qualifications
and limitations set forth below:
(i) The Company is a corporation validly existing and in good standing
under the General Corporation Law of the State of Delaware with requisite
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and
to enter into and perform its obligations under the Purchase Agreements.
(ii) Each of the Subsidiaries of the Company organized under the laws
of the United States and listed on Schedule A hereto (the "Domestic
Subsidiaries") is a corporation validly existing and in good standing under
the laws of the jurisdiction of its incorporation with requisite corporate
power and authority under such laws to own its properties and conduct its
business as described in the Prospectuses, and is duly qualified to
transact business as a foreign corporation and is in good standing under
the laws of each jurisdiction set forth opposite such Domestic Subsidiary's
name on Schedule A hereto.
(iii) Each of the Company and Technologies has all necessary
corporate power and authority to execute, deliver and perform its
obligations under each of the Transaction Agreements to which it is a
party; each of the Transaction Agreements has been duly authorized,
executed and delivered by each of the Company and Technologies which is a
party thereto; and each of the Transaction Agreements constitutes the valid
and
B-4
<PAGE>
binding obligation of each of the Company and Technologies which is a party
thereto, enforceable against the Company or Technologies, as the case may
be, in accordance with its terms.
(iv) All of the issued and outstanding shares of capital stock of the
Company (including the shares of Common Stock to be sold by the Selling
Stockholders pursuant to the Purchase Agreements) have been duly authorized
and validly issued and are fully paid and non-assessable; and, to our
knowledge, none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
stockholder of the Company. The Company has the authorized capitalization
set forth in the Prospectuses under the caption "Capitalization."
(v) Except as disclosed in the Prospectuses, (a) all of the
outstanding shares of capital stock of each Domestic Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable
and, based solely upon a review of the stock transfer records of such
Domestic Subsidiary, are owned of record by the Company, directly or
through one or more Subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, mortgage or encumbrance of any kind, and
(b) to our knowledge, none of the outstanding shares of capital stock of
the Domestic Subsidiaries was issued in violation of the preemptive or
other similar rights of any stockholder of such Domestic Subsidiaries.
(vi) Except as disclosed in the Prospectuses, to our knowledge, there
are no outstanding options, warrants or other rights calling for issuance
of, and no commitments, obligations, written plans or arrangements to
issue, any shares of capital stock of the Company or any Subsidiary or any
security convertible into or exchangeable for capital stock of the Company
or any Subsidiary.
(vii) The statements made in the Prospectuses under the captions
"Description of Capital Stock" and "Description of Certain Indebtedness"
have been reviewed by us and are accurate and fairly summarize the
agreements or other documents described therein in all material respects.
(viii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than as required under the securities or
blue sky laws of the various states, as to which we express no opinion) is
necessary under any applicable law, statute, rule or regulation that in our
experience is normally applicable to transactions of the type provided for
in the Transaction Agreements in connection with the execution, delivery
and performance of the Transaction Agreements by the Company or
Technologies or for the sale and delivery of the Offered Shares, except
such as have been obtained.
B-5
<PAGE>
(ix) The execution, delivery and performance of the Transaction
Agreements by the Company or Technologies, as the case may be, and the sale
and delivery of the Offered Shares will not result in any violation of the
charter or bylaws of the Company or Technologies and do not and will not
conflict with, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien or encumbrance upon any property or assets of the
Company or Technologies under (a) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument filed as an exhibit to the Registration Statement, (b) any
applicable law, statute, rule, or regulation that in our experience is
normally applicable to transactions of the type provided for in the
Transaction Agreements, or (c) any judgment, order, writ, injunction or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or Technologies or any of
their respective properties, assets or operations described in the
Prospectuses as set forth on a schedule attached hereto (which the Company
has advised us are the only judgments, orders, writs, injunctions or
decrees of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or Technologies or any of
their respective properties or operations, by which the Company or
Technologies is bound). We express no opinion in clause (b) of this
paragraph (ix) with respect to the information contained in, or the
accuracy, completeness or correctness of, the Prospectuses or the
Registration Statement, which matters are dealt with in paragraphs (vii),
(xiv) and our separate letter to the Underwriters dated the date hereof.
(x) We have been advised by the Commission that the Registration
Statement was declared effective under the 1933 Act at __________ Eastern
Time, on June ____________, 1996; the required filing of the Prospectuses
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
have been threatened by the Commission under the 1933 Act.
(xi) To our knowledge, other than as disclosed in the Prospectuses,
there are no legal or governmental proceedings pending or threatened to
which the Company or Technologies is or may be a party or to which any
property of the Company or Technologies is or may be the subject which, if
determined adversely to the Company or Technologies, could, individually or
in the aggregate, reasonably be expected to (x) result in a material
adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise or (y) materially and adversely
affect the execution, delivery and performance by the Company or
Technologies of the Transaction Agreements. To our knowledge, there are no
statutes or regulations, and no legal or governmental actions, suits or
proceedings pending or threatened against the Company or Technologies that
are required to be described in the Prospectuses that are not so described.
B-6
<PAGE>
(xii) To our knowledge, except as set forth in the Prospectus, the
Company and the Subsidiaries are in compliance with, and each such entity
has not received any notice of any outstanding violation of, all laws,
ordinances, rules, regulations, judgments, decrees, orders and statutes
applicable to the Company or any Subsidiary and any of their respective
operations, except, in either case, where any failure by the Company or any
Subsidiary to comply with any such law, regulation, ordinance or rule could
not reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise.
(xiii) To our knowledge, except as set forth in the Prospectuses and
except as provided in the Registration Rights Agreement, there are no
holders of securities (debt or equity) of the Company or any Subsidiary or
holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any Subsidiary
who have the right to request the Company or any Subsidiary to register
securities held by them under the 1933 Act as a result of the filing of the
Registration Statement by the Company or the offering contemplated therein,
other than holders who have waived such rights or will not have such rights
for the 180-day period after the date of the Prospectuses.
(xiv) The statements made in the Prospectuses under the caption
"Certain United States Federal Tax Consequences to Non-United States
Holders" insofar as they constitute federal statutes, rules and
regulations, have been reviewed by us and fairly present the information
disclosed therein in all material respects.
(xv) The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
(xvi) Each of the Bain Capital Entities has the partnership power and
authority to enter into the Selling Stockholder Agreements and to sell,
transfer and deliver the Offered Shares to be sold by it under the Purchase
Agreements. The Selling Stockholder Agreements have been duly authorized,
executed and delivered by or on behalf of each of the Bain Capital Entities
and constitute the valid and binding obligations of each of the Bain
Capital Entities, enforceable against the Bain Capital Entities in
accordance with their terms.
(xvii) The Purchase Agreements and the Price Determination Agreements
have been duly authorized, executed and delivered by or on behalf of each
Selling Stockholder other than the Bain Capital Entities and AEA Investors
Inc. (collectively, the "Minority Stockholders").
B-7
<PAGE>
(xviii) The Custody Agreement and Power of Attorney constitutes the
valid and binding obligation of each Minority Stockholder enforceable
against each Minority Stockholder in accordance with its terms.
(xix) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of the Bain Capital Entities do not
and will not result in a violation of the partnership agreement or
certificate of limited partnership, as applicable, of the Bain Capital
Entities and, to our knowledge, do not and will not conflict with, or
result in a breach of any of the terms and provisions of, or constitute a
default under (A) any statute, rule or regulation relating to any of the
Bain Capital Entities or their legal or regulatory status which in our
experience is normally applicable to transactions of the type provided for
in the Selling Stockholder Agreements, (B) any material judgment, order,
writ, injunction or decree of any court or governmental agency or body,
domestic or foreign, having jurisdiction over any of the Bain Capital
Entities or (C) any material contract, agreement or other instrument listed
on Schedule B hereto to which any of the Bain Capital Entities is a party
or by which any of them are bound.
(xx) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of each Selling Stockholder will not
contravene any provision of the General Corporation Law of the State of
Delaware, the laws of the State of New York or the federal laws of the
United States of America applicable to such Selling Stockholder, provided
that the foregoing opinion is limited to such laws which, in our
experience, are normally applicable to public offerings of securities of
the type contemplated by the Purchase Agreements excluding laws that are
applicable to any Selling Stockholder solely because of its specific status
(including regulatory status), other than its status as a Selling
Stockholder.
(xxi) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General
Corporation Law of the State of Delaware), the State of New York or any
federal governmental body or agency is required for the performance by any
Selling Stockholder of its obligations under the Selling Stockholder
Agreements, except such as have been obtained under the Securities Act or
such as may be required by the securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Shares by the
Underwriters, provided that the foregoing opinion is limited to such
consents, approvals, authorizations, orders or qualification which, in our
experience, are normally applicable to public offerings of securities of
the type contemplated by the Purchase Agreements excluding consents,
approvals, authorizations, orders or qualifications that are applicable to
any Selling Stockholder solely because of its specific status (including
regulatory status), other than its status as a Selling Stockholder.
(xxii) Assuming that the Underwriters purchase the Offered Shares to
be delivered by or on behalf of the Selling Stockholders at the Closing
Time in good faith
B-8
<PAGE>
and without notice of any security interests, claims, liens, equities,
encumbrances and other adverse claims as such term is used in Section 8-302
of the Uniform Commercial Code as in effect in the State of New York, the
delivery of certificates representing such Offered Shares, duly endorsed to
the Underwriters or in blank, will pass to the Underwriters valid title to
such Offered Shares, free and clear of all security interests, claims,
liens, equities, encumbrances and other adverse claims.
Our opinions are subject to the following further qualifications:
(a) Our opinions regarding enforceability are subject to (x) the
effect of bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer or other similar laws, (y) the effect of general
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity), and (z) limitations imposed by federal or
state securities laws on principles of public policy to enforcement of
rights to indemnification and contribution.
(b) Our opinions expressed herein are limited to matters governed by
the federal laws of the United States of America, the laws of the State of
New York and the General Corporation Law of the State of Delaware.
This letter is furnished to you pursuant to Sections 5(b) of the
Purchase Agreements, is solely for your benefit, and is not to be used,
circulated, quoted or otherwise relied upon by any other person or by you for
any other purpose, without our prior written consent.
Very truly yours,
B-9
<PAGE>
Schedule A - Domestic Subsidiaries
----------------------------------
<TABLE>
<CAPTION>
Jurisdiction(s) in which
Jurisdiction of Qualified as a Foreign
Subsidiary Organization Corporation
- ---------- --------------- ---------------------------
<S> <C> <C>
Waters Technologies Delaware California, Colorado,Connecticut,
Corporation Florida, Georgia, Iowa, Indiana,
Kentucky, Maryland,
Massachusetts, Michigan,
Minnesota, Missouri, Montana, New
Jersey, New York, North Carolina,
Ohio, Oregon, Pennsylvania, South
Carolina, Texas, Virginia,
Washington, West Virginia,
Wisconsin
Waters Investments Limited Delaware None
TA Instruments, Inc. Delaware [ ]
</TABLE>
<PAGE>
Schedule B - Material Contracts of the Bain Capital Entities
------------------------------------------------------------
Agreement of Limited Partnership of Bain Capital Fund IV, L.P. ("Fund IV"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV, dated August 28, 1992
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV and Bain
Capital, Inc.
Agreement of Limited Partnership of Bain Capital Fund IV-B, L.P. ("Fund IV-B"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV-B, dated April 6, 1993
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV-B and
Bain Capital, Inc.
Agreement of Limited Partnership of Bain Capital Partners IV, L.P. ("BCP-IV"),
dated April 5, 1993
Certificate of Limited Partnership for BCP-IV, dated August 28, 1992
Certificate of Incorporation of Bain Capital Investors, Inc., dated April 5,
1993
Amended and Restated Partnership Agreement of BCIP Associates dated as of
January 24, 1991
Amended and Restated Limited Partnership Agreement of BCIP Trust Associates
dated as of January 24, 1991
<PAGE>
June _________, 1996
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
and the other U.S. Underwriters
(as defined below)
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281-1209
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
and the other International Managers
(as defined below)
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
ENGLAND
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware corporation
(the "Company") and Waters Technologies Corporation, a Delaware corporation
("Technologies") in connection with (i) the U.S. Purchase Agreement (the "U.S.
Purchase Agreement") dated June _____________, 1996, among the Company,
Technologies, the selling stockholders named in Schedule A thereto (the "Selling
Stockholders"), and the U.S. underwriters named in Schedule B thereto (the "U.S.
Underwriters"), (ii) the related U.S. Price Determination Agreement dated June
___________, 1996 among the Company, Technologies, the Selling
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<PAGE>
Stockholders and the U.S. Underwriters, (iii) the International Purchase
Agreement (the "International Purchase Agreement") dated June ___________, 1996
among the Company, Technologies, the Selling Stockholders and the managers named
in Schedule B thereto, and (iv) the related International Price Determination
Agreement dated June _____________, 1996 among the Company, Technologies, the
Selling Stockholders and the Managers. The U.S. Purchase Agreement and the
International Purchase Agreement are collectively referred to as the "Purchase
Agreements." Capitalized terms used but not defined herein shall have the
meanings given to such terms in the U.S. Purchase Agreement.
Because the primary purpose of our professional engagement was not to
establish factual matters and because of the wholly or partially non-legal
character of many determinations involved in the preparation of (i) the
Registration Statement on Form S-1 (Registration No. 333-3810) and Pre-Effective
Amendments No. 1 and 2 thereto (as amended, the "Registration Statement"), in
each case as filed by the Company with the Securities and Exchange Commission
(the "Commission"), and (ii) the final U.S. prospectus and the final
international prospectus, each dated June _____________, 1996 (collectively, the
"Prospectus") filed by the Company with the Commission on June ____________,
1996, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except to the extent expressly set
forth in paragraphs (vii) and (xiv) of our opinion letter to you of even date
herewith) and make no representation that we have independently verified the
accuracy, completeness or fairness of such statements (except as aforesaid).
However, in our capacity as special counsel to the Company and the Selling
Stockholders, we have participated in the preparation of the Registration
Statement and the Prospectus and we met with and participated in telephone
conferences with representatives of the Company, representatives of AEA
Investors Inc. and Bain Capital, Inc., representatives of Coopers & Lybrand
L.L.P., the Company's independent auditors, your representatives and
representatives of Fried, Frank, Harris, Shriver & Jacobson, your legal counsel,
during which the contents of the Registration Statement and the Prospectuses and
related matters were discussed. In addition, we reviewed certain documents
furnished to us by the Company and the Selling Stockholders.
Based on our participation in the above-mentioned conferences, our review
of the documents described above, our understanding of applicable law and the
experience we have gained in our practice thereunder, we advise you that (i) the
Registration Statement, at the time it became effective, and the Prospectuses
(in each case other than the financial statements and related schedules and
financial data therein, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder except that we express no
opinion in this clause (i) with respect to the matters covered by the following
clause (ii); (ii) although we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except for those referred to in paragraphs (vii)
and (xiv) of our opinion letter to you of even date herewith), on the basis of
our understanding of applicable law and experience we have gained in our
practice thereunder, nothing has come to our attention that would cause us to
believe that, as of their respective effective dates, the
B-2
<PAGE>
Registration Statement (including the Rule 430A Information but excluding the
financial statements and related schedules and financial data therein, as to
which we express no opinion) or any amendment thereto contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
that, as of their dates, the Prospectuses or any amendment or supplement thereto
(other than the financial statements and financial data therein, as to which we
express no opinion) contained an untrue statement of a material fact or omitted
to state a material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading or that, as of the
Closing Time, either the Registration Statement or the Prospectuses (in each
case other than the financial statements and related schedules and financial
data therein, as to which we express no opinion) contains an untrue statement of
a material fact or omits to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading; and (iii) we do not know of any amendment to the Registration
Statement required to be filed or of any contracts or other documents of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or the Prospectus which
are not filed or described as required.
This letter is furnished to you pursuant to Section 5 (b) of each of the
Purchase Agreements, is solely for your benefit, and is not to be used,
circulated, quoted or otherwise relied upon by any other person or by you for
any other purpose, without our prior written consent.
Very truly yours,
B-3
<PAGE>
Exhibit C
Form of Opinion of Christine J. Smith
Pursuant to Section 5(b) of the U.S. Purchase Agreement
June _________, 1996
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Alex. Brown & Sons Incorporated
CS First Boston Corporation
Goldman, Sachs & Co.
As Representatives of the Several U.S. Underwriters
c/o Merrill Lynch, Pierce, Fenner & Smith Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281
Re: Waters Corporation
------------------
Ladies and Gentlemen:
Iam General Counsel of AEA Investors Inc., a Delaware corporation ("AEA"),
and, as such, am generally familiar with the affairs of AEA (the "Selling
Stockholder").
Reference is made to the U.S. Purchase Agreement dated as of June
_________, 1996 (the "U.S. Purchase Agreement") among Waters Corporation (the
"Company"), Waters Technologies Corporation ("Technologies"), the Selling
Stockholders listed in Schedule A thereto (the "Selling Stockholders") and the
several U.S. Underwriters named in Schedule B thereto (the "U.S. Underwriters"),
for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated, Alex. Brown & Sons
Incorporated, CS First Boston Corporation and Goldman, Sachs & Co. are acting as
representatives (the "U.S. Representatives"). This opinion is being delivered
to you today pursuant to Section 5(b) of the U.S. Purchase Agreement.
(Capitalized terms have the meanings given to them in the U.S. Purchase
Agreement.)
In connection with the issuance and sale pursuant to the U.S. Purchase
Agreement by the Selling Stockholder to the U.S. Underwriters of the Company's
common stock, I have examined copies of the Custody Agreement and Power of
Attorney executed by the Selling Stockholder, the U.S. Purchase Agreement, the
U.S. Price Determination Agreement, the International Purchase Agreement and the
International Price Determination Agreement. I have also examined copies of (i)
the Certificate of Incorporation, as amended, of the Selling Stockholder, (ii)
the By-Laws, as amended, of the Selling Stockholder, (iii) certain resolutions
adopted by the Board of
<PAGE>
Directors of the Selling Stockholder and (iv) such other
documents and records as I have deemed necessary and relevant for the purposes
hereof. I have assumed the genuineness of all signatures, the authenticity of
all documents and records submitted to me as originals and the conformity to
authentic original documents and records of all documents and records submitted
to me as copies.
