UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form 10-K
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ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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For the fiscal
year ended December 31, 2009
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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Commission File Number:
01-14010
Waters Corporation
(Exact name of registrant as
specified in its charter)
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Delaware
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13-3668640
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(State or other jurisdiction
of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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34 Maple Street
Milford, Massachusetts 01757
(Address, including zip
code, of principal executive offices)
(508) 478-2000
(Registrants telephone
number, including area code)
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Securities registered pursuant to Section 12(b) of the Act:
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Common Stock, par value $0.01 per share
New York Stock Exchange, Inc.
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Series A Junior Participating Preferred Stock, par value
$0.01 per share
New York Stock Exchange, Inc.
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Securities registered pursuant to Section 12(g) of the Act:
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None
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Indicate by check mark whether the registrant is a well-known
seasoned issuer, as defined in Rule 405 of the Securities
Act. Yes
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No
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Indicate by check mark whether the registrant is not required to
file reports pursuant to Section 13 or Section 15(d)
of the
Act. Yes
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No
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Indicate by check mark whether the registrant (1) has filed
all reports required to be filed by Section 13 or 15(d) of
the Securities Exchange Act of 1934 during the preceding
12 months (or for such shorter period that the registrant
was required to file such reports), and (2) has been
subject to such filing requirements for the past
90 days. Yes
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No
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Indicate by check mark whether the registrant has submitted
electronically and posted on its corporate website, if any,
every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation ST
(§ 232.405 of this chapter) during the preceding
12 months (or for such shorter period that the registrant
was required to submit and post such
files). Yes
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No
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Indicate by check mark if disclosure of delinquent filers
pursuant to Item 405 of
Regulation S-K
is not contained herein and will not be contained, to the best
of registrants knowledge, in definitive proxy or
information statements incorporated by reference in
Part III of this
Form 10-K
or any amendment to this
Form 10-K.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in Rule
12b-2
of the
Exchange Act. (Check one):
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Large
accelerated
filer
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Accelerated
filer
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Non-accelerated
filer
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Smaller
reporting
company
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(Do not check if a smaller reporting company)
Indicate by check mark whether the registrant is a shell company
(as defined in
Rule 12b-2
of the
Act). Yes
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No
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State the aggregate market value of the registrants common
stock held by non-affiliates of the registrant as of
July 4, 2009: $4,680,348,128.
Indicate the number of shares outstanding of the
registrants common stock as of February 19, 2010:
93,586,125
DOCUMENTS
INCORPORATED BY REFERENCE
Portions of the registrants definitive proxy statement for
the 2010 Annual Meeting of Stockholders are incorporated by
reference in Part III.
WATERS
CORPORATION AND SUBSIDIARIES
ANNUAL
REPORT ON
FORM 10-K
INDEX
2
PART I
General
Waters Corporation (Waters or the
Company), an analytical instrument manufacturer,
primarily designs, manufactures, sells and services, through its
Waters Division, high performance liquid chromatography
(HPLC), ultra performance liquid chromatography
(UPLC
®
and together with HPLC, referred to as LC) and mass
spectrometry (MS) instrument systems and support
products, including chromatography columns, other consumable
products and comprehensive post-warranty service plans. These
systems are complementary products that can be integrated
together and used along with other analytical instruments.
Through its TA Division
(TA
®
),
the Company primarily designs, manufactures, sells and services
thermal analysis, rheometry and calorimetry instruments. The
Company is also a developer and supplier of software-based
products that interface with the Companys instruments as
well as other manufacturers instruments.
The Companys products are used by pharmaceutical, life
science, biochemical, industrial, academic and government
customers working in research and development, quality assurance
and other laboratory applications. The Companys LC and MS
instruments are utilized in this broad range of industries to
detect, identify, monitor and measure the chemical, physical and
biological composition of materials, as well as to purify a full
range of compounds. These instruments are used in drug discovery
and development, including clinical trial testing, the analysis
of proteins in disease processes (known as
proteomics), food safety analysis and environmental
testing. The Companys thermal analysis, rheometry and
calorimetry instruments are used in predicting the suitability
of fine chemicals, polymers and viscous liquids for uses in
various industrial, consumer goods and healthcare products, as
well as for life science research.
Waters is a holding company that owns all of the outstanding
common stock of Waters Technologies Corporation, its operating
subsidiary. Waters became a publicly traded company with its
initial public offering (IPO) in November 1995.
Since the IPO, the Company has added two significant and
complementary technologies to its range of products with the
acquisitions of TA Instruments in May 1996 and Micromass Limited
(Micromass
®
)
in September 1997.
Business
Segments
The Companys business activities, for which financial
information is available, are regularly reviewed and evaluated
by the chief operating decision makers. As a result of this
evaluation, the Company determined that it has two operating
segments: Waters Division and TA Division. As indicated above,
the Company operates in the analytical instruments industry,
designing, manufacturing, distributing and servicing products in
three technologies: LC and MS instruments; columns and other
consumables; and thermal analysis, rheometry and calorimetry
instruments. The Companys two operating segments, Waters
Division and TA Division, have similar economic characteristics;
product processes; products and services; types and classes of
customers; methods of distribution and regulatory environments.
Because of these similarities, the two segments have been
aggregated into one reporting segment for financial statement
purposes.
Information concerning revenues and long-lived assets
attributable to each of the Companys products, services
and geographic areas is set forth in Note 16 in the Notes
to the Consolidated Financial Statements, which is incorporated
herein by reference.
Waters
Division
High
Performance and Ultra Performance Liquid
Chromatography
Developed in the 1950s, HPLC is the standard technique
used to identify and analyze the constituent components of a
variety of chemicals and other materials. The Company believes
that HPLCs performance capabilities enable it to separate
and identify approximately 80% of all known chemicals and
materials. As a result, HPLC is used to analyze substances in a
wide variety of industries for research and development
purposes, quality control and process engineering applications.
3
The most significant end-use markets for HPLC are those served
by the pharmaceutical and life science industries. In these
markets, HPLC is used extensively to identify new drugs, develop
manufacturing methods and assure the potency and purity of new
pharmaceuticals. HPLC is also used in a variety of other
applications, such as analyses of foods and beverages for
nutritional labeling and compliance with safety regulations, the
testing of water and air purity within the environmental testing
industry, as well as applications in other industries, such as
chemical and consumer products. HPLC is also used by
universities, research institutions and government agencies,
such as the United States Food and Drug Administration
(FDA) and the United States Environmental Protection
Agency (EPA) and their international counterparts
who mandate testing requiring HPLC instrumentation.
Traditionally, a typical HPLC system has consisted of five basic
components: solvent delivery system, sample injector, separation
column, detector and data acquisition unit. The solvent delivery
system pumps solvents through the HPLC system, while the sample
injector introduces samples into the solvent flow. The
chromatography column then separates the sample into its
components for analysis by the detector, which measures the
presence and amount of the constituents. The data acquisition
unit, usually referred to as the instruments software or
data system, then records and stores the information from the
detector.
In 2004, Waters introduced a novel technology that the Company
describes as ultra performance liquid chromatography that
utilizes a packing material with small, uniform diameter
particles and a specialized instrument, the ACQUITY
UPLC
®
,
to accommodate the increased pressure and narrow chromatographic
bands that are generated by these small particles. By using the
ACQUITY UPLC, researchers and analysts are able to achieve more
comprehensive chemical separations and faster analysis times in
comparison with many analyses performed by HPLC. In addition, in
using ACQUITY UPLC, researchers have the potential to extend the
range of applications beyond that of HPLC, enabling them to
uncover new levels of scientific information. Though it offers
significant performance advantages, ACQUITY UPLC is compatible
with the Companys software products and the general
operating protocols of HPLC. For these reasons, the
Companys customers and field sales and support
organizations are well positioned to utilize this new technology
and instrument. The Company began shipping the ACQUITY UPLC in
the third quarter of 2004. During 2009, 2008 and 2007, the
Company experienced growth in the LC instrument system product
line primarily from the sales of ACQUITY UPLC systems.
Waters manufactures LC instruments that are offered in
configurations that allow for varying degrees of automation,
from component configured systems for academic research
applications to fully automated systems for regulated testing,
and that have a variety of detection technologies, from
ultra-violet (UV) absorbance to MS, optimized for
certain analyses. The Company also manufactures tailored LC
systems for the analysis of biologics, as well as an LC detector
utilizing evaporative light scattering technology to expand the
usage of LC to compounds that are not amenable to UV absorbance
detection.
The primary consumable products for LC are chromatography
columns. These columns are packed with separation media used in
the LC testing process and are replaced at regular intervals.
The chromatography column contains one of several types of
packing material, typically stationary phase particles made from
silica. As the sample flows through the column, it is separated
into its constituent components.
Waters HPLC columns can be used on Waters-branded and
competitors LC systems. The Company believes that it is
one of the few suppliers in the world that processes silica,
packs columns and distributes its own products. In doing so, the
Company believes it can better ensure product consistency, a key
attribute for its customers in quality control laboratories, and
react quickly to new customer requirements. The Company believes
that its ACQUITY UPLC lines of columns are used nearly
exclusively on its ACQUITY UPLC instrument and, furthermore,
that its ACQUITY UPLC instrument primarily uses ACQUITY UPLC
columns. In 2009, 2008 and 2007, excluding the small impact from
acquisitions mentioned below, the Company experienced growth in
its LC chromatography column and sample preparation businesses,
especially in ACQUITY UPLC columns.
In February 2009, the Company acquired all of the remaining
outstanding capital stock of Thar Instruments, Inc.
(Thar), a privately-held global leader in the
design, development and manufacture of analytical and
preparative supercritical fluid chromatography and supercritical
fluid extraction (SFC) systems, for $36 million
in cash, including the assumption of $4 million of debt. In
December 2008, the Company acquired the net assets of Analytical
Products Group, Inc. (APG), a provider of
environmental testing products for quality control and
proficiency testing used in environmental laboratories, for
$5 million in cash. The APG business has been integrated
4
into the Companys Environmental Resources Associates, Inc.
(ERA) business, which was acquired in December 2006.
The Company acquired all of the outstanding capital stock of
ERA, a provider of environmental testing products for quality
control, proficiency testing and specialty calibration chemicals
used in environmental laboratories, for $62 million in
cash, including the assumption of $4 million of debt. ERA
also provides product support services required to help
laboratories with their federal and state mandated accreditation
requirements or with quality control over critical
pharmaceutical analysis. In February 2006, the Company acquired
the net assets of the food safety business of
VICAM
®
Limited Partnership (VICAM) for $14 million in
cash. VICAM is a leading provider of tests to identify and
quantify mycotoxins in various agricultural commodities. The
Companys test kits provide reliable, quantitative
detection of particular mycotoxins through the choice of
flurometer, LC-MS or HPLC. The APG, ERA and VICAM acquisitions
are part of the chemistry consumable product line.
Based upon reports from independent marketing research firms and
publicly disclosed sales figures from competitors, the Company
believes that it is one of the worlds largest
manufacturers and distributors of LC instruments, chromatography
columns and other consumables and related services. The Company
also believes that it has the leading LC market share in the
United States, Europe and Asia, and believes it has a leading
market share position in Japan.
Mass
Spectrometry
Mass spectrometry is a powerful analytical technique that is
used to identify unknown compounds, to quantify known materials
and to elucidate the structural and chemical properties of
molecules by measuring the masses of individual molecules that
have been converted into ions.
The Company believes it is a market leader in the development,
manufacture, sale and distribution of MS instruments. These
instruments can be integrated and used along with other
complementary analytical instruments and systems, such as LC,
chemical electrophoresis, chemical electrophoresis
chromatography and gas chromatography. A wide variety of
instrumental designs fall within the overall category of MS
instrumentation, including devices that incorporate quadrupole,
ion trap,
time-of-flight
(Tof) and classical magnetic sector technologies.
Furthermore, these technologies are often used in tandem to
maximize the efficacy of certain experiments.
Currently, the Company offers a wide range of MS instruments
utilizing various combinations of quadrupole, Tof, ion mobility
and magnetic sector designs. These instruments are used in drug
discovery and development, as well as for environmental and food
safety testing. The majority of mass spectrometers sold by the
Company are designed to utilize an LC system as the sample
introduction device. These products supply a diverse market with
a strong emphasis on the life science, pharmaceutical,
biomedical, clinical, food and environmental market segments
worldwide.
The mass spectrometer is an increasingly important detection
device for LC. The Companys smaller-sized mass
spectrometers (such as the SQD and the TQD) are often referred
to as LC detectors and are either sold as part of an
LC system or as an LC system upgrade. Larger quadrupole systems,
such as the
Xevo
tm
TQ and Quattro
Premier
tm
XE instruments, are used primarily for experiments performed for
late-stage drug development, including clinical trial testing,
and quadrupole
time-of-flight
(Q-Tof
tm
)
instruments, such as the Companys
Synapt
tm
MS, are often used to analyze the role of proteins in disease
processes, an application sometimes referred to as
proteomics. In 2006, the Company introduced the
tandem quadrupole device, the TQD, and a new hybrid
Q-Tof
technology system, the
Synapt
tm
HDMS
tm
.
The Synapt HDMS system integrates ion mobility technology within
a Q-Tof geometry instrument configuration and uniquely allows
researchers to glean molecular shape information, a novel
capability for a mass spectrometry instrument. In 2008, the
Company introduced a new Q-Tof instrument called the Synapt MS.
This instrument is an improved version of the Q-Tof
Premier
tm
that customers may opt to upgrade to Synapt HDMS capability. In
late 2008, the
Xevo
tm
QTof
tm
MS, an exact mass MS/MS bench-top instrument, was introduced. In
late 2009, the Company introduced the
Synapt
tm
G2 HDMS
tm
system. The Synapt G2 HDMS and
Synapt
tm
G2 MS systems are high resolution exact mass MS/MS platforms
that are performance enhanced replacements for the Synapt HDMS
and Synapt MS systems. The performance enhancements offered by
these new systems allow for higher resolution shape
discrimination by the HDMS version and superior mass resolution,
mass accuracy and quantification accuracy by both versions.
5
LC-MS
LC and MS are instrumental technologies often embodied within an
analytical system tailored for either a dedicated class of
analyses or as a general purpose analytical device. An
increasing percentage of the Companys customers are
purchasing LC and MS components simultaneously and it is
becoming common for LC and MS instrumentation to be used within
the same laboratory and operated by the same user. The
descriptions of LC and MS above reflect the historical
segmentation of these analytical technologies and the historical
categorization of their respective practitioners. Increasingly
in todays instrument market, this segmentation and
categorization is becoming obsolete as a high percentage of
instruments used in the laboratory embody both LC and MS
technologies as part of a single device. In response to this
development and to further promote the high utilization of these
hybrid instruments, the Company has organized its Waters
Division to develop, manufacture, sell and service integrated
LC-MS systems.
Waters
Division Service
The servicing and support of LC and MS instruments and
accessories is an important source of revenue for the Waters
Division. These revenues are derived primarily through the sale
of support plans, demand service, customer training and
performance validation services. Support plans most typically
involve scheduled instrument maintenance and an agreement to
promptly repair a non-functioning instrument in return for a fee
described in a contract that is priced according to the
configuration of the instrument.
TA
Division
Thermal
Analysis, Rheometry and Calorimetry
Thermal analysis measures the physical characteristics of
materials as a function of temperature. Changes in temperature
affect several characteristics of materials, such as their
physical state, weight, dimension and mechanical and electrical
properties, which may be measured by one or more thermal
analysis techniques, including calorimetry. Consequently,
thermal analysis techniques are widely used in the development,
production and characterization of materials in various
industries, such as plastics, chemicals, automobiles,
pharmaceuticals and electronics.
Rheometry instruments complement thermal analyzers in
characterizing materials. Rheometry characterizes the flow
properties of materials and measures their viscosity, elasticity
and deformation under different types of loading or
conditions. The information obtained under such conditions
provides insight into a materials behavior during
manufacturing, transport, usage and storage.
Thermal analysis and rheometry instruments are heavily used in
material testing laboratories and, in many cases, provide
information useful in predicting the suitability of fine
chemicals, polymers and viscous liquids for various industrial,
consumer goods and healthcare products, as well as for life
science research. As with systems offered through the Waters
Division, a range of instrumental configurations are available
with increasing levels of sample handling and information
processing automation. In addition, systems and accompanying
software packages can be tailored for specific applications. For
example, the
Q-Series
tm
family of differential scanning calorimeters includes a range of
instruments, from basic dedicated analyzers to more expensive
systems that can accommodate robotic sample handlers and a
variety of sample cells and temperature control features for
analyzing a broad range of materials. In 2009, TA introduced the
ARIES G2 rheometer, a high performance system uniquely capable
of independently measuring stress and strain for a wide variety
of solids and liquids.
In July 2008, the Company acquired the net assets of VTI
Corporation (VTI), a manufacturer of sorption
analysis and thermogravimetric analysis instruments, for
$3 million in cash. VTIs products are widely used in
the evaluation of pharmaceuticals, catalysts and energy-related
materials. This acquisition added two technologies which
complement TAs existing gravimetric analysis product line.
VTIs sorption analysis products are designed for water and
organic vapor sorption studies of pharmaceuticals and related
materials. VTIs high pressure, high vacuum TGA projects
are designed for high pressure sorption studies, which are
commonly used in the analysis of energy-related materials.
In August 2007, the Company acquired all of the outstanding
capital stock of Calorimetry Sciences Corporation
(CSC), a privately-held company that designs,
develops and manufactures highly sensitive
6
calorimeters, for $7 million in cash, including the
assumption of $1 million of liabilities. CSC products and
services are primarily used in the life sciences industry. This
acquisition added two systems which complement TAs
existing TAM micro-calorimeter product line. The Nano-ITC is an
isothermal titration calorimeter designed to measure
protein-ligand binding and the interaction of biological
materials. The Nano-DSC is an ultra-sensitive scanning
calorimeter used to measure the stability of proteins and other
macromolecules in dilute solutions and is commonly used in
pharmaceutical development processes.
In August 2006, the Company acquired all of the outstanding
capital stock of Thermometric AB (Thermometric), a
manufacturer of high performance micro-calorimeters, for
$3 million in cash, including the assumption of
$1 million of debt. Thermometrics flagship product,
the TAM III, is a modular calorimeter that employs proprietary
technology to deliver calorimetric sensitivity and temperature
stability. It is used to characterize materials and their
interactions in the fields of pharmaceuticals, life and
materials sciences. The TAM III systems complement TAs
industry leading Q-Series differential scanning calorimeter
product line and the CSC product lines acquired in 2007.
Thermometrics manufacturing and research and development
were moved and consolidated with CSC late in 2008.
TA
Service
The Company sells, supports and services TA Divisions
product offerings through its headquarters in New Castle,
Delaware. TA operates independently from the Waters Division,
though several of its overseas offices are situated in
Waters facilities. TA has dedicated field sales and
service operations. Service sales are primarily derived from the
sale of replacement parts and from billed labor fees associated
with the repair, maintenance and upgrade of installed systems.
Customers
The Company has a broad and diversified customer base that
includes pharmaceutical accounts, other industrial accounts,
universities and government agencies. The pharmaceutical segment
represents the Companys largest sector and includes
multinational pharmaceutical companies, generic drug
manufacturers, contract research organizations (CROs) and
biotechnology companies. The Companys other industrial
customers include chemical manufacturers, polymer manufacturers,
food and beverage companies and environmental testing
laboratories. The Company also sells to various universities and
government agencies worldwide. The Companys technical
support staff works closely with its customers in developing and
implementing applications that meet their full range of
analytical requirements.
The Company does not rely on any single customer or one group of
customers for a material portion of its sales. During fiscal
years 2009, 2008 and 2007, no single customer accounted for more
than 3% of the Companys net sales.
Sales and
Service
The Company has one of the largest sales and service
organizations in the industry, focused exclusively on the
various instrument systems installed base. Across these
product technologies, using respective specialized sales and
service forces, the Company serves its customer base with
approximately 2,700 field representatives in 92 sales offices
throughout the world as of December 31, 2009. The
Companys sales representatives have direct responsibility
for account relationships, while service representatives work in
the field to install instruments, train and minimize instrument
downtime for customers. In-house, technical support
representatives work directly with customers providing them
assistance with applications and procedures on Company products.
The Company provides customers with comprehensive information
through various corporate and regional internet websites and
product literature, and also makes consumable products available
through electronic ordering facilities and a dedicated catalog.
Manufacturing
The Company provides high quality LC products by overseeing each
stage of the production of its instruments, columns and chemical
reagents. The Company currently assembles a portion of its LC
instruments at its facility in
7
Milford, Massachusetts, where it performs machining, assembly
and testing. The Milford facility maintains a quality management
system in accordance with the requirements of ISO 9001:2000, ISO
13485:2003, ISO 14001:2004 and applicable regulatory
requirements (including FDA Quality System Regulations and the
European In-Vitro Diagnostics Directives). The Company
outsources manufacturing of certain electronic components, such
as computers, monitors and circuit boards, to outside vendors
that can meet the Companys quality requirements. In 2006,
the Company transitioned the manufacturing of LC instrument
systems and components to a well-established contract
manufacturing firm in Singapore. The Company expects to continue
pursuing outsourcing opportunities.
The Company manufactures its LC columns at its facilities in
Taunton, Massachusetts and Wexford, Ireland, where it processes,
sizes and treats silica and polymeric media that are packed into
columns, solid phase extraction cartridges and bulk shipping
containers. The Wexford facility also manufactures and
distributes certain data, instruments and software components
for the Companys LC, MS and TA Division product lines.
These facilities meet similar ISO and FDA standards met by the
Milford, Massachusetts facility and are registered with the FDA.
VICAM manufactures antibody resin and magnetic beads that are
packed into columns and kits in Milford, Massachusetts and Nixa,
Missouri. ERA manufactures environmental proficiency kits in
Arvada, Colorado. Thar manufactures SFC systems in Pittsburgh,
Pennsylvania.
The Company manufactures most of its MS products at its
facilities in Manchester, England, Cheshire, England and
Wexford, Ireland. Certain components or modules of the
Companys MS instruments are manufactured by long-standing
outside contractors. Each stage of this supply chain is closely
monitored by the Company to maintain high quality and
performance standards. The instruments, components or modules
are then returned to the Companys facilities where its
engineers perform final assembly, calibrations to customer
specifications and quality control procedures. The
Companys MS facilities meet similar ISO and FDA standards
met by the Milford, Massachusetts facility and are registered
with the FDA.
Thermal analysis, rheometry and calorimetry products are
manufactured by TA. Thermal analysis products are manufactured
at the Companys New Castle, Delaware facility. Rheometry
products are manufactured at the Companys New Castle,
Delaware and Crawley, England facilities. Microcalorimetry
products are manufactured at the Companys Lindon, Utah
facility. VTI manufactures sorption analysis and
thermogravimetric analysis instruments in Hialeah, Florida.
Similar to MS, elements of TAs products are manufactured
by outside contractors and are then returned to the
Companys facilities for final assembly, calibration and
quality control. The Companys thermal analysis facilities
are certified to ISO 9001:2000 standards.
Research
and Development
The Company maintains an active research and development program
focused on the development and commercialization of products
that both complement and update the existing product offering.
The Companys research and development expenditures for
2009, 2008 and 2007 were $77 million, $82 million and
$81 million, respectively. Nearly all of the current LC
products of the Company have been developed at the
Companys main research and development center located in
Milford, Massachusetts, with input and feedback from the
Companys extensive field organizations and customers. The
majority of the MS products have been developed at facilities in
England and nearly all of the current thermal analysis products
have been developed at the Companys research and
development center in New Castle, Delaware. At December 31,
2009, there were 677 employees involved in the
Companys research and development efforts. The Company has
increased research and development expenses relating to
acquisitions and the Companys continued commitment to
invest significantly in new product development and existing
product enhancements. Despite the Companys active research
and development programs, there can be no assurances that the
Companys product development and commercialization efforts
will be successful or that the products developed by the Company
will be accepted by the marketplace.
Employees
The Company employed approximately 5,200 employees at
December 31, 2009, with approximately 44% of the
Companys employees located in the United States. The
Company believes its employee relations are generally good. The
Companys employees are not unionized or affiliated with
any internal or external labor organizations.
8
The Company believes that its future success largely depends
upon its continued ability to attract and retain highly skilled
employees.
Competition
The analytical instrument and systems market is highly
competitive. The Company encounters competition from several
worldwide instrument manufacturers and other companies in both
domestic and foreign markets for each of its three technologies.
The Company competes in its markets primarily on the basis of
instrument performance, reliability, service and, to a lesser
extent, price. Some competitors have instrument businesses that
are generally more diversified than the Companys business,
but are typically less focused on the Companys chosen
markets. Some competitors have greater financial and other
resources than the Company.
In the markets served by the Waters Division, the Companys
principal competitors include: Agilent Technologies, Inc., Life
Technologies Corporation, Thermo Fisher Scientific Inc., Varian,
Inc., Shimadzu Corporation, Dionex Corporation and Bruker
BioSciences. In 2009, Danaher Corporation announced an intention
to acquire the mass spectrometry assets of Life Technologies
Corporation and Agilent Technologies, Inc. announced plans to
acquire Varian, Inc. In the markets served by the TA Division,
the Companys principal competitors include: PerkinElmer,
Inc., Mettler-Toledo International Inc., NETZSCH-Geraetebau
GmbH, Thermo Fisher Scientific Inc., Malvern Instruments Ltd.,
Anton-Paar and General Electric Company.
The market for consumable LC products, including separation
columns, is highly competitive and more fragmented than the
analytical instruments market. The Company encounters
competition in the consumable columns market from chemical
companies that produce column chemicals and small specialized
companies that pack and distribute columns. The Company believes
that it is one of the few suppliers that process silica, packs
columns and distributes its own product. The Company competes in
this market on the basis of reproducibility, reputation,
performance and, to a lesser extent, price. The Companys
principal competitors for consumable products include:
Phenomenex, Inc., Supelco, Inc., Agilent Technologies, Inc.,
General Electric Company, Thermo Fisher Scientific Inc. and
Merck and Co., Inc. The ACQUITY UPLC instrument is designed to
offer a predictable level of performance when used with ACQUITY
UPLC columns and the Company believes that the expansion of the
ACQUITY UPLC instrument base will enhance its chromatographic
column business because of the high level of synergy between
ACQUITY UPLC columns and the ACQUITY UPLC instrument. In 2009,
Agilent Technologies, Inc. introduced a new LC system, which
they termed a UHPLC, which they have claimed has similar
performance characteristics to Waters ACQUITY UPLC.
Patents,
Trademarks and Licenses
The Company owns a number of United States and foreign patents
and has patent applications pending in the United States
and abroad. Certain technology and software is licensed from
third parties. The Company also owns a number of trademarks. The
Companys patents, trademarks and licenses are viewed as
valuable assets to its operations. However, the Company believes
that no one patent or group of patents, trademark or license is,
in and of itself, essential to the Company such that its loss
would materially affect the Companys business as a whole.
Environmental
Matters and Climate Change
The Company is subject to federal, state and local laws,
regulations and ordinances that (i) govern activities or
operations that may have adverse environmental effects, such as
discharges to air and water as well as handling and disposal
practices for solid and hazardous wastes, and (ii) impose
liability for the costs of cleaning up and certain damages
resulting from sites of past spills, disposals or other releases
of hazardous substances. The Company believes that it currently
conducts its operations and has operated its business in the
past in substantial compliance with applicable environmental
laws. From time to time, operations of the Company have resulted
or may result in noncompliance with environmental laws or
liability for cleanup pursuant to environmental laws. The
Company does not currently anticipate any material adverse
effect on its operations, financial condition or competitive
position as a result of its efforts to comply with environmental
laws.
The Company is sensitive to the growing global debate with
respect to climate change. In the first quarter of 2009, the
Company published its first sustainability report identifying
the various actions and behaviors the
9
Company has adopted concerning its commitment to both the
environment and the broader topic of social responsibility. An
internal sustainability working group was formed and is
functioning to develop increasingly robust data with respect to
the Companys utilization of carbon producing substances.
See Item 1A, Risk Factors Effects of Climate
Change, for more information on the potential significance of
climate change legislation.
Available
Information
The Company files all required reports with the Securities and
Exchange Commission (SEC). The public may read and
copy any materials the Company files with the SEC at the
SECs Public Reference Room at 100 F Street,
N.E., Washington, DC 20549. The public may obtain information on
the operation of the Public Reference Room by calling the SEC at
1-800-SEC-0330.
The Company is an electronic filer and the SEC maintains a
website that contains reports, proxy and information statements
and other information regarding issuers that file electronically
with the SEC. The address of the SEC electronic filing website
is
http://www.sec.gov
.
The Company also makes available, free of charge on its website,
its annual report on
Form 10-K,
quarterly reports on
Form 10-Q,
current reports on
Form 8-K
and any amendments to those reports as soon as reasonably
practicable after such material is electronically filed with or
furnished to the SEC. The website address for Waters Corporation
is
http://www.waters.com
and SEC filings can be found under the caption
Investors.
Forward-Looking
Statements
Certain of the statements in this
Form 10-K
and the documents incorporated herein may contain
forward-looking statements within the meaning of
Section 27A of the Securities Act of 1933, as amended, and
Section 21E of the Securities Exchange Act of 1934, as
amended (the Exchange Act), with respect to future
results and events, including statements regarding, among other
items, the impact of the Companys new products and the
Companys ability to invest in new product development and
existing product enhancements; the Companys growth
strategies, including its intention to make acquisitions, make
stock repurchases and introduce new products; anticipated trends
in the Companys business; the Companys ability to
continue to control costs and maintain quality; current economic
conditions; the impact of the Companys various litigation
matters, including the Dearborn action and ongoing patent
litigation; future issuances of
10-year
senior unsecured notes by the Company; the Companys
product performance; the Companys ability to ensure
product consistency and react to new customer requirements; the
Companys market share position and statements related to
market position; statements related to the Companys
pursuant of outsourcing opportunities; the Companys
ability to attract and retain highly skilled employees;
statements regarding the Companys facilities; statements
regarding the Companys financial flexibility; use of the
Companys debt proceeds; the Companys expected cash
flow and borrowing capacity; the Companys contributions to
defined benefit plans; and the Companys capital spending
and ability to fund other facility expansions to accommodate
future sales growth. Many of these statements appear, in
particular, under the heading Managements Discussion
and Analysis of Financial Condition and Results of
Operations in Part II, Item 7 of this
Form 10-K.
You can identify these forward-looking statements by the use of
the words believes, anticipates,
plans, expects, may,
will, would, intends,
appears, estimates,
projects, should and similar
expressions, whether in the negative or affirmative. These
statements are subject to various risks and uncertainties, many
of which are outside the control of the Company, including, and
without limitation, the impact on demand among the
Companys various market sectors from current economic
difficulties and recession; the impact of changes in accounting
principles and practices or tax rates, including the effect of
recently restructuring certain legal entities; shifts in taxable
income in jurisdictions with different effective tax rates; the
ability to access capital in volatile market conditions; the
ability to successfully integrate acquired businesses;
fluctuations in capital expenditures by the Companys
customers, in particular, large pharmaceutical companies;
introduction of competing products by other companies and loss
of market share; pressures on prices from competitors
and/or
customers; regulatory obstacles to new product introductions;
lack of acceptance of new products; other changes in the demands
of the Companys healthcare and pharmaceutical company
customers; changes in distribution of the Companys
products; the Companys ability to obtain alternative
sources for components and modules; underperformance relative to
expected future operating results; negative industry trends;
risks associated with lawsuits and other legal actions,
particularly involving claims for infringement of patents and
other intellectual property
10
rights; and foreign exchange rate fluctuations potentially
adversely affecting translation of the Companys future
non-U.S. operating
results, as well as additional risk factors set forth below in
Item 1A, Risk Factors, of this
Form 10-K.
Actual results or events could differ materially from the plans,
intentions and expectations disclosed in the forward-looking
statements, whether because of these factors or for other
reasons. All forward-looking statements speak only as of the
date of this report and are expressly qualified in their
entirety by the cautionary statements included in this report.
Except as required by law, the Company does not assume any
obligation to update any forward-looking statements.
The Company is subject to risks common to companies in the
analytical instrument industry, including, but not limited to
the following risks.
Global
Economic Conditions
The global economic conditions had an unfavorable impact on
demand for the Companys products in 2009 and in late 2008.
These conditions resulted in a decline in demand for the
Companys products and services and may result in a decline
in demand for the Companys products and services in the
near future. There can be no assurance that there will not be a
further deterioration in financial markets and confidence in
major economies. Any further deterioration or prolonged
disruption in the financial markets or market conditions
generally may result in reduced demand for the Companys
products and services. The Companys global business may
also be adversely affected by decreases in the general level of
economic activity as a result of the economic and financial
market situations.
Financial
Market Conditions
Financial markets in the U.S., Europe and Asia have experienced
extreme disruption over the past few years, including, among
other things, a sharp increase in the cost of new capital,
severely diminished capital availability and severely reduced
liquidity in money markets. Financial and banking institutions
have also experienced disruptions, resulting in large asset
write-downs, higher costs of capital, rating downgrades and
reduced desire to lend money. While currently these conditions
have not impacted the Companys ability to access its
existing cash or borrow on its existing revolving credit
facility, there can be no assurance that there will not be
further deterioration or prolonged disruption in financial
markets or financial institutions. Any further deterioration or
prolonged disruption in financial markets or financial
institutions in which the Company participates may impair the
Companys ability to access its existing cash and revolving
credit facility and impair its ability to access sources of new
capital. The Companys cost of any new capital raised and
interest expense would increase if this were to occur.
Customer
Demand
The demand for the Companys products is dependent upon the
size of the markets for its LC, MS, thermal analysis, rheometry
and calorimetry products; the timing and level of capital
expenditures of the Companys customers; changes in
government regulations, particularly effecting drug, food and
drinking water testing; funding available to academic and
government institutions; general economic conditions and the
rate of economic growth in the Companys major markets; and
competitive considerations. The Company typically experiences an
increase in sales in its fourth quarter, as a result of
purchasing habits for capital goods by customers that tend to
exhaust their spending budgets by calendar year end. There can
be no assurances that the Companys results of operations
or financial condition will not be adversely impacted by a
change in any of the factors listed above or the continuation of
weakness in global economic conditions.
Additionally, the analytical instrument market may, from time to
time, experience low sales growth. Approximately 51% and 50% of
the Companys net sales in 2009 and 2008, respectively,
were to the worldwide pharmaceutical and biotechnology
industries, which may be periodically subject to unfavorable
market conditions and consolidations. Unfavorable industry
conditions could have a material adverse effect on the
Companys results of operations or financial condition.
11
Competition
and the Analytical Instrument Market
The analytical instrument market and, in particular, the portion
related to the Companys HPLC, UPLC, MS,
LC-MS,
thermal analysis, rheometry and calorimetry product lines, is
highly competitive and subject to rapid changes in technology.
The Company encounters competition from several international
instrument manufacturers and other companies in both domestic
and foreign markets. Some competitors have instrument businesses
that are generally more diversified than the Companys
business, but are typically less focused on the Companys
chosen markets. There can be no assurances that the
Companys competitors will not introduce more effective and
less costly products than those of the Company or that the
Company will be able to increase its sales and profitability
from new product introductions. There can be no assurances that
the Companys sales and marketing forces will compete
successfully against its competitors in the future.
Levels of
Debt and Debt Service Requirements
The Company had approximately $632 million in debt and
$630 million in cash, cash equivalents and short-term
investments as of December 31, 2009. As of
December 31, 2009, the Company also had the ability to
borrow an additional $479 million from its existing credit
facilities. Most of the Companys debt is in the
U.S. There is a substantial cash requirement in the
U.S. to fund operations and capital expenditures, service
debt interest obligations, finance potential acquisitions and
continue authorized stock repurchase programs. A majority of the
Companys cash is maintained and generated from foreign
operations. The Companys financial condition and results
of operations could be adversely impacted if the Company is
unable to maintain a sufficient level of cash flow in the
U.S. to address these requirements through cash from
U.S. operations, efficient and timely repatriation of cash
from overseas, the Companys ability to access its existing
cash and revolving credit facility and other sources obtained at
an acceptable cost.
Debt
Covenants
The Companys debt may become subject to restrictive
covenants that limit the Companys ability to engage in
certain activities that could otherwise benefit the Company.
These debt covenants include restrictions on the Companys
ability to enter into certain contracts or agreements that may
limit the Companys ability to make dividend or other
payments; secure other indebtedness; enter into transactions
with affiliates and consolidate, merge or transfer all or
substantially all of the Companys assets. The Company is
also required to meet specified financial ratios under the terms
of the Companys debt agreements. The Companys
ability to comply with these financial restrictions and
covenants is dependent on the Companys future performance,
which is subject to, but not limited to, prevailing economic
conditions and other factors, including factors that are beyond
the Companys control, such as foreign exchange rates,
interest rates, changes in technology and changes in the level
of competition.
Risk of
Disruption of Operations
The Company manufactures LC instruments at facilities in
Milford, Massachusetts and Singapore; chemistry separation
columns at its facilities in Taunton, Massachusetts and Wexford,
Ireland; MS products at its facilities in Manchester, England,
Cheshire, England and Wexford, Ireland; thermal analysis
products at its facility in New Castle, Delaware; rheometry
products at its facilities in New Castle, Delaware and Crawley,
England and other instruments and consumables at various other
locations as a result of the Companys recent acquisitions.
Any prolonged disruption to the operations at any of these
facilities, whether due to labor difficulties, destruction of or
damage to any facility or other reasons, could have a material
adverse effect on the Companys results of operations or
financial condition.
Sovereign
Risk, Foreign Operations and Exchange Rates
Approximately 69% and 70% of the Companys net sales in
2009 and 2008, respectively, were outside of the
United States and were primarily denominated in foreign
currencies. In addition, the Company has considerable
manufacturing operations in Ireland, the United Kingdom and
Singapore. As a result, a significant portion of the
Companys sales and operations are subject to certain
risks, including adverse developments in the foreign political
and economic environment; sudden movements in a countrys
foreign exchange rates due to a change in a countrys
sovereign risk profile or foreign exchange regulatory practices;
tariffs and other trade barriers; difficulties in staffing and
managing foreign operations; and potentially adverse tax
consequences.
12
Additionally, the U.S. dollar value of the Companys
net sales, cost of sales, operating expenses, interest, taxes
and net income varies with currency exchange rate fluctuations.
Significant increases or decreases in the value of the
U.S. dollar relative to certain foreign currencies could
have a material adverse effect or benefit on the Companys
results of operations or financial condition.
Reliance
on Key Management
The operation of the Company requires managerial and operational
expertise. None of the key management employees have an
employment contract with the Company and there can be no
assurance that such individuals will remain with the Company.
If, for any reason, such key personnel do not continue to be
active in management, the Companys results of operations
or financial condition could be adversely affected.
Protection
of Intellectual Property
The Company vigorously protects its intellectual property rights
and seeks patent coverage on all developments that it regards as
material and patentable. However, there can be no assurances
that any patents held by the Company will not be challenged,
invalidated or circumvented or that the rights granted
thereunder will provide competitive advantages to the Company.
Conversely, there could be successful claims against the Company
by third-party patent holders with respect to certain Company
products that may infringe the intellectual property rights of
such third parties. The Companys patents, including those
licensed from others, expire on various dates. If the Company is
unable to protect its intellectual property rights, it could
have an adverse and material effect on the Companys
results of operations or financial condition.
Reliance
on Suppliers
Most of the raw materials, components and supplies purchased by
the Company are available from a number of different suppliers;
however, a number of items are purchased from limited or single
sources of supply and disruption of these sources could have a
temporary adverse effect on shipments and the financial results
of the Company. The Company believes alternative sources could
ordinarily be obtained to supply these materials, but a
prolonged inability to obtain certain materials or components
could have an adverse effect on the Companys financial
condition or results of operations and could result in damage to
its relationships with its customers and, accordingly, adversely
affect the Companys business.
Use of
Outside Manufacturers
Certain components or modules of the Companys LC and MS
instruments are manufactured by long-standing outside
contractors. Since 2006, the Company has transitioned the
manufacturing of LC instrument systems and related components to
a well-established contract manufacturing firm in Singapore.
Disruptions of service by these outside contractors could have
an adverse effect on the supply chain and the financial results
of the Company. The Company believes that it could obtain
alternative sources for these components or modules, but a
prolonged inability to obtain these components or modules could
have an adverse effect on the Companys financial condition
or results of operations.
Risk in
Unexpected Shifts in Taxable Income between Tax
Jurisdictions
The Company is subject to a range of income tax rates, from 0%
to in excess of 35%, depending on specific tax jurisdictions
around the world. The Company typically generates a substantial
portion of its taxable income in the fourth quarter of each
fiscal year. Shifts in actual taxable income from previous
quarters projections due to factors, including, but not
limited to, changes in volume and foreign currency translation
rates, could have a notable favorable or unfavorable effect on
the Companys income tax expense and results of operations.
Effects
of Climate Change
The Companys manufacturing processes for certain of its
products involve the use of chemical and other substances that
are regulated under various international, federal, state and
local laws governing the environment. In the event that any
future climate change legislation would require that stricter
standards be imposed by domestic or international environmental
regulatory authorities with respect to the use
and/or
levels of possible emissions from such chemicals
and/or
other
substances, the Company may be required to make certain changes
and adaptations to
13
its manufacturing processes. There can be no assurance that any
such changes would not have a material effect on the financial
statements of the Company.
Another potential effect of climate change is an increase in the
severity of global weather conditions. The Company manufactures
a growing percentage of its HPLC, UPLC and MS products in both
Singapore and Wexford, Ireland. Although the Company believes
its has an adequate disaster recovery plan in place, severe
weather conditions, including earthquakes, hurricanes
and/or
tsunami, could potentially cause significant damage to the
Companys manufacturing facilities in each of these
countries. There can be no assurance that the effects of such
damage and the resultant disruption of manufacturing operations
would not have a materially adverse impact to the financial
results of the Company.
Regulatory
Compliance
The Company is subject to regulation by various federal, state
and foreign governments and agencies in areas including, among
others, health and safety, import/export and environmental. A
portion of the Companys operations are subject to
regulation by the United States Food and Drug Administration and
similar foreign agencies. These regulations are complex and
govern an array of product activities, including design,
development, labeling, manufacturing, promotion, sales and
distribution. Any failure by the Company to comply with
applicable government regulations could result in product
recalls, the imposition of fines, restrictions on the
Companys ability to conduct or expand its operations or
the cessation of all or a portion of its operations.
Some of the Companys operations are subject to domestic
and international laws and regulations with respect to the
manufacture, handling, use or sale of toxic or hazardous
substances. This requires the Company to devote substantial
resources to maintain compliance with those applicable laws and
regulations. If the Company fails to comply with such
requirements in the manufacture or distribution of its products,
it could face civil
and/or
criminal penalties and potentially be prohibited from
distributing or selling such products until they are compliant.
Some of the Companys products are also subject to the
rules of certain industrial standards bodies, such as the
International Standards Organization. The Company must comply
with these rules, as well as those of other agencies such as
those of the United States Occupational Health and Safety
Administration. Failure to comply with such rules could result
in the loss of certification
and/or
the
imposition of fines and penalties which could have a material
adverse effect on the Companys operations.
|
|
Item 1B:
|
Unresolved
Staff Comments
|
None.