Based on the foregoing, subject to the limitations and assumptions set forth
herein, and having due regard for such legal considerations as I deem relevant,
I am of the opinion that:
(i) AEA has the corporate power and authority to enter into the
Purchase Agreements, the Price Determination Agreements and the Custody
Agreement and Power of Attorney and to sell, transfer and deliver the Offered
Shares sold by AEA under the Purchase Agreements.
(ii) The Custody Agreement and Power of Attorney has been duly
authorized, executed and delivered by or on behalf of AEA and constitutes the
valid and binding obligation of AEA in accordance with its terms subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject to general principles of equity.
(iii) The execution and delivery of the International Purchase
Agreement, the International Price Determination Agreement, the U.S. Purchase
Agreement, the U.S. Price Determination Agreement and the Custody Agreement and
Power of Attorney by or on behalf of AEA, the sale of the Offered Shares by AEA
to the U.S. Underwriters and the Managers, and compliance by AEA with the terms
of the U.S. Purchase Agreement, the International Purchase Agreement and the
Custody Agreement and Power of Attorney have been duly authorized by all
necessary action on the part of AEA and do not and will not result in a
violation of the certificate of incorporation or By-Laws of AEA, and, to the
best of my knowledge without independent investigation, do not and will not
conflict with, or result in a breach of any of the terms and provisions of, or
constitute a default under (A) any statute, rule or regulation relating to AEA
or its legal or regulatory status in each case, that in the experience of such
counsel are normally applicable to the type provided for by the U.S. Purchase
Agreement and the International Purchase Agreement, (B) any material judgment,
order, rule, injunction or regulation of any court or governmental agency or
body, domestic or foreign, having jurisdiction over AEA or any of its respective
properties or (C) any material contract, agreement or other instrument to which
AEA is a party or by which it is bound or to which any of its properties are
subject.
I am a member of the Bar of the State of New York and do not purport to be
an expert on, or render any opinion covering, the law of any jurisdiction other
than the laws of the State of New York, and the federal laws of the United
States of America. With respect to any opinions concerning Delaware corporate
or partnership law involved in my opinion set forth in such paragraph, you are
aware that I am not admitted to the Bar in the State of Delaware and am not an
expert in the law of such jurisdiction, and that any such opinions concerning
Delaware corporate law are based upon my general (although not necessarily
complete) familiarity with the
C-2
<PAGE>
Delaware General Corporation Law as a result of my prior involvement in
transactions involving such Law.
This opinion is being furnished to you solely in connection with the
transaction described above. This opinion may not be relied upon by anyone
other than you, and you may only rely on this opinion in connection with such
transaction.
Very truly yours,
C-3
<PAGE>
EXHIBIT 1.2
DRAFT 5/29/96
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
---------------------------------
June _________, 1996
<PAGE>
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
INTERNATIONAL PURCHASE AGREEMENT
---------------------------------
June _________, 1996
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
As Lead Managers of the several Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Waters Corporation, a Delaware corporation (the "Company" or
"Waters"), Waters Technologies Corporation ("Technologies"), a Delaware
corporation, and the persons listed in Schedule A hereto (the "Selling
Stockholders") confirm their agreement with Merrill Lynch International, Alex.
Brown & Sons Incorporated, CS First Boston Limited and Goldman Sachs
International, and each of the Managers named in Schedule B hereto
(collectively, the "Managers," which term shall also include any managers
substituted as hereinafter provided in Section 11), for whom Merrill Lynch
International, Alex. Brown & Sons Incorporated, CS First Boston Limited and
Goldman Sachs International are acting as lead managers (in such capacity, the
"Lead Managers"), with respect to (i) the sale by the Selling Stockholders and
the purchase by the several Managers, acting severally and not jointly, of an
aggregate of 2,000,000 shares of Common Stock, par value $.01 per share, of the
Company (the "Common Stock"), in the
1
<PAGE>
respective numbers set forth opposite the name of each Selling Stockholder in
Schedule A hereto and (ii) the grant by the Selling Stockholders to the
Managers, acting severally and not jointly, of the option described in Section
2(e) hereof to purchase all or any part of 300,000 additional shares of Common
Stock to cover over-allotments. The 2,000,000 shares of Common Stock (the
"Initial International Shares") and all or any part of the 300,000 shares of
Common Stock subject to the option described in Section 2(e) hereof (the
"International Option Shares") to be purchased by the Managers are collectively
hereinafter called the "International Shares."
It is understood that the Company, Technologies and the Selling
Stockholders are entering into an agreement, dated the date hereof (the "U.S.
Purchase Agreement"), providing for the sale by the Selling Stockholders of
8,000,000 shares of Common Stock (collectively, the "Initial U.S. Shares"),
through arrangements with certain underwriters outside the United States and
Canada (the "U.S. Underwriters" and, together with the Managers, the
"Underwriters"), for whom Merrill Lynch, Pierce, Fenner & Smith Incorporated,
Alex. Brown & Sons Incorporated, CS First Boston Corporation and Goldman, Sachs
& Co. are acting as representatives (the "U.S. Representatives") and the grant
by the Selling Stockholders to the U.S. Underwriters of an option to purchase
all or any part of 1,200,000 shares of Common Stock (the "International Option
Shares") to cover over-allotments. The Initial U.S. Shares and the U.S. Option
Shares are hereinafter called the "U.S. Shares." The 1,500,000 shares of Common
Stock subject to the options described in Section 2(e) hereof are hereinafter
collectively called the "Option Shares." It is understood that the Selling
Stockholders are not obligated to sell, and the Managers are not obligated to
purchase, any Initial International Shares unless all of the Initial U.S. Shares
are contemporaneously purchased by the U.S. Underwriters. The International
Shares and the U.S. Shares are hereinafter collectively referred to as the
"Offered Shares."
The Company, Technologies and the Selling Stockholders understand that
the Managers will simultaneously enter into an agreement with the U.S.
Underwriters dated the date hereof (the "Intersyndicate Agreement") providing
for the coordination of certain transactions among the Managers and the U.S.
Underwriters, under the direction of Merrill Lynch, Pierce, Fenner & Smith
Incorporated.
You have advised us that you and the other Managers, acting severally
and not jointly, desire to purchase the Initial International Shares and, if the
Managers so elect, the International Option Shares, and that you have been
authorized by the other Managers to execute this Agreement and the International
Price Determination Agreement referred to below on their behalf.
The initial public offering price per share for the International
Shares and the purchase price per share for the International Shares to be paid
by the several
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Managers shall be agreed upon by the Selling Stockholders and the Lead Managers,
acting on behalf of the several Managers, and such agreement shall be set forth
in a separate written instrument substantially in the form of Exhibit A hereto
(the "International Price Determination Agreement"). The International Price
Determination Agreement may take the form of an exchange of any standard form of
written telecommunication among the Company, Technologies, the Selling
Stockholders and the Lead Managers and shall specify such applicable information
as is indicated in Exhibit A hereto. The offering of the International Shares
will be governed by this Agreement, as supplemented by the International Price
Determination Agreement. From and after the date of the execution and delivery
of the International Price Determination Agreement, this Agreement shall be
deemed to incorporate, and all references herein to "this Agreement" or "herein"
shall be deemed to include, the International Price Determination Agreement.
The initial public offering price per share and the purchase price per
share for the U.S. Shares to be paid by the U.S. Underwriters pursuant to the
U.S. Purchase Agreement shall be set forth in a separate agreement (the "U.S.
Price Determination Agreement"), the form of which is attached to the U.S.
Purchase Agreement. The purchase price per share for the U.S. Shares to be paid
by the several U.S. Underwriters shall be identical to the purchase price per
share for the International Shares to be paid by the several Managers hereunder.
The Company has prepared and filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-1 (File No.
333-3810) covering the registration of the Offered Shares under the Securities
Act of 1933, as amended (the "1933 Act"), including the related preliminary
prospectuses, and either (A) has prepared and proposes to file, prior to the
effective date of such registration statement, an amendment to such registration
statement, including final prospectuses, or (B) if the Company has elected to
rely upon Rule 430A ("Rule 430A") of the rules and regulations of the Commission
under the 1933 Act (the "1933 Act Regulations"), will prepare and file
prospectuses, in accordance with the provisions of Rule 430A and Rule 424(b)
("Rule 424(b)") of the 1933 Act Regulations, promptly after execution and
delivery of the International Price Determination Agreement. Additionally, if
the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933 Act
Regulations, the Company will prepare and file a term sheet (a "Term Sheet") in
accordance with the provisions of Rule 434 and Rule 424(b). Two forms of
prospectus are to be used in connection with the offering and sale of the
Offered Shares: one relating to the International Shares (the "Form of
International Prospectus") and one relating to the U.S. Shares (the "Form of
U.S. Prospectus"). The Form of U.S. Prospectus is identical to the Form of
International Prospectus, except for the front cover page, the section captioned
"Underwriting" and the back cover page. The information, if any, included in
such prospectuses that was omitted
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from any prospectus included in such registration statement at the time it
becomes effective but that is deemed (a) pursuant to Rule 430A(b) to be part of
such registration statement at the time it becomes effective is referred to
herein as the "Rule 430A Information," and (b) pursuant to Rule 434 to be part
of such registration statement at the time it becomes effective is referred to
herein as the "Rule 434 Information." Each Form of International Prospectus and
Form of U.S. Prospectus used before the time such registration statement becomes
effective, and any Form of International Prospectus and Form of U.S. Prospectus
that omits the Rule 430A Information or the Rule 434 Information, as applicable,
that is used after such effectiveness and prior to the execution and delivery of
the International Price Determination Agreement or the U.S. Price Determination
Agreement, respectively, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto, as amended at the time
it becomes effective and including, if applicable, the Rule 430A Information and
the Rule 434 Information, is herein called the "Original Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and the Original Registration Statement and any Rule 462(b)
Registration Statement are herein referred to collectively as the "Registration
Statement." The Form of International Prospectus and Form of U.S. Prospectus
included in the Original Registration Statement at the time it becomes effective
are herein called the "International Prospectus" and the "U.S. Prospectus,"
respectively, and, collectively, the "Prospectuses" and, individually, a
"Prospectus," except that, (y) if the final International Prospectus or U.S.
Prospectus, as the case may be, first furnished to the Managers or the U.S.
Underwriters after the execution of the International Price Determination
Agreement or the U.S. Price Determination Agreement for use in connection with
the offering of the Offered Shares differs from the prospectuses included in the
Registration Statement at the time it becomes effective (whether or not such
prospectuses are required to be filed pursuant to Rule 424(b)), the terms
"International Prospectus," "U.S. Prospectus," "Prospectuses" and "Prospectus"
shall refer to the final International Prospectus or U.S. Prospectus, as the
case may be, first furnished to the Managers or the U.S. Underwriters, as the
case may be, for such use and (z) if Rule 434 is relied on, the terms
"International Prospectus," "U.S. Prospectus," "Prospectuses" and "Prospectus"
shall refer to the preliminary International Prospectus and/or U.S. Prospectus
last furnished to the Managers and/or U.S. Underwriters, as the case may be, in
connection with the offering of the Offered Shares together with the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the International Prospectus, the U.S. Prospectus or
any Term Sheet, or any amendment or supplement to any of the foregoing, shall be
deemed to include the copy filed with the Commission pursuant to its Electronic
Data Gathering, Analysis and Retrieval system ("EDGAR").
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The Company, Technologies and the Selling Stockholders understand that
the Managers propose to make a public offering of the International Shares as
soon as you deem advisable after the Registration Statement becomes effective
and the International Price Determination Agreement has been executed and
delivered.
Section 1. Representations and Warranties. (a) The Company and
------------------------------
Technologies, jointly and severally, represent and warrant to and agree with
each of the Managers that:
(i) At the time the Registration Statement becomes effective, and
if the Company has elected to rely upon Rule 430A, on the date of the
International Price Determination Agreement, and on the effective or issue
date of each amendment or supplement to the Registration Statement or the
Prospectuses, and at the Closing Time referred to below, and if any
International Option Shares are purchased, up to and including the Date of
Delivery referred to below, (A) the Registration Statement and any
amendments and supplements thereto will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations; (B)
neither the Registration Statement nor any amendment or supplement thereto
will contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; (C) neither of the Prospectuses nor any
amendment or supplement to either of them will include an untrue statement
of a material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which
they were made, not misleading; and (D) if Rule 434 is relied upon, the
Prospectuses shall not be "materially different," as such term is used in
Rule 434, from the prospectuses included in the Registration Statement at
the time it becomes effective. Notwithstanding the foregoing, this
representation and warranty does not apply to statements or omissions from
the Registration Statement or the Prospectuses or any amendments or
supplements thereto made in reliance upon and in conformity with
information furnished or confirmed in writing to the Company by or on
behalf of any Underwriter through you or the U.S. Representatives expressly
for use in the Registration Statement or the Prospectuses or any amendments
or supplements thereto. Each preliminary prospectus and the Prospectuses
delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation
S-T.
(ii) Each of Coopers & Lybrand L.L.P. and Arthur Andersen LLP,
who are reporting upon the audited consolidated financial statements and
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schedules included in the Registration Statement, are independent public
accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) The Company and Technologies have all necessary corporate
power and authority to execute, deliver and perform their respective
obligations under this Agreement, the International Price Determination
Agreement, the U.S. Purchase Agreement and the U.S. Price Determination
Agreement, and this Agreement and the U.S. Purchase Agreement have been,
and the International Price Determination Agreement and the U.S. Price
Determination Agreement on the date thereof will be, duly authorized,
executed and delivered by the Company and Technologies.
(iv) The consolidated financial statements of the Company
included in the Registration Statement and the Prospectuses, together with
the related schedules and notes, present fairly the financial position of
the Company and its Subsidiaries (as hereinafter defined) and their
predecessors as of the dates indicated and the consolidated results of
operations, stockholders' equity and cash flows of the Company and its
Subsidiaries and their predecessors for the periods specified. The
consolidated financial statements of TA Instruments, Inc. ("TAI") included
in the Registration Statement and the Prospectuses, together with the
related schedules and notes, present fairly the financial position of TAI
and its subsidiaries and their predecessors as of the dates indicated and
the consolidated results of operations, stockholders' equity and cash flows
of TAI and its subsidiaries and their predecessors for the periods
specified. The financial statements of the Company and its Subsidiaries
and their predecessors, and of TAI and its subsidiaries and predecessors,
have been prepared in conformity with generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the periods
involved. The financial statement schedules, if any, included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein and have been compiled on a basis
consistent with that of the audited consolidated financial statements
included in the Registration Statement. The selected financial data
included in the Prospectuses present fairly in accordance with GAAP the
information shown therein and have been compiled on a basis consistent with
that of the audited consolidated financial statements included in the
Registration Statement. The pro forma financial statements and other pro
forma financial information included in the Prospectuses present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation
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thereof are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein.
(v) The Company and Technologies are corporations duly
incorporated, validly existing and in good standing under the laws of the
State of Delaware with the requisite corporate power and authority under
such laws to own, lease and operate their respective properties and to
conduct their respective business as described in the Prospectuses and to
enter into and perform its obligations under this Agreement, the
International Price Determination Agreement, the U.S. Purchase Agreement
and the U.S. Price Determination Agreement; and the Company is duly
qualified to transact business as a foreign corporation and is in good
standing in each other jurisdiction in which it owns or leases property of
a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the condition (financial and otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(vi) The Company's only direct and indirect subsidiaries are
listed on Schedule C hereto (collectively, the "Subsidiaries"). The
Company's only subsidiaries which had, at December 31, 1995, assets in
excess of 5% of the consolidated assets of the Company and its
subsidiaries, considered as one enterprise, or had, for the twelve months
then ended, net sales in excess of 5% of the consolidated net sales of the
Company and its subsidiaries, considered as one enterprise, for such period
are listed on Schedule D hereto (collectively, "Material Subsidiaries").
For purposes of the definition of "Material Subsidiary", any subsidiary or
assets acquired after December 31, 1995 shall be deemed to have been
acquired as of January 1, 1995. Each Material Subsidiary is a corporation
duly incorporated, validly existing and in good standing under the laws of
the jurisdiction of its incorporation with the requisite corporate power
and authority under such laws to own, lease and operate its properties and
conduct its business as described in the Prospectuses; and each Material
Subsidiary is duly qualified to transact business as a foreign corporation
and is in good standing in each other jurisdiction in which it owns or
leases property of a nature, or transacts business of a type, that would
make such qualification necessary, except to the extent that the failure to
so qualify or be in good standing would not have a material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise. Except as disclosed in the Prospectuses, all of the
outstanding shares of capital stock of each Material Subsidiary have been
duly authorized and validly issued and are fully paid and non-assessable,
and are owned by the Company,
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directly or through one or more Material Subsidiaries, free and clear of
any pledge, lien, security interest, charge, claim, mortgage or encumbrance
of any kind; and none of the outstanding shares of capital stock of the
Material Subsidiaries was issued in violation of the preemptive or other
similar rights of any stockholder of such corporation.
(vii) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectuses in the column entitled
"Actual" under the caption "Capitalization," and the Offered Shares will
conform in all material respects to the description thereof contained under
the caption "Description of Capital Stock" in the Prospectuses.
(viii) The Offered Shares to be sold pursuant to this Agreement
and the U.S. Purchase Agreement have been duly authorized by the Company
and are validly issued, fully paid and non-assessable; and such Offered
Shares are not subject to the preemptive or other similar rights of any
stockholder of the Company.
(ix) Except as disclosed in the Prospectuses, there are no
outstanding options, warrants or other rights calling for issuance of, and
no commitments, obligations, plans or arrangements to issue, any shares of
capital stock of the Company or any of its Subsidiaries or any security
convertible into or exchangeable for capital stock of the Company or any of
its Subsidiaries.
(x) All of the issued and outstanding shares of capital stock of
the Company, including the Offered Shares to be sold by the Selling
Stockholders pursuant to this Agreement and the U.S. Purchase Agreement,
have been duly authorized and validly issued and are fully paid and non-
assessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other similar rights
of any stockholder of the Company.
(xi) Except as described in the Prospectuses, since the
respective dates as of which information is given in the Registration
Statement and the Prospectuses, there has not been (A) any material adverse
change in the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, whether or not arising in the ordinary course
of business, (B) any transaction entered into by the Company or any
Subsidiary, other than in the ordinary course of business, that is material
to the Company and its Subsidiaries, considered as one enterprise, or (C)
any dividend or distribution of any kind declared, paid or made by the
Company or Technologies on any class of its respective capital stock.