14
Waters operates 23 United States facilities and 77 international
facilities, including field offices. The Company believes its
facilities are suitable and adequate for its current production
level and for reasonable growth over the next several years. The
Companys primary facilities are summarized in the table
below.
Primary
Facility Locations
|
|
|
|
|
Location
|
|
Function(1)
|
|
Owned/Leased
|
|
Franklin, MA
|
|
D
|
|
Leased
|
Milford, MA
|
|
M, R, S, A
|
|
Owned
|
Taunton, MA
|
|
M, R
|
|
Owned
|
Nixa, MO
|
|
M, S, D, A
|
|
Leased
|
Arvada, CO
|
|
M, R, S, D, A
|
|
Leased
|
Lindon, UT
|
|
M, R, S, D, A
|
|
Leased
|
St. Quentin, France
|
|
S, A
|
|
Leased
|
Pittsburgh, PA
|
|
M, R, S, D, A
|
|
Leased
|
New Castle, DE
|
|
M, R, S, D, A
|
|
Owned
|
Etten-Leur, Netherlands
|
|
S, D, A
|
|
Owned
|
Singapore
|
|
R, S, D, A
|
|
Leased
|
Wexford, Ireland
|
|
M, R, D, A
|
|
Owned
|
Crawley, England
|
|
M, R, S, D, A
|
|
Leased
|
Cheshire, England
|
|
M, R, D, A
|
|
Leased
|
Manchester, England
|
|
M, R, S, A
|
|
Leased
|
Brasov, Romania
|
|
R, A
|
|
Leased
|
|
|
|
(1)
|
|
M = Manufacturing; R = Research; S = Sales and Service; D =
Distribution; A = Administration
|
The Company operates and maintains 13 field offices in the
United States and 67 field offices abroad in addition to sales
offices in the primary facilities listed above. The
Companys field office locations are listed below.
Field
Office Locations (2)
|
|
|
|
|
United States
|
|
International
|
|
Pleasanton, CA
|
|
Australia
|
|
Italy
|
Irvine, CA
|
|
Austria
|
|
Japan
|
Newark, DE
|
|
Belgium
|
|
Korea
|
Schaumburg, IL
|
|
Brazil
|
|
Mexico
|
Wood Dale, IL
|
|
Canada
|
|
Netherlands
|
Beverly, MA
|
|
Czech Republic
|
|
Peoples Republic of China
|
Columbia, MD
|
|
Denmark
|
|
Poland
|
Ann Arbor, MI
|
|
Finland
|
|
Puerto Rico
|
Morrisville, NC
|
|
France
|
|
Spain
|
Parsippany, NJ
|
|
Germany
|
|
Sweden
|
Huntingdon, PA
|
|
Hungary
|
|
Switzerland
|
Bellaire, TX
|
|
India
|
|
Taiwan
|
Spring, TX
|
|
Ireland
|
|
United Kingdom
|
|
|
|
(2)
|
|
The Company operates more than one office within certain states
and foreign countries.
|
15
|
|
Item 3:
|
Legal
Proceedings
|
Agilent
Technologies, Inc.
The Company filed suit in the United States against
Hewlett-Packard Company and Hewlett-Packard GmbH (collectively,
HP), seeking a declaration that certain products
sold under the mark Alliance did not constitute an
infringement of one or more patents owned by HP or its foreign
subsidiaries (the HP patents). The action in the
United States was dismissed for lack of controversy. Actions
seeking revocation or nullification of foreign HP patents
were filed by the Company in Germany, France and England. A
German patent tribunal found the HP German patent to be
valid. In Germany, France and England, HP and its successor,
Agilent Technologies Deutschland GmbH (Agilent),
brought actions alleging that certain features of the Alliance
pump may infringe the HP patents. In England, the Court of
Appeal found the HP patent valid and infringed. The
Companys petitions for leave to appeal to the House of
Lords were denied. A trial on damages was scheduled for November
2004.
In March 2004, Agilent brought a new action against the Company
alleging that certain features of the Alliance pump continued to
infringe the HP patents. In December 2004, following a trial in
the new action, the UK court ruled that the Company did not
infringe the HP patents. Agilent filed an appeal in that action,
which was heard in July 2005, and the UK Appellate Court upheld
the lower courts ruling of non-infringement. In December
2005, a trial on damages commenced in the first action and
continued for six days prior to a holiday recess. In February
2006, the Company, HP and Agilent entered into a settlement
agreement (the Agilent Settlement Agreement) with
respect to the first action and a consent order dismissing the
case was entered. The Agilent Settlement Agreement provides for
the release of the Company and its UK affiliate from each and
every claim under Agilents European patent (UK) number
309,596 arising out of the prior sale by either of them of
Alliance Separations Modules incorporating the patented
technology. In consideration of entering into the Agilent
Settlement Agreement and the consent order, the Company made a
payment to Agilent of 3.5 million British Pounds, in full
and final settlement of Agilents claim for damages and in
relation to all claims for costs and interest in the case.
In France, the Paris District Court found the HP patent valid
and infringed by the Alliance pump. The Company appealed the
French decision and, in April 2004, the French appeals court
affirmed the Paris District Courts finding of
infringement. The Company filed a further appeal in the case and
the appeal was dismissed in March 2007. In January 2009, the
French appeals court affirmed that the Company had infringed the
Agilent patent and a judgment was issued against the Company.
The Company has appealed this judgment. In the meantime,
however, the Company recorded a $7 million provision in
2008 for damages and fees estimated to be incurred in connection
with this case. The accrued patent litigation expense is in
other current liabilities in the consolidated balance sheets at
December 31, 2009. In addition, the Company sought a
declaration from the French court that, as was found in both the
UK and Germany, certain modified features of the Alliance pump
do not infringe the HP patents. A hearing on this matter was
held in September 2007 and, in December 2007, the French court
held that the modified features of the Alliance pump are
non-infringing. Agilent appealed this ruling and, in January
2010, the French appeals court affirmed the finding of
non-infringement with respect to the modified features of the
Alliance pump.
In the German case, a German court found the patent infringed.
The Company appealed the German decision and, in December 2004,
the German appeals court reversed the trial court and issued a
finding of non-infringement in favor of the Company. Agilent
sought an appeal in that action and the appeal was heard in
April 2007. Following the hearing, the German Federal Court of
Justice set aside the judgment of the appeals court and remanded
the case back to the appeals court for further proceedings. In
2008, the appeals court found the patent infringed. The Company
has appealed this finding to the German Federal Court of
Justice. In July 2005, Agilent brought a new action against the
Company alleging that certain features of the Alliance pump
continued to infringe the HP patents. In August 2006, following
a trial in this new action, the German court ruled that the
Company did not infringe the HP patents. Agilent filed an appeal
in this action. A hearing on this appeal was held in January
2008. The appeals court affirmed the finding of the trial court
that the Company did not infringe. Agilent has appealed this
finding to the German Federal Court of Justice.
The Company recorded provisions in 2004, 2005 and 2008 for
estimated damages, legal fees and court costs to be incurred
with respect to this ongoing litigation. The provisions
represent managements best estimate of the probable and
reasonably estimable loss related to the litigations.
16
City of
Dearborn Heights
In November 2008, the City of Dearborn Heights Act 345
Police & Fire Retirement System filed a purported
federal securities class action against the Company, Douglas
Berthiaume and John Ornell in the United States District Court
for the District of Massachusetts. In January 2009, Inter-Local
Pension Fund GCC/IBT filed a motion to be appointed as lead
plaintiff, which was granted. In April 2009, plaintiff filed an
amended complaint that alleges that between July 24, 2007
and January 22, 2008, the Company misrepresented or omitted
material information about its projected annual revenues and
earnings, its projected effective annual tax rate and the level
of business activity in Japan. The action is purportedly brought
on behalf of persons who purchased common stock of the Company
between July 24, 2007 and January 22, 2008. The
amended complaint seeks to recover under Section 10(b) of
the Exchange Act,
Rule 10b-5
thereunder and Section 20(a) of the Exchange Act. The
Company, Mr. Berthiaume and Mr. Ornell have filed a
motion to dismiss the amended complaint, which lead plaintiff
opposed. The court has not yet indicated if it will hold oral
argument on the pending motion. The Company intends to defend
vigorously.
|
|
Item 4:
|
Submission
of Matters to a Vote of Security Holders
|
None.
EXECUTIVE
OFFICERS OF THE REGISTRANT
Officers of the Company are elected annually by the Board of
Directors and hold office at the discretion of the Board of
Directors. The following persons serve as executive officers of
the Company:
Douglas A. Berthiaume, 61, has served as Chairman of the Board
of Directors of the Company since February 1996 and has served
as Chief Executive Officer and a Director of the Company since
August 1994. Mr. Berthiaume also served as President of the
Company from August 1994 to January 2002. In March 2003,
Mr. Berthiaume once again became President of the Company.
From 1990 to 1994, Mr. Berthiaume served as President of
the Waters Chromatography Division of Millipore.
Mr. Berthiaume is the Chairman of the Childrens
Hospital Trust Board, a Trustee of the Childrens
Hospital Medical Center and The University of Massachusetts
Amherst Foundation and a Director of Genzyme Corporation.
Arthur G. Caputo, 58, became an Executive Vice President in
March 2003 and has served as President of the Waters Division
since January 2002. Previously, he was the Senior Vice
President, Worldwide Sales and Marketing of the Company since
August 1994. He joined Millipore in October 1977 and held a
number of positions in sales. Previous roles include Senior Vice
President and General Manager of Millipores North American
Business Operations responsible for establishing the Millipore
North American Sales Subsidiary and General Manager of
Waters North American field sales, support and marketing
functions.
Elizabeth B. Rae, 52, became Vice President of Human Resources
in October 2005 and has served as Vice President of Worldwide
Compensation and Benefits since January 2002. She joined Waters
Corporation in January 1996 as Director of Worldwide
Compensation. Prior to joining Waters she has held senior human
resources positions in retail, healthcare and financial services
companies.
John Ornell, 52, became Vice President, Finance and
Administration and Chief Financial Officer in June 2001. He
joined Millipore in 1990 and previously served as Vice
President, Operations. During his years at Waters, he has also
been Vice President of Manufacturing and Engineering, had
responsibility for Operations Finance and Distribution and had a
senior role in the successful implementation of the
Companys worldwide business systems.
Mark T. Beaudouin, 55, became Vice President, General Counsel
and Secretary of the Company in April 2003. Prior to joining
Waters, he served as Senior Vice President, General Counsel and
Secretary of PAREXEL International Corporation, a
bio/pharmaceutical services company, from January 2000 to April
2003. Previously, from May 1985 to January 2000,
Mr. Beaudouin served in several senior legal management
positions, including Vice President, General Counsel and
Secretary of BC International, Inc., a development stage
biotechnology company, First Senior Vice President, General
Counsel and Secretary of J. Baker, Inc., a diversified retail
company, and General Counsel and Secretary of GenRad, Inc., a
high technology test equipment manufacturer.
17
PART II
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Item 5:
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Market
for Registrants Common Equity, Related Stockholder Matters
and Issuer Purchases of Equity Securities
|
The Companys common stock is registered under the Exchange
Act, and is listed on the New York Stock Exchange under the
symbol WAT. As of February 22, 2010, the Company had 206
common stockholders of record. The Company has not declared or
paid any dividends on its common stock in its past three fiscal
years and does not plan to pay dividends in the foreseeable
future. The Company has not made any sales of unregistered
securities in the years ended December 31, 2009, 2008 or
2007.
Securities
Authorized for Issuance under Equity Compensation
Plans
Equity compensation plan information is incorporated by
reference from Part III, Item 12, Security Ownership
of Certain Beneficial Owners and Management and Related
Stockholder Matters, of this document and should be considered
an integral part of this Item 5.
18
STOCK
PRICE PERFORMANCE GRAPH
The following performance graph and related information shall
not be deemed to be soliciting material or to be
filed with the SEC, nor shall such information be
incorporated by reference into any future filing under the
Securities Act of 1933, as amended, or the Exchange Act, except
to the extent that the Company specifically incorporates it by
reference into such filing.
The following graph compares the cumulative total return on $100
invested as of December 31, 2004 (the last day of public
trading of the Companys common stock in fiscal year
2004) through December 31, 2009 (the last day of
public trading of the common stock in fiscal year 2009) in
the Companys common stock, the NYSE Market Index and the
SIC Code 3826 Index. The return of the indices is calculated
assuming reinvestment of dividends during the period presented.
The Company has not paid any dividends since its IPO. The stock
price performance shown on the graph below is not necessarily
indicative of future price performance.
COMPARISON
OF CUMULATIVE TOTAL RETURN SINCE
DECEMBER 31, 2004 AMONG WATERS CORPORATION,
NYSE MARKET INDEX AND SIC CODE 3826 LABORATORY
ANALYTICAL INSTRUMENTS
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2004
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2005
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2006
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2007
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|
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2008
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|
|
2009
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WATERS CORPORATION
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100.00
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80.79
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104.66
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168.99
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78.33
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132.42
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SIC CODE INDEX
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100.00
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103.14
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117.60
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149.42
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82.93
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130.87
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NYSE MARKET INDEX
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100.00
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109.36
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131.75
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143.43
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87.12
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111.76
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19
Market
for Registrants Common Equity
The quarterly range of high and low close prices for the
Companys common stock as reported by the New York Stock
Exchange is as follows:
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Price Range
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For the Quarter Ended
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High
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Low
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March 29, 2008
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$
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80.77
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$
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52.59
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June 28, 2008
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$
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65.17
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$
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53.70
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September 27, 2008
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$
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70.19
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$
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55.52
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December 31, 2008
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$
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58.18
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$
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34.77
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April 4, 2009
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$
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41.76
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$
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30.75
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July 4, 2009
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$
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51.52
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$
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35.89
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October 3, 2009
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$
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56.30
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$
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48.56
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December 31, 2009
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$
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62.58
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$
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55.48
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Purchase
of Equity Securities by the Issuer
The following table provides information about purchases by the
Company during the three months ended December 31, 2009 of
equity securities registered by the Company under the Exchange
Act (in thousands, except per share data):
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Total Number
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of Shares
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Maximum
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Total
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Purchased as Part
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Dollar Value of
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Number of
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Average
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of Publicly
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Shares that May Yet
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Shares
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Price Paid
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Announced
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Be Purchased Under
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Period
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Purchased
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per Share
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Programs(1)
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the Programs
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October 4 to October 31, 2009
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$
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$
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397,287
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November 1 to November 28, 2009
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615
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59.46
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615
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360,719
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November 29 to December 31, 2009
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292
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60.13
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292
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343,161
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Total
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907
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59.68
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907
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343,161
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(1)
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The Company purchased an aggregate of 3.1 million shares of
its outstanding common stock during 2009 in open market
transactions pursuant to a repurchase program that was announced
in February 2009 (the 2009 Program). The 2009
Program authorized the repurchase of up to $500 million of
common stock in open market transactions over a two-year period.
|
The Company purchased an aggregate of 1.4 million shares of
its outstanding common stock during 2009 in open market
transactions pursuant to a repurchase program that was announced
in February 2007 (the 2007 Program). The 2007
Program authorized the repurchase of up to $500 million of
common stock in open market transactions over a two-year period
and expired in February 2009. The Company repurchased an
aggregate of 8.2 million shares of its common stock under
the 2007 Program for an aggregate of $454 million.
|
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Item 6:
|
Selected
Financial Data
|
Reference is made to information contained in the section
entitled Selected Financial Data and is incorporated
by reference from page 79 of this
Form 10-K,
included in Item 8, Financial Statements and Supplementary
Data, and should be considered an integral part of this
Item 6.
|
|
Item 7:
|
Managements
Discussion and Analysis of Financial Condition and Results of
Operations
|
Business
and Financial Overview
The Companys sales were $1,499 million,
$1,575 million and $1,473 million in 2009, 2008 and
2007, respectively. Sales declined 5% in 2009 as compared with
2008 and sales grew by 7% in 2008 as compared with 2007.
Overall,
20
the 2009 decline in sales is primarily due to lower instrument
spending by the Companys customers as a result of global
economic recessionary conditions and, to a lesser extent, due to
the effect of foreign currency translation, which lowered sales
by 2% in 2009. Companies acquired in late 2008 and early 2009
added 2% to sales in 2009 as compared to 2008. 2009 instrument
system sales declined 10% while recurring sales of chemistry
consumables and service increased 2% as compared with 2008,
primarily from the effect of acquisitions. The 2008 sales growth
as compared to 2007 was primarily attributed to the
Companys introduction of new products, the increase in
chemistry consumable and service sales and the effects of
foreign currency translation.
A decline in sales, as compared to the corresponding quarter in
the prior year, started in the fourth quarter of 2008 due to the
global economic recession and continued into the first three
quarters of 2009. This decline ended in the fourth quarter of
2009 when sales increased at a rate of 3% over the 2008 fourth
quarter. The increase in the 2009 fourth quarter sales is
attributed to favorable currency translation, the benefit from
acquisitions, a slight improvement in global economic conditions
and the introduction of new products.
During 2009, as compared to 2008, sales increased 1% in Asia
(including Japan) while sales decreased 4% in the U.S., 9% in
Europe and 12% in the rest of the world. The effect of currency
translation decreased 2009 sales by 2%. During 2008, as compared
to 2007, sales increased 1% in the U.S., 7% in Europe, 16% in
Asia and 3% in the rest of the world. The effect of currency
translation benefited 2008 sales by approximately 2%.
In 2009, as compared to 2008, sales to pharmaceutical and
industrial and food safety customers decreased 4% and 11%,
respectively. These decreases are primarily a result of reduced
spending on instrument systems caused by the global economic
recession and, to a lesser extent, the strengthening of the
U.S. dollar in developing economies, including India, South
America and Eastern Europe. Global sales to government and
academic customers were 5% higher in 2009 and the increase can
be primarily attributed to sales of the newly introduced mass
spectrometry instrument systems, higher ACQUITY
UPLC
®
instrument system sales and global governmental stimulus
spending programs. In 2008, as compared to 2007, global sales to
pharmaceutical, industrial and food safety, and government and
academic customers grew 3%, 13% and 10%, respectively. The
increases were primarily attributable to the demand for the
Companys new products in the U.S. and Asia, new
governmental regulatory testing requirements, higher awareness
of food safety issues and higher chemistry consumable and
service sales.
The Waters Divisions products and services primarily
consist of high performance liquid chromatography
(HPLC), ultra performance liquid chromatography
(UPLC
®
and together with HPLC, referred to as LC), mass
spectrometry (MS) and chemistry consumable products
and related services. The Waters Division sales decline of 4% in
2009 as compared with 2008 was primarily attributable to weaker
demand for instrument systems due to the reduction in capital
spending by the Companys customers as a result of the
global recession. The Waters Divisions recurring revenue
growth from chemistry consumables and service was 2% in 2009 as
compared to 2008, primarily from the effect of acquisitions. The
Waters Division sales grew by 7% in 2008 as compared with 2007.
The Waters Division sales growth in 2008 was strongly influenced
by ACQUITY UPLC sales, shipments of new
Synapt
tm
HDMS
tm
,
Xevo
tm
TQ and
Synapt
tm
MS systems and recurring revenue growth from the service and
chemistry consumables business.
In February 2009, the Company acquired all of the remaining
outstanding capital stock of Thar Instruments, Inc.
(Thar), a privately-held global leader in the
design, development and manufacture of analytical and
preparative supercritical fluid chromatography and supercritical
fluid extraction (SFC) systems, for $36 million
in cash, including the assumption of $4 million of debt.
The Company had previously made a $4 million equity
investment in Thar in June 2007. Thar added approximately
$17 million of product sales and was about neutral to
earnings in 2009 after debt service costs. Recently acquired
companies, both Thar and the 2008 acquisition of Analytical
Products Group, Inc. (APG), added 2% to Waters
Divisions sales in 2009.
The TA Divisions
(TA
®
)
products and services primarily consist of thermal analysis,
rheometry and calorimetry instrument systems and service sales.
Sales for TA decreased by 11% in 2009 as compared to 2008.
TAs sales decline in 2009 can be primarily attributed to a
decrease in spending by the Companys industrial customers
as a result of the global economic recession. The July 2008
acquisition of VTI Corporation (VTI) added 1% to
TAs sales in 2009 as compared to 2008. TAs 2008
sales growth of 10% as compared to 2007 can be primarily
attributed to new product introductions, the effect of foreign
currency translation and the impact of acquisitions.
Acquisitions
21
and the effect of foreign currency translation added 3% and 2%,
respectively, to TAs 2008 sales as compared to 2007.
Operating income was $395 million, $390 million and
$349 million in 2009, 2008 and 2007, respectively. The
$5 million net increase in operating income in 2009 over
2008 is primarily a result of the following:
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Higher gross margins primarily from the net favorable effect of
foreign currency translation;
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Favorable benefits from product sales mix whereas 2009 contained
a higher level of higher margin chemistry consumables and
service sales than 2008;
|
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|
Lower manufacturing costs; and
|
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|
Lower selling, administrative and research and development
expenses achieved through tight controls of discretionary
spending and lower incentive compensation.
|
These 2009 increases were partially offset by lower gross margin
dollars from lower unit volume; lower prices resulting from
competitive situations in certain geographies and the impact of
$6 million of expense in connection with the TA building
lease termination payment and $3 million of severance costs
related to a restructuring in Europe.
The $41 million net increase in operating income in 2008
over 2007 is primarily the result of the benefits from an
increase in sales volume, the favorable effect of foreign
currency translation and the impact of a one-time
$12 million expense recorded in 2007 related to a
contribution into the Waters Employee Investment Plan. The 2008
increase was partially offset by a patent litigation provision
of $7 million and a $9 million impact of an
out-of-period
capitalized software amortization adjustment recorded during
2008. During 2008, the Company identified errors originating in
periods prior to the three months ended June 28, 2008. The
errors primarily relate to (i) an overstatement of the
Companys income tax expense of $16 million as a
result of errors in recording its income tax provision during
the period from 2000 to March 29, 2008 and (ii) an
understatement of amortization expense of $9 million for
certain capitalized software. The Company incorrectly calculated
its provision for income taxes by tax-effecting its tax
liability utilizing a U.S. tax rate of 35% instead of an
Irish tax rate of approximately 10%. In addition, the Company
incorrectly accounted for Irish-based capitalized software and
the related amortization expense as U.S. Dollar-denominated
instead of Euro-denominated, resulting in an understatement of
amortization expense and cumulative translation adjustment. For
2008, the errors reduced the Companys effective tax rate
by 4.0 percentage points.
In 2009, the Company recorded approximately $5 million of
tax benefit associated with the reversal of a $5 million
tax provision which was originally recorded in 2008 relating to
the reorganization of certain foreign legal entities. The
recognition of this tax benefit was a result of changes in
income tax regulations promulgated by the U.S. Treasury in
February 2009. The tax benefit recognized in 2009 decreased the
Companys effective tax rate by 1.2 percentage points
for 2009. The one-time tax provision recorded in 2008 increased
the Companys effective tax rate by 1.4 percentage
points in 2008.
Net income per diluted share was $3.34, $3.21 and $2.62 in 2009,
2008 and 2007, respectively. Net income per diluted share grew
at a rate of 4% in 2009 as compared with 2008 and 23% in 2008 as
compared with 2007. Net income per diluted share was primarily
impacted by the following factors in 2009, 2008 and 2007:
|
|
|
|
|
The benefits of a weaker British Pound on the Companys
manufacturing and operating costs.
|
|
|
|
Lower net interest and lower weighted-average shares and
equivalents, as a result of the Companys share buyback
program, increased net income per diluted share in both 2009 as
compared with 2008 and in 2008 as compared with 2007.
|
|
|
|
As described in the preceding paragraph, the $5 million tax
benefit recorded in 2009 added $0.05 per diluted share to 2009
and the $5 million tax provision recorded in 2008 decreased
net income per diluted share in 2008 by $0.05.
|
|
|
|
The $6 million TA lease termination payment decreased the
2009 net income per diluted share by $0.04.
|
22
|
|
|
|
|
The impact of the 2008
out-of-period
adjustments related to capitalized software amortization
increased the 2008 net income per diluted share by $0.08.
|
|
|
|
The one-time contribution to the Waters Employee Investment Plan
decreased the 2007 net income per diluted share by $0.08.
|
|
|
|
Higher effective tax rates, excluding the items described above,
decreased net income per diluted share in 2009 as compared with
2008. Lower effective tax rates, excluding the items described
above, increased net income per diluted share in 2008 as
compared with 2007.
|
Net cash provided by operating activities was $418 million,
$418 million and $371 million in 2009, 2008 and 2007,
respectively. The 2009 cash provided by operating activities was
consistent with the 2008 cash provided by operating activities
despite the lower sales volume and the global economic
recession. The $47 million increase in the operating cash
flow in 2008 as compared to 2007 was primarily the result of
higher net income and improved cash collections from customers,
partially offset by a $13 million one-time transition
benefit payment into the Waters Employee Investment Plan that
was expensed in 2007, increases in inventory and the timing of
payments to vendors.
Within cash flows used in investing activities, capital
expenditures related to property, plant, equipment and software
capitalization were $94 million, $69 million and
$60 million in 2009, 2008 and 2007, respectively. The
increase in capital expenditures in 2009 is primarily attributed
to $28 million spent to acquire land and construct a new TA
facility, which was completed in 2009. In February 2009, the
Company acquired all of the remaining outstanding capital stock
of Thar for $36 million in cash. The Company made an equity
investment in Thar in June 2007 for $4 million in cash. The
Company continues to evaluate the acquisition of businesses,
product lines and technologies to augment the Waters and TA
operating divisions.
Within cash flows used in financing activities, the Company
received $19 million, $29 million and $91 million
of proceeds from stock plans in 2009, 2008 and 2007,
respectively. Fluctuations in these amounts are primarily
attributed to changes in the Companys stock price and the
expiration of stock option grants. In February 2009, the
Companys Board of Directors authorized the Company to
repurchase up to $500 million of its outstanding common
stock over a two-year period. During 2009, 2008 and 2007, the
Company repurchased 4.5 million, 4.1 million and
3.4 million shares at a cost of $210 million,
$235 million and $201 million, respectively, under the
February 2009 authorization and previously announced stock
repurchase programs. The Company believes that it has the
financial flexibility to fund these share repurchases given
current cash and debt levels, as well as to invest in research,
technology and business acquisitions to further grow the
Companys sales and profits.
In February 2010, the Company issued and sold five-year senior
unsecured notes at an interest rate of 3.75% with a face value
of $100 million. This debt matures in February 2015. In
addition, in early March 2010, the Company expects to issue and
sell ten-year senior unsecured notes at an interest rate of
5.00% with a face value of $100 million. This debt would
mature in February 2020. The Company plans to use the proceeds
from the issuance of these senior unsecured notes to repay other
outstanding debt amounts and for general corporate purposes.
Year
Ended December 31, 2009 Compared to Year Ended
December 31, 2008
Net
Sales
Net sales for 2009 and 2008 were $1,499 million and
$1,575 million, respectively, a decrease of 5%. The effect
of foreign currency translation lowered sales in 2009 by 2%.
Product sales were $1,052 million and $1,140 million
for 2009 and 2008, respectively, a decrease of 8%. The decrease
in product sales in 2009 as compared to 2008 was primarily due
to the overall decline in Waters and TA instrument system sales
due to lower spending by the Companys customers as a
result of the global economic recession and adverse effects from
foreign currency translation. Service sales were
$447 million and $435 million in 2009 and 2008,
respectively, an increase of 3%. The increase in service sales
in 2009 as compared with 2008 was primarily attributable to
increased sales of service plans and billings to a higher
installed base of customers.
23
Waters
Division Net Sales
The Waters Division net sales declined 4% in 2009 as compared to
2008. The effect of foreign currency translation negatively
impacted the Waters Division across all product lines, resulting
in a decline in total sales of 2%. The 2009 acquisition of Thar
and 2008 acquisition of APG added 2% to sales in 2009.
Chemistry consumables sales in 2009 were comparable to 2008,
with the effect of foreign currency translation negatively
impacting chemistry consumable sales by 2%. Waters Division
service sales grew 3% in 2009 due to increased sales of service
plans and billings to a higher installed base of customers. The
service sales growth rate was negatively impacted by 1% from the
effect of foreign currency translation. Waters instrument system
sales (LC and MS) declined by 9% in 2009. The decrease in
instrument system sales is primarily attributable to weak
industrial and pharmaceutical customer spending caused by the
global recession. The effect of foreign currency translation
negatively impacted the 2009 instrument system sales by 2%.
Waters Division sales by product line in 2009 were 52% for
instrument systems, 18% for chemistry consumables and 30% for
service, as compared to 55% for instrument systems, 17% for
chemistry consumables and 28% for service in 2008.
Waters Division sales in Europe declined 9%, primarily due to
weak demand in Eastern Europe and the effects of foreign
currency translation, which decreased 2009 sales in Europe by
6%. Waters Division sales in Asia increased 2% in 2009, with
strong sales growth in China partially offset by weakness in
other Asian markets. The effects of foreign currency translation
increased Asias 2009 sales by 2%. Waters Division sales in
the U.S. and the rest of the world declined 2% and 13%,
respectively. The effects of foreign currency translation
decreased 2009 sales in the rest of world by 3%.
TA
Division Net Sales
TAs sales were 11% lower in 2009 as compared to 2008
primarily as a result of weak instrument system demand from its
industrial customers. Foreign currency translation had minimal
impact on TAs 2009 sales as compared to 2008. The 2008
acquisition of VTI added 1% to sales in 2009. Instrument system
sales declined 15% in 2009 and represented 74% of sales in 2009
as compared to 78% in 2008. TA service sales increased by 4% in
2009 due to the increased sales of service plans and billings to
a higher installed base of customers. Geographically, TA sales
decreased in each market.
Gross
Profit
Gross profit for 2009 was $904 million compared to
$914 million for 2008, a decrease of $10 million, or
1%. Gross profit as a percentage of sales increased to 60.3% in
2009 compared to 58.0% for 2008. The decrease in gross profit
dollars in 2009 can be primarily attributed to the lower sales
volume and lower prices in certain geographies offset by the
benefits from net favorable foreign currency translation, a
favorable change in sales mix and lower manufacturing costs.
Gross profit in 2008 also had a $9 million charge from
out-of-period
adjustments related to capitalized software amortization. During
2009, the Companys gross profit as a percentage of sales
benefited from the favorable movements in certain foreign
exchange rates between the currencies where the Company
manufactures and services products and the currencies where the
sales were transacted, principally the Euro, Japanese Yen and
British Pound. Gross profit as a percentage of sales was also
primarily impacted by the change in sales mix, with 2009
containing a higher level of higher margin chemistry consumables
and service sales than 2008.
Selling
and Administrative Expenses
Selling and administrative expenses for 2009 and 2008 were
$421 million and $427 million, respectively, a
decrease of 1%. The decrease in 2009 selling and administrative
expenses is primarily due to tighter control of discretionary
spending including no merit increase in 2009, lower incentive
compensation and the comparative favorable impact of foreign
currency translation. The 2009 decreases were offset by the
impact of the $6 million expense incurred in connection
with the TA lease termination payment. As a percentage of net
sales, selling and administrative expenses were 28.1% for 2009
compared to 27.1% for 2008. This percentage increase can be
attributed to the lower 2009 sales volume.
24
Research
and Development Expenses
Research and development expenses were $77 million and
$82 million for 2009 and 2008, respectively, a decrease of
$5 million, or 5%. The decrease in research and development
expenses in 2009 is primarily due to the comparative favorable
impact of foreign currency translation.
Interest
Expense
Interest expense was $11 million and $39 million for
2009 and 2008, respectively. The decrease in interest expense in
2009 is primarily attributable to a decrease in average
borrowings, as well as significantly lower interest rates during
2009 as compared to 2008.
Interest
Income
Interest income was $3 million and $21 million for
2009 and 2008, respectively. The decrease in interest income is
primarily due to significantly lower yields during 2009 as
compared to 2008, as well as lower average cash and short-term
investment balances.
Provision
for Income Taxes
The Companys effective tax rates for 2009 and 2008 were
16.4% and 13.4%, respectively. Included in the income tax
provision for 2009 is approximately $5 million of tax
benefit relating to the reversal of a $5 million provision
which was originally recorded in 2008 relating to the
reorganization of certain foreign legal entities. The
recognition of this tax benefit in 2009 was a result of changes
in income tax regulations promulgated by the U.S. Treasury
in February 2009. The $5 million tax benefit decreased the
Companys effective tax rate by 1.2 percentage points
in 2009. The one-time provision increased the Companys
effective tax rate by 1.4 percentage points in 2008. In
addition, the effective tax rate for 2008 included a
$16 million benefit resulting from
out-of-period
adjustments related to software capitalization amortization. The
out-of-period
adjustments had the effect of reducing the Companys
effective tax rate by 4.0 percentage points in 2008. After
consideration of these items, the remaining change in the
effective tax rates for 2009 as compared to 2008 is primarily
attributable to changes in income in jurisdictions with
different effective tax rates.
Year
Ended December 31, 2008 Compared to Year Ended
December 31, 2007
Net
Sales
Net sales for 2008 and 2007 were $1,575 million and
$1,473 million, respectively, an increase of 7%. Foreign
currency translation benefited sales growth for 2008 by 2%.
Product sales were $1,140 million and $1,088 million
for 2008 and 2007, respectively, an increase of 5%. The increase
in product sales was primarily due to the overall positive
growth in Waters and TA instrument systems, chemistry
consumables and foreign currency translation benefits. Service
sales were $435 million and $385 million in 2008 and
2007, respectively, an increase of 13%. The increase in service
sales was primarily attributable to increased sales of service
plans and billings to a higher installed base of customers and
foreign currency translation benefits.
Waters
Division Net Sales
The Waters Division net sales grew 7% in 2008 as compared to
2007. The effect of foreign currency translation benefited the
Waters Division across all product lines, resulting in a benefit
to total sales growth of 2%.
Chemistry consumables sales grew 9% in 2008 as compared to 2007.
This growth was driven by increased column sales of ACQUITY UPLC
proprietary column technology and sales of HPLC columns. Waters
Division service sales grew 12% in 2008 due primarily to
increased sales of service plans and billings to a higher
installed base of customers. Waters instrument system sales grew
3% in 2008. The increase in instrument system sales during 2008
is primarily attributable to higher sales of ACQUITY UPLC,
Synapt HDMS, Synapt MS and the Xevo TQ. Sales were negatively
impacted by the slowdown in industrial customer spending which
occurred during the fourth quarter of 2008 due to the economic
recession. Waters Division sales by product line were
essentially unchanged in 2008 and 2007 with instrument systems,
chemistry consumables and service representing approximately
55%, 17% and 28% of sales, respectively.
25
Geographically, Waters Division sales in Europe, Asia and the
rest of the world grew approximately 6%, 17% and 4% in 2008,
respectively. Sales in the U.S. were flat in 2008. The
sales growth in 2008 was primarily due to higher demand from the
Companys government, academic and industrial customers.
Asias sales growth was primarily driven by increased sales
in India and China. The effects of foreign currency translation
increased sales growth in Europe and Asia by 4% and 5% in 2008,
respectively.
TA
Division Net Sales
TAs sales grew 10% in 2008 as compared to 2007 primarily
as a result of new product introductions, acquisitions and the
effect of foreign currency translation. The effect of foreign
currency translation benefited the TA sales growth by 2% in 2008
as compared to 2007. Instrument system sales grew 6% and
represented approximately 78% and 81% of sales in 2008 and 2007,
respectively. TA service sales grew 27% in 2008 and can be
primarily attributed to a higher installed base of customers and
new service sales to the customers of recently acquired
companies. Geographically, sales growth for TA in 2008 was
predominantly in the U.S., Europe and Asia. The July 2008 VTI
acquisition and the August 2007 acquisition of CSC added 3% to
TAs sales growth for 2008.
Gross
Profit
Gross profit for 2008 was $914 million compared to
$842 million for 2007, an increase of $72 million, or
9%. Gross profit as a percentage of sales increased to 58.0% in
2008 compared to 57.2% in 2007. This increase is primarily due
to higher sales volume, increased comparative benefits of
foreign currency translation and, to a lesser extent, lower
manufacturing costs. Also, the overall gross profit increase was
negatively impacted by a $9 million
out-of-period
capitalized software amortization adjustment recorded during
2008. The gross profit increase can also be attributed to a
$3 million expense recorded in 2007 relating to the
contribution into the Waters Employee Investment Plan.
Selling
and Administrative Expenses
Selling and administrative expenses for 2008 and 2007 were
$427 million and $404 million, respectively, an
increase of 6%. Included in selling and administrative expenses
for 2007 is the impact of a one-time $7 million expense
related to the contribution into the Waters Employee Investment
Plan. The remaining $16 million increase in total selling
and administrative expenses for 2008 is primarily due to annual
merit increases, modest headcount additions to support increased
sales volume and the comparative unfavorable impact of foreign
currency translation. As a percentage of net sales, selling and
administrative expenses were 27.1% for 2008 compared to 27.4%
for 2007.
Research
and Development Expenses
Research and development expenses were $82 million and
$81 million for 2008 and 2007, respectively, an increase of
$1 million, or 1%. Included in research and development
expenses for 2007 is $2 million of expense related to the
contribution into the Waters Employee Investment Plan. The
remaining increase in research and development expenses for 2008
is primarily due to the timing of new product introduction
costs, annual merit increases and modest headcount additions.
Litigation
Provision
The Company recorded a $7 million provision in 2008 for
damages and fees estimated to be incurred in connection with a
judgment issued against the Company relating to an ongoing
patent infringement lawsuit with Agilent Technologies Inc.
Interest
Expense
Interest expense was $39 million and $57 million for
2008 and 2007, respectively. The decrease in interest expense is
primarily attributable to a decrease in average borrowing costs
and lower average borrowings during 2008 as compared to 2007.
Interest
Income
Interest income was $21 million and $31 million for
2008 and 2007, respectively. The decrease in interest income is
primarily due to lower yields and lower cash and short-term
investment balances.
26
Provision
for Income Taxes
The Companys effective tax rates for 2008 and 2007 were
13.4% and 17.1%, respectively. Included in the income tax
provision for 2008 is approximately $5 million of tax
provision associated with the reorganization of certain foreign
legal entities. This one-time provision increased the
Companys effective tax rate by 1.4 percentage points
in 2008. In addition, the effective tax rate for 2008 included a
$16 million benefit resulting from
out-of-period
adjustments related to software capitalization amortization. The
out-of-period
adjustments had the effect of reducing the Companys
effective tax rate by 4.0 percentage points in 2008. The
2007 tax provision includes a $4 million tax benefit
associated with a one-time contribution into the Waters Employee
Investment Plan. The remaining decrease in the effective tax
rate for 2008 is primarily attributable to proportionately
greater growth in income in jurisdictions with comparatively
lower effective tax rates.
Liquidity
and Capital Resources
Condensed
Consolidated Statements of Cash Flows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Net income
|
|
$
|
323,313
|
|
|
$
|
322,479
|
|
|
$
|
268,072
|
|
Depreciation and amortization
|
|
|
57,272
|
|
|
|
65,271
|
|
|
|
53,317
|
|
Stock-based compensation
|
|
|
28,255
|
|
|
|
30,782
|
|
|
|
28,855
|
|
Deferred income taxes
|
|
|
36,276
|
|
|
|
(19,626
|
)
|
|
|
5,946
|
|
Change in accounts receivable
|
|
|
(16,905
|
)
|
|
|
21,739
|
|
|
|
(26,266
|
)
|
Change in inventories
|
|
|
(6,823
|
)
|
|
|
(20,618
|
)
|
|
|
(6,368
|
)
|
Change in accounts payable and other current liabilities
|
|
|
(10,830
|
)
|
|
|
(19,970
|
)
|
|
|
32,309
|
|
Change in deferred revenue and customer advances
|
|
|
2,613
|
|
|
|
1,976
|
|
|
|
6,244
|
|
Other changes
|
|
|
5,092
|
|
|
|
36,215
|
|
|
|
8,398
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
418,263
|
|
|
|
418,248
|
|
|
|
370,507
|
|
Net cash (used in) provided by investing activities
|
|
|
(419,028
|
)
|
|
|
18,811
|
|
|
|
(167,907
|
)
|
Net cash used in financing activities
|
|
|
(90,280
|
)
|
|
|
(572,938
|
)
|
|
|
(119,686
|
)
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
3,634
|
|
|
|
(32,932
|
)
|
|
|
253
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Decrease) increase in cash and cash equivalents
|
|
$
|
(87,411
|
)
|
|
$
|
(168,811
|
)
|
|
$
|
83,167
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash Flow
from Operating Activities
Year
Ended December 31, 2009 Compared to Year Ended
December 31, 2008
Net cash provided by operating activities was $418 million
in both 2009 and 2008. The changes within net cash provided from
operating activities in 2009 as compared to 2008 include the
following significant changes in the sources and uses of net
cash provided by operating activities, aside from the increase
in net income:
|
|
|
|
|
The change in accounts receivable in 2009 compared to 2008 is
primarily attributable to the timing of payments made by
customers and the lower sales volume in 2009 as compared to
2008. Days-sales-outstanding (DSO) increased to
67 days at December 31, 2009 from 63 days at
December 31, 2008.
|
|
|
|
The change in inventories in 2009 compared to 2008 is primarily
attributable to the decrease in sales volume.
|
|
|
|
The 2009 change in accounts payable and other current
liabilities includes a $6 million litigation payment, which
was accrued in 2008. In 2009, the Company also made a
$6 million payment to terminate the lease on the old TA
facility. In addition, accounts payable and other current
liabilities changed as a result of the timing of payments to
vendors and lower incentive compensation accruals.
|
|
|
|
Net cash provided from deferred revenue and customer advances in
2009 and 2008 was a result of the installed base of customers
renewing annual service contracts.
|
27
|
|
|
|
|
Other changes are comprised of the timing of various provisions,
expenditures and accruals in other current assets, other assets
and other liabilities.
|
Year
Ended December 31, 2008 Compared to Year Ended
December 31, 2007
Net cash provided by operating activities was $418 million
and $371 million in 2008 and 2007, respectively. The
$47 million increase in net cash provided from operating
activities in 2008 as compared to 2007 is attributed primarily
to the following significant changes in the sources and uses of
net cash provided from operating activities, aside from the
increase in net income:
|
|
|
|
|
The change in accounts receivable in 2008 compared to 2007 is
primarily attributable to the timing of payments made by
customers and the higher sales volume in 2008 as compared to
2007. DSO decreased to 63 days at December 31, 2008
from 66 days at December 31, 2007.
|
|
|
|
The change in inventories in 2008 and 2007 is attributable to
the increase in sales volume and an increase in ACQUITY UPLC and
new mass spectrometry and TA products.
|
|
|
|
The 2008 change in accounts payable and other current
liabilities includes a $13 million one-time transition
pension benefit payment into the Waters Employee Investment
Plan. The 2007 change in accounts payable and other current
liabilities includes the accrual related to the one-time
transition benefit. In addition, accounts payable and other
current liabilities changed as a result of the timing of
payments to vendors.
|
|
|
|
Net cash provided from deferred revenue and customer advances in
both 2008 and 2007 was a result of the installed base of
customers renewing annual service contracts.
|
|
|
|
Other changes are comprised of the timing of various provisions,
expenditures and accruals in other current assets, other assets
and other liabilities.
|
Cash Used
in Investing Activities
Net cash used in investing activities totaled $419 million
in 2009. Net cash provided by investing activities totaled
$19 million in 2008. Net cash used in investing activities
totaled $168 million in 2007. Additions to fixed assets and
capitalized software were $94 million in 2009,
$69 million in 2008 and $60 million in 2007. The
increase in capital spending in 2009 can be attributed primarily
to $28 million spent to acquire land and construct a new TA
facility, which was completed in 2009. Capital spending returned
to 2008 levels beginning in the fourth quarter of 2009; however,
capital spending may increase periodically in the future in
order to fund other facility expansions to accommodate future
sales growth. During 2009, 2008 and 2007, the Company purchased
$518 million, $20 million and $391 million of
short-term investments, respectively, while $229 million,
$115 million and $295 million of short-term
investments matured, respectively. Business acquisitions, net of
cash acquired, were $36 million, $8 million and
$9 million in 2009, 2008 and 2007, respectively.