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(xii) Neither the Company nor any Material Subsidiary is in
violation of its charter or by-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition contained in
any contract, indenture, mortgage, deed of trust, loan or credit agreement,
note, lease or other agreement or instrument to which it is a party or by
which it is bound or to which any of its properties or assets is subject,
except as disclosed in the Prospectuses and except for such defaults that
would not in the aggregate have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one enterprise. The
execution, delivery and performance of this Agreement, the International
Price Determination Agreement, the U.S. Purchase Agreement, the U.S. Price
Determination Agreement and the Custody Agreements and Powers of Attorney
among the Company, each of the Selling Stockholders, The First National
Bank of Boston, as Depositary and the Attorneys-in-Fact named therein, as
Attorneys-in-Fact for the Selling Stockholders (all such agreements
collectively, the "Custody Agreement and Power of Attorney"), by the
Company or Technologies, as the case may be, the consummation of the
transactions contemplated in this Agreement, the U.S. Purchase Agreement
and the Registration Statement and compliance by the Company or
Technologies, as the case may be, with the foregoing have been duly
authorized by all necessary corporate action on the part of the Company or
Technologies, as the case may be, and do not and will not result in any
violation of the charter or by-laws of the Company or any Material
Subsidiary, and do not and will not conflict with, or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, or result in the creation or imposition of any lien or encumbrance
upon any property or assets of the Company or any Material Subsidiary under
(A) any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, lease or other agreement or instrument to which the
Company, or any Material Subsidiary is a party or by which any of them is
bound or to which any of their respective properties or assets are subject,
or (B) any applicable law, statute, rule, regulation, judgment, order,
writ, injunction or decree of any government, governmental instrumentality
or court, domestic or foreign, having jurisdiction over the Company or any
Material Subsidiary or any of their respective properties, assets or
operations, except for conflicts, breaches, violations, defaults, liens or
encumbrances under clause (A) or (B) which would not have, individually or
in the aggregate, a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise.
(xiii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
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instrumentality or court (other than as required under the 1933 Act, the
1934 Act, the 1933 Act Regulations, the 1934 Act Regulations and the
securities or blue sky laws of the various states in connection with the
sale of the Offered Shares) is necessary in connection with the due
authorization, execution, delivery and performance of this Agreement, the
International Price Determination Agreement, the U.S. Purchase Agreement,
the U.S. Price Determination Agreement and the Custody Agreement and Power
of Attorney by the Company or Technologies, as the case may be, for the
sale and delivery of the Offered Shares or the consummation by the Company
and Technologies of the transactions contemplated in this Agreement and the
U.S. Purchase Agreement except such as have been obtained.
(xiv) Except as disclosed in the Prospectuses, there is no
action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the
knowledge of the Company, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Registration
Statement or Prospectuses.
(xv) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectuses or to be
filed as exhibits to the Registration Statement that are not so described
or filed (including filings deemed made by incorporation by reference).
(xvi) The Company and each of its Material Subsidiaries are in
compliance with, and each such entity has not received any notice of any
outstanding violation of, all laws, ordinances, rules, regulations,
judgments, decrees, orders and statutes applicable to it and its operations
except, in either case, where any failure by the Company or any Material
Subsidiary to comply with any such law, regulation, ordinance or rule would
not have, individually or in the aggregate, a material adverse effect on
the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xvii) The Company and each of its Material Subsidiaries have
good and marketable title to all properties and assets owned by them, free
and clear of all liens, encumbrances or restrictions, except such as (A)
are described in the Prospectuses or (B) do not materially impair or
interfere with the current use made of such properties or (C) are neither
material in amount nor materially significant, in each case in relation to
the business of the Company and its Subsidiaries, considered as one
enterprise; all of the leases and subleases material to the businesses of
the Company and its Subsidiaries, considered as one enterprise, and
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under which the Company or any Material Subsidiary holds properties
described in the Prospectuses, are in full force and effect except to the
extent that such failure would not have, individually or in the aggregate,
a material adverse effect on the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise and, except as disclosed in the
Prospectuses, neither the Company nor any Material Subsidiary has received
any notice of any claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any Material Subsidiary under any
of the leases or subleases mentioned above or affecting or questioning the
rights of the Company or any Material Subsidiary to the continued
possession of the leased or subleased premises under any such lease or
sublease, which claims, in the aggregate, might be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xviii) The Company and each of its Material Subsidiaries own or
possess all foreign and domestic governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
(collectively, "Governmental Licenses") necessary to own or lease, as the
case may be, and to operate its properties and to carry on its business as
presently conducted, except where the failure to own or possess such
Governmental Licenses could not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the
failure of such Governmental Licenses to be in full force and effect would
not have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise; and neither the Company
nor any Material Subsidiary has received any notice of proceedings relating
to revocation or modification of any such Governmental Licenses that,
singly or in the aggregate, could reasonably be expected to have,
individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise.
(xix) The Company and each of its Material Subsidiaries own or
possess, or can acquire on reasonable terms, adequate foreign and domestic
patents, patent rights, licenses, trademarks, service marks, trade names,
inventions, copyrights and know-how (including trade secrets and other
unpatented and/or
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unpatentable proprietary or confidential information, systems or
procedures) (collectively, "intellectual property") necessary to carry on
their businesses as presently conducted except to the extent that the
failure to obtain such intellectual property could reasonably be expected
to have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise, and neither the Company nor any of its Material Subsidiaries
has received any notice of any infringement of or conflict with asserted
rights of others with respect to any intellectual property which would
render any intellectual property invalid or inadequate to protect the
interest of the Company or any Material Subsidiaries therein and which
infringement or conflict, singly or in the aggregate, could reasonably be
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise.
(xx) The Company and each of its Material Subsidiaries comply
with all Environmental Laws (as defined below) except to the extent that
failure to comply with such Environmental Laws would not have, individually
or in the aggregate, a material adverse effect on the condition (financial
or otherwise), earnings, business affairs or business prospects of the
Company and its Subsidiaries, considered as one enterprise. Except as
disclosed in the Prospectuses, neither the Company nor any of its Material
Subsidiaries (i) is the subject of any pending or, to the knowledge of the
Company, threatened federal, state or local investigation evaluating
whether any remedial action by the Company or any Material Subsidiary is
needed to respond to a release of any Hazardous Materials (as defined
below) into the environment, resulting from the Company's or any of its
Material Subsidiaries' business operations or ownership or possession of
any of their properties or assets or (ii) is in contravention of any
Environmental Laws that, in the case of (i) or (ii), might be expected to
have, individually or in the aggregate, a material adverse effect on the
condition (financial or otherwise), earnings, business affairs or business
prospects of the Company and its Subsidiaries, considered as one
enterprise. Neither the Company nor any Material Subsidiary has received
any notice or claim, nor are there pending or, to the knowledge of the
Company, threatened lawsuits against them, with respect to violations of an
Environmental Law or in connection with any release of any Hazardous
Material into the environment that, individually or in the aggregate, are
expected to have a material adverse effect on the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company
and its Subsidiaries, considered as one enterprise. As used herein,
"Environmental Laws" means any foreign, federal, state or local law or
regulation applicable to the Company's or any of its Material Subsidiaries'
business
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operations or ownership or possession of any of their properties or assets
relating to environmental matters, and "Hazardous Materials" means those
substances that are regulated by or form the basis of liability under any
Environmental Laws.
(xxi) No labor dispute exists with the Company's employees or
with employees of its Material Subsidiaries or, to the knowledge of the
Company, is imminent that could reasonably be expected to materially and
adversely affect the condition (financial or otherwise), earnings, business
affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise; the Company is not aware of any existing or
imminent labor disturbance by the employees of its principal suppliers
which could reasonably be expected to result in any material adverse effect
on the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company and its Subsidiaries, considered as one
enterprise; and the Company is in compliance with all applicable federal,
state, and local laws relating to the payment of wages to employees
(including, without limitation, the Fair Labor Standards Act, as amended),
except insofar as the failure to comply with such laws would not reasonably
be expected to result in any material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business prospects
of the Company and its Subsidiaries, considered as one enterprise.
(xxii) Neither the Company nor any of its affiliates has taken
or will take, directly or indirectly, any action designed to, or that might
reasonably be expected to, cause or result in stabilization or manipulation
of the price of the Common Stock; and neither the Company nor any of its
affiliates has distributed or will distribute any prospectus (as such term
is defined in the 1933 Act and the 1933 Act Regulations) in connection with
the offering and sale of the Offered Shares other than any preliminary
prospectus filed with the Commission or the Prospectuses or other material
permitted by the 1933 Act or the 1933 Act Regulations.
(xxiii) All United States federal income tax returns of the
Company and the Material Subsidiaries required by law to be filed have been
filed and all taxes shown by such returns or otherwise assessed, which are
due and payable, have been paid, except for such taxes or tax assessments,
if any, as are being contested in good faith and as to which adequate
reserves, to the extent required by GAAP, have been provided. All other
tax returns (including franchise and income tax returns) of the Company and
the Material Subsidiaries required to be filed pursuant to applicable
foreign, state or local law have been filed, except insofar as the failure
to file such returns would not have, individually or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
earnings, business
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affairs or business prospects of the Company and its Subsidiaries,
considered as one enterprise, and all taxes shown on such returns or
otherwise assessed which are due and payable have been paid, except for
such taxes or tax assessments, if any, as are being contested in good faith
and as to which adequate reserves, to the extent required by GAAP, have
been provided. The charges, accruals and reserves on the books of the
Company and the Material Subsidiaries in respect of any income and
corporate franchise tax liability for any years not finally determined or
with respect to which the applicable statute of limitations has not expired
are believed to be adequate to meet any assessments or re-assessments for
additional income or corporate franchise tax for any years not finally
determined.
(xxiv) The Company has obtained the written agreements of each
Selling Stockholder, executive officer, and director, certain other members
of management of the Company and certain other stockholders of the Company,
in the forms previously furnished to you, that, for a period of 90 days (in
the case of Selling Stockholders and certain members of management of the
Company) or 75 days (in the case of executive officers, non-selling
directors, certain other members of management of the Company and certain
other stockholders of the Company), such parties will not, without the
prior written consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated
("Merrill Lynch") on behalf of the Underwriters, directly or indirectly,
sell, offer to sell, grant any option for the sale of, or otherwise dispose
of, or exercise any registration rights with respect to, any shares of
Common Stock or securities or rights convertible into or exercisable or
exchangeable for Common Stock other than the sale of the Offered Shares
pursuant to this Agreement and the U.S. Purchase Agreement. The Company
has waived, and has obtained the written waivers by the holders of a
majority of each of the AEA Registrable Securities and the Bain Registrable
Securities (as such terms are defined in the Registration Rights Agreement,
dated as of August 18, 1994, among the Company and certain of its
stockholders (the "Registration Rights Agreement")) of, any and all of
their respective rights under each of Sections 1(a) (in connection with
their right to receive written notice) and 2(e) (in connection with the
restriction on a registered offering by the Company within six months of
another registered offering) under the Registration Rights Agreement.
(xxv) There are no holders of securities (debt or equity) of the
Company or any of the Subsidiaries, or holders of rights (including,
without limitation, preemptive rights), warrants or options to obtain
securities of the Company or its Subsidiaries, who have the right to
request the Company or any of the Subsidiaries to register securities held
by them under the 1933 Act, other than holders who have waived such rights
or will not have such rights for the 180 days after the date hereof.
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(xxvi) The Company and its Subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurance
that (i) transactions are executed in accordance with management's general
and specific authorizations; (ii) transactions are recorded as necessary to
permit preparations of financial statements in conformity with GAAP and to
maintain accountability for assets; (iii) access to assets is permitted
only in accordance with management's general or specific authorizations;
and (iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate action is taken
with respect to any differences.
(xxvii) Neither the Company nor any of its Subsidiaries is an
investment company or is controlled by an investment company or investment
companies within the meaning of the Investment Company Act of 1940, as
amended.
(xxviii) The Company has all necessary corporate power and
authority to execute, deliver and perform its obligations under the Custody
Agreement and Power of Attorney; and the Custody Agreement and Power of
Attorney has been duly authorized, executed and delivered by the Company
and constitutes the valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, except as
enforcement thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws relating to or affecting enforcement
of creditors' rights generally or by general principles of equity.
(b) Each Selling Stockholder, severally and not jointly, represents
and warrants to, and agrees with, each of the Managers as follows:
(i) At the time the Registration Statement becomes effective, and
at all times subsequent thereto up to the Closing Time, and, if any
International Option Shares are purchased, up to the Date of Delivery, (A)
the information furnished in writing by or on behalf of such Selling
Stockholder expressly for use in the Registration Statement and any
amendments and supplements thereto do not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements regarding such Selling
Stockholder therein not misleading and (B) the information furnished in
writing by or on behalf of such Selling Stockholder expressly for use in
the Prospectuses do not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
regarding such Selling Stockholder therein, in the light of the
circumstances under which they were made, not misleading.
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(ii) Such Selling Stockholder has full right, power and authority
to execute, deliver and perform its obligations under this Agreement, the
U.S. Purchase Agreement, the International Price Determination Agreement,
the U.S. Price Determination Agreement and the Custody Agreement and Power
of Attorney, and to sell, transfer and deliver the Offered Shares pursuant
to this Agreement; and this Agreement, the U.S. Purchase Agreement and the
Custody Agreement and Power of Attorney have been, and the International
Price Determination Agreement and the U.S. Price Determination Agreement on
the date thereof will be, duly authorized, executed and delivered by or on
behalf of such Selling Stockholder and a valid and binding agreement of
such Selling Stockholder, enforceable against such Selling Stockholder in
accordance with its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws relating to or
affecting enforcement of creditors' rights generally or by general
principles of equity.
(iii) There is no action, suit or proceeding before or by any
government, governmental instrumentality or court, domestic or foreign, now
pending or, to the knowledge of such Selling Stockholder, threatened, to
which such Selling Stockholder is or would be a party or of which the
property of such Selling Stockholder is or may be subject, that (i) seeks
to restrain, enjoin, prevent the consummation of or otherwise challenge the
sale of Offered Shares by such Selling Stockholder or any of the other
transactions contemplated hereby or (ii) questions the legality or validity
of any such transactions or seeks to recover damages or obtain other relief
in connection with any such transactions.
(iv) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than under the 1933 Act and the 1933 Act
Regulations and the securities or blue sky laws of the various states in
connection with the sale of the Offered Shares), domestic or foreign, is
required by reason of facts specifically pertaining to such Selling
Stockholder or its legal or regulatory status in connection with the due
authorization, execution and delivery by such Selling Stockholder of this
Agreement, the U.S. Purchase Agreement, the International Price
Determination Agreement, the U.S. Price Determination Agreement or the
Custody Agreement and Power of Attorney and the valid sale and delivery of
the Offered Shares to be sold by such Selling Stockholder hereunder and
thereunder.
(v) The execution, delivery and performance of this Agreement,
the U.S. Purchase Agreement, the International Price Determination
Agreement, the U.S. Price Determination Agreement and the Custody Agreement
and Power of
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Attorney by such Selling Stockholder, the sale of the Offered Shares by
such Selling Stockholder hereunder and thereunder, the consummation by such
Selling Stockholder of the transactions herein and therein contemplated and
the compliance by such Selling Stockholder with all the provisions of this
Agreement, the U.S. Purchase Agreement, the International Price
Determination Agreement, the U.S. Price Determination Agreement and the
Custody Agreement and Power of Attorney will not result in a violation of
the charter or bylaws of such Selling Stockholders which are corporations
or the partnership agreement or certificate of limited partnership, if
applicable, of such Selling Stockholders which are partnerships and will
not conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any material agreement or
instrument to which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, nor will such action result in any violation
of the provisions of any statute relating to such Selling Stockholders or
its legal or regulatory status or any judgment, order, rule or regulation
of any court or governmental agency or body having jurisdiction over such
Selling Stockholder.
(vi) Such Selling Stockholder has, and will at the Closing Time
have, and, if any International Option Shares or U.S. Option Shares are
purchased, will on the Date of Delivery have, valid and marketable title to
the Offered Shares to be sold by the Selling Stockholder pursuant to this
Agreement and the U.S. Purchase Agreement, free and clear of any pledge,
lien, security interest, charge, claim, equity or encumbrance of any kind;
and, at the Closing Time and, if any Option Shares are purchased, at the
Date of Delivery, upon delivery of the Offered Shares to be sold by such
Selling Stockholder and payment of the purchase price therefor as
contemplated in this Agreement and the U.S. Purchase Agreement, each of the
Underwriters will receive good and marketable title to the Offered Shares
purchased by it from such Selling Stockholder, free and clear of any
pledge, lien, security interest, charge, claim, equity or encumbrance of
any kind.
(vii) Certificates for all of the Offered Shares to be sold by
such Selling Stockholder pursuant to this Agreement and the U.S. Purchase
Agreement, in suitable form for transfer by delivery or accompanied by duly
executed instruments of transfer or assignment in blank with signatures
guaranteed, have been placed in custody with The First National Bank of
Boston for delivery to the Managers pursuant to this Agreement and the U.S.
Underwriters pursuant to the U.S. Purchase Agreement.
(viii) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to, or that might reasonably be
expected to, cause or result in stabilization or manipulation of the price
of the Common
17
<PAGE>
Stock; and such Selling Stockholder has not distributed and will not
distribute any prospectus (as such term is defined in the 1933 Act and the
1933 Act Regulations) in connection with the offering and sale of the
Offered Shares other than any preliminary prospectus filed with the
Commission or the Prospectuses or other material permitted by the 1933 Act
or the 1933 Act Regulations.
(c) Any certificate signed by any officer of the Company and delivered
to you or to Fried, Frank, Harris, Shriver & Jacobson as counsel for the
Underwriters at or prior to the Closing Time pursuant to this Agreement or the
transactions contemplated hereby shall be deemed a representation and warranty
by the Company to each Manager as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholders as such and
delivered to you or to counsel for the Underwriters at or prior to the Closing
Time pursuant to the terms of this Agreement or the transactions contemplated
hereby shall be deemed a representation and warranty by such Selling
Stockholders to each Manager, as to the matters covered thereby.