Cash Used
in Financing Activities
In February 2010, the Company issued and sold five-year senior
unsecured notes at an interest rate of 3.75% with a face value
of $100 million. This debt matures in February 2015. In
addition, in early March 2010, the Company expects to issue and
sell ten-year senior unsecured notes at an interest rate of
5.00% with a face value of $100 million. This debt would
mature in February 2020. The Company plans to use the proceeds
from the issuance of these senior unsecured notes to repay other
outstanding debt amounts and for general corporate purposes.
Interest on both issuances of the senior unsecured notes are
payable semi-annually in February and August of each year. The
Company may redeem some or all of the notes at any time in an
amount not less than 10% of the aggregate principal amount
outstanding, plus accrued and unpaid interest, plus the
applicable make-whole amount. These notes require that the
Company comply with an interest coverage ratio test of not less
than 3.50:1 and a leverage ratio test of not more than 3.50:1
for any period of four consecutive fiscal quarters,
respectively. In addition, these notes include negative
covenants that are similar to the existing credit agreement.
These notes also contain certain customary representations and
warranties, affirmative covenants and events of default.
28
During 2009, the Companys net debt borrowings increased by
$92 million. During 2008 and 2007, the Companys net
debt borrowings decreased $348 million and
$19 million, respectively.
In March 2008, the Company entered into a credit agreement (the
2008 Credit Agreement) that provided for a
$150 million term loan facility. In January 2007, the
Company entered into a credit agreement (the 2007 Credit
Agreement) that provides for a $500 million term loan
facility and $600 million in revolving facilities, which
include both a letter of credit and a swingline subfacility.
Both credit agreements were to mature on January 11, 2012
and required or require no scheduled prepayments before that
date. The Company uses the revolving line of credit to fund its
working capital needs.
In October 2008, the Company utilized cash balances associated
with the effective liquidation of certain foreign legal entities
into the U.S. to voluntarily prepay the $150 million
term loan under the 2008 Credit Agreement. The repayment of the
term loan effectively terminated all lending arrangements under
the 2008 Credit Agreement.
The interest rates applicable to the 2007 Credit Agreement are,
at the Companys option, equal to either the base rate
(which is the higher of the prime rate or the federal funds rate
plus
1
/
2
%)
or the applicable 1, 2, 3, 6, 9 or 12 month LIBOR rate, in
each case, plus an interest rate margin based upon the
Companys leverage ratio, which can range between
33 basis points and 72.5 basis points for LIBOR rate
loans and range between zero basis points and 37.5 basis
points for base rate loans. The 2007 Credit Agreement requires
that the Company comply with an interest coverage ratio test of
not less than 3.50:1 and a leverage ratio test of not more than
3.25:1 for any period of four consecutive fiscal quarters,
respectively. In addition, the 2007 Credit Agreement includes
negative covenants that are customary for investment grade
credit facilities. The 2007 Credit Agreement also contains
certain customary representations and warranties, affirmative
covenants and events of default.
As of December 31, 2009, the Company had a total of
$620 million borrowed under the 2007 Credit Agreement. The
Company had $500 million classified as long-term debt and
$120 million classified as short-term debt from this credit
agreement and various other lines of credit. The Company has
classified the revolving portion of the credit agreement as
short-term debt as it is the Companys intention to pay the
outstanding revolving line of credit balance during the
subsequent twelve months following the respective period end
date. As of December 31, 2009, the total amount available
to borrow under the 2007 Credit Agreement was $479 million
after outstanding letters of credit.
In February 2009, the Companys Board of Directors
authorized the Company to repurchase up to $500 million of
its outstanding common stock over a two-year period. During
2009, the Company repurchased 3.1 million shares at a cost
of $157 million under this program, leaving
$343 million authorized for future repurchases. The Company
repurchased 4.5 million, 4.1 million and
3.4 million shares at a cost of $210 million,
$235 million and $201 million during 2009, 2008 and
2007, respectively, under the February 2009 authorization and
previously announced programs.
The Company received $19 million, $29 million and
$91 million of proceeds from the exercise of stock options
and the purchase of shares pursuant to the Companys
employee stock purchase plan in 2009, 2008 and 2007,
respectively. Fluctuations in these amounts are primarily
attributed to the changes in the Companys stock price and
the expiration of stock option grants.
The Company believes that the cash, cash equivalents and
short-term investments balance of $630 million as of
December 31, 2009 and expected cash flow from operating
activities, together with borrowing capacity from committed
credit facilities, will be sufficient to fund working capital,
capital spending requirements, authorized share repurchase
amounts, potential acquisitions and any adverse final
determination of ongoing litigation for at least the next twelve
months. Management believes, as of the date of this report, that
its financial position, along with expected future cash flows
from earnings based on historical trends and the ability to
raise funds from external sources, will be sufficient to meet
future operating and investing needs for the foreseeable future.
The Companys cash equivalents represent highly liquid
investments, with original maturities of generally 90 days
or less, in bank deposits; U.S., German, French and Dutch
Government Treasury Bills; AAA rated U.S. Treasury Bills
and European government bond money market funds. Similar
investments with longer maturities are classified as short-term
investments. Cash equivalents and short-term investments are
convertible
29
to a known amount of cash and carry an insignificant risk of
change in market value. The Company maintains balances in
various operating accounts in excess of federally insured
limits, and in foreign subsidiary accounts in currencies other
than U.S. dollars.
Contractual
Obligations and Commercial Commitments
The following is a summary of the Companys known
contractual obligations as of December 31, 2009 (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Payments Due by Year
|
|
Contractual
Obligations
(1)
|
|
Total
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
2014
|
|
|
2015
|
|
|
After 2015
|
|
|
Notes payable and debt
|
|
$
|
131,772
|
|
|
$
|
131,772
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
Long-term debt
|
|
|
500,000
|
|
|
|
|
|
|
|
|
|
|
|
500,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating leases
|
|
|
83,968
|
|
|
|
24,039
|
|
|
|
19,031
|
|
|
|
14,259
|
|
|
|
8,934
|
|
|
|
6,438
|
|
|
|
4,902
|
|
|
|
6,365
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
715,740
|
|
|
$
|
155,811
|
|
|
$
|
19,031
|
|
|
$
|
514,259
|
|
|
$
|
8,934
|
|
|
$
|
6,438
|
|
|
$
|
4,902
|
|
|
$
|
6,365
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amount of Commitments Expiration Per Period
|
|
Other Commercial Commitments
|
|
Total
|
|
|
2009
|
|
|
2010
|
|
|
2011
|
|
|
2012
|
|
|
2013
|
|
|
2014
|
|
|
After 2014
|
|
|
Letters of credit
|
|
$
|
1,437
|
|
|
$
|
1,437
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
|
|
|
|
|
(1)
|
|
Does not include normal purchases made in the ordinary course of
business.
|
The interest rates applicable to the 2007 Credit Agreement are,
at the Companys option, equal to either the base rate
(which is the higher of the prime rate or the federal funds rate
plus
1
/
2
%)
or the applicable 1, 2, 3, 6, 9 or 12 month LIBOR rate, in
each case, plus an interest rate margin based upon the
Companys leverage ratio, which can range between
33 basis points and 72.5 basis points for LIBOR rate
loans and range between zero basis points and 37.5 basis
points for base rate loans. At current and long-term debt levels
and interest rates consistent with those at December 31,
2009, the Companys interest expense would be approximately
$5 million annually, which is not disclosed in the above
table.
The Company licenses certain technology and software from third
parties, which expire at various dates through 2010. Fees paid
for licenses were less than $1 million each in 2009, 2008
and 2007. Future minimum license fees payable under existing
license agreements as of December 31, 2009 are immaterial.
From time to time, the Company and its subsidiaries are involved
in various litigation matters arising in the ordinary course of
business. The Company believes it has meritorious arguments in
its current litigation matters and any outcome, either
individually or in the aggregate, will not be material to the
Companys financial position or results of operations.
Current litigation is described in Item 3, Legal
Proceedings, of Part I of this
Form 10-K.
The Company has long-term liabilities for deferred employee
compensation, including pension and supplemental executive
retirement plans. The payments related to the supplemental
retirement plan are not included above since they are dependent
upon when the employee retires or leaves the Company and whether
the employee elects lump-sum or annuity payments. During fiscal
year 2010, the Company expects to contribute approximately
$3 million to $5 million to the Companys defined
benefit plans. Capital expenditures in 2009 were higher than in
2008 primarily due to the $28 million spent to acquire land
and construct a new TA facility, which was completed in 2009.
Capital spending is expected to return to 2008 levels in 2010
and may increase periodically in the future in order to fund
other facility expansions to accommodate future sales growth.
The Company accounts for its uncertain tax return reporting
positions in accordance with the income taxes accounting
standard, which requires financial statement reporting of the
expected future tax consequences of uncertain tax return
reporting positions on the presumption that all relevant tax
authorities possess full knowledge of those tax reporting
positions, as well as all of the pertinent facts and
circumstances, but it prohibits any discounting of any of the
related tax effects for the time value of money. If all of the
Companys unrecognized tax benefits accrued as of
December 31, 2009 were to become recognizable in the
future, the Company would record a total reduction of
approximately $78 million in the income tax provision. The
Companys uncertain tax positions are taken with respect to
income tax return reporting periods beginning after
December 31, 1999, which are the periods
30
that generally remain open to income tax audit examination by
the various income tax authorities. As of December 31,
2009, the Company expects that a tax audit of one of the
Companys U.K. affiliates tax returns for 2003, 2004
and 2005 will be settled before December 31, 2010. As of
December 31, 2009, the Company does not expect the
settlement of that audit to have a material effect on its
consolidated financial statements. In addition, the Company has
monitored and will continue to monitor the lapsing of statutes
of limitations on potential tax assessments for related changes
in the measurement of unrecognized tax benefits, related net
interest and penalties, and deferred tax assets and liabilities.
Other than the aforementioned tax audit, as of December 31,
2009, the Company does not expect to record any material changes
in the measurement of unrecognized tax benefits, related net
interest and penalties or deferred tax assets and liabilities
due to the settlement of tax audit examinations or to the
lapsing of statutes of limitations on potential tax assessments
within the next twelve months.
The Company has not paid any dividends and does not plan to pay
any dividends in the foreseeable future.
Off-Balance
Sheet Arrangements
The Company has not created, and is not party to, any
special-purpose or off-balance sheet entities for the purpose of
raising capital, incurring debt or operating parts of its
business that are not consolidated (to the extent of the
Companys ownership interest therein) into the consolidated
financial statements. The Company has not entered into any
transactions with unconsolidated entities whereby it has
subordinated retained interests, derivative instruments or other
contingent arrangements that expose the Company to material
continuing risks, contingent liabilities or any other obligation
under a variable interest in an unconsolidated entity that
provides financing, liquidity, market risk or credit risk
support to the Company.
Critical
Accounting Policies and Estimates
Summary
The preparation of consolidated financial statements requires
the Company to make estimates and judgments that affect the
reported amounts of assets, liabilities, revenues and expenses,
and related disclosure of contingent liabilities. Critical
accounting policies are those that are central to the
presentation of the Companys financial condition and
results of operations that require management to make estimates
about matters that are highly uncertain and that would have a
material impact on the Companys results of operations
given changes in the estimate that are reasonably likely to
occur from period to period or use of different estimates that
reasonably could have been used in the current period. On an
ongoing basis, the Company evaluates its policies and estimates.
The Company bases its estimates on historical experience and on
various other assumptions that are believed to be reasonable
under the circumstances, the results of which form the basis for
making judgments about the carrying values of assets and
liabilities that are not readily apparent from other sources.
Actual results may differ from these estimates under different
assumptions or conditions. There are other items within the
Companys consolidated financial statements that require
estimation, but are not deemed critical as defined above.
Changes in estimates used in these and other items could
potentially have a material impact on the Companys
consolidated financial statements.
Revenue
Recognition
Sales of products and services are generally recorded based on
product shipment and performance of service, respectively.
Proceeds received in advance of product shipment or performance
of service are recorded as deferred revenue in the consolidated
balance sheets. Shipping and handling costs are included in cost
of sales net of amounts invoiced to the customer per the order.
The Companys products generally carry one year of
warranty. These costs are accrued at the point of shipment. Once
the warranty period has expired, the customer may purchase a
service contract. Service contract billings are generally
invoiced to the customer at the beginning of the contract term
and revenue is amortized on a straight-line basis over the
contract term. At December 31, 2009, the Company had
current and long-term deferred revenue liabilities of
$95 million and $16 million, respectively.
Product shipments, including those for demonstration or
evaluation, and service contracts are not recorded as revenues
until a valid purchase order or master agreement is received
specifying fixed terms and prices. Revenues are adjusted
accordingly for changes in contract terms or if collectibility
is not reasonably assured. The Companys method of revenue
recognition for certain products requiring installation is in
accordance with accounting standards
31
for revenue recognition. Accordingly, revenue is recognized when
all of the following criteria are met: persuasive evidence of an
arrangement exists; delivery has occurred; the vendors fee
is fixed or determinable; collectibility is reasonably assured
and, if applicable, upon acceptance when acceptance criteria
with contractual cash holdback are specified. With respect to
installation obligations, the larger of the contractual cash
holdback or the fair value of the installation service is
deferred when the product is shipped and revenue is recognized
as a multiple-element arrangement when installation is complete.
The Company determines the fair value of installation based upon
a number of factors, including hourly service billing rates,
estimated installation hours and comparisons of amounts charged
by third parties. The Company believes that this amount
approximates the amount that a third party would charge for the
installation effort.
Sales of software are accounted for in accordance with the
accounting standards for software revenue recognition. Software
revenue is recognized upon shipment, as typically no significant
post-delivery obligations remain. Software upgrades are
typically sold as part of a service contract, with revenue
recognized ratably over the term of the service contract.
Loss
Provisions on Accounts Receivable and Inventory
The Company maintains allowances for doubtful accounts for
estimated losses resulting from the inability of its customers
to make required payments. If the financial condition of the
Companys customers were to deteriorate, resulting in an
impairment of their ability to make payments, additional
allowances may be required. The Company does not request
collateral from its customers, but collectibility is enhanced
through the use of credit card payments and letters of credit.
The Company assesses collectibility based on a number of factors
including, but not limited to, past transaction history with the
customer, the credit-worthiness of the customer, industry trends
and the macro-economic environment. Historically, the Company
has not experienced significant bad debt losses. Sales returns
and allowances are estimates of future product returns related
to current period revenue. Material differences may result in
the amount and timing of revenue for any period if management
made different judgments or utilized different estimates for
sales returns and allowances for doubtful accounts. The
Companys accounts receivable balance at December 31,
2009 was $314 million, net of allowances for doubtful
accounts and sales returns of $7 million.
The Company values all of its inventories at the lower of cost
or market on a
first-in,
first-out basis (FIFO). The Company estimates
revisions to its inventory valuations based on technical
obsolescence; historical demand; projections of future demand,
including that in the Companys current backlog of orders;
and industry and market conditions. If actual future demand or
market conditions are less favorable than those projected by
management, additional write-downs may be required. The
Companys inventory balance at December 31, 2009 was
$179 million, net of write-downs to net realizable value of
$13 million.
Long-Lived
Assets, Intangible Assets and Goodwill
The Company assesses the impairment of identifiable intangibles,
long-lived assets and goodwill whenever events or changes in
circumstances indicate that the carrying value may not be
recoverable. Factors the Company considers important which could
trigger an impairment review include, but are not limited to,
the following:
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significant underperformance relative to expected historical or
projected future operating results;
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significant negative industry or economic trends; and,
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significant changes or developments in strategic technological
collaborations or legal matters which affect the Companys
capitalized patents, trademarks and intellectual properties,
such as licenses.
|
When the Company determines that the carrying value of an
individual intangible asset, long-lived asset or goodwill may
not be recoverable based upon the existence of one or more of
the above indicators, an estimate of undiscounted future cash
flows produced by that intangible asset, long-lived asset or
goodwill, including its eventual residual value, is compared to
the carrying value to determine whether impairment exists. In
the event that such cash flows are not expected to be sufficient
to recover the carrying amount of the asset, the asset is
written-down to its estimated fair value. Net intangible assets,
long-lived assets and goodwill amounted to $182 million,
$211 million and $293 million, respectively, as of
December 31, 2009. The Company performs annual impairment
reviews of its goodwill. The Company performed its annual review
during the fourth quarter of 2009 and currently
32
does not expect to record an impairment charge in the
foreseeable future. However, there can be no assurance that, at
the time future reviews are completed, a material impairment
charge will not be recorded.
Warranty
Product warranties are recorded at the time revenue is
recognized for certain product shipments. While the Company
engages in extensive product quality programs and processes,
including actively monitoring and evaluating the quality of its
component suppliers, the Companys warranty obligation is
affected by product failure rates, material usage and service
delivery costs incurred in correcting a product failure. Should
actual product failure rates, material usage or service delivery
costs differ from the Companys previous estimates,
revisions to the estimated warranty liability would be required.
At December 31, 2009, the Companys warranty liability
was $10 million.
Income
Taxes
As part of the process of preparing the consolidated financial
statements, the Company is required to estimate its income taxes
in each of the jurisdictions in which it operates. This process
involves the Company estimating its actual current tax exposure
together with assessing changes in temporary differences
resulting from differing treatment of items, such as
depreciation, amortization and inventory reserves, for tax and
accounting purposes. These differences result in deferred tax
assets and liabilities, which are included within the
consolidated balance sheets. In the event that actual results
differ from these estimates, or the Company adjusts these
estimates in future periods, the Company may need to establish
an additional valuation allowance which could materially impact
its financial position and results of operations.
The accounting standard for income taxes requires that a company
continually evaluate the necessity of establishing or changing a
valuation allowance for deferred tax assets, depending on
whether it is more likely than not that actual benefit of those
assets will be realized in future periods. In addition, the
Company accounts for its uncertain tax return reporting
positions in accordance with the income taxes accounting
standard, which requires financial statement reporting of the
expected future tax consequences of uncertain tax return
reporting positions on the presumption that all relevant tax
authorities possess full knowledge of those tax reporting
positions, as well as all of the pertinent facts and
circumstances, but it prohibits any discounting of any of the
related tax effects for the time value of money. At
December 31, 2009, the Company had unrecognized tax
benefits of $78 million.
Litigation
As described in Item 3, Legal Proceedings, of Part I
of this
Form 10-K,
the Company is a party to various pending litigation matters.
With respect to each pending claim, management determines
whether it can reasonably estimate whether a loss is probable
and, if so, the probable range of that loss. If and when
management has determined, with respect to a particular claim,
both that a loss is probable and that it can reasonably estimate
the range of that loss, the Company records a charge equal to
either its best estimate of that loss or the lowest amount in
that probable range of loss. The Company will disclose
additional exposures when the range of loss is subject to
considerable interpretation.
With respect to the claims referenced in Item 3, management
of the Company to date has been able to make this determination
and thus has recorded charges with respect to the claims
described in Item 3. As developments occur in these matters
and additional information becomes available, management of the
Company will reassess the probability of any losses and of their
range, which may result in its recording charges or additional
charges which could materially impact the Companys results
of operation or financial position.
Pension
and Other Retirement Benefits
Assumptions used in determining projected benefit obligations
and the fair values of plan assets for the Companys
pension plans and other retirement benefits are evaluated
periodically by management. Changes in assumptions are based on
relevant company data. Critical assumptions, such as the
discount rate used to measure the benefit obligations and the
expected long-term rate of return on plan assets, are evaluated
and updated annually. The Company has assumed that the
weighted-average expected long-term rate of return on plan
assets will be 7.95% for its U.S. benefit plans and 3.34%
for its
Non-U.S. benefit
plans.
33
At the end of each year, the Company determines the discount
rate that reflects the current rate at which the pension
liabilities could be effectively settled. The Company determined
the discount rate based on the analysis of the Mercer and
Citigroup Pension Discount Curves for high quality investments
and the Moodys Aa interest rate as of December 31,
2009 that best matched the timing of the plans future cash
flows for the period to maturity of the pension benefits. Once
the interest rates were determined, the plans cash flow
was discounted at the spot interest rate back to the measurement
date. At December 31, 2009, the Company determined the
weighted-average discount rate to be 5.95% for the
U.S. benefit plans and 4.05% for the
Non-U.S. benefits
plans.
A one-quarter percentage point increase in the discount rate
would decrease the Companys net periodic benefit cost for
the Waters Retirement Plan by less than $1 million. A
one-quarter percentage point increase in the assumed long-term
rate of return would decrease the Companys net periodic
benefit cost for the Waters Retirement Plan by less than
$1 million.
Stock-based
Compensation
The accounting standard for stock-based compensation requires
that all share-based payments to employees be recognized in the
statements of operations based on their fair values. The Company
has used the Black-Scholes model to determine the fair value of
its stock option awards. Under the fair-value recognition
provisions of this statement, share-based compensation cost is
measured at the grant date based on the value of the award and
is recognized as expense over the vesting period. Determining
the fair value of share-based awards at the grant date requires
judgment, including estimating stock price volatility and
employee stock option exercise behaviors. If actual results
differ significantly from these estimates, stock-based
compensation expense and the Companys results of
operations could be materially impacted. As stock-based
compensation expense recognized in the consolidated statements
of operations is based on awards that ultimately are expected to
vest, the amount of expense has been reduced for estimated
forfeitures. This accounting standard requires forfeitures to be
estimated at the time of grant and revised, if necessary, in
subsequent periods if actual forfeitures differ from those
estimates. Forfeitures were estimated based on historical
experience. If factors change and the Company employs different
assumptions in the application of this accounting standard, the
compensation expense that the Company records in the future
periods may differ significantly from what the Company has
recorded in the current period.
The Company adopted the modified prospective transition method
permitted under the stock-based compensation accounting standard
and, consequently, has not adjusted results from prior years.
Under the modified transition method, compensation costs now
include expense relating to the remaining unvested awards
granted prior to December 31, 2005 and the expense related
to any awards issued subsequent to December 31, 2005. The
Company recognizes the expense using the straight-line
attribution method.
As of December 31, 2009, unrecognized compensation costs
and related weighted-average lives over which the costs will be
amortized were as follows (in millions):
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Unrecognized
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Compensation
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Weighted-Average
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Costs
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Life in Years
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Stock options
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$
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36
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3.4
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Restricted stock units
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$
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27
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3.2
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Restricted stock
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$
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< 1
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1.5
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Total
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$
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63
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3.3
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Recent
Accounting Standards Changes
Recently
Adopted Accounting Standards
In June 2009, a new accounting standard was issued that
establishes the hierarchy of Generally Accepted Accounting
Principles (GAAP) that are to be used as the source
of authoritative accounting principles recognized by the
Financial Accounting Standards Board (FASB) for
non-governmental entities in preparation of financial statements
in conformity with GAAP in the United States. This standard was
effective for interim and annual periods ending after
September 15, 2009. The adoption of this standard by the
Company did not have a material effect on its financial
position, results of operations or cash flows.
34
In August 2009, a new accounting standard was issued for
measuring liabilities at fair value. This standard provides
clarification that, in circumstances in which a quoted price in
an active market for the identical liability is not available, a
reporting entity is required to measure fair value using one or
more of the following methods: (1) a valuation technique
that uses (a) the quoted price of the identical liability
when traded as an asset or (b) quoted prices for similar
liabilities or similar liabilities when traded as assets;
and/or
(2) a valuation technique that is consistent with GAAP.
This standard also clarifies that when estimating the fair value
of a liability, a reporting entity is not required to adjust to
include inputs relating to the existence of transfer
restrictions on that liability. The adoption of this standard
did not have a material effect on the Companys financial
position, results of operations or cash flows.
In April 2009, a new accounting standard was issued to provide
greater clarity about the credit and noncredit component of an
other-than-temporary
impairment event and to more effectively communicate when an
other-than-temporary
impairment event has occurred. This standard applies to debt
securities. This standard was effective for periods ending after
June 15, 2009. The adoption of this standard did not have a
material effect on the Companys financial position,
results of operations or cash flows.
In April 2009, a new accounting standard was issued to require
disclosures about fair value of financial instruments in interim
as well as in annual financial statements. This standard was
effective for periods ending after June 15, 2009. The
adoption of this standard did not have a material effect on the
Companys financial position, results of operations or cash
flows.
In the second quarter of 2009, the Company implemented the newly
issued subsequent events accounting standard. This standard
establishes general standards of accounting for and disclosure
of events that occur after the balance sheet date, but before
financial statements are issued. The adoption of this standard
did not impact the Companys financial position or results
of operations. The Company evaluated all events or transactions
that occurred after December 31, 2009 up through
February 26, 2010, the date the Company issued these
financial statements. During this period, the Company did not
have any material recognizable subsequent events which have not
been disclosed.
In December 2008, a new accounting standard was issued relating
to the employers disclosures about postretirement benefit
plan assets. This requirement amends the previous accounting
standard to provide guidance on employers disclosures
about plan assets of a defined benefit pension or other
postretirement plan. This new standard is effective for
financial statements issued for fiscal years ending after
December 15, 2009. The provisions of this new standard are
not required for earlier periods presented and early adoption is
permitted. The adoption of this standard did not have an effect
on the Companys financial position, results of operations
or cash flows.
Recently
Issued Accounting Standards
In June 2009, a new accounting standard was issued relating to
the consolidation of variable interest entities. This statement
addresses (1) the effects on certain provisions on existing
accounting standards as a result of the elimination of the
qualifying special-purpose entity concept and
(2) constituent concerns about the application of certain
key provisions of existing accounting standards, including those
in which the accounting and disclosures under existing
accounting standards do not always provide timely and useful
information about an enterprises involvement in a variable
interest entity. This standard is effective for periods
beginning after November 15, 2009. The adoption of this
standard will not have a material effect on its financial
position, results of operations or cash flows.
In October 2009, a new accounting consensus was issued for
multiple-deliverable revenue arrangements. This consensus amends
existing revenue recognition accounting standards. This
consensus provides accounting principles and application
guidance on whether multiple deliverables exist, how the
arrangement should be separated and the consideration allocated.
This guidance eliminates the requirement to establish the fair
value of undelivered products and services and instead provides
for separate revenue recognition based upon managements
estimate of the selling price for an undelivered item when there
is no other means to determine the fair value of that
undelivered item. Previously the existing accounting consensus
required that the fair value of the undelivered item be the
price of the item either sold in a separate transaction between
unrelated third parties or the price charged for each item when
the item is sold separately by the vendor. Under the existing
accounting consensus, if the fair value of all of the
35
elements in the arrangement was not determinable, then revenue
was deferred until all of the items were delivered or fair value
was determined. This new approach is effective prospectively for
revenue arrangements entered into or materially modified in
fiscal years beginning on or after June 15, 2010. The
Company is in the process of evaluating whether the adoption of
this standard will have a material effect on its financial
position, results of operations or cash flows.
In October 2009, a new accounting consensus was issued for
certain revenue arrangements that include software elements.
This consensus amends the existing accounting guidance for
revenue arrangements that contain tangible products and
software. This consensus requires that tangible products which
contain software components and non-software components that
function together to deliver the tangible products essential
functionality are no longer within the scope of the software
revenue guidance. This new approach is effective prospectively
for revenue arrangements entered into or materially modified in
fiscal years beginning on or after June 15, 2010. The
Company is in the process of evaluating whether the adoption of
this standard will have a material effect on its financial
position, results of operations or cash flows.
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Item 7A:
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Quantitative
and Qualitative Disclosures About Market Risk
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The Company operates on a global basis and is exposed to the
risk that its earnings, cash flows and stockholders equity
could be adversely impacted by fluctuations in currency exchange
rates and interest rates. The Company attempts to minimize its
exposures by using certain financial instruments, for purposes
other than trading, in accordance with the Companys
overall risk management guidelines.
The Company is primarily exposed to currency exchange-rate risk
with respect to certain inter-company balances, forecasted
transactions and cash flow, and net assets denominated in Euro,
Japanese Yen, British Pound and Singapore Dollar. The Company
manages its foreign currency exposures on a consolidated basis,
which allows the Company to analyze exposures globally and take
into account offsetting exposures in certain balances. In
addition, the Company utilizes derivative and non-derivative
financial instruments to further reduce the net exposure to
currency fluctuations.
The Company is also exposed to the risk that its earnings and
cash flows could be adversely impacted by fluctuations in
interest rates. The Companys policy is to manage interest
costs by using a mix of fixed and floating rate debt that
management believes is appropriate. At times, to manage this mix
in a cost efficient manner, the Company has periodically entered
into interest rate swaps in which the Company agrees to
exchange, at specified intervals, the difference between fixed
and floating interest amounts calculated by reference to an
agreed upon notional amount.
Hedge
Transactions
The Company records its hedge transactions in accordance the
accounting standard for derivative instruments and hedging
activities, which establishes accounting and reporting standards
for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging
activities. All derivatives, whether designated in hedging
relationships or not, are required to be recorded on the
consolidated balance sheets at fair value as either assets or
liabilities. If the derivative is designated as a fair-value
hedge, the changes in the fair value of the derivative and of
the hedged item attributable to the hedged risk are recognized
in earnings. If the derivative is designated as a cash flow
hedge, the effective portions of changes in the fair value of
the derivative are recorded in other comprehensive income and
are recognized in earnings when the hedged item affects
earnings; ineffective portions of changes in fair value are
recognized in earnings. In addition, disclosures required for
derivative instruments and hedging activities include the
Companys objectives for using derivative instruments, the
level of derivative activity the Company engages in, as well as
how derivative instruments and related hedged items affect the
Companys financial position and performance.
The Company currently uses derivative instruments to manage
exposures to foreign currency and interest rate risks. The
Companys objectives for holding derivatives are to
minimize foreign currency and interest rate risk using the most
effective methods to eliminate or reduce the impact of foreign
currency and interest rate exposures. The Company documents all
relationships between hedging instruments and hedged items and
links all derivatives designated as fair-value, cash flow or net
investment hedges to specific assets and liabilities on the
consolidated
36
balance sheets or to specific forecasted transactions. In
addition, the Company considers the impact of its
counterparties credit risk on the fair value of the
contracts as well as the ability of each party to execute under
the contracts. The Company also assesses and documents, both at
the hedges inception and on an ongoing basis, whether the
derivatives that are used in hedging transactions are highly
effective in offsetting changes in fair values or cash flows
associated with the hedged items.
Cash Flow
Hedges
The Company uses interest rate swap agreements to hedge the risk
to earnings associated with fluctuations in interest rates
related to outstanding U.S. dollar floating rate debt. In
August 2007, the Company entered into two
floating-to-fixed-rate
interest rate swaps, each with a notional amount of
$50 million and maturity dates of April 2009 and October
2009, to hedge floating rate debt related to the term loan
facility of its outstanding debt. At December 31, 2009, the
Company had no outstanding interest rate swap agreements. At
both December 31, 2008 and 2007, the Company had a
$2 million liability in other current liabilities in the
consolidated balances sheets related to the interest rate swap
agreements. For the year ended December 31, 2009, the
Company recorded a change of $2 million in accumulated
other comprehensive income on these interest rate swap
agreements. For the years ended December 31, 2008 and 2007,
the Company recorded a cumulative net pre-tax unrealized loss of
$1 million and $2 million in accumulated other
comprehensive income, respectively, on these interest rate swap
agreements. For the years ended December 31, 2009, 2008 and
2007, the Company recorded additional interest expense of
$2 million, $1 million and less than $1 million,
respectively.
Hedges of
Net Investments in Foreign Operations
The Company has operations in various countries and currencies
throughout the world, with approximately 33% of its sales
denominated in Euros, 11% in Japanese Yen and smaller sales
exposures in other currencies in 2009. As a result, the
Companys financial position, results of operations and
cash flows can be affected by fluctuations in foreign currency
exchange rates. The Company uses cross-currency interest rate
swaps, forward contracts and range forward contracts to hedge
its stockholders equity balance from the effects of
fluctuations in currency exchange rates. These agreements are
designated as foreign currency hedges of a net investment in
foreign operations. Any increase or decrease in the fair value
of cross-currency interest rate swap agreements, forward
contracts or range forward contracts is offset by the change in
the value of the hedged net assets of the Companys
consolidated foreign affiliates. Therefore, these derivative
instruments are intended to serve as an effective hedge of
certain foreign net assets of the Company.
During 2007, the Company hedged its net investment in Euro
foreign affiliates with cross-currency interest rate swaps, with
notional values ranging from $20 million to
$50 million. At December 31, 2009, 2008 and 2007, the
Company had no outstanding cross-currency interest rate swap
contracts. For the year ended December 31, 2007, the
Company recorded cumulative net pre-tax losses of
$10 million in accumulated other comprehensive income,
which consists of realized losses of $10 million.
Other
The Company enters into forward foreign exchange contracts,
principally to hedge the impact of currency fluctuations on
certain inter-company balances and short-term assets and
liabilities. Principal hedged currencies include the Euro,
Japanese Yen, British Pound and Singapore Dollar. The periods of
these forward contracts typically range from one to three months
and have varying notional amounts which are intended to be
consistent with changes in the underlying exposures. Gains and
losses on these forward contracts are recorded in selling and
administrative expenses in the consolidated statements of
operations. At December 31, 2009, 2008 and 2007, the
Company held forward foreign exchange contracts with notional
amounts totaling approximately $138 million,
$120 million and $101 million, respectively. At
December 31, 2009 and 2008, the Company had liabilities of
less than $1 million and $2 million, respectively, in
other current liabilities in the consolidated balance sheets
related to the foreign currency exchange contracts. At
December 31, 2007, the Company had assets of less than
$1 million in other current assets in the consolidated
balance sheets related to the foreign currency exchange
contracts. For the year ended December 31, 2009, the
Company recorded cumulative net pre-tax gains of
$7 million, which consists of realized gains of
$5 million relating to the closed forward contracts and
$2 million of unrealized gains relating to the open forward
contracts. For the year ended December 31, 2008, the
Company recorded cumulative net pre-tax
37
losses of $23 million, which consists of realized losses of
$22 million relating to the closed forward contracts and
$1 million of unrealized losses relating to the open
forward contracts. For the year ended December 31, 2007,
the Company recorded cumulative net pre-tax gains of
$2 million, which consists of realized gains of
$3 million relating to the closed forward contracts and
$1 million of unrealized losses relating to the open
forward contracts.
Assuming a hypothetical adverse change of 10% in year-end
exchange rates (a strengthening of the U.S. dollar), the
fair market value of the forward contracts outstanding as of
December 31, 2009 would decrease pre-tax earnings by
approximately $14 million.
The Company is exposed to the risk of interest rate fluctuations
from the investments of cash generated from operations. The
Companys cash equivalents represent highly liquid
investments, with original maturities of generally 90 days
or less, in bank deposits; U.S., German, French and Dutch
Government Treasury Bills; AAA rated U.S. Treasury Bills
and European government bond money market funds. Similar
investments with longer maturities are classified as short-term
investments. Cash equivalents and short-term investments are
convertible to a known amount of cash and carry an insignificant
risk of change in market value. The Company maintains balances
in various operating accounts in excess of federally insured
limits, and in foreign subsidiary accounts in currencies other
than U.S. dollars. As of December 31, 2009, the
Company has no holdings in auction rate securities or commercial
paper issued by structured investment vehicles, collateralized
debt obligation conduits or asset-backed conduits.
The Companys cash, cash equivalents and short-term
investments are not subject to significant interest rate risk
due to the short maturities of these instruments. As of
December 31, 2009, the carrying value of the Companys
cash and cash equivalents approximated fair value.
38
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Item 8:
|
Financial
Statements and Supplementary Data
|
Managements
Report on Internal Control Over Financial Reporting
Our management is responsible for establishing and maintaining
adequate internal control over financial reporting, as such term
is defined in
Rules 13a-15(f)
or
15d-15(f)
under the Exchange Act. Because of its inherent limitations,
internal control over financial reporting may not prevent or
detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that
controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures
may deteriorate.
Under the supervision and with the participation of our
management, including our chief executive officer and chief
financial officer, we conducted an evaluation of the
effectiveness of our internal control over financial reporting
based on the framework in
Internal Control
Integrated Framework
issued by the Committee of Sponsoring
Organizations of the Treadway Commission. Based on our
evaluation under the framework in
Internal
Control Integrated Framework
, our management,
including our chief executive officer and chief financial
officer, concluded that our internal control over financial
reporting was effective as of December 31, 2009.
The effectiveness of our internal control over financial
reporting as of December 31, 2009 has been audited by
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, as stated in their report which is included
herein.
39
Report of
Independent Registered Public Accounting Firm
To the Board of Directors and Stockholders of Waters Corporation
In our opinion, the accompanying consolidated balance sheets and
the related consolidated statements of operations, of
stockholders equity and comprehensive income, and of cash
flows present fairly, in all material respects, the financial
position of Waters Corporation and its subsidiaries at
December 31, 2009 and December 31, 2008 and the
results of their operations and their cash flows for each of the
three years in the period ended December 31, 2009 in
conformity with accounting principles generally accepted in the
United States of America. Also in our opinion, the Company
maintained, in all material respects, effective internal control
over financial reporting as of December 31, 2009, based on
criteria established in
Internal Control
Integrated Framework
issued by the Committee of Sponsoring
Organizations of the Treadway Commission (COSO). The
Companys management is responsible for these financial
statements, for maintaining effective internal control over
financial reporting and for its assessment of the effectiveness
of internal control over financial reporting, included in the
accompanying Managements Report on Internal Control Over
Financial Reporting. Our responsibility is to express opinions
on these financial statements and on the Companys internal
control over financial reporting based on our integrated audits.
We conducted our audits in accordance with the standards of the
Public Company Accounting Oversight Board (United States). Those
standards require that we plan and perform the audits to obtain
reasonable assurance about whether the financial statements are
free of material misstatement and whether effective internal
control over financial reporting was maintained in all material
respects. Our audits of the financial statements included
examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the
accounting principles used and significant estimates made by
management, and evaluating the overall financial statement
presentation. Our audit of internal control over financial
reporting included obtaining an understanding of internal
control over financial reporting, assessing the risk that a
material weakness exists, and testing and evaluating the design
and operating effectiveness of internal control based on the
assessed risk. Our audits also included performing such other
procedures as we considered necessary in the circumstances. We
believe that our audits provide a reasonable basis for our
opinions.
As discussed in Notes 6 and 9 to the consolidated financial
statements, respectively, the Company changed the manner in
which it accounts for business combinations effective
January 1, 2009 and uncertain tax positions effective
January 1, 2007.
A companys internal control over financial reporting is a
process designed to provide reasonable assurance regarding the
reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with
generally accepted accounting principles. A companys
internal control over financial reporting includes those
policies and procedures that (i) pertain to the maintenance
of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the
company; (ii) provide reasonable assurance that
transactions are recorded as necessary to permit preparation of
financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the
company are being made only in accordance with authorizations of
management and directors of the company; and (iii) provide
reasonable assurance regarding prevention or timely detection of
unauthorized acquisition, use, or disposition of the
companys assets that could have a material effect on the
financial statements.
Because of its inherent limitations, internal control over
financial reporting may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become
inadequate because of changes in conditions, or that the degree
of compliance with the policies or procedures may deteriorate.