Section 2. Sale and Delivery to the U.S. Underwriters; Closing. (a)
---------------------------------------------------
On the basis of the representations and warranties herein contained, and subject
to the terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Manager, severally and not jointly,
and each Manager agrees, severally and not jointly, to purchase from each
Selling Stockholder, at the purchase price per share set forth in the
International Price Determination Agreement, that proportion of the number of
Initial International Shares being sold by each such Selling Stockholder set
forth on Schedule A opposite the name of each such Selling Stockholder which the
number of Initial International Shares set forth in Schedule B opposite the name
of such Manager (plus such additional number of Initial International Shares
that such Manager may become obligated to purchase pursuant to Section 11
hereof) bears to the total number of Initial International Shares, subject, in
each case, to such adjustments as the Managers in their discretion shall make to
eliminate any sales or purchases of fractional shares.
(b) If the Company has elected not to rely upon Rule 430A, the public
offering price per share for the Initial International Shares and the purchase
price per share for the Initial International Shares to be paid by the several
Managers shall be agreed upon and set forth in the International Price
Determination Agreement, dated the date hereof, and an amendment to the Original
Registration Statement containing such per share price information will be filed
before the Original Registration Statement becomes effective.
(c) If the Company has elected to rely upon Rule 430A, the public
offering price per share for the Initial International Shares and the purchase
price per share for the Initial International Shares to be paid by the several
Managers shall be
18
<PAGE>
agreed upon and set forth in the International Price Determination Agreement. In
the event that the International Price Determination Agreement has not been
executed by the close of business on the fourteenth business day following the
later of the date on which the Original Registration Statement and any Rule
462(b) Registration Statement becomes effective, this Agreement shall terminate
forthwith, without liability of any party to any other party except that
Sections 7, 8 and 9 shall remain in effect.
(d) In addition, on the basis of the representations, warranties and
covenants herein contained, and subject to the terms and conditions herein set
forth, the Selling Stockholders hereby grant an option to the Underwriters,
severally and not jointly, to purchase up to the additional number of Option
Shares set forth opposite such Selling Stockholder's name in the appropriate
column of Schedule A, or 1,500,000 shares of Common Stock in the aggregate, at
the same purchase price per share as shall be applicable to the Initial
International Shares, of which 300,000 shares shall be the pro rata portion of
the Managers and 1,200,000 shares shall be the pro rata portion of the U.S.
Underwriters. The option hereby granted to the Managers will expire 30 days
after the later of the date upon which the Original Registration Statement and
any Rule 462(b) Registration Statement becomes effective or, if the Company has
elected to rely upon Rule 430A, the date of the International Price
Determination Agreement, and may be exercised in whole or from time to time in
part only for the purpose of covering over-allotments that may be made in
connection with the offering and distribution of the Initial Shares upon notice
by you and the U.S. Representatives to the Company setting forth the number of
Option Shares as to which the several Managers are exercising the option, and
the time and date of payment and delivery thereof. Such time and date of
delivery (the "Date of Delivery") shall be determined by you but shall not be
later than three or four full business days after the exercise of such option,
nor in any event prior to the Closing Time, unless otherwise agreed by Merrill
Lynch and the Company. If the option is exercised as to all or any portion of
the Option Shares, the International Option Shares as to which the option is
exercised shall be purchased by the Managers, severally and not jointly, in the
respective proportions that bear the same relationship to the number of
International Option Shares to be purchased at the Date of Delivery as the
number of Initial International Shares set forth opposite the name of each
Manager in Schedule B hereto bears to the total number of Initial International
Shares (such proportions are hereinafter referred to as each Manager's
"underwriting obligation proportions").
(e) Payment of the purchase price for, and delivery of certificates
for, the Initial International Shares shall be made at the offices of Fried,
Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New York 10004,
or at such other place as shall be agreed upon by the Company, the Selling
Stockholders and you, at 10:00 A.M. either (i) on the third or fourth full
business day after the later of the effective date of the
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<PAGE>
Original Registration Statement and any Rule 462(b) Registration Statement (in
either case, as permitted under Rule 15c6-1 under the Securities Exchange Act of
1934, as amended (the "1934 Act")), or (ii) if the Company has elected to rely
upon Rule 430A, on the third or fourth full business day after execution of the
International Price Determination Agreement (as permitted under Rule 15c6-1
under the 1934 Act) (unless, in either case, postponed pursuant to Section 11 or
12), or at such other time not more than ten full business days thereafter as
you, the Company and the Selling Stockholders shall determine (such date and
time of payment and delivery being herein called the "Closing Time"). In
addition, in the event that any or all of the International Option Shares are
purchased by the Managers, payment of the purchase price for, and delivery of
certificates for, such International Option Shares shall be made at the offices
of Fried, Frank, Harris, Shriver & Jacobson, One New York Plaza, New York, New
York 10004, or at such other place as the Selling Stockholders and you shall
determine, on the Date of Delivery as specified in the notice from you to the
Selling Stockholders. Payment shall be made to the Selling Stockholders by
certified or official bank check or checks in New York Clearing House funds
payable to the order of the Selling Stockholders (or such other person as may be
designated pursuant to the Custody Agreement and Power of Attorney), as the case
may be, against delivery to you for the respective accounts of the several
Managers of certificates for the International Shares to be purchased by them.
(f) Certificates for the Initial International Shares and
International Option Shares to be purchased by the Managers shall be in such
denominations and registered in such names as you may request in writing at
least one business day before the Closing Time or the Date of Delivery, as the
case may be. The certificates for the Initial International Shares and
International Option Shares will be made available in New York City for
examination and packaging by you not later than 10:00 A.M. on the business day
prior to the Closing Time or the Date of Delivery, as the case may be.
(g) It is understood that each Manager has authorized you, for its
account, to accept delivery of, receipt for, and make payment of the purchase
price for, the International Shares that it has agreed to purchase. You,
individually and not as Lead Managers, may (but shall not be obligated to) make
payment of the purchase price for the Initial International Shares or
International Option Shares to be purchased by any Managers whose check or
checks shall not have been received by the Closing Time or the Date of Delivery,
as the case may be.
(h) The several and not joint obligations of the Selling Stockholders
to sell to each Manager the Initial International Shares and the International
Option Shares and the several and not joint obligations of the Managers to
purchase and pay for the International Shares, upon the terms and subject to the
conditions of this Agreement, are
20
<PAGE>
subject to the concurrent closing of the sale of the U.S. Shares to the U.S.
Underwriters pursuant to the terms of the U.S. Purchase Agreement.
Section 3. Certain Covenants of the Company. The Company covenants
--------------------------------
with each U.S. Underwriter as follows:
(a) The Company will use its best efforts to cause the Registration
Statement to become effective and, if the Company elects to rely upon Rule 430A
and subject to Section 3(b), will comply with the requirements of Rule 430A and
will notify you promptly, (i) when the Registration Statement, or any post-
effective amendment to the Registration Statement, shall have become effective,
or any supplement to the Prospectuses or any amended Prospectuses shall have
been filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission to amend the Registration Statement, to amend or
supplement any Prospectus or for additional information and (iv) of the issuance
by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the Offered
Shares for offering or sale in any jurisdiction, or of the institution or
threatening of any proceedings for any of such purposes. The Company will make
every reasonable effort to prevent the issuance of any such stop order or of any
order preventing or suspending such use and, if any such order is issued, to
obtain the lifting thereof at the earliest possible moment. If the Company
elects to rely on Rule 434 under the 1933 Act Regulations, the Company will use
a term sheet that complies with the requirements of Rule 434 under the 1933 Act
Regulations. If the Company elects not to rely on Rule 434, the Company will
provide the Managers with copies of the International Prospectus, in such number
as the Managers may reasonably request, and file or transmit for filing with the
Commission such International Prospectus in accordance with Rule 424(b) of the
1933 Act Regulations by the close of business in New York on the business day
immediately succeeding the date of the International Price Determination
Agreement. If the Company elects to rely on Rule 434 of the 1933 Act
Regulations, the Company will provide the Managers with copies of the term sheet
and the remainder of the International Prospectus, in such number as the
Managers may reasonably request, and file or transmit for filing with the
Commission an International Prospectus complying with Rule 434(c)(2) of the 1933
Act Regulations in accordance with Rule 424(b) of the 1933 Act Regulations by
the close of business in New York or the business day immediately succeeding the
date of the International Price Determination Agreement. If the Company uses
Rule 434, the Prospectuses will not be "materially different," as such term is
used in Rule 434, from the prospectuses included in the Registration Statement
at the time it becomes effective.
21
<PAGE>
(b) The Company will not at any time file or make any amendment to the
Registration Statement (including any filing under Rule 462(b)), file a Term
Sheet or file or make any amendment or supplement (i) if the Company has not
elected to rely upon Rule 430A, to the Prospectuses or (ii) if the Company has
elected to rely upon Rule 430A, to either of the prospectuses included in the
Original Registration Statement at the time it becomes effective or to the
Prospectuses, of which you shall not have previously been advised and furnished
a copy or to which you or Fried, Frank, Harris, Shriver & Jacobson as counsel
for the Managers shall have reasonably objected.
(c) The Company has furnished or will furnish to you and your counsel,
without charge, one signed copy of the Registration Statement as originally
filed and of all amendments thereto (including exhibits filed therewith),
whether filed before or after the Registration Statement becomes effective, and
copies of all exhibits and documents filed therewith, and signed copies of all
accountants consents and certificates of experts, if any, and has furnished or
will furnish to you, for each other Manager, one conformed copy of the
Registration Statement as originally filed and each amendment thereto. If
applicable, the copies of the Registration Statement and each amendment thereto
furnished to the Managers will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to EDGAR, except to the extent
permitted by Regulation S-T.
(d) The Company will deliver to each Manager, without charge, from
time to time until the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement (or, if the Company has
elected to rely upon Rule 430A, until the time the International Price
Determination Agreement is executed and delivered), as many copies of each
preliminary prospectus as such Manager may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by the 1933
Act. The Company will deliver to each Manager, without charge, as soon as the
Registration Statement shall have become effective (or, if the Company has
elected to rely upon Rule 430A, as soon as practicable after the International
Price Determination Agreement has been executed and delivered) and thereafter
from time to time as requested during the period when the Prospectuses are
required to be delivered under the 1933 Act, such number of copies of the
Prospectuses (as supplemented or amended) as such Manager may reasonably
request.
(e) The Company will comply to the best of its ability with the 1933
Act and the 1933 Act Regulations, and the 1934 Act and the rules and regulations
of the Commission thereunder (the "1934 Act Regulations") so as to permit the
completion of the distribution of the Offered Shares as contemplated in this
Agreement, the U.S. Purchase Agreement and the Prospectuses. If at any time
when a prospectus is required
22
<PAGE>
by the 1933 Act to be delivered in connection with sales of the Offered Shares
any event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Managers, to amend the Registration Statement
or amend or supplement any Prospectus in order that the Prospectuses will not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement any Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the Prospectuses
comply with such requirements.
(f) The Company will use its best efforts, in cooperation with the
Managers, to qualify the Offered Shares for offering and sale under the
applicable securities laws of such states and other jurisdictions as you may
designate and to maintain such qualifications in effect for a period of not less
than one year from the later of the effective date of the Original Registration
Statement and any Rule 462(b) Registration Statement; provided, however, that
-------- -------
neither the Company nor any Subsidiary shall be obligated to file any general
consent to service of process or to qualify as a foreign corporation or as a
dealer in securities in any jurisdiction in which it is not so qualified or to
subject itself to taxation in respect of doing business in any jurisdiction in
which it is not otherwise so subject. The Company will file such statements and
reports as may be required by the laws of each jurisdiction in which the Offered
Shares have been qualified as above provided.
(g) The Company will timely file such reports pursuant to the 1934 Act
as are necessary in order to make generally available to its security holders as
soon as practicable an earnings statement for the purposes of, and to provide
the benefits contemplated by, the last paragraph of Section 11(a) of the 1933
Act.
(h) For a period of 90 days from the date hereof, the Company will
not, without the prior written consent of Merrill Lynch on behalf of the
Underwriters, directly or indirectly, sell, offer to sell, grant any option for
the sale of, or otherwise dispose of, any shares of Common Stock or securities
convertible into or exchangeable or exercisable for Common Stock, other than (i)
any shares of Common Stock sold by the Company upon the exercise of any option
outstanding at the Closing Time granted under the stock option plans of the
Company existing at the Closing Time and (ii) issuances by the Company of
employee stock options pursuant to the Company's employee stock option
23
<PAGE>
plans pursuant to the terms thereof as in effect on the date hereof and
the number of shares of Common Stock covered thereby.
(i) The Company will use its best efforts to maintain the listing of
the Common Stock on the New York Stock Exchange on the date of the International
Price Determination Agreement.
(j) If the Company has elected to rely upon Rule 430A, it will take
such steps as it deems necessary to ascertain promptly whether the forms of
prospectuses transmitted for filing under Rule 424(b) were received for filing
by the Commission and, in the event that they were not, it will promptly file
such prospectuses.
(k) If the Company has elected to rely on Rule 434, it will comply
with the requirements of Rule 434, and the Prospectuses will not be "materially
different," as such term is used in Rule 434, from the prospectus included in
the Registration Statement at the time it becomes effective.
(l) If the Company has elected to rely upon Rule 462(b), the Company
will file a Rule 462(b) Registration Statement with the Commission in compliance
with Rule 462(b) and pay the applicable fees in accordance with Rule 111 of the
1933 Act Regulations by the time confirmations are sent or given, as specified
by Rule 462(b)(2).
(m) For a period of five years after the Closing Time, the Company
will furnish to you and to each Manager that so requests copies of all annual
reports, quarterly reports and current reports filed with the Commission on
Forms 10-K, 10-Q and 8-K, or such other similar forms as may be designated by
the Commission, and such other documents, reports and information relating to
the Company's business or finances as shall be furnished by the Company to its
stockholders generally.
(n) The Company has complied, and will comply, with all of the
provisions of Florida H.B. 1771, as codified in sec. 517.075 Florida Statutes,
1987, as amended, and all regulations promulgated thereunder relating to issuers
or their affiliates doing business with the government of Cuba or with any
person or affiliate located in Cuba.
(o) The Company, during the period when the Prospectuses are required
to be delivered under the 1933 Act or the 1934 Act, will file all documents
required to be filed with the Commission pursuant to Sections 13, 14 or 15 of
the 1934 Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
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Section 4. Payment of Expenses. (a) The Company will pay all
-------------------
expenses incident to the performance of the obligations of the Company and the
Selling Stockholders under this Agreement and the U.S. Purchase Agreement,
including (i) the printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectuses and any amendments or supplements
thereto, and the cost of furnishing copies thereof to the Underwriters, (ii) the
copying and distribution of this Agreement (including the International Price
Determination Agreement), the Intersyndicate Agreement, the U.S. Purchase
Agreement (including the U.S. Price Determination Agreement), the Agreement
among Managers, the certificates for the Offered Shares and a survey of state
securities or blue sky laws (the "Blue Sky Survey"), (iii) the delivery of the
certificates for the Offered Shares to the Underwriters, including any capital
duties, stamp duties and stock or other transfer taxes payable upon the sale of
the Offered Shares to the Underwriters and the transfer of the Offered Shares
between the Managers and the U.S. Underwriters, (iv) the fees and disbursements
of the Company's and the Selling Stockholders' counsel and accountants, (v) the
qualification of the Offered Shares under the applicable securities laws in
accordance with Section 3(f) and any filing fee related to the review of the
offering by the National Association of Securities Dealers, Inc. (the "NASD"),
and filing fees and reasonable fees and disbursements of Fried, Frank, Harris,
Shriver & Jacobson as counsel for the Underwriters in connection therewith and
in connection with the Blue Sky Survey, (vi) the fees and expenses of any
transfer agent or registrar for the Offered Shares and (vii) the listing fees
and expenses incurred in connection with listing the Offered Shares on the New
York Stock Exchange.
(b) The Company will pay any transfer taxes attributable to the sale
by the Selling Stockholders of the Offered Shares and any fees and disbursements
of their counsel and accountants, if any.
(c) If this Agreement is terminated by you in accordance with the
provisions of Section 5, 10(a)(i) and (ii) or 12, the Company shall reimburse
the Managers through you for all their out-of-pocket expenses, including the
reasonable fees and disbursements of Fried, Frank, Harris, Shriver & Jacobson as
counsel for the Managers.
Section 5. Conditions of Managers' Obligations. In addition to the
-----------------------------------
execution and delivery of the International Price Determination Agreement, the
obligations of the several Managers to purchase and pay for the International
Shares that they have respectively agreed to purchase hereunder (including any
International Option Shares as to which the option granted in Section 2(e) has
been exercised in the event the Date of Delivery determined by you is the same
as the Closing Time) are subject to the
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<PAGE>
accuracy of the representations and warranties contained herein (including those
contained in the International Price Determination Agreement) or in certificates
of any officer of the Company and the Selling Stockholders delivered pursuant to
the provisions hereof, to the performance by the Company and the Selling
Stockholders of their respective obligations hereunder, and to the following
further conditions:
(a) The Original Registration Statement shall have become effective
not later than 5:30 P.M. on the date of this Agreement or, with your consent, at
a later time and date not later, however, than 5:30 P.M. on the first business
day following the date hereof, or at such later time or on such later date as
you may agree to in writing with the approval of a majority in interest of the
several Managers; if the Company has elected to rely upon Rule 462(b), the Rule
462(b) Registration Statement shall have become effective not later than the
time confirmations are sent or given, as specified by Rule 462(b)(2); and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act and no proceedings for that
purpose shall have been instituted or shall be pending or, to your knowledge or
the knowledge of the Company or any of its Subsidiaries, shall have been
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of Fried, Frank, Harris, Shriver & Jacobson as counsel for the
Managers. If the Company has elected to rely upon Rule 430A, Prospectuses
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A). If the Company has elected to rely upon Rule 434, a
Term Sheet, which together with the preliminary prospectuses last furnished to
the Underwriters in connection with the offering of the Offered Shares shall not
be "materially different" as such term is used in Rule 434 from the prospectuses
included in the Original Registration Statement at the time it becomes
effective, shall have been filed with the Commission in accordance with Rule
424(b).