/s/ PricewaterhouseCoopers
LLP
Boston, Massachusetts
February 26, 2010
40
WATERS
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
BALANCE SHEETS
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
|
(In thousands, except per share data)
|
|
|
ASSETS
|
Current assets:
|
|
|
|
|
|
|
|
|
Cash and cash equivalents
|
|
$
|
341,111
|
|
|
$
|
428,522
|
|
Short-term investments
|
|
|
289,146
|
|
|
|
|
|
Accounts receivable, less allowances for doubtful accounts and
sales returns of $6,723 and $7,608 at December 31, 2009 and
December 31, 2008, respectively
|
|
|
314,247
|
|
|
|
291,763
|
|
Inventories
|
|
|
178,666
|
|
|
|
173,051
|
|
Other current assets
|
|
|
49,206
|
|
|
|
62,966
|
|
|
|
|
|
|
|
|
|
|
Total current assets
|
|
|
1,172,376
|
|
|
|
956,302
|
|
Property, plant and equipment, net
|
|
|
210,926
|
|
|
|
171,588
|
|
Intangible assets, net
|
|
|
182,165
|
|
|
|
149,652
|
|
Goodwill
|
|
|
293,077
|
|
|
|
268,364
|
|
Other assets
|
|
|
49,387
|
|
|
|
76,992
|
|
|
|
|
|
|
|
|
|
|
Total assets
|
|
$
|
1,907,931
|
|
|
$
|
1,622,898
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES AND STOCKHOLDERS EQUITY
|
Current liabilities:
|
|
|
|
|
|
|
|
|
Notes payable and debt
|
|
$
|
131,772
|
|
|
$
|
36,120
|
|
Accounts payable
|
|
|
49,573
|
|
|
|
47,240
|
|
Accrued employee compensation
|
|
|
37,050
|
|
|
|
43,535
|
|
Deferred revenue and customer advances
|
|
|
94,680
|
|
|
|
87,492
|
|
Accrued income taxes
|
|
|
13,267
|
|
|
|
|
|
Accrued warranty
|
|
|
10,109
|
|
|
|
10,276
|
|
Other current liabilities
|
|
|
58,117
|
|
|
|
64,843
|
|
|
|
|
|
|
|
|
|
|
Total current liabilities
|
|
|
394,568
|
|
|
|
289,506
|
|
Long-term liabilities:
|
|
|
|
|
|
|
|
|
Long-term debt
|
|
|
500,000
|
|
|
|
500,000
|
|
Long-term portion of retirement benefits
|
|
|
69,044
|
|
|
|
77,017
|
|
Long-term income tax liability
|
|
|
72,604
|
|
|
|
80,310
|
|
Other long-term liabilities
|
|
|
22,766
|
|
|
|
15,060
|
|
|
|
|
|
|
|
|
|
|
Total long-term liabilities
|
|
|
664,414
|
|
|
|
672,387
|
|
|
|
|
|
|
|
|
|
|
Total liabilities
|
|
|
1,058,982
|
|
|
|
961,893
|
|
Commitments and contingencies (Notes 8, 9, 10, 11 and 15)
|
|
|
|
|
|
|
|
|
Stockholders equity:
|
|
|
|
|
|
|
|
|
Preferred stock, par value $0.01 per share, 5,000 shares
authorized, none issued at December 31, 2009 and
December 31, 2008
|
|
|
|
|
|
|
|
|
Common stock, par value $0.01 per share, 400,000 shares
authorized, 148,831 and 148,069 shares issued, 94,118 and
97,891 shares outstanding at December 31, 2009 and
December 31, 2008, respectively
|
|
|
1,488
|
|
|
|
1,481
|
|
Additional paid-in capital
|
|
|
808,345
|
|
|
|
756,499
|
|
Retained earnings
|
|
|
2,236,716
|
|
|
|
1,913,403
|
|
Treasury stock, at cost, 54,713 and 50,178 shares at
December 31, 2009 and December 31, 2008, respectively
|
|
|
(2,213,174
|
)
|
|
|
(2,001,797
|
)
|
Accumulated other comprehensive income (loss)
|
|
|
15,574
|
|
|
|
(8,581
|
)
|
|
|
|
|
|
|
|
|
|
Total stockholders equity
|
|
|
848,949
|
|
|
|
661,005
|
|
|
|
|
|
|
|
|
|
|
Total liabilities and stockholders equity
|
|
$
|
1,907,931
|
|
|
$
|
1,622,898
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
41
WATERS
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF OPERATIONS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands, except per share data)
|
|
|
Product sales
|
|
$
|
1,051,978
|
|
|
$
|
1,139,886
|
|
|
$
|
1,087,592
|
|
Service sales
|
|
|
446,722
|
|
|
|
435,238
|
|
|
|
385,456
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net sales
|
|
|
1,498,700
|
|
|
|
1,575,124
|
|
|
|
1,473,048
|
|
Cost of product sales
|
|
|
406,681
|
|
|
|
457,886
|
|
|
|
441,877
|
|
Cost of service sales
|
|
|
188,201
|
|
|
|
203,380
|
|
|
|
189,245
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total cost of sales
|
|
|
594,882
|
|
|
|
661,266
|
|
|
|
631,122
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
903,818
|
|
|
|
913,858
|
|
|
|
841,926
|
|
Selling and administrative expenses
|
|
|
421,403
|
|
|
|
426,699
|
|
|
|
403,703
|
|
Research and development expenses
|
|
|
77,154
|
|
|
|
81,588
|
|
|
|
80,649
|
|
Purchased intangibles amortization
|
|
|
10,659
|
|
|
|
9,290
|
|
|
|
8,695
|
|
Litigation provisions (Note 10)
|
|
|
|
|
|
|
6,527
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
394,602
|
|
|
|
389,754
|
|
|
|
348,879
|
|
Interest expense
|
|
|
(10,986
|
)
|
|
|
(38,521
|
)
|
|
|
(56,515
|
)
|
Interest income
|
|
|
3,036
|
|
|
|
20,959
|
|
|
|
30,828
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations before income taxes
|
|
|
386,652
|
|
|
|
372,192
|
|
|
|
323,192
|
|
Provision for income taxes
|
|
|
63,339
|
|
|
|
49,713
|
|
|
|
55,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
323,313
|
|
|
$
|
322,479
|
|
|
$
|
268,072
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per basic common share
|
|
$
|
3.37
|
|
|
$
|
3.25
|
|
|
$
|
2.67
|
|
Weighted-average number of basic common shares
|
|
|
95,797
|
|
|
|
99,199
|
|
|
|
100,500
|
|
Net income per diluted common share
|
|
$
|
3.34
|
|
|
$
|
3.21
|
|
|
$
|
2.62
|
|
Weighted-average number of diluted common shares and equivalents
|
|
|
96,862
|
|
|
|
100,555
|
|
|
|
102,505
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
42
WATERS
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF CASH FLOWS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
|
(In thousands)
|
|
|
Cash flows from operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
323,313
|
|
|
$
|
322,479
|
|
|
$
|
268,072
|
|
Adjustments to reconcile net income to net cash provided by
operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Provisions for doubtful accounts on accounts receivable
|
|
|
3,124
|
|
|
|
3,924
|
|
|
|
1,382
|
|
Provisions on inventory
|
|
|
9,952
|
|
|
|
10,632
|
|
|
|
6,024
|
|
Stock-based compensation
|
|
|
28,255
|
|
|
|
30,782
|
|
|
|
28,855
|
|
Deferred income taxes
|
|
|
36,276
|
|
|
|
(19,626
|
)
|
|
|
5,946
|
|
Depreciation
|
|
|
31,805
|
|
|
|
29,071
|
|
|
|
27,467
|
|
Amortization of intangibles
|
|
|
25,467
|
|
|
|
36,200
|
|
|
|
25,850
|
|
Change in operating assets and liabilities, net of acquisitions:
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase) decrease in accounts receivable
|
|
|
(16,905
|
)
|
|
|
21,739
|
|
|
|
(26,266
|
)
|
Increase in inventories
|
|
|
(6,823
|
)
|
|
|
(20,618
|
)
|
|
|
(6,368
|
)
|
Decrease (increase) in other current assets
|
|
|
5,925
|
|
|
|
(4,633
|
)
|
|
|
(3,032
|
)
|
(Increase) decrease in other assets
|
|
|
(689
|
)
|
|
|
5,180
|
|
|
|
(6,600
|
)
|
(Decrease) increase in accounts payable and other current
liabilities
|
|
|
(10,830
|
)
|
|
|
(19,970
|
)
|
|
|
32,309
|
|
Increase in deferred revenue and customer advances
|
|
|
2,613
|
|
|
|
1,976
|
|
|
|
6,244
|
|
(Decrease) increase in other liabilities
|
|
|
(13,220
|
)
|
|
|
21,112
|
|
|
|
10,624
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
418,263
|
|
|
|
418,248
|
|
|
|
370,507
|
|
Cash flows from investing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Additions to property, plant, equipment and software
capitalization
|
|
|
(93,796
|
)
|
|
|
(69,065
|
)
|
|
|
(60,342
|
)
|
Business acquisitions, net of cash acquired
|
|
|
(36,086
|
)
|
|
|
(7,805
|
)
|
|
|
(9,076
|
)
|
Investment in unaffiliated company
|
|
|
|
|
|
|
|
|
|
|
(3,532
|
)
|
Purchase of short-term investments
|
|
|
(518,390
|
)
|
|
|
(19,738
|
)
|
|
|
(390,542
|
)
|
Maturity of short-term investments
|
|
|
229,244
|
|
|
|
115,419
|
|
|
|
294,861
|
|
Cash received from escrow related to business acquisition
|
|
|
|
|
|
|
|
|
|
|
724
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash (used in) provided by investing activities
|
|
|
(419,028
|
)
|
|
|
18,811
|
|
|
|
(167,907
|
)
|
Cash flows from financing activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds from debt issuances
|
|
|
184,309
|
|
|
|
469,407
|
|
|
|
1,131,834
|
|
Payments on debt
|
|
|
(92,556
|
)
|
|
|
(817,463
|
)
|
|
|
(1,151,119
|
)
|
Payments of debt issuance costs
|
|
|
|
|
|
|
(501
|
)
|
|
|
(1,081
|
)
|
Proceeds from stock plans
|
|
|
19,099
|
|
|
|
28,646
|
|
|
|
91,427
|
|
Purchase of treasury shares
|
|
|
(211,377
|
)
|
|
|
(237,500
|
)
|
|
|
(200,648
|
)
|
Excess tax benefit related to stock option plans
|
|
|
5,083
|
|
|
|
6,669
|
|
|
|
16,999
|
|
Proceeds (payments) of debt swaps and other derivative contracts
|
|
|
5,162
|
|
|
|
(22,196
|
)
|
|
|
(7,098
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net cash used in financing activities
|
|
|
(90,280
|
)
|
|
|
(572,938
|
)
|
|
|
(119,686
|
)
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
3,634
|
|
|
|
(32,932
|
)
|
|
|
253
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Decrease) increase in cash and cash equivalents
|
|
|
(87,411
|
)
|
|
|
(168,811
|
)
|
|
|
83,167
|
|
Cash and cash equivalents at beginning of period
|
|
|
428,522
|
|
|
|
597,333
|
|
|
|
514,166
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash and cash equivalents at end of period
|
|
$
|
341,111
|
|
|
$
|
428,522
|
|
|
$
|
597,333
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
Income taxes paid
|
|
|
23,818
|
|
|
|
40,571
|
|
|
|
29,294
|
|
Interest paid
|
|
|
13,020
|
|
|
|
44,081
|
|
|
|
49,224
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
43
WATERS
CORPORATION AND SUBSIDIARIES
CONSOLIDATED
STATEMENTS OF STOCKHOLDERS EQUITY AND COMPREHENSIVE
INCOME
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accumulated
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
|
|
|
Additional
|
|
|
|
|
|
|
|
|
Other
|
|
|
Total
|
|
|
Statements of
|
|
|
|
Common
|
|
|
Common
|
|
|
Paid-in
|
|
|
Retained
|
|
|
Treasury
|
|
|
Comprehensive
|
|
|
Stockholders
|
|
|
Comprehensive
|
|
|
|
Shares
|
|
|
Stock
|
|
|
Capital
|
|
|
Earnings
|
|
|
Stock
|
|
|
Income (Loss)
|
|
|
Equity
|
|
|
Income
|
|
|
|
(In thousands)
|
|
|
Balance December 31, 2006
|
|
|
144,092
|
|
|
$
|
1,441
|
|
|
$
|
554,169
|
|
|
$
|
1,326,757
|
|
|
$
|
(1,563,649
|
)
|
|
$
|
43,665
|
|
|
$
|
362,383
|
|
|
|
|
|
Comprehensive income, net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
268,072
|
|
|
|
|
|
|
|
|
|
|
|
268,072
|
|
|
$
|
268,072
|
|
Other comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
26,276
|
|
|
|
26,276
|
|
|
|
26,276
|
|
Net appreciation (depreciation) and realized gains (losses) on
derivative instruments, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(11,720
|
)
|
|
|
(11,720
|
)
|
|
|
(11,720
|
)
|
Changes in pension and postretirement benefits, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
8,852
|
|
|
|
8,852
|
|
|
|
8,852
|
|
Unrealized losses on investments, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(841
|
)
|
|
|
(841
|
)
|
|
|
(841
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
22,567
|
|
|
|
22,567
|
|
|
|
22,567
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
290,639
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for employees:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Purchase Plan
|
|
|
61
|
|
|
|
1
|
|
|
|
2,883
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,884
|
|
|
|
|
|
Stock options exercised
|
|
|
2,844
|
|
|
|
28
|
|
|
|
88,515
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
88,543
|
|
|
|
|
|
Tax benefit related to stock option plans
|
|
|
|
|
|
|
|
|
|
|
16,999
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
16,999
|
|
|
|
|
|
Adoption of FIN 48
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(3,905
|
)
|
|
|
|
|
|
|
|
|
|
|
(3,905
|
)
|
|
|
|
|
Treasury stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(200,648
|
)
|
|
|
|
|
|
|
(200,648
|
)
|
|
|
|
|
Stock-based compensation
|
|
|
64
|
|
|
|
1
|
|
|
|
29,180
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
29,181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2007
|
|
|
147,061
|
|
|
$
|
1,471
|
|
|
$
|
691,746
|
|
|
$
|
1,590,924
|
|
|
$
|
(1,764,297
|
)
|
|
$
|
66,232
|
|
|
$
|
586,076
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income, net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
322,479
|
|
|
|
|
|
|
|
|
|
|
|
322,479
|
|
|
$
|
322,479
|
|
Other comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(53,704
|
)
|
|
|
(53,704
|
)
|
|
|
(53,704
|
)
|
Net appreciation (depreciation) and realized gains (losses) on
derivative instruments, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(519
|
)
|
|
|
(519
|
)
|
|
|
(519
|
)
|
Changes in pension and postretirement benefits, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(20,466
|
)
|
|
|
(20,466
|
)
|
|
|
(20,466
|
)
|
Unrealized losses on investments, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(124
|
)
|
|
|
(124
|
)
|
|
|
(124
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive loss
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(74,813
|
)
|
|
|
(74,813
|
)
|
|
|
(74,813
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
247,666
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for employees:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Purchase Plan
|
|
|
61
|
|
|
|
1
|
|
|
|
3,409
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,410
|
|
|
|
|
|
Stock options exercised
|
|
|
825
|
|
|
|
8
|
|
|
|
25,228
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
25,236
|
|
|
|
|
|
Tax benefit related to stock option plans
|
|
|
|
|
|
|
|
|
|
|
6,669
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,669
|
|
|
|
|
|
Increase in valuation allowance
|
|
|
|
|
|
|
|
|
|
|
(1,732
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1,732
|
)
|
|
|
|
|
Treasury stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(237,500
|
)
|
|
|
|
|
|
|
(237,500
|
)
|
|
|
|
|
Stock-based compensation
|
|
|
122
|
|
|
|
1
|
|
|
|
31,179
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
31,180
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2008
|
|
|
148,069
|
|
|
$
|
1,481
|
|
|
$
|
756,499
|
|
|
$
|
1,913,403
|
|
|
$
|
(2,001,797
|
)
|
|
$
|
(8,581
|
)
|
|
$
|
661,005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income, net of tax:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
323,313
|
|
|
|
|
|
|
|
|
|
|
|
323,313
|
|
|
$
|
323,313
|
|
Other comprehensive income (loss):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency translation
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
19,405
|
|
|
|
19,405
|
|
|
|
19,405
|
|
Net appreciation (depreciation) and realized gains (losses) on
derivative instruments, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,798
|
|
|
|
1,798
|
|
|
|
1,798
|
|
Changes in pension and postretirement benefits, net of tax
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2,977
|
|
|
|
2,977
|
|
|
|
2,977
|
|
Unrealized losses on investments, net
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(25
|
)
|
|
|
(25
|
)
|
|
|
(25
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
24,155
|
|
|
|
24,155
|
|
|
|
24,155
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
$
|
347,468
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Issuance of common stock for employees:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Purchase Plan
|
|
|
88
|
|
|
|
1
|
|
|
|
3,243
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,244
|
|
|
|
|
|
Stock options exercised
|
|
|
514
|
|
|
|
5
|
|
|
|
15,850
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
15,855
|
|
|
|
|
|
Tax benefit related to stock option plans
|
|
|
|
|
|
|
|
|
|
|
5,083
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,083
|
|
|
|
|
|
Increase in valuation allowance
|
|
|
|
|
|
|
|
|
|
|
(705
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(705
|
)
|
|
|
|
|
Treasury stock
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(211,377
|
)
|
|
|
|
|
|
|
(211,377
|
)
|
|
|
|
|
Stock-based compensation
|
|
|
160
|
|
|
|
1
|
|
|
|
28,375
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
28,376
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance December 31, 2009
|
|
|
148,831
|
|
|
$
|
1,488
|
|
|
$
|
808,345
|
|
|
$
|
2,236,716
|
|
|
$
|
(2,213,174
|
)
|
|
$
|
15,574
|
|
|
$
|
848,949
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The accompanying notes are an integral part of the consolidated
financial statements.
44
NOTES TO
CONSOLIDATED FINANCIAL STATEMENTS
|
|
1
|
Description
of Business and Organization
|
Waters Corporation (Waters or the
Company), an analytical instrument manufacturer,
primarily designs, manufactures, sells and services, through its
Waters Division, high performance liquid chromatography
(HPLC), ultra performance liquid chromatography
(UPLC
®
and together with HPLC, referred to as LC) and mass
spectrometry (MS) instrument systems and support
products, including chromatography columns, other consumable
products and comprehensive post-warranty service plans. These
systems are complementary products that can be integrated
together and used along with other analytical instruments. LC is
a standard technique and is utilized in a broad range of
industries to detect, identify, monitor and measure the
chemical, physical and biological composition of materials, and
to purify a full range of compounds. MS instruments are used in
drug discovery and development, including clinical trial
testing, the analysis of proteins in disease processes (known as
proteomics), food safety analysis and environmental
testing. LC is often combined with MS to create LC-MS
instruments that include a liquid phase sample introduction and
separation system with mass spectrometric compound
identification and quantification. Through its TA Division
(TA
®
),
the Company primarily designs, manufactures, sells and services
thermal analysis, rheometry and calorimetry instruments, which
are used in predicting the suitability of fine chemicals,
polymers and viscous liquids for various industrial, consumer
goods and healthcare products, as well as for life science
research. The Company is also a developer and supplier of
software-based products that interface with the Companys
instruments and are typically purchased by customers as part of
the instrument system.
|
|
2
|
Basis of
Presentation and Summary of Significant Accounting
Policies
|
Use of
Estimates
The preparation of consolidated financial statements in
conformity with generally accepted accounting principles
(GAAP) requires the Company to make estimates and
judgments that affect the reported amounts of assets,
liabilities, revenues and expenses, and related disclosure of
contingent liabilities. On an ongoing basis, the Company
evaluates its estimates, including those related to revenue
recognition, product returns and allowances, bad debts,
inventory valuation, equity investments, goodwill and intangible
assets, warranty and installation provisions, income taxes,
contingencies, litigation, retirement plan obligations and
stock-based compensation. The Company bases its estimates on
historical experience and on various other assumptions that are
believed to be reasonable under the circumstances, the results
of which form the basis for making judgments about the carrying
values of assets and liabilities that are not readily apparent
from other sources. Actual amounts may differ from these
estimates under different assumptions or conditions.
Risks and
Uncertainties
The Company is subject to risks common to companies in the
analytical instrument industry, including, but not limited to,
global economic and financial market conditions, development by
its competitors of new technological innovations, risk of
disruption, fluctuations in foreign currency exchange rates,
dependence on key personnel, protection and litigation of
proprietary technology, compliance with regulations of the
U.S. Food and Drug Administration and similar foreign
regulatory authorities and agencies and changes in the fair
value of the underlying assets of the Companys defined
benefit plans.
Reclassifications
Certain amounts from prior years have been reclassified in the
accompanying financial statements in order to be consistent with
the current years classifications.
Principles
of Consolidation
The consolidated financial statements include the accounts of
the Company and its subsidiaries, most of which are wholly
owned. The Company consolidates entities in which it owns or
controls fifty percent or more of the voting shares. All
material inter-company balances and transactions have been
eliminated.
45
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Translation
of Foreign Currencies
For most of the Companys foreign operations, assets and
liabilities are translated into U.S. dollars at exchange
rates prevailing on the balance sheet date, while revenues and
expenses are translated at average exchange rates prevailing
during the period. Any resulting translation gains or losses are
included in accumulated other comprehensive income in the
consolidated balance sheets. The Companys net sales
derived from operations outside the United States were 69% in
2009, 70% in 2008 and 68% in 2007. Gains and losses from foreign
currency transactions are included in net income in the
consolidated statements of operations and were not material for
the years presented.
Cash and
Cash Equivalents
Cash equivalents primarily represent highly liquid investments,
with original maturities of generally 90 days or less, in
bank deposits; U.S., German, French and Dutch Government
Treasury Bills; AAA rated U.S. Treasury Bills and European
government bond money market funds, which are convertible to a
known amount of cash and carry an insignificant risk of change
in market value. Similar investments with longer maturities are
classified as short-term investments. The Company maintains
balances in various operating accounts in excess of federally
insured limits, and in foreign subsidiary accounts in currencies
other than U.S. dollars.
Short-Term
Investments
Short-term investments are classified as
available-for-sale
in accordance with the accounting standard for investments in
debt and equity securities. All
available-for-sale
securities are recorded at fair market value and any unrealized
holding gains and losses, to the extent deemed temporary, are
included in accumulated other comprehensive income in
stockholders equity, net of the related tax effects.
Realized gains and losses are determined on the specific
identification method and are included in other income (expense)
net. If any adjustment to fair value reflects a decline in the
value of the investment, the Company considers all available
evidence to evaluate the extent to which the decline is
other than temporary and marks the investment to
market through a charge to the statement of operations. The
Company classifies its investments as short-term investments
exclusive of those categorized as cash equivalents. At
December 31, 2009, the Company had short-term investments
with a cost of $289 million, which approximated market
value. The Company had no short-term investments as of
December 31, 2008.
Concentration
of Credit Risk
The Company sells its products and services to a significant
number of large and small customers throughout the world, with
net sales to the pharmaceutical industry of approximately 51% in
2009, 50% in 2008 and 52% in 2007. None of the Companys
individual customers accounted for more than 3% of annual
Company sales in 2009, 2008 or 2007. The Company performs
continuing credit evaluations of its customers and generally
does not require collateral, but in certain circumstances may
require letters of credit or deposits. Historically, the Company
has not experienced significant bad debt losses.
Seasonality
of Business
The Company experiences an increase in sales in the fourth
quarter, as a result of purchasing habits for capital goods of
customers that tend to exhaust their spending budgets by
calendar year end.
Accounts
Receivable and Allowance for Doubtful Accounts
Trade accounts receivable are recorded at the invoiced amount
and do not bear interest. The allowance for doubtful accounts is
the best estimate of the amount of probable credit losses in the
existing accounts receivable. The allowance is based on a number
of factors, including historical experience and the
customers credit-worthiness. The allowance for doubtful
accounts is reviewed on at least a quarterly basis. Past due
balances over 90 days and over a specified amount are
reviewed individually for collectibility. Account balances are
charged against the
46
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
allowance when the Company feels it is probable that the
receivable will not be recovered. The Company does not have any
off-balance sheet credit exposure related to its customers.