(b) At the Closing Time, you shall have received signed opinions of
(i) Kirkland & Ellis, special counsel for the Company and the Selling
Stockholders, to the effect set forth on Exhibit B hereto, (ii) Christine
J. Smith, General Counsel of AEA Investors Inc., to the effect set forth on
Exhibit C hereto, and (iii) counsel for each of the next ten largest
Selling Stockholders (other than individuals), in each case dated as of the
Closing Time, together with reproduced copies of such opinions for each of
the other Managers, in form and substance reasonably satisfactory to Fried,
Frank, Harris, Shriver & Jacobson as counsel for the Managers. In giving
their opinions Kirkland & Ellis and Christine J. Smith may rely, as to all
matters governed by the laws of jurisdictions other than the federal law of
the United States, the law of the State of New York and the General
Corporation Law of the State of Delaware, upon the opinions of counsel
26
<PAGE>
satisfactory to you. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers or other appropriate representatives
of the Company, the Subsidiaries and the Selling Stockholders and
certificates of public officials.
(c) At the Closing Time, you shall have received the favorable opinion
of Fried, Frank, Harris, Shriver & Jacobson as counsel for the Managers, dated
as of the Closing Time, together with reproduced copies of such opinion for each
of the other Managers, to the effect that the opinions delivered pursuant to
Section 5(b) appear on their face to be appropriately responsive to the
requirements of this Agreement except, specifying the same, to the extent waived
by you, and with respect to the legal existence of the Company, the Offered
Shares, this Agreement and the U.S. Purchase Agreement, the Registration
Statement, the Prospectuses and such other related matters as you may require.
In giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the federal law of the United States, the law
of the State of New York and the General Corporation Law of the State of
Delaware, upon the opinions of counsel satisfactory to you. Such counsel may
also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers or other
appropriate representatives of the Company, the Subsidiaries and the Selling
Stockholders and certificates of public officials.
(d) At the Closing Time, (i) the Registration Statement and the
Prospectuses, as they may then be amended or supplemented, shall conform in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, the Company shall have complied in all material respects with Rule
430A and Rule 434 (if it shall have elected to rely thereon), the Registration
Statement, as it may then be amended or supplemented, shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements in the Registration
Statement not misleading, and the Prospectuses shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements in the Prospectuses, in light
of the circumstances under which they were made, not misleading, (ii) there
shall not have been, since the respective dates as of which information is given
in the Prospectuses, any material adverse change in the condition (financial or
otherwise), earnings, business affairs or business prospects of the Company and
its Subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law or in
equity shall be pending or, to the knowledge of the Company, threatened against
the Company or any Subsidiary that would be required to be set forth in the
Prospectuses other than as set forth therein and no proceedings shall be pending
or, to the knowledge of the Company, threatened against the Company or any
Subsidiary before or by any federal, state or other
27
<PAGE>
commission, board or administrative agency that could reasonably be expected to
materially and adversely affect the condition (financial or otherwise),
earnings, business affairs or business prospects of the Company and its
Subsidiaries, considered as one enterprise, other than as set forth in the
Prospectuses, (iv) the Company shall have complied with all agreements and
satisfied all conditions on their parts to be performed or satisfied at or prior
to the Closing Time and (v) the other representations and warranties of the
Company and Technologies, set forth in Section 1(a) shall be accurate as though
expressly made at and as of the Closing Time. At the Closing Time, you shall
have received a certificate of the President or Vice President and the chief
financial officer or chief accounting officer of the Company, dated as of the
Closing Time, to such effect. As used in Section 5(d)(ii) and (iii), the term
"Prospectuses" means the Prospectuses in the form first used to confirm sales of
the Offered Shares.
(e) At the Closing Time, (i) the representations and warranties of the
Selling Stockholders set forth in Section 1(b) and in any certificates by or on
behalf of the Selling Stockholders delivered pursuant to the provisions hereof
shall be accurate as though expressly made at and as of the Closing Time, (ii)
the Selling Stockholders shall have performed their obligations under this
Agreement and the U.S. Purchase Agreement and (iii) you shall have received a
certificate of the Selling Stockholders, dated as of the Closing Time, to the
effect set forth in subsections (i) and (ii) of this Section 5(e).
(f) At the time that this Agreement is executed by the Company, you
shall have received from Coopers & Lybrand L.L.P. a letter, dated such date, in
form and substance satisfactory to you, together with signed or reproduced
copies of such letter for each of the other Managers, confirming that they are
independent public accountants with respect to the Company and the predecessor
of the Company within the meaning of the 1933 Act and the applicable published
1933 Act Regulations, and stating in effect that, except as set forth in such
letter:
(i) in their opinion, the audited financial statements and the
related financial statement schedules included in the Registration
Statement and the Prospectuses comply as to form in all material respects
with the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of the Company and the predecessor of the Company included in
the Registration Statement and the Prospectuses, a reading of the minutes
of all meetings of the stockholders and directors of the Company and the
Subsidiaries and each committee of the board of directors of each of the
Company and the Subsidiaries,
28
<PAGE>
inquiries of certain officials of the Company and the Subsidiaries
responsible for financial and accounting matters and such other inquiries
and procedures, including a limited review of such statements under
Statement of Accounting Standards 71, as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements as of and for the
three-month periods ended March 31, 1996 and 1995 included in the
Registration Statement and the Prospectuses do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement;
(B) at April 30, 1996, there was (i) any change in the
capital stock or consolidated stockholders' equity, (ii) any decrease
in consolidated current assets, working capital and total assets or
(iii) any increase in long-term debt of the Company and its
Subsidiaries as compared with the amounts shown in the latest balance
sheet included in the Registration Statement, except in each case for
changes, decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(C) at a specified date not more than five days prior to the
date of this Agreement, there was (i) any change in the capital stock,
(ii) any decrease in total assets or (iii) any increase in long-term
debt (excluding capital lease obligations) of the Company and its
Subsidiaries as compared with the amounts shown in the latest balance
sheet included in the Registration Statement, except in each case for
changes, decreases or increases that the Registration Statement
discloses have occurred or may occur; or
(D) for the period from April 1, 1996 to April 30, 1996,
there was any decrease in consolidated net sales, income from
operations, or in the total or per-share amounts of consolidated
income from continuing operations before income taxes or of
consolidated net income or in other items specified by the Lead
Managers, in each case as compared with the comparable period in the
preceding year, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur; or
29
<PAGE>
(E) for the period from May 1, 1996 to a specified date not
more than five days prior to the date of this Agreement, there was any
decrease in consolidated net sales or in other items specified by the
Lead Managers, in each case as compared with the comparable period in
the preceding year, except in each case for any decreases that the
Registration Statement discloses have occurred or may occur;
(iii) they are unable to and do not express any opinion on the
pro forma capitalization or Pro Forma Consolidated Financial Statements of
the Company or on the pro forma adjustments applied to the historical
amounts included in such statements (the "Pro Forma Information"); however,
for purposes of such letter they have:
(A) read the Pro Forma Information;
(B) made inquiries of certain officials of the Company who
have responsibility for financial and accounting matters about the
basis for their determination of the pro forma adjustments and whether
the Pro Forma Information above complies in form in all material
respects with the applicable accounting requirements of Rule 11-02 of
Regulation S-X;
(C) compared the historical amounts in the Pro Forma
Information with the Company's audited financial statements or
accounting records; and
(D) proved the arithmetic accuracy of the application of the
pro forma adjustments to the historical amounts in the Pro Forma
Information; and
on the basis of such procedures, and such other inquiries and procedures as
may be specified in such letter, nothing came to their attention that
caused them to believe that the Pro Forma Information included in the
Registration Statement does not comply as to form in all material respects
with the applicable requirements of Rule 11-02 of Regulation S-X and that
the pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements; and
(iv) in addition to the procedures referred to in clauses (ii)
and (iii) above, they have performed other specified procedures, not
constituting an audit, with respect to certain amounts, percentages,
numerical data and financial information appearing in the Registration
Statement, which have previously been specified by you and which shall be
specified in such letter, and have compared
30
<PAGE>
such items with, and have found such items to be in agreement with, the
accounting and financial records of the Company and its Subsidiaries.
(g) At the time that this Agreement is executed by the Company, you
shall have received from Arthur Andersen LLP a letter, dated such date, in form
and substance satisfactory to you, together with signed or reproduced copies of
such letter for each of the other Managers, confirming that they are independent
public accountants with respect to TAI and subsidiaries within the meaning of
the 1933 Act and the applicable published 1933 Act Regulations, and stating in
effect that, except as set forth in such letter:
(i) in their opinion, the audited financial statements of TAI and
subsidiaries included in the Registration Statement and the Prospectuses
comply as to form in all material respects with the applicable accounting
requirements of the 1933 Act and the 1933 Act Regulations;
(ii) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting of a
reading of the latest available unaudited interim consolidated financial
statements of TAI and subsidiaries included in the Registration Statement
and the Prospectuses, a reading of the minutes of all meetings of the
stockholders and directors of TAI and each committee of the board of
directors of TAI, inquiries of certain officials of TAI who have
responsibility for financial and accounting matters and such other
inquiries and procedures, including a limited review of such statements
under Statement of Accounting Standards 71, as may be specified in such
letter, nothing came to their attention that caused them to believe that:
(A) the unaudited financial statements as of and for the
three-month periods ended March 31, 1996 and 1995 included in the
Registration Statement and the Prospectuses do not comply as to form
in all material respects with the applicable accounting requirements
of the 1933 Act and the 1933 Act Regulations applicable to unaudited
interim financial statements included in registration statements or
are not in conformity with GAAP applied on a basis substantially
consistent with that of the audited financial statements included in
the Registration Statement;
(B) at April 30, 1996, there was (i) any change in the
capital stock or consolidated stockholders' equity (deficit), (ii) any
decrease in consolidated current assets or (iii) any increase in long-
term debt of TAI and subsidiaries as compared with the amounts shown
in the
31
<PAGE>
latest balance sheet included in the Registration Statement, except in
each case for changes, decreases or increases that the Registration
Statement discloses have occurred or may occur; or
(C) for the period from April 1, 1996 to April 30, 1996,
there was any decrease in consolidated net sales, operating profit, or
loss before taxes or in other items specified by the Lead Managers, in
each case as compared with the comparable period in the preceding
year, except in each case for any decreases that the Registration
Statement discloses have occurred or may occur; and
(iii) in addition to the procedures referred to in clauses (ii)
above, they have performed other specified procedures, not constituting an
audit, with respect to certain amounts, percentages, numerical data and
financial information appearing in the Registration Statement, which have
previously been specified by you and which shall be specified in such letter,
and have compared such items with, and have found such items to be in agreement
with, the accounting and financial records of TAI and subsidiaries.
(h) At the Closing Time, you shall have received from each of Coopers
& Lybrand L.L.P. and Arthur Andersen LLP a letter, in form and substance
satisfactory to you and dated as of the Closing Time, and to the effect that
they reaffirm the statements made in the letter furnished pursuant to Sections
5(f) and 5(g), except that the specified date referred to shall be a date not
more than five days prior to the Closing Time. In the event the Company relies
on Rule 430A and the final Prospectuses furnished to the Underwriters in
connection with the offering of the Offered Shares differ from the Prospectuses
included in the Registration Statement at the time of effectiveness, such letter
shall update the procedures referred to in clauses 5(f)(ii), (iii) and (iv) with
respect to Coopers and Lybrand L.L.P. and clauses 5(g)(ii) and (iii) with
respect to Arthur Andersen LLP.
(i) At the Closing Time, you shall have received a certificate of the
Chief Financial Officer of the Company as to certain agreed upon accounting
matters.
(j) At the Closing Time, counsel for the Underwriters shall have been
furnished with all such documents, certificates and opinions as they may
reasonably request for the purpose of enabling them to pass upon the issuance
and sale of the Offered Shares as contemplated in this Agreement and the U.S.
Purchase Agreement and the matters referred to in Section 5(c) and in order to
evidence the accuracy and completeness of any of the representations, warranties
or statements of the Company and the Selling
32
<PAGE>
Stockholders, the performance of any of the covenants of the Company and the
Selling Stockholders, or the fulfillment of any of the conditions herein
contained; and all proceedings taken by the Company and the Selling Stockholders
at or prior to the Closing Time in connection with the authorization, issuance
and sale of the Offered Shares as contemplated in this Agreement and the U.S.
Purchase Agreement shall be reasonably satisfactory in form and substance to you
and to Fried, Frank, Harris, Shriver & Jacobson as counsel for the Underwriters.
(k) Each Selling Stockholder shall have delivered to you on or prior
to the Closing Time a copy of a properly completed and executed United States
Treasury Department Form W-9 or W-8 (or other applicable form or statement
specified by Treasury Department regulations).
(l) The "lock-up" agreements between you and each Selling Stockholder,
executive officer and director, certain other members of management of the
Company and certain other stockholders of the Company, delivered to you on or
before the date hereof, shall be in full force and effect at the Closing Time.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you upon notice to the Company and the Selling
Stockholders at any time at or prior to the Closing Time, and such termination
shall be without liability of any party to any other party except as provided in
Section 4 herein. Notwithstanding any such termination, the provisions of
Sections 7 and 8 herein shall remain in effect.
Section 6. Conditions to Purchase of International Option Shares. In
-----------------------------------------------------
the event that the Managers exercise their option granted in Section 2 to
purchase all or any of the International Option Shares and the Date of Delivery
determined by you pursuant to Section 2 is later than the Closing Time, the
obligations of the several Managers to purchase and pay for the International
Option Shares that they shall have respectively agreed to purchase pursuant to
this Agreement are subject to the accuracy of the representations and warranties
of the Company, Technologies and the Selling Stockholders herein contained, to
the performance of the Company, Technologies and the Selling Stockholders of
their respective obligations hereunder and to the following further conditions:
(a) The Registration Statement shall remain effective at the Date of
Delivery, and at the Date of Delivery no stop order suspending the effectiveness
of the Registration Statement shall have been issued under the 1933 Act and no
proceedings for that purpose shall have been instituted or shall be pending or,
to your knowledge or the knowledge of the Company or the Selling Stockholders,
shall have been threatened by the
33
<PAGE>
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
Fried, Frank, Harris, Shriver & Jacobson as counsel for the Managers.
(b) At the Date of Delivery, the provisions of Section 5(d) shall have
been complied with at and as of the Date of Delivery and, at the Date of
Delivery, you shall have received a certificate of the President or Vice
President and the chief financial officer or chief accounting officer of the
Company with respect to the provisions of Section 5(d), dated as of the Date of
Delivery, to such effect.
(c) At the Date of Delivery, you shall have received the favorable
opinions of Kirkland & Ellis, special counsel for the Company and the Selling
Stockholders, and Christine J. Smith, General Counsel of AEA Investors Inc.,
together with reproduced copies of such opinions for each of the other Managers
in form and substance satisfactory to Fried, Frank, Harris, Shriver & Jacobson
as counsel for the Underwriters, dated as of the Date of Delivery, relating to
the Option Shares and otherwise to the same effect as the opinions required by
Section 5(b).
(d) At the Date of Delivery, you shall have received the favorable
opinion of Fried, Frank, Harris, Shriver & Jacobson, counsel for the Managers,
dated as of the Date of Delivery, relating to the International Option Shares
and otherwise to the same effect as the opinion required by Section 5(c).
(e) At the Date of Delivery, you shall have received a letter from
each of Coopers & Lybrand L.L.P. and Arthur Andersen LLP, in form and substance
satisfactory to you and dated as of the Date of Delivery, to the effect that
they reaffirm the statements made in the letter furnished pursuant to Section
5(h), except that the specified date referred to shall be a date not more than
five days prior to the Date of Delivery.
(f) At the Date of Delivery, the provisions of Section 5(e) shall have
been complied with at and as of the Date of Delivery and, at the Date of
Delivery, you shall have received a certificate from the Selling Stockholders
with respect to the provisions of Section 5(e), dated as of the Date of
Delivery, to such effect.
(g) At the Date of Delivery, Fried, Frank, Harris, Shriver & Jacobson
as counsel for the Managers shall have been furnished with all such documents,
certificates and opinions as they may reasonably request for the purpose of
enabling them to pass upon the issuance and sale of the Option Shares as
contemplated in this Agreement and the matters referred to in Section 6(d) and
in order to evidence the accuracy and completeness of any of the
representations, warranties or statements of the Company,
34
<PAGE>
Technologies and the Selling Stockholders, the performance of any of the
covenants of the Company and the Selling Stockholders, or the fulfillment of any
of the conditions herein contained; and all proceedings taken by the Company and
the Selling Stockholders, at or prior to the Date of Delivery in connection with
the authorization, issuance and sale of the Option Shares as contemplated in
this Agreement shall be reasonably satisfactory in form and substance to you and
to Fried, Frank, Harris, Shriver & Jacobson as counsel for the Managers.
Section 7. Indemnification. (a) The Company and Technologies,
---------------
jointly and severally, agree to indemnify and hold harmless each Manager
(including any Manager in its role as qualified independent underwriter pursuant
to the rules of the NASD) and each person, if any, who controls any Manager
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including the Rule 430A Information
and the Rule 434 Information, if applicable, or the omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of
an untrue statement or alleged untrue statement of a material fact included
in any preliminary prospectus or the Prospectuses (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or
if Rule 434 is used, if either of the Prospectuses are "materially
different," as such term is used in Rule 434, from the prospectus included
in the Original Registration Statement at the time it becomes effective;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission;
(iii) against any and all expense whatsoever, as incurred
(including, subject to the last sentence of Section 7(d), fees and disbursements
of counsel chosen by you to represent the Managers), reasonably incurred in
investigating, preparing or defending against any litigation, or investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever based upon any such
35
<PAGE>
untrue statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
provided, however, that this indemnity does not apply to any loss, liability,
- -------- -------
claim, damage or expense to the extent arising out of an untrue statement or
omission or alleged untrue statement or omission made in reliance upon and in
conformity with information furnished or confirmed in writing to the Company by
or on behalf of any Manager through you or the U.S. Representatives expressly
for use in the Registration Statement (or in any amendment thereto), including
the Rule 430A Information and the Rule 434 Information, if applicable, or any
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto); provided, further, that such indemnity with respect to any
-------- -------
preliminary prospectus shall not inure to the benefit of any Manager (or any
persons controlling such Manager) from whom the person asserting such loss,
claim, damage or liability purchased the Offered Shares which are the subject
thereof if such person did not receive a copy of the International Prospectus
(or the International Prospectus as amended or supplemented) at or prior to the
confirmation of the sale of such Offered Shares to such person in any case where
such delivery is required by the 1933 Act and the untrue statement or omission
or alleged untrue statement or omission of a material fact contained in such
preliminary prospectus was corrected in the International Prospectus (or the
International Prospectus as amended or supplemented).
(b) The Company and Technologies, jointly and severally, agree to
indemnify and hold harmless each of the Selling Stockholders and each person, if
any, who controls any Selling Stockholder within the meaning of Section 15 of
the 1933 Act and Section 20 of the 1934 Act to the same extent that the Company
and Technologies have agreed to indemnify and hold harmless each Manager
pursuant to the preceding paragraph; provided, however, the Company and
Technologies shall not be liable under this paragraph to the extent any loss,
liability, claim, damage or expense described in the preceding paragraph arises
out of or is based upon an untrue statement, alleged untrue statement, omission
or alleged omission based upon information relating to such Selling Stockholder
expressly for use in the Registration Statement, any preliminary prospectus, the
Prospectuses or any amendments or supplements thereto.
(c) Each Selling Stockholder agrees, severally and not jointly, to
indemnify and hold harmless each Manager (including any Manager in its role as
qualified independent underwriter pursuant to the rules of the NASD) and each
person, if any, who controls any Manager within the meaning of Section 15 of the
1933 Act and Section 20 of the 1934 Act, the Company, its directors, its
officers who sign the Registration Statement, and any person who controls the
Company within the meaning of Section 15 of the 1933 Act and Section 20 of the
1934 Act to the same extent as the foregoing indemnity from the Company to each
Manager; provided, however, that with
-----------------
36
<PAGE>
respect to each Selling Stockholder, the indemnification provision in this
paragraph (c) shall be only with respect to the information furnished in writing
by or on behalf of such Selling Stockholder expressly for use in the
Registration Statement (or any amendment thereto), including Rule 430A
Information, if applicable, or any preliminary prospectus or the Prospectuses
(or any amendment or supplement thereto); and provided, further, that the
--------- --------
aggregate liability of any Selling Stockholder pursuant to this paragraph (c)
shall be limited to the net proceeds received by such Selling Stockholder from
the Offered Shares purchased by the Underwriters from such Selling Stockholder
pursuant to this Agreement, the International Price Determination Agreement, the
U.S. Purchase Agreement and the U.S. Price Determination Agreement; and
provided, further, that no Selling Stockholder shall be liable for any untrue
- -------- -------
statement, alleged untrue statement, omission or alleged omission of any other
Selling Stockholder.
(d) Each Manager severally agrees to indemnify and hold harmless the
Company, its directors, each of its officers who signed the Registration
Statement, each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act and Section 20 of the 1934 Act and each Selling
Stockholder and each person, if any, who controls such Selling Stockholder
within the meaning of Section 15 of the 1933 Act and Section 20 of the 1934 Act
against any and all loss, liability, claim, damage and expense described in the
indemnity contained in Section 7(a), as incurred, but only with respect to
untrue statements or omissions, or alleged untrue statements or omissions, made
in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectuses (or any amendment or supplement thereto) in
reliance upon and in conformity with information furnished or confirmed in
writing to the Company by or on behalf of such Manager through you expressly for
use in the Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or such
preliminary prospectus or the Prospectuses (or any amendment or supplement
thereto).
(e) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action. If it so elects within a
reasonable time after receipt of such notice, an indemnifying party, jointly
with any other indemnifying parties receiving such notice, may assume the
defense of such action with counsel chosen by it and reasonably satisfactory to
such indemnified party. If an indemnifying party assumes the defense of such
action, the indemnifying parties shall not be liable for any fees and expenses
of
37
<PAGE>
counsel for the indemnified parties incurred thereafter in connection with
such action. Notwithstanding the indemnifying party's election to appoint
counsel to represent the indemnified party in an action, the indemnified party
shall have the right to employ separate counsel at any time, and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest or (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party. In no event
shall the indemnifying party or parties be liable for the fees and expenses of
more than one counsel (in addition to local counsel) for all indemnified parties
in connection with any one action or separate but similar or related actions in
the same jurisdictions arising out of the same general allegations or
circumstances.
(f) No indemnifying party shall, without the prior written consent of
the indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have been a
party and indemnity could have been sought hereunder by such indemnified party,
unless such settlement includes an unconditional release of such indemnified
party from all liability on claims that are the subject matter of such
proceeding. No indemnifying party shall be liable for any settlement of any
action or claim for monetary damages which an indemnified party may effect
without the written consent of the indemnifying party.
Section 8. Contribution. If the indemnification provided for in
------------
Section 7 is for any reason unavailable to or insufficient to hold harmless an
indemnified party in respect of any losses, liabilities, claims, damages or
expenses referred to therein, then each indemnifying party shall contribute to
the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company,
Technologies and the Selling Stockholders, on the one hand, and the Managers on
the other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company, Technologies and the Selling Stockholders, on the one hand, and of the
Managers on the other hand in connection with the statements or omissions which
resulted in such losses, liabilities, claims, damages or expenses, as well as
any other relevant equitable considerations.
38
<PAGE>
The relative benefits received by the Company, Technologies and the
Selling Stockholders, on the one hand, and the Managers on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received by the Company, Technologies and the Selling Stockholders and
the total underwriting discount received by the Managers, in each case as set
forth on the cover of the Prospectus, or, if Rule 434 is used, the corresponding
location on the Term Sheet, bear to the aggregate initial public offering price
of the Securities as set forth on such cover.
The relative fault of the Company, Technologies and the Selling
Stockholders, on the one hand, and the Managers on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, Technologies or
the Selling Stockholders or by the Managers and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, Technologies, the Selling Stockholders and the Managers
agree that it would not be just and equitable if contribution pursuant to this
Section 8 were determined by pro rata allocation (even if the Managers were
treated as one entity for such purpose) or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8. The aggregate amount of losses, liabilities, claims, damages
and expenses incurred by an indemnified party and referred to above in this
Section 8 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in investigating, preparing or defending
against any litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 8, (i) no Selling
Stockholder shall be required to contribute any amount in excess of the amount
of the total net proceeds received by such Selling Stockholder from the Offered
Shares purchased from such Selling Stockholder and (ii) no Manager shall be
required to contribute any amount in excess of the amount by which the total
price to the public at which the Offered Shares underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages that such Manager has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission; provided,
--------
however, that no person guilty of fraudulent misrepresentation (within the
- -------
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any person who was
39
<PAGE>
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls a Manager within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act shall have the same rights to
contribution as such Manager, and each director of the Company, each officer of
the Company who signed the Registration Statement, each person who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act, and each person who controls a Selling Stockholder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company and the Selling Stockholders. The
Underwriters' respective obligations to contribute pursuant to this Section 8
are several in proportion to the number of Initial Securities set forth opposite
their respective names in Schedule B hereto and not joint.
Section 9. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. The representations, warranties, indemnities and agreements of the
- --------
Company, Technologies and the Selling Stockholders contained in this Agreement
and the International Price Determination Agreement, or contained in
certificates of officers of the Company or its Subsidiaries or the Selling
Stockholders submitted pursuant hereto, will remain operative and in full force
and effect regardless of any investigation made by or on behalf of the Company,
Technologies, the Selling Stockholders or any Manager or controlling person and
will survive delivery of and payment for the Offered Shares.
Section 10. Termination of Agreement. (a) You may terminate this
------------------------
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to the Closing Time (i) if there has been, since the respective dates
as of which information is given in the Prospectuses, any material adverse
change in the condition (financial or otherwise), earnings, business affairs or
business prospects of the Company or its Subsidiaries, considered as one
enterprise, whether or not arising in the ordinary course of business, (ii) if a
downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization," as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
1933 Act, or any such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities, (iii) if there has occurred any material
adverse change in the financial markets in the United States or internationally
or any outbreak of hostilities or escalation of existing hostilities or other
calamity or crisis the effect of which is such as to make it, in your reasonable
judgment, impracticable to market the International Shares or enforce contracts
for the sale of the International Shares, (iv) if trading in any securities of
the Company has been suspended by the Commission, the New York Stock Exchange or
the National Association of Securities Dealers, Inc., or if trading generally on
either the American Stock Exchange or the New York Stock Exchange or in the
over-the-counter
40
<PAGE>
market has been suspended, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices for securities have been required, by either
of such exchanges or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, (v) if a banking
moratorium has been declared by either federal or New York authorities, or (vi)
if there has occurred any change or development involving a prospective change
in national or international political, financial or economic controls, which in
your opinion is likely to have a material adverse effect on the market for the
Offered Shares. As used in this Section 10(a), the term "Prospectuses" means the
Prospectuses in the form first used to confirm sales of the Offered Shares.
(b) If this Agreement is terminated pursuant to this Section 10, such
termination shall be without liability of any party to any other party, except
to the extent provided in Section 4. Notwithstanding any such termination, the
provisions of Sections 7 and 8 shall remain in effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 2(d), with the effect stated in such Section.
Section 11. Default by One or More of the Managers. If one or more
--------------------------------------
of the Managers shall fail at the Closing Time to purchase the Initial
International Shares that it or they are obligated to purchase pursuant to this
Agreement (the "Defaulted International Shares"), you shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the non-
defaulting Managers, or any other underwriters, to purchase all, but not less
than all, of the Defaulted International Shares in such amounts as may be agreed
upon and upon the terms set forth in this Agreement; if, however, you have not
completed such arrangements within such 24-hour period, then:
(a) if the number of Defaulted International Shares does not exceed
10% of the total number of Initial International Shares, the non-defaulting
Managers shall be obligated to purchase the full amount thereof in the
proportions that their respective Initial International Shares underwriting
obligation proportions bear to the underwriting obligation proportions of all
non-defaulting Managers, or
(b) if the number of Defaulted International Shares exceeds 10% of the
total number of Initial International Shares, this Agreement shall terminate
without liability on the part of any non-defaulting Manager.
No action taken pursuant to this Section shall relieve any defaulting
Manager from liability in respect of its default.
41
<PAGE>
In the event of any such default that does not result in a termination
of this Agreement, either you, the Company or the Selling Stockholders shall
have the right to postpone the Closing Time for a period not exceeding seven
days in order to effect any required changes in the Registration Statement or
Prospectuses or in any other documents or arrangements. As used herein, the
term "Manager" includes any person substituted for a Manager under this Section
11.
Section 12. Default by the Company or the Selling Stockholders. (a)
--------------------------------------------------
If any Selling Stockholder shall fail at the Closing Time to sell and deliver
the number of Offered Shares that it is obligated to sell, then the Lead
Managers may, at their option, by notice to the Company and the Selling
Stockholders, either (i) terminate this Agreement without any liability on the
part of any non-defaulting party except to the extent provided in Section 4 and
except that the provisions of Sections 7 and 8 shall remain in effect or (ii)
elect to purchase the Offered Shares which the non-defaulting party has agreed
to sell hereunder. No action taken pursuant to this Section shall relieve such
Selling Stockholder from liability, if any, in respect of such default.
Section 13. Notices. All notices and other communications under this
-------
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication
(notices transmitted by telecopier to be promptly confirmed in writing).
Notices to you or the Managers shall be directed to you c/o Merrill Lynch,
Pierce, Fenner & Smith Incorporated at Merrill Lynch World Headquarters, North
Tower, World Financial Center, New York, New York 10281, attention of Gregory L.
Wright, with a copy to Fried, Frank, Harris, Shriver & Jacobson, One New York
Plaza, New York, New York 10004, attention of Valerie Ford Jacob, Esq.; notices
to the Company and Technologies shall be directed to the Company and
Technologies at 34 Maple Street, Milford, MA 01757, attention of Douglas A.
Berthiaume, with a copy to Kirkland & Ellis at Citicorp Center, 153 East 53rd
Street, New York, New York 10022-4675, attention of Lance C. Balk, Esq.; and
notices to the Selling Stockholders shall be directed to Bain Capital, Inc., Two
Copley Place, Boston, MA 02116, attention of Joshua Bekenstein, and AEA
Investors Inc. at 65 East 55th Street, New York, New York 10022, attention of
Christine J. Smith, Esq., with a copy to Kirkland & Ellis at Citicorp Center,
153 East 53rd Street, New York, New York 10022-4675, attention of Lance C.
Balk, Esq.
Section 14. Parties. This Agreement is made solely for the benefit
-------
of the several Managers, the Company, Technologies, the Selling Stockholders
and, to the extent expressed, any person controlling the Company, Technologies,
the Selling Stockholders or any of the Managers, and the directors of the
Company, its officers who
42
<PAGE>
have signed the Registration Statement, and their respective executors,
administrators, successors and assigns and, subject to the provisions of Section
11, no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser, as
such purchaser, from any of the several Managers of the International Shares.
All of the obligations of the Managers hereunder are several and not joint.
SECTION 15. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS
OF LAWS. SPECIFIED TIMES OF THE DAY REFER TO NEW YORK CITY TIME.
Section 16. Jurisdiction. Each of the undersigned hereby irrevocably
------------
submits in any suit, action or proceeding arising out of or in relation to this
Agreement, or any of the transactions contemplated hereby, to the jurisdiction
and venue of any federal or state court in the Borough of Manhattan, City of New
York, State of New York.
Section 17. Counterparts. This Agreement may be executed in one or
------------
more counterparts and, when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
43
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Selling Stockholders a
counterpart hereof, whereupon this instrument will become a binding agreement
among the Company, the Selling Stockholders and the several Managers in
accordance with its terms.
Very truly yours,
WATERS CORPORATION
By
--------------------------
Name: Philip S. Taymor
Title: Senior Vice President, Finance and
Administration and Chief Financial
Officer, Treasurer and Assistant
Secretary
WATERS TECHNOLOGIES CORPORATION
By
--------------------------
Name: Philip S. Taymor
Title:
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 1 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 2 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN
CATEGORY 3 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
44
<PAGE>
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
By: MERRILL LYNCH INTERNATIONAL
By:
---------------------------
Name: Karen B. Harris
Title: Vice President
For themselves and as Lead Managers of the
- ------------------------------------------
other Managers named in Schedule B.
- -----------------------------------
[107726]
45
<PAGE>
SCHEDULE A
Number of Initial Maximum Number of
Selling Stockholder International Shares to International Option
be Sold Shares to be Sold
Total................ 2,000,000 300,000
<PAGE>
SCHEDULE B
<TABLE>
<CAPTION>
NUMBER OF
INITIAL INTERNATIONAL
MANAGERS SHARES TO BE PURCHASED
-------- ----------------------
<S> <C>
Merrill Lynch International...................
Alex. Brown & Sons Incorporated...............
CS First Boston Limited.......................
Goldman Sachs International...................
============================================
Total......................................... 2,000,000
</TABLE>
<PAGE>
SCHEDULE C
Subsidiaries Place of Incorporation
- ------------ ----------------------
Waters Technologies Corporation Delaware
Waters Investments Limited Delaware
TA Instruments, Inc. Delaware
Extrel F.T.M.S. Delaware
Nihon Waters Limited Delaware
Nihon Waters K.K. Japan
Waters Asia Limited Delaware
Waters China Limited Hong Kong
Waters Operating Corp. Delaware
Waters Australia Pty. Ltd. Australia
Waters NV Belgium
Waters Ltda. Brazil
Waters Limited/Waters Limitee Canada
Waters A/S Denmark
Waters Oy Finland
Waters France Holding Corp. Delaware
Waters Holding SA France
Waters SA France
Waters GmbH Germany
Waters S.r.l. Italy
Waters SA de CV Mexico
Waters Chromatography BV Netherlands
Waters Chromatography Europe BV Netherlands
Waters Chromatografia SA Spain
Waters Sverige AB Sweden
Waters AG Switzerland
Waters GesMBH Austria
Waters Kft Hungary
Waters Sp.Zo.o Poland
Waters Ltd. U.K.
Phase Separations Ltd. U.K.
Phase Separations EURL France
Phase Separations B.V. Netherlands
Phase Separations Inc. Connecticut
<PAGE>
SCHEDULE D
Material Subsidiaries Place of Incorporation
- --------------------- ----------------------
Waters Technologies Corporation Delaware
Waters Investments Limited Delaware
TA Instruments, Inc. Delaware
Waters Holding SA France
Waters SA. France
Waters GmbH Germany
Waters Ltd. U.K.
<PAGE>
Exhibit A
WATERS CORPORATION
(a Delaware corporation)
10,000,000 Shares of Common Stock
INTERNATIONAL PRICE DETERMINATION AGREEMENT
-------------------------------------------
June ____________, 1996
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
As Lead Managers of the several Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Ladies and Gentlemen:
Reference is made to the International Purchase Agreement dated June
_________, 1996 (the "International Purchase Agreement") among Waters
Corporation (the "Company"), Waters Technologies Corporation ("Technologies"),
the Selling Stockholders listed in Schedule A thereto and hereto (the "Selling
Stockholders") and the several Managers named in Schedule B thereto and hereto
(the "Managers"), for whom Merrill Lynch International, Alex. Brown & Sons
Incorporated, CS First Boston Limited and Goldman Sachs International are acting
as representatives (the "Lead Managers"). The International Purchase Agreement
provides for the purchase by the Managers from the Selling Stockholders, subject
to the terms and conditions set forth therein, of an aggregate of 2,000,000
shares (the "Initial International Shares") of the Company's common stock, par
value $.01 per share. This Agreement is the International Price Determination
Agreement referred to in the International Purchase Agreement.
<PAGE>
Pursuant to Section 2 of the International Purchase Agreement, the
undersigned agree with the Lead Managers as follows:
1. The initial public offering price per share for the Initial
International Shares shall be $_____________.
2. The purchase price per share for the Initial International
Shares to be paid by the several Managers shall be $___________,
representing an amount equal to the initial public offering price set
forth above, less $_______ per share.
The Company and Technologies, jointly and severally, represent and
warrant to each of the Managers that the representations and warranties of the
Company and Technologies set forth in Section 1(a) of the International Purchase
Agreement are accurate as though expressly made at and as of the date hereof.
Additionally, if the Company elects to rely upon Rule 462(b), the
Company represents and warrants to each of the Underwriters that:
(a) the Company has filed a Rule 462(b) Registration Statement
in compliance with and that is effective upon filing pursuant to Rule
462(b)
and has received confirmation of its receipt; and
(b) the Company has given irrevocable instruments for
transmission of the applicable filing fee in connection with the
filing of the
Rule 462(b) Registration Statement, in compliance with Rule 111 of the
1933 Act Regulations, or the Commission has received payment of such
filing fee.
Each Selling Stockholder, severally and not jointly, represents and
warrants to each of the Managers that the representations and warranties of such
Selling Stockholder set forth in Section 1(b) of the International Purchase
Agreement are accurate as though expressly made at and as of the date hereof.
This Agreement shall be governed by the laws of the State of New York,
without regard to principles of conflicts of laws.
A-2
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company, Technologies and the Selling
Stockholders a counterpart hereof, whereupon this instrument along with all
counterparts and together with the International Purchase Agreement shall be a
binding agreement among the Managers, the Company, Technologies and the Selling
Stockholders in accordance with its terms and the terms of the International
Purchase Agreement.
Very truly yours,
WATERS CORPORATION
By
--------------------------
Name:
Title:
WATERS TECHNOLOGIES CORPORATION
By
--------------------------
Name:
Title:
THE SELLING STOCKHOLDERS NAMED IN CATEGORY
1 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN CATEGORY 2 OF
SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
THE SELLING STOCKHOLDERS NAMED IN CATEGORY
3 OF SCHEDULE A HERETO
By
--------------------------
Name:
Title: Attorney-in-Fact
A-3
<PAGE>
Confirmed and accepted as of
the date first above written:
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
By: MERRILL LYNCH INTERNATIONAL
By
-----------------------------
Name:
Title:
For themselves and as Lead Managers of the other
- -------------------------------------------------
Managers named in Schedule B attached hereto.
- ---------------------------------------------
A-4
<PAGE>
Exhibit B
Form of Opinion of Kirkland & Ellis Pursuant to
Section 5(b) of the International Purchase Agreement
June ____________, 1996
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
and the other U.S. Underwriters
(as defined below)
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281-1209
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
and the other International Managers
(as defined below)
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
ENGLAND
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware
corporation (the "Company"), Waters Technologies Corporation, a Delaware
corporation ("Technologies") and certain of the Selling Stockholders, including
Bain Capital Fund IV, L.P., Bain Capital Fund IV-B, L.P., BCIP Associates and
BCIP Trust Associates, L.P. (collectively, the "Bain Capital Entities"), in
connection with the sale, (i) pursuant to the U.S. Purchase Agreement (the "U.S.
<PAGE>
Purchase Agreement") dated June ______________, 1996, among the Company,
Technologies, the selling stockholders named in Schedule A thereto (the "Selling
Stockholders"), and the U.S. underwriters named in Schedule B thereto (the "U.S.
Underwriters"), of 9,200,000 shares by the Selling Stockholders, consisting of
8,000,000 shares (the "Initial U.S. Shares") and 1,200,000 shares (the "U.S.
Option Shares" and, together with the Initial U.S. Shares, the "U.S. Shares"),
of the Company's common stock, par value $0.01 per share ("Common Stock"), and
the related U.S. Price Determination Agreement (the "U.S. Price Determination
Agreement") dated June ______________, 1996 among the Company, Technologies, the
Selling Stockholders and the U.S. Underwriters, and (ii) pursuant to the
International Purchase Agreement (the "International Purchase Agreement") dated
June ____________, 1996 among the Company, Technologies, the Selling
Stockholders and the managers named in Schedule B thereto (the "Managers"), of
2,300,000 shares by the Selling Stockholders, consisting of 2,000,000 shares
(the "Initial International Shares") and 300,000 shares (the "International
Option Shares" and, together with the Initial International Shares, the
"International Shares"), of Common Stock and the related International Price
Determination Agreement (the "International Price Determination Agreement")
dated June ___________, 1996 among the Company, Technologies, the Selling
Stockholders and the Managers. In addition, we have also issued opinions herein
on behalf of all of the Selling Stockholders. The U.S. Purchase Agreement and
the International Purchase Agreement are collectively referred to as the
"Purchase Agreements." The U.S. Price Determination Agreement and the
International Price Determination Agreement are collectively referred to as the
"Price Determination Agreements." The U.S. Underwriters and the Managers are
collectively referred to as the "Underwriters." The U.S. Shares and the
International Shares are collectively referred to as the "Offered Shares."
Capitalized terms used but not otherwise defined herein shall have the meanings
given to such terms in the U.S. Purchase Agreement.
We have examined, among other things, the following:
(1) copies of the Registration Statement on Form S-1 (No. 333-3810)
filed by the Company with the Commission on April 19, 1996 for the purpose of
registering the offering of the Offered Shares under the Securities Act, as
amended on May 10, 1996 and _______________, 1996, in each case including all
exhibits thereto (as amended to the date hereof, the "Registration Statement");
(2) a copy of the Company's preliminary prospectus dated May 10, 1996
relating to the U.S. Shares and a copy of the Company's final prospectus dated
June ________, 1996, relating to the U.S. Shares (the final U.S. prospectus, the
"U.S. Prospectus");
(3) a copy of the Company's preliminary prospectus dated May 10, 1996,
1996 relating to the International Shares, and a copy of the Company's final
prospectus dated June _____________, 1996 relating to the International Shares
(the final international prospectus, the "International Prospectus"; together
with the U.S. Prospectus, the "Prospectuses");
B-2
<PAGE>
(4) a copy of each of the Purchase Agreements and the Price
Determination Agreements;
(5) a copy of the Custody Agreement and Power of Attorney, dated as of
April 23, 1996, by and among the Company, the Selling Stockholders, the
Attorneys-in-Fact named therein and The First National Bank of Boston (all such
agreements collectively, the "Custody Agreement and Power of Attorney");
(6) certain letter agreements between certain stockholders of the
Company in favor of the Underwriters (the "Lock-up Agreements");
(7) the Registration Rights Agreement made as of August 18, 1994 by
and among the Company and certain stockholders of the Company (the "Registration
Rights Agreement");
(8) copies of the certificates of incorporation and bylaws of the
Company, and Technologies, as amended to date; and
(9) copies of a unanimous written consent signed by each member of the
Board of Directors of the Company on April 16, 1996 and a unanimous written
consent signed by each member of the Board of Directors of Technologies on
_______________, 1996;.
The Purchase Agreements, the Price Determination Agreements, and the
Custody Agreement and Power of Attorney are collectively referred to as the
"Transaction Agreements." The Purchase Agreements, the Price Determination
Agreements and the Custody Agreement and Power of Attorney are collectively
referred to as the "Selling Stockholder Agreements."
In addition, we have examined and relied, to the extent we deemed
proper, on the originals or copies certified or otherwise identified to our
satisfaction of all such corporate or partnership records of the Company and the
Bain Capital Entities and such other instruments and certificates of public
officials, officers and representatives of the Company and the Bain Capital
Entities and other persons, and we have made such investigations of law as we
have deemed appropriate. We have assumed the legal capacity of all natural
persons, the authenticity of all documents submitted to us as originals, the
conformity to the originals of all documents submitted to us as copies, and the
authenticity of the originals of all documents submitted to us as copies. In
our examination, we have assumed the genuineness of the signatures of persons
purportedly signing all documents and instruments, the authority and capacity of
such persons signing on behalf of the parties thereto other than the Company and
the Bain Capital Entities and the due authorization, execution and delivery of
all documents by the parties thereto other than the Company and the Bain Capital
Entities.
As to matters of fact, we have relied (without independent
investigation) upon oral or written statements or representations of officers of
the Company, the Selling Stockholders
B-3
<PAGE>
and the Bain Capital Entities. Nothing has been brought to our attention which
causes us to believe, however, that such statements or representations are
misleading.
To the extent it may be relevant to the opinions expressed herein, (i)
we have assumed that the Power of Attorney and Custody Agreement of each Selling
Stockholder other than the Bain Capital Entities has been duly authorized,
executed and delivered by each party thereto and constitutes a valid and
binding agreement of each party thereto other than such Selling Stockholder and
the Company and (ii) we are relying upon oral advice of the staff of the
Securities and Exchange Commission (the "Commission") that the Commission has
issued an order declaring the Registration Statement effective.
Whenever any statement contained herein with respect to the existence
or absence of facts is indicated to be based on our knowledge or awareness, we
are referring to the actual knowledge of those Kirkland & Ellis attorneys who
have represented the Company and the Bain Capital Entities. Except as expressly
set forth herein, where our opinion is based upon our "knowledge," we have not
undertaken any independent investigation (other than inquiries of senior
officers of the Company and the Bain Capital Entities) to determine the
existence or absence of such facts and no inference as to our knowledge
concerning such facts should be drawn from the fact of our representation of
such entities.
Subject to the foregoing and to the further assumptions, qualifications
and limitations set forth below:
(i) The Company is a corporation validly existing and in good standing
under the General Corporation Law of the State of Delaware with requisite
corporate power and authority under such laws to own, lease and operate its
properties and to conduct its business as described in the Prospectuses and
to enter into and perform its obligations under the Purchase Agreements.
(ii) Each of the Subsidiaries of the Company organized under the laws
of the United States and listed on Schedule A hereto (the "Domestic
Subsidiaries") is a corporation validly existing and in good standing under
the laws of the jurisdiction of its incorporation with requisite corporate
power and authority under such laws to own its properties and conduct its
business as described in the Prospectuses, and is duly qualified to
transact business as a foreign corporation and is in good standing under
the laws of each jurisdiction set forth opposite such Domestic Subsidiary's
name on Schedule A hereto.
(iii) Each of the Company and Technologies has all necessary
corporate power and authority to execute, deliver and perform its
obligations under each of the Transaction Agreements to which it is a
party; each of the Transaction Agreements has been duly authorized,
executed and delivered by each of the Company and Technologies which is a
party thereto; and each of the Transaction Agreements constitutes the valid
B-4
<PAGE>
and binding obligation of each of the Company and Technologies which is a
party thereto, enforceable against the Company or Technologies, as the case
may be, in accordance with its terms.
(iv) All of the issued and outstanding shares of capital stock of the
Company (including the shares of Common Stock to be sold by the Selling
Stockholders pursuant to the Purchase Agreements) have been duly authorized
and validly issued and are fully paid and non-assessable; and, to our
knowledge, none of the outstanding shares of capital stock of the Company
was issued in violation of the preemptive or other similar rights of any
stockholder of the Company. The Company has the authorized capitalization
set forth in the Prospectuses under the caption "Capitalization."
(v) Except as disclosed in the Prospectuses, (a) all of the
outstanding shares of capital stock of each Domestic Subsidiary have been
duly authorized and validly issued and are fully paid and nonassessable
and, based solely upon a review of the stock transfer records of such
Domestic Subsidiary, are owned of record by the Company, directly or
through one or more Subsidiaries, free and clear of any pledge, lien,
security interest, charge, claim, mortgage or encumbrance of any kind, and
(b) to our knowledge, none of the outstanding shares of capital stock of
the Domestic Subsidiaries was issued in violation of the preemptive or
other similar rights of any stockholder of such Domestic Subsidiaries.
(vi) Except as disclosed in the Prospectuses, to our knowledge, there
are no outstanding options, warrants or other rights calling for issuance
of, and no commitments, obligations, written plans or arrangements to
issue, any shares of capital stock of the Company or any Subsidiary or any
security convertible into or exchangeable for capital stock of the Company
or any Subsidiary.
(vii) The statements made in the Prospectuses under the captions
"Description of Capital Stock" and "Description of Certain Indebtedness"
have been reviewed by us and are accurate and fairly summarize the
agreements or other documents described therein in all material respects.
(viii) No authorization, approval, consent, license, order,
registration or qualification of or with any government, governmental
instrumentality or court (other than as required under the securities or
blue sky laws of the various states, as to which we express no opinion) is
necessary under any applicable law, statute, rule or regulation that in our
experience is normally applicable to transactions of the type provided for
in the Transaction Agreements in connection with the execution, delivery
and performance of the Transaction Agreements by the Company or
Technologies or for the sale and delivery of the Offered Shares, except
such as have been obtained.
B-5
<PAGE>
(ix) The execution, delivery and performance of the Transaction
Agreements by the Company or Technologies, as the case may be, and the sale
and delivery of the Offered Shares will not result in any violation of the
charter or bylaws of the Company or Technologies and do not and will not
conflict with, or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the creation or
imposition of any lien or encumbrance upon any property or assets of the
Company or Technologies under (a) any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument filed as an exhibit to the Registration Statement, (b) any
applicable law, statute, rule, or regulation that in our experience is
normally applicable to transactions of the type provided for in the
Transaction Agreements, or (c) any judgment, order, writ, injunction or
decree of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or Technologies or any of
their respective properties, assets or operations described in the
Prospectuses as set forth on a schedule attached hereto (which the Company
has advised us are the only judgments, orders, writs, injunctions or
decrees of any government, governmental instrumentality or court, domestic
or foreign, having jurisdiction over the Company or Technologies or any of
their respective properties or operations, by which the Company or
Technologies is bound). We express no opinion in clause (b) of this
paragraph (ix) with respect to the information contained in, or the
accuracy, completeness or correctness of, the Prospectuses or the
Registration Statement, which matters are dealt with in paragraphs (vii),
(xiv) and our separate letter to the Underwriters dated the date hereof.
(x) We have been advised by the Commission that the Registration
Statement was declared effective under the 1933 Act at __________ Eastern
Time, on June ____________, 1996; the required filing of the Prospectuses
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are pending or
have been threatened by the Commission under the 1933 Act.
(xi) To our knowledge, other than as disclosed in the Prospectuses,
there are no legal or governmental proceedings pending or threatened to
which the Company or Technologies is or may be a party or to which any
property of the Company or Technologies is or may be the subject which, if
determined adversely to the Company or Technologies, could, individually or
in the aggregate, reasonably be expected to (x) result in a material
adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise or (y) materially and adversely
affect the execution, delivery and performance by the Company or
Technologies of the Transaction Agreements. To our knowledge, there are no
statutes or regulations, and no legal or governmental actions, suits or
proceedings pending or threatened against the Company or Technologies that
are required to be described in the Prospectuses that are not so described.
B-6
<PAGE>
(xii) To our knowledge, except as set forth in the Prospectus, the
Company and the Subsidiaries are in compliance with, and each such entity
has not received any notice of any outstanding violation of, all laws,
ordinances, rules, regulations, judgments, decrees, orders and statutes
applicable to the Company or any Subsidiary and any of their respective
operations, except, in either case, where any failure by the Company or any
Subsidiary to comply with any such law, regulation, ordinance or rule could
not reasonably be expected to have, individually or in the aggregate, a
material adverse effect on the financial condition of the Company and its
Subsidiaries, considered as one enterprise.
(xiii) To our knowledge, except as set forth in the Prospectuses and
except as provided in the Registration Rights Agreement, there are no
holders of securities (debt or equity) of the Company or any Subsidiary or
holders of rights (including, without limitation, preemptive rights),
warrants or options to obtain securities of the Company or any Subsidiary
who have the right to request the Company or any Subsidiary to register
securities held by them under the 1933 Act as a result of the filing of the
Registration Statement by the Company or the offering contemplated therein,
other than holders who have waived such rights or will not have such rights
for the 180-day period after the date of the Prospectuses.
(xiv) The statements made in the Prospectuses under the caption
"Certain United States Federal Tax Consequences to Non-United States
Holders" insofar as they constitute federal statutes, rules and
regulations, have been reviewed by us and fairly present the information
disclosed therein in all material respects.
(xv) The Company is not an investment company within the meaning of
the Investment Company Act of 1940, as amended.
(xvi) Each of the Bain Capital Entities has the partnership power and
authority to enter into the Selling Stockholder Agreements and to sell,
transfer and deliver the Offered Shares to be sold by it under the Purchase
Agreements. The Selling Stockholder Agreements have been duly authorized,
executed and delivered by or on behalf of each of the Bain Capital Entities
and constitute the valid and binding obligations of each of the Bain
Capital Entities, enforceable against the Bain Capital Entities in
accordance with their terms.
(xvii) The Purchase Agreements and the Price Determination Agreements
have been duly authorized, executed and delivered by or on behalf of each
Selling Stockholder other than the Bain Capital Entities and AEA Investors
Inc. (collectively, the "Minority Stockholders").
B-7
<PAGE>
(xviii) The Custody Agreement and Power of Attorney constitutes the
valid and binding obligation of each Minority Stockholder enforceable
against each Minority Stockholder in accordance with its terms.
(xix) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of the Bain Capital Entities do not
and will not result in a violation of the partnership agreement or
certificate of limited partnership, as applicable, of the Bain Capital
Entities and, to our knowledge, do not and will not conflict with, or
result in a breach of any of the terms and provisions of, or constitute a
default under (A) any statute, rule or regulation relating to any of the
Bain Capital Entities or their legal or regulatory status which in our
experience is normally applicable to transactions of the type provided for
in the Selling Stockholder Agreements, (B) any material judgment, order,
writ, injunction or decree of any court or governmental agency or body,
domestic or foreign, having jurisdiction over any of the Bain Capital
Entities or (C) any material contract, agreement or other instrument listed
on Schedule B hereto to which any of the Bain Capital Entities is a party
or by which any of them are bound.
(xx) The execution, delivery and performance of the Selling
Stockholder Agreements by or on behalf of each Selling Stockholder will not
contravene any provision of the General Corporation Law of the State of
Delaware, the laws of the State of New York or the federal laws of the
United States of America applicable to such Selling Stockholder, provided
that the foregoing opinion is limited to such laws which, in our
experience, are normally applicable to public offerings of securities of
the type contemplated by the Purchase Agreements excluding laws that are
applicable to any Selling Stockholder solely because of its specific status
(including regulatory status), other than its status as a Selling
Stockholder.
(xxi) No consent, approval, authorization or order of or
qualification by the State of Delaware (as it relates to the General
Corporation Law of the State of Delaware), the State of New York or any
federal governmental body or agency is required for the performance by any
Selling Stockholder of its obligations under the Selling Stockholder
Agreements, except such as have been obtained under the Securities Act or
such as may be required by the securities or Blue Sky laws in connection
with the purchase and distribution of the Offered Shares by the
Underwriters, provided that the foregoing opinion is limited to such
consents, approvals, authorizations, orders or qualification which, in our
experience, are normally applicable to public offerings of securities of
the type contemplated by the Purchase Agreements excluding consents,
approvals, authorizations, orders or qualifications that are applicable to
any Selling Stockholder solely because of its specific status (including
regulatory status), other than its status as a Selling Stockholder.
(xxii) Assuming that the Underwriters purchase the Offered Shares to
be delivered by or on behalf of the Selling Stockholders at the Closing
Time in good faith
B-8
<PAGE>
and without notice of any security interests, claims, liens, equities,
encumbrances and other adverse claims as such term is used in Section 8-302
of the Uniform Commercial Code as in effect in the State of New York, the
delivery of certificates representing such Offered Shares, duly endorsed to
the Underwriters or in blank, will pass to the Underwriters valid title to
such Offered Shares, free and clear of all security interests, claims,
liens, equities, encumbrances and other adverse claims.
Our opinions are subject to the following further qualifications:
(a) Our opinions regarding enforceability are subject to (x) the
effect of bankruptcy, insolvency, reorganization, arrangement, moratorium,
fraudulent transfer or other similar laws, (y) the effect of general
principles of equity (regardless of whether enforcement is considered in
proceedings at law or in equity), and (z) limitations imposed by federal or
state securities laws on principles of public policy to enforcement of
rights to indemnification and contribution.
(b) Our opinions expressed herein are limited to matters governed by
the federal laws of the United States of America, the laws of the State of
New York and the General Corporation Law of the State of Delaware.
This letter is furnished to you pursuant to Sections 5(b) of the
Purchase Agreements, is solely for your benefit, and is not to be used,
circulated, quoted or otherwise relied upon by any other person or by you for
any other purpose, without our prior written consent.
Very truly yours,
B-9
<PAGE>
Schedule A - Domestic Subsidiaries
----------------------------------
<TABLE>
<CAPTION>
Jurisdiction(s) in which
Jurisdiction of Qualified as a Foreign
Subsidiary Organization Corporation
- ---------- --------------- ------------------------
<S> <C> <C>
Waters Technologies Delaware California, Colorado,Connecticut,
Corporation Florida, Georgia, Iowa, Indiana,
Kentucky, Maryland,
Massachusetts, Michigan,
Minnesota, Missouri, Montana, New
Jersey, New York, North Carolina,
Ohio, Oregon, Pennsylvania, South
Carolina, Texas, Virginia,
Washington, West Virginia,
Wisconsin
Waters Investments Limited Delaware None
TA Instruments, Inc. Delaware [ ]
</TABLE>
<PAGE>
Schedule B - Material Contracts of the Bain Capital Entities
------------------------------------------------------------
Agreement of Limited Partnership of Bain Capital Fund IV, L.P. ("Fund IV"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV, dated August 28, 1992
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV and Bain
Capital, Inc.
Agreement of Limited Partnership of Bain Capital Fund IV-B, L.P. ("Fund IV-B"),
dated April 12, 1993
Certificate of Limited Partnership for Fund IV-B, dated April 6, 1993
Investment and Advisory Agreement, dated April 16, 1993 between Fund IV-B and
Bain Capital, Inc.
Agreement of Limited Partnership of Bain Capital Partners IV, L.P. ("BCP-IV"),
dated April 5, 1993
Certificate of Limited Partnership for BCP-IV, dated August 28, 1992
Certificate of Incorporation of Bain Capital Investors, Inc., dated April 5,
1993
Amended and Restated Partnership Agreement of BCIP Associates dated as of
January 24, 1991
Amended and Restated Limited Partnership Agreement of BCIP Trust Associates
dated as of January 24, 1991
<PAGE>
June ____________, 1996
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON CORPORATION
GOLDMAN, SACHS & CO.
and the other U.S. Underwriters
(as defined below)
c/o Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Merrill Lynch World Headquarters
North Tower
World Financial Center
New York, NY 10281-1209
MERRILL LYNCH INTERNATIONAL
ALEX. BROWN & SONS INCORPORATED
CS FIRST BOSTON LIMITED
GOLDMAN SACHS INTERNATIONAL
and the other International Managers
(as defined below)
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
ENGLAND
Re: Waters Corporation
------------------
Ladies and Gentlemen:
We have acted as counsel for Waters Corporation, a Delaware corporation
(the "Company") and Waters Technologies Corporation, a Delaware corporation
("Technologies") in connection with (i) the U.S. Purchase Agreement (the "U.S.
Purchase Agreement") dated June _______________, 1996, among the Company,
Technologies, the selling stockholders named in Schedule A thereto (the "Selling
Stockholders"), and the U.S. underwriters named in Schedule B thereto (the "U.S.
Underwriters"), (ii) the related U.S. Price Determination Agreement dated June
___________, 1996 among the Company, Technologies, the Selling Stockholders and
the U.S. Underwriters, (iii) the International Purchase Agreement (the
"International Purchase Agreement") dated June ___________, 1996 among the
Company, Technologies, the Selling Stockholders and the managers named in
Schedule B thereto, and (iv) the related International Price Determination
Agreement dated June _______________, 1996 among the Company,
B-1
<PAGE>
Technologies, the Selling Stockholders and the Managers. The U.S. Purchase
Agreement and the International Purchase Agreement are collectively referred to
as the "Purchase Agreements." Capitalized terms used but not defined herein
shall have the meanings given to such terms in the U.S. Purchase Agreement.
Because the primary purpose of our professional engagement was not to
establish factual matters and because of the wholly or partially non-legal
character of many determinations involved in the preparation of (i) the
Registration Statement on Form S-1 (Registration No. 333-3810) and Pre-Effective
Amendments No. 1 and 2 thereto (as amended, the "Registration Statement"), in
each case as filed by the Company with the Securities and Exchange Commission
(the "Commission"), and (ii) the final U.S. prospectus and the final
international prospectus, each dated June _____________, 1996 (collectively, the
"Prospectus") filed by the Company with the Commission on June ____________,
1996, we are not passing upon and do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus (except to the extent expressly set
forth in paragraphs (vii) and (xiv) of our opinion letter to you of even date
herewith) and make no representation that we have independently verified the
accuracy, completeness or fairness of such statements (except as aforesaid).
However, in our capacity as special counsel to the Company and the Selling
Stockholders, we have participated in the preparation of the Registration
Statement and the Prospectus and we met with and participated in telephone
conferences with representatives of the Company, representatives of AEA
Investors Inc. and Bain Capital, Inc., representatives of Coopers & Lybrand
L.L.P., the Company's independent auditors, your representatives and
representatives of Fried, Frank, Harris, Shriver & Jacobson, your legal counsel,
during which the contents of the Registration Statement and the Prospectuses and
related matters were discussed. In addition, we reviewed certain documents
furnished to us by the Company and the Selling Stockholders.
Based on our participation in the above-mentioned conferences, our review
of the documents described above, our understanding of applicable law and the
experience we have gained in our practice thereunder, we advise you that (i) the
Registration Statement, at the time it became effective, and the Prospectuses
(in each case other than the financial statements and related schedules and
financial data therein, as to which we express no opinion) comply as to form in
all material respects with the requirements of the Securities Act of 1933, as
amended, and the rules and regulations thereunder except that we express no
opinion in this clause (i) with respect to the matters covered by the following
clause (ii); (ii) although we do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus (except for those referred to in paragraphs (vii)
and (xiv) of our opinion letter to you of even date herewith), on the basis of
our understanding of applicable law and experience we have gained in our
practice thereunder, nothing has come to our attention that would cause us to
believe that, as of their respective effective dates, the Registration Statement
(including the Rule 430A Information but excluding the financial statements and
related schedules and financial data therein, as to which we express no opinion)
B-2
<PAGE>
or any amendment thereto contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of their dates, the
Prospectuses or any amendment or supplement thereto (other than the financial
statements and financial data therein, as to which we express no opinion)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading or that, as of the Closing Time,
either the Registration Statement or the Prospectuses (in each case other than
the financial statements and related schedules and financial data therein, as to
which we express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading; and (iii)
we do not know of any amendment to the Registration Statement required to be
filed or of any contracts or other documents of a character required to be filed
as an exhibit to the Registration Statement or required to be described in the
Registration Statement or the Prospectus which are not filed or described as
required.
This letter is furnished to you pursuant to Section 5 (b) of each of the
Purchase Agreements, is solely for your benefit, and is not to be used,
circulated, quoted or otherwise relied upon by any other person or by you for
any other purpose, without our prior written consent.
Very truly yours,
B-3
<PAGE>
Exhibit C
Form of Opinion of Christine J. Smith
Pursuant to Section 5(b) of the International Purchase Agreement
June ____________, 1996
Merrill Lynch International
Alex. Brown & Sons Incorporated
CS First Boston Limited
Goldman Sachs International
As Lead Managers of the Several Managers
c/o Merrill Lynch International
Ropemaker Place
25 Ropemaker Street
London EC2Y 9LY
England
Re: Waters Corporation
------------------
Ladies and Gentlemen:
Iam General Counsel of AEA Investors Inc., a Delaware corporation ("AEA"),
and, as such, am generally familiar with the affairs of AEA (the "Selling
Stockholder").
Reference is made to the International Purchase Agreement dated as of June
_________, 1996 (the "International Purchase Agreement") among Waters
Corporation (the "Company"), Waters Technologies Corporation ("Technologies"),
the Selling Stockholders listed in Schedule A thereto (the "Selling
Stockholders") and the several Managers named in Schedule B thereto (the
"Managers"), for whom Merrill Lynch International, Alex. Brown & Sons
Incorporated, CS First Boston Limited and Goldman Sachs International are acting
as Lead Managers (the "Lead Managers"). This opinion is being delivered to you
today pursuant to Section 5(b) of the International Purchase Agreement.
(Capitalized terms have the meanings given to them in the International Purchase
Agreement.)
In connection with the issuance and sale pursuant to the International
Purchase Agreement by the Selling Stockholder to the Managers of the Company's
common stock, I have examined copies of the Custody Agreement and Power of
Attorney executed by the Selling Stockholder, the International Purchase
Agreement, the International Price Determination Agreement, the U.S. Purchase
Agreement and the U.S. Price Determination Agreement. I have also examined
copies of (i) the Certificate of Incorporation, as amended, of the Selling
Stockholder, (ii) the By-Laws, as amended, of the Selling Stockholder, (iii)
certain resolutions adopted by the Board of Directors of the Selling Stockholder
and (iv) such other documents and
<PAGE>
records as I have deemed necessary and relevant for the purposes hereof. I have
assumed the genuineness of all signatures, the authenticity of all documents and
records submitted to me as originals and the conformity to authentic original
documents and records of all documents and records submitted to me as copies.
Based on the foregoing, subject to the limitations and assumptions set forth
herein, and having due regard for such legal considerations as I deem relevant,
I am of the opinion that:
(i) AEA has the corporate power and authority to enter into the
Purchase Agreements, the Price Determination Agreements and the Custody
Agreement and Power of Attorney and to sell, transfer and deliver the Offered
Shares sold by AEA under the Purchase Agreements.
(ii) The Custody Agreement and Power of Attorney has been duly
authorized, executed and delivered by or on behalf of AEA and constitutes the
valid and binding obligation of AEA in accordance with its terms subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally and subject to general principles of equity.
(iii) The execution and delivery of the International Purchase
Agreement, the International Price Determination Agreement, the U.S. Purchase
Agreement, the U.S. Price Determination Agreement and the Custody Agreement and
Power of Attorney by or on behalf of AEA, the sale of the Offered Shares by AEA
to the U.S. Underwriters and the Managers, and compliance by AEA with the terms
of the U.S. Purchase Agreement, the International Purchase Agreement and the
Custody Agreement and Power of Attorney have been duly authorized by all
necessary action on the part of AEA and do not and will not result in a
violation of the certificate of incorporation or By-Laws of AEA, and, to the
best of my knowledge without independent investigation, do not and will not
conflict with, or result in a breach of any of the terms and provisions of, or
constitute a default under (A) any statute, rule or regulation relating to AEA
or its legal or regulatory status in each case, that in the experience of such
counsel are normally applicable to the type provided for by the U.S. Purchase
Agreement and the International Purchase Agreement, (B) any material judgment,
order, rule, injunction or regulation of any court or governmental agency or
body, domestic or foreign, having jurisdiction over AEA or any of its respective
properties or (C) any material contract, agreement or other instrument to which
AEA is a party or by which it is bound or to which any of its properties are
subject.
I am a member of the Bar of the State of New York and do not purport to be
an expert on, or render any opinion covering, the law of any jurisdiction other
than the laws of the State of New York, and the federal laws of the United
States of America. With respect to any opinions concerning Delaware corporate
or partnership law involved in my opinion set forth in such paragraph, you are
aware that I am not admitted to the Bar in the State of Delaware and am not an
expert in the law of such jurisdiction, and that any such opinions concerning
Delaware corporate law are based upon my general (although not necessarily
complete) familiarity with the Delaware General Corporation Law as a result of
my prior involvement in transactions involving such Law.
<PAGE>
This opinion is being furnished to you solely in connection with the
transaction described above. This opinion may not be relied upon by anyone
other than you, and you may only rely on this opinion in connection with such
transaction.
Very truly yours,
<PAGE>
EXHIBIT 5.1
-----------
May 30, 1996
Waters Corporation
34 Maple Street
Milford, MA 01757
Re: Shares of Common Stock, $0.01 par value
---------------------------------------
Ladies and Gentlemen:
We are acting as counsel to Waters Corporation, a Delaware corporation (the
"Company"), in connection with the preparation and filing with the Securities
and Exchange Commission under the Securities Act of 1933, as amended (the
"Securities Act"), of a Registration Statement on Form S-1 (Registration No.
333-3810 (the "Registration Statement") pertaining to the registration of a
proposed offering of up to 11,500,000 shares of the Company's Common Stock,
$0.01 par value per share ("Common Stock")) which are proposed to be offered by
certain stockholders of the Company (the "Selling Stockholder Shares").
We have examined originals, or copies certified or otherwise identified to
our satisfaction, of such documents, corporate records and other instruments as
we have deemed necessary for the purposes of this opinion, including the
following: (a) a form of Second Amended and Restated Certificate of
Incorporation; (b) the Amended and Restated Bylaws of the Company; and (c)
certain resolutions adopted by the Board of Directors of the Company. In
addition, we have made such other and further investigations as we have deemed
necessary to enable us to express the opinions hereinafter set forth.
Based upon the foregoing and having regard to legal considerations that we
deem relevant, and subject to the comments and qualifications set forth below,
it is our opinion that the Common Stock has been duly authorized and the Selling
Stockholder Shares have been duly and validly issued and are fully paid and
nonassessable.
For purposes of this opinion, we have with your permission made the
following assumptions, in each case without independent verification: (1) the
authenticity of all documents submitted to us as originals, (2) the conformity
to the originals of all documents submitted to us as copies, (3) the
authenticity of the originals of all documents submitted to us as copies, (4)
the genuineness of the signatures of persons signing all documents in connection
with which this opinion is rendered, (5) the authority of such persons signing
all documents on behalf of the parties thereto, and (6) the due authorization,
execution and delivery of all documents by the parties thereto.
<PAGE>
Waters Corporation
May 30, 1996
Page 2
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to the reference to this firm under the section
entitled "Legal Matters" in the prospectus included in the Registration
Statement. In giving such consent, we do not thereby concede that we are within
the category of persons whose consent is required under Section 7 of the
Securities Act or the Rules and Regulations promulgated thereunder.
We do not find it necessary for purposes of this opinion to cover, and
accordingly we do not purport to cover herein, the application of the securities
or "Blue Sky" laws of the various states to the offering and sale of the Common
Stock.
This opinion shall be limited to the laws of the State of Delaware.
This opinion is furnished to you in connection with the filing of the
Registration Statement and is not to be used, circulated, quoted or otherwise
relied upon for any other purpose.
Very truly yours,
KIRKLAND & ELLIS
<PAGE>
EXHIBIT 11
WATERS CORPORATION AND SUBSIDIARIES
STATEMENT REGARDING COMPUTATION OF PER SHARE EARNINGS
(IN THOUSANDS, EXCEPT PER SHARE AMOUNTS)
<TABLE>
<CAPTION>
YEAR ENDED THREE MONTHS ENDED
AUGUST 19 TO DECEMBER -----------------------------
DECEMBER 31, 1994 31, 1995 MARCH 31, 1995 MARCH 31, 1996
----------------- ---------- -------------- --------------
<S> <C> <C> <C> <C>
Historical
Common stock outstand-
ing, beginning of peri-
od..................... 21,482 21,482 21,482 28,796
Weighted average cheap
stock.................. 3,540 3,136 3,540 5,035
Weighted average number
of common stock
equivalent shares...... -- 266 -- --
Weighted average number
of shares in connection
with the Company's IPO
and upon exercise of
the Warrant............ -- 840 -- --
Less: Assumed purchase (1,170) (1,162) (1,170) (2,906)
of treasury shares..... -------- ------- ------- ------
Weighted average number 23,852 24,582 23,852 30,925
of common shares....... ======== ======= ======= ======
(Loss) income from con-
tinuing operations..... ($80,191) $14,113 ($ 840) $8,175
(Loss) from discontinued
operations
Extraordinary Item..... (7,213) -- -- --
Net (loss) income..... (87,404) 2,001 (840) 8,175
-------- ------- ------- ------
Less: accretion of and
6% dividend on pre-
ferred stock........... (330) (902) (222) (229)
Net (loss) income
available to common (87,734) $ 1,099 ($1,062) $7,946
stockholders......... ======== ======= ======= ======
Income (loss) income per
common share:
(Loss) income per com-
mon share from con-
tinuing operations... ($ 3.38) $ 0.54 ($ 0.04) $ 0.26
(Loss) per common
share from discontin-
ued
operations........... (0.30) -- -- --
Extraordinary (loss) per -- (0.49) -- --
common share........... -------- ------- ------- ------
Net (loss) income per ($ 3.68) $ 0.05 ($ 0.04) $ 0.26
common share......... ======== ======= ======= ======
</TABLE>
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(1) In accordance with Securities and Exchange Commission Staff Accounting
Bulletin No. 83 ("SAB No. 83") all common equivalent shares and other
potentially dilutive instruments (including stock options and warrants)
issued during the twelve month period prior to the initial filing date of
the Company's initial public offering Registration Statement have been
included in the calculation as if they were outstanding for all periods
presented. The common equivalent shares for stock options and warrant were
determined using the treasury stock method at the initial public offering
price of $15.00 per share.
(2) Fully diluted net (loss) income per share is the same as primary net
(loss) income per share.