The following is a summary of the activity of the Companys
allowance for doubtful accounts and sales returns for the years
ended December 31, 2009, 2008 and 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
|
|
Balance at
|
|
|
Beginning of Period
|
|
Additions
|
|
Deductions
|
|
End of Period
|
|
Allowance for Doubtful Accounts and Sales Returns:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
$
|
7,608
|
|
|
$
|
6,956
|
|
|
$
|
(7,841
|
)
|
|
$
|
6,723
|
|
2008
|
|
$
|
9,634
|
|
|
$
|
5,470
|
|
|
$
|
(7,496
|
)
|
|
$
|
7,608
|
|
2007
|
|
$
|
8,439
|
|
|
$
|
6,617
|
|
|
$
|
(5,422
|
)
|
|
$
|
9,634
|
|
Inventory
The Company values all of its inventories at the lower of cost
or market on a
first-in,
first-out basis (FIFO).
Income
Taxes
Deferred income taxes are recognized for temporary differences
between the financial statement and income tax basis of assets
and liabilities using tax rates in effect for the years in which
the differences are expected to reverse. A valuation allowance
is provided to offset any net deferred tax assets if, based upon
the available evidence, it is more likely than not that some or
all of the deferred tax assets will not be realized. A liability
has also been recorded to recognize uncertain tax return
reporting positions.
Property,
Plant and Equipment
Property, plant and equipment are recorded at cost. Expenditures
for maintenance and repairs are charged to expense, while the
costs of significant improvements are capitalized. Depreciation
is provided using the straight-line method over the following
estimated useful lives: buildings fifteen to thirty
years; building improvements five to ten years;
leasehold improvements the shorter of the economic
useful life or life of lease; and production and other
equipment three to ten years. Upon retirement or
sale, the cost of the assets disposed of and the related
accumulated depreciation are eliminated from the consolidated
balance sheets and related gains or losses are reflected in the
consolidated statements of operations. There were no material
gains or losses from retirement or sale of assets in 2009, 2008
and 2007.
Goodwill
and Other Intangible Assets
The Company tests for goodwill impairment using a fair-value
approach at the reporting unit level annually, or earlier, if an
event occurs or circumstances change that would more likely than
not reduce the fair value of a reporting unit below its carrying
amount. Additionally, the Company has elected to make January 1
the annual impairment assessment date for its reporting units.
The goodwill and other intangible assets accounting standard
defines a reporting unit as an operating segment, or one level
below an operating segment, if discrete financial information is
prepared and reviewed by management. Goodwill is allocated to
the reporting units at the time of acquisition. Under the
impairment test, if a reporting units carrying amount
exceeds its estimated fair value, goodwill impairment is
recognized to the extent that the carrying amount of goodwill
exceeds the implied fair value of the goodwill. The fair value
of reporting units was estimated using a discounted cash flows
technique, which includes certain management assumptions, such
as estimated future cash flows, estimated growth rates and
discount rates.
The Companys intangible assets include purchased
technology; capitalized software development costs; costs
associated with acquiring Company patents, trademarks and
intellectual properties, such as licenses; debt issuance costs
and acquired in-process research and development
(IPR&D). Purchased intangibles are recorded at
their fair
47
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
market values as of the acquisition date and amortized over
their estimated useful lives, ranging from one to fifteen years.
Other intangibles are amortized over a period ranging from one
to thirteen years. Debt issuance costs are amortized over the
life of the related debt. Acquired IPR&D is amortized from
the date of completion over its estimated useful life. In
addition, acquired IPR&D will be tested for impairment
until completion of the acquired programs.
Software
Development Costs
The Company capitalizes software development costs for products
offered for sale in accordance with the accounting standard for
the costs of software to be sold, leased, or otherwise marketed.
Capitalized costs are amortized to cost of sales over the period
of economic benefit, which approximates a straight-line basis
over the estimated useful lives of the related software
products, generally three to five years.
The Company capitalizes internal software development costs in
accordance with the accounting standard for goodwill and other
intangible assets. Capitalized internal software development
costs are amortized over the period of economic benefit which
approximates a straight-line basis over ten years. Net
capitalized internal software included in property, plant and
equipment totaled $2 million at December 31, 2009 and
2008.
Investments
The Company accounts for its investments that represent less
than twenty percent ownership, and for which the Company does
not have significant influence, using the accounting standard
for investments in debt and equity securities. Investments for
which the Company does not have the ability to exercise
significant influence, and for which there is not a readily
determinable market value, are accounted for under the cost
method of accounting. The Company periodically evaluates the
carrying value of its investments accounted for under the cost
method of accounting and carries them at the lower of cost or
estimated net realizable value. For investments in which the
Company owns or controls between twenty and forty-nine percent
of the voting shares, or over which it exerts significant
influence over operating and financial policies, the equity
method of accounting is used. The Companys share of net
income or losses of equity investments is included in the
consolidated statements of operations and was not material in
any period presented. All investments at December 31, 2009
and 2008 are included in other assets and amounted to
$4 million and $7 million, respectively.
Asset
Impairments
The Company reviews its long-lived assets for impairment in
accordance with the accounting standard for property, plant and
equipment. Whenever events or circumstances indicate that the
carrying amount of an asset may not be recoverable, the Company
evaluates the fair value of the asset, relying on a number of
factors, including, but not limited to, operating results,
business plans, economic projections and anticipated future cash
flows. Any change in the carrying amount of an asset as a result
of the Companys evaluation is separately identified in the
consolidated statements of operations.
Fair
Values of Financial Instruments
In accordance with the accounting standards for fair value
measurements and disclosures, the Companys assets and
liabilities are measured at fair value on a recurring basis as
of December 31, 2009 and 2008. Fair values determined by
Level 1 inputs utilize observable data such as quoted
prices in active markets. Fair values determined by Level 2
inputs utilize data points other than quoted prices in active
markets that are observable either directly or indirectly. Fair
values determined by Level 3 inputs utilize unobservable
data points in which there is little or no market data, which
require the reporting entity to develop its own assumptions.
48
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following table represents the Companys assets and
liabilities measured at fair value on a recurring basis as of
December 31, 2009 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
Market for
|
|
|
Other
|
|
|
|
|
|
|
Total at
|
|
|
Identical
|
|
|
Observable
|
|
|
Significant
|
|
|
|
December 31,
|
|
|
Assets
|
|
|
Inputs
|
|
|
Unobservable Inputs
|
|
|
|
2009
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents
|
|
$
|
181,925
|
|
|
$
|
|
|
|
$
|
181,925
|
|
|
$
|
|
|
Short-term investments
|
|
|
289,146
|
|
|
|
|
|
|
|
289,146
|
|
|
|
|
|
Waters Retirement Restoration Plan assets
|
|
|
17,955
|
|
|
|
|
|
|
|
17,955
|
|
|
|
|
|
Foreign currency exchange contract agreements
|
|
|
237
|
|
|
|
|
|
|
|
237
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
489,263
|
|
|
|
|
|
|
$
|
489,263
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency exchange contract agreements
|
|
$
|
400
|
|
|
$
|
|
|
|
$
|
400
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
400
|
|
|
$
|
|
|
|
$
|
400
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table represents the Companys assets and
liabilities measured at fair value on a recurring basis as of
December 31, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
Market for
|
|
|
Other
|
|
|
|
|
|
|
Total at
|
|
|
Identical
|
|
|
Observable
|
|
|
Significant
|
|
|
|
December 31,
|
|
|
Assets
|
|
|
Inputs
|
|
|
Unobservable Inputs
|
|
|
|
2008
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents
|
|
$
|
223,000
|
|
|
$
|
|
|
|
$
|
223,000
|
|
|
$
|
|
|
Waters Retirement Restoration Plan assets
|
|
|
12,888
|
|
|
|
|
|
|
|
12,888
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
235,888
|
|
|
|
|
|
|
$
|
235,888
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest rate swap agreements
|
|
$
|
1,798
|
|
|
$
|
|
|
|
$
|
1,798
|
|
|
$
|
|
|
Foreign currency exchange contract agreements
|
|
|
1,595
|
|
|
|
|
|
|
|
1,595
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
3,393
|
|
|
$
|
|
|
|
$
|
3,393
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Companys financial assets and liabilities have been
classified as Level 2. These assets and liabilities have
been initially valued at the transaction price and subsequently
valued typically utilizing third-party pricing services. The
pricing services use many inputs to determine value, including
reportable trades, benchmark yields, credit spreads,
broker/dealer quotes, current spot rates and other industry and
economic events. The Company validates the prices provided by
third-party pricing services by reviewing their pricing methods
and obtaining market values from other pricing sources. The fair
values of the Companys cash equivalents, short-term
investments, retirement restoration plan assets, foreign
currency exchange contracts and interest rate swap agreements
are determined through market and observable sources and have
been classified as Level 2. After completing these
validation procedures, the Company did not adjust or override
any fair value measurements provided by third-party pricing
services as of December 31, 2009 and 2008.
49
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In January 2009, the Company implemented the accounting and
disclosure requirements related to non-financial assets and
liabilities that are remeasured at fair value on a non-recurring
basis. The adoption of this accounting and disclosure
requirement did not have a significant impact on the
Companys financial statements.
Stockholders
Equity
In February 2009, the Companys Board of Directors
authorized the Company to repurchase up to $500 million of
its outstanding common stock over a two-year period. During
2009, the Company repurchased 3.1 million shares at a cost
of $157 million under this program, leaving
$343 million authorized for future purchases.
In February 2007, the Companys Board of Directors
authorized the Company to repurchase up to $500 million of
its outstanding common stock over a two-year period. During
2009, 2008 and 2007, the Company repurchased a total of
8.2 million shares at a cost of $454 million under
this program, which expired in February 2009.
The Company repurchased 4.5 million, 4.1 million and
3.4 million shares at a cost of $210 million,
$235 million and $201 million during 2009, 2008 and
2007, respectively, under the February 2009 authorization and
previously announced programs. The Company believes it has the
resources to fund the common stock repurchases as well as to
pursue acquisition opportunities in the future.
On August 9, 2002, the Board of Directors approved the
adoption of a stock purchase rights plan where a dividend of one
fractional preferred share purchase right (a Right)
was declared for each outstanding share of common stock, par
value $0.01 per share, of the Company. The dividend was paid on
August 27, 2002 to the stockholders of record on that date.
The Rights, which expire on August 27, 2012, become
exercisable only under certain conditions. When they first
become exercisable, each Right will entitle its holder to buy
from Waters one one-hundredth of a share of new Series A
Junior Participating Preferred Stock (authorized limit of 4,000)
for $120.00. When a person or group actually has acquired 15% or
more of Waters common stock, the Rights will then become
exercisable for a number of shares of Waters common stock
with a market value of twice the $120.00 exercise price of each
Right. In addition, the Rights will then become exercisable for
a number of shares of common stock of the acquiring company with
a market value of twice the $120.00 exercise price per Right.
The Board of Directors may redeem the Rights at a price of
$0.001 per Right up until 10 days following a public
announcement that any person or group has acquired 15% or more
of the Companys common stock.
Hedge
Transactions
The Company operates on a global basis and is exposed to the
risk that its earnings, cash flows and stockholders equity
could be adversely impacted by fluctuations in currency exchange
rates and interest rates.
The Company records its hedge transactions in accordance with
the accounting standard for derivative instruments and hedging
activities, which establishes accounting and reporting standards
for derivative instruments, including certain derivative
instruments embedded in other contracts, and for hedging
activities. All derivatives, whether designated in hedging
relationships or not, are required to be recorded on the
consolidated balance sheets at fair value as either assets or
liabilities. If the derivative is designated as a fair-value
hedge, the changes in the fair value of the derivative and of
the hedged item attributable to the hedged risk are recognized
in earnings. If the derivative is designated as a cash flow
hedge, the effective portions of changes in the fair value of
the derivative are recorded in other comprehensive income and
are recognized in earnings when the hedged item affects
earnings; ineffective portions of changes in fair value are
recognized in earnings. In addition, disclosures required for
derivative instruments and hedging activities include the
Companys objectives for using derivative instruments, the
level of derivative activity the Company engages in, as well as
how derivative instruments and related hedged items affect the
Companys financial position and performance.
The Company currently uses derivative instruments to manage
exposures to foreign currency and interest rate risks. The
Companys objectives for holding derivatives are to
minimize foreign currency and interest rate risk using the most
effective methods to eliminate or reduce the impact of foreign
currency and interest rate exposures. The Company documents all
relationships between hedging instruments and hedged items and
links all derivatives
50
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
designated as fair-value, cash flow or net investment hedges to
specific assets and liabilities on the consolidated balance
sheets or to specific forecasted transactions. In addition, the
Company considers the impact of its counterparties credit
risk on the fair value of the contracts as well as the ability
of each party to execute under the contracts. The Company also
assesses and documents, both at the hedges inception and
on an ongoing basis, whether the derivatives that are used in
hedging transactions are highly effective in offsetting changes
in fair values or cash flows associated with the hedged items.
Cash Flow
Hedges
The Company uses interest rate swap agreements to hedge the risk
to earnings associated with fluctuations in interest rates
related to outstanding U.S. dollar floating rate debt. In
August 2007, the Company entered into two
floating-to-fixed-rate
interest rate swaps, each with a notional amount of
$50 million and maturity dates of April 2009 and October
2009, to hedge floating rate debt related to the term loan
facility of its outstanding debt. At December 31, 2009, the
Company had no outstanding interest rate swap agreements. At
both December 31, 2008 and 2007, the Company had a
$2 million liability in other current liabilities in the
consolidated balances sheets related to the interest rate swap
agreements. For the year ended December 31, 2009, the
Company recorded a change of $2 million in accumulated
other comprehensive income on these interest rate swap
agreements. For the years ended December 31, 2008 and 2007,
the Company recorded a cumulative net pre-tax unrealized loss of
$1 million and $2 million in accumulated other
comprehensive income, respectively, on these interest rate swap
agreements. For the years ended December 31, 2009, 2008 and
2007, the Company recorded additional interest expense of
$2 million, $1 million and less than $1 million,
respectively.
Hedges of
Net Investments in Foreign Operations
The Company has operations in various countries and currencies
throughout the world, with approximately 33% of its sales
denominated in Euros, 11% in Japanese Yen and smaller sales
exposures in other currencies in 2009. As a result, the
Companys financial position, results of operations and
cash flows can be affected by fluctuations in foreign currency
exchange rates. The Company uses cross-currency interest rate
swaps, forward contracts and range forward contracts to hedge
its stockholders equity balance from the effects of
fluctuations in currency exchange rates. These agreements are
designated as foreign currency hedges of a net investment in
foreign operations. Any increase or decrease in the fair value
of cross-currency interest rate swap agreements, forward
contracts or range forward contracts is offset by the change in
the value of the hedged net assets of the Companys
consolidated foreign affiliates. Therefore, these derivative
instruments are intended to serve as an effective hedge of
certain foreign net assets of the Company.
During 2007, the Company hedged its net investment in Euro
foreign affiliates with cross-currency interest rate swaps, with
notional values ranging from $20 million to
$50 million. At December 31, 2009, 2008 and 2007, the
Company had no outstanding cross-currency interest rate swap
contracts. For the year ended December 31, 2007, the
Company recorded cumulative net pre-tax losses of
$10 million in accumulated other comprehensive income,
which consists of realized losses of $10 million.
Other
The Company enters into forward foreign exchange contracts,
principally to hedge the impact of currency fluctuations on
certain inter-company balances and short-term assets and
liabilities. Principal hedged currencies include the Euro,
Japanese Yen, British Pound and Singapore Dollar. The periods of
these forward contracts typically range from one to three months
and have varying notional amounts which are intended to be
consistent with changes in the underlying exposures. Gains and
losses on these forward contracts are recorded in selling and
administrative expenses in the consolidated statements of
operations. At December 31, 2009, 2008 and 2007, the
Company held forward foreign exchange contracts with notional
amounts totaling approximately $138 million,
$120 million and $101 million, respectively. At
December 31, 2009 and 2008, the Company had liabilities of
less than $1 million and $2 million, respectively, in
other current liabilities in the consolidated balance sheets
related to the foreign currency exchange contracts. At
December 31, 2007, the Company had assets of less than
$1 million in
51
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
other current assets in the consolidated balance sheets related
to the foreign currency exchange contracts. For the year ended
December 31, 2009, the Company recorded cumulative net
pre-tax gains of $7 million, which consists of realized
gains of $5 million relating to the closed forward
contracts and $2 million of unrealized gains relating to
the open forward contracts. For the year ended December 31,
2008, the Company recorded cumulative net pre-tax losses of
$23 million, which consists of realized losses of
$22 million relating to the closed forward contracts and
$1 million of unrealized losses relating to the open
forward contracts. For the year ended December 31, 2007,
the Company recorded cumulative net pre-tax gains of
$2 million, which consists of realized gains of
$3 million relating to the closed forward contracts and
$1 million of unrealized losses relating to the open
forward contracts.
Revenue
Recognition
Sales of products and services are generally recorded based on
product shipment and performance of service, respectively.
Proceeds received in advance of product shipment or performance
of service are recorded as deferred revenue in the consolidated
balance sheets. Shipping and handling costs are included in cost
of sales net of amounts invoiced to the customer per the order.
Product shipments, including those for demonstration or
evaluation, and service contracts are not recorded as revenues
until a valid purchase order or master agreement is received
specifying fixed terms and prices. The Companys method of
revenue recognition for certain products requiring installation
is in accordance with accounting standards for revenue
recognition. Accordingly, revenue is recognized when all of the
following criteria are met: persuasive evidence of an
arrangement exists; delivery has occurred; the vendors fee
is fixed or determinable; collectibility is reasonably assured
and, if applicable, upon acceptance when acceptance criteria
with contractual cash holdback are specified. With respect to
installation obligations, the larger of the contractual cash
holdback or the fair value of the installation service is
deferred when the product is shipped and revenue is recognized
as a multiple-element arrangement when installation is complete.
The Company determines the fair value of installation based upon
a number of factors, including hourly service billing rates,
estimated installation hours and comparisons of amounts charged
by third parties.
The Company recognizes product revenue when legal title has
transferred and risk of loss passes to the customer. The Company
structures its sales arrangements as FOB shipping point or
international equivalent and, accordingly, recognizes revenue
upon shipment. In some cases, FOB destination based shipping
terms are included in sales arrangements, in which cases revenue
is recognized when the products arrive at the customer site.
Returns and customer credits are infrequent and are recorded as
a reduction to sales. Rights of return are not included in sales
arrangements. Revenue associated with products that contain
specific customer acceptance criteria is not recognized before
the customer acceptance criteria are satisfied. Discounts from
list prices are recorded as a reduction to sales.
Sales of software are accounted for in accordance with the
accounting standards for software revenue recognition. Software
revenue is recognized upon shipment, as typically no significant
post-delivery obligations remain. Software upgrades are
typically sold as part of a service contract with revenue
recognized ratably over the term of the service contract.
The Company assists customers in obtaining financing with an
independent third-party leasing company with respect to certain
product sales. Revenue is generally recognized upon product
shipment under these arrangements. The Company receives payment
from the leasing company shortly after shipment, provided
delivery and credit documentation meets contractual criteria.
The customer is obligated to pay the leasing company, but the
Company retains some credit risk if the customer is unable to
pay. Accordingly, the Company reduces revenue equal to
pre-established loss-pool criteria, including contracts with
recourse. The Companys credit risk is significantly
reduced through loss-pool limitations and re-marketing rights in
the event of a default.
52
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Product
Warranty Costs
The Company accrues estimated product warranty costs at the time
of sale, which are included in cost of sales in the consolidated
statements of operations. While the Company engages in extensive
product quality programs and processes, including actively
monitoring and evaluating the quality of its component supplies,
the Companys warranty obligation is affected by product
failure rates, material usage and service delivery costs
incurred in correcting a product failure. The amount of the
accrued warranty liability is based on historical information,
such as past experience, product failure rates, number of units
repaired and estimated costs of material and labor. The
liability is reviewed for reasonableness at least quarterly.
The following is a summary of the activity of the Companys
accrued warranty liability for the years ended December 31,
2009, 2008 and 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
Accruals for
|
|
Settlements
|
|
Balance at
|
|
|
Beginning of Period
|
|
Warranties
|
|
Made
|
|
End of Period
|
|
Accrued warranty liability:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
$
|
10,276
|
|
|
$
|
5,725
|
|
|
$
|
(5,892
|
)
|
|
$
|
10,109
|
|
2008
|
|
$
|
13,119
|
|
|
$
|
9,644
|
|
|
$
|
(12,487
|
)
|
|
$
|
10,276
|
|
2007
|
|
$
|
12,619
|
|
|
$
|
19,719
|
|
|
$
|
(19,219
|
)
|
|
$
|
13,119
|
|
Advertising
Costs
All advertising costs are expensed as incurred and are included
in selling and administrative expenses in the consolidated
statements of operations. Advertising expenses for 2009, 2008
and 2007 were $10 million, $9 million and
$6 million, respectively.
Research
and Development Expenses
Research and development expenses are comprised of costs
incurred in performing research and development activities,
including salaries and benefits, facilities costs, overhead
costs, contract services and other outside costs. Research and
development expenses are expensed as incurred.
Stock-Based
Compensation
The Company has two stock-based compensation plans, which are
described in Note 12, Stock-Based Compensation.
Earnings
Per Share
In accordance with the earnings per share accounting standard,
the Company presents two earnings per share (EPS)
amounts. Income per basic common share is based on income
available to common shareholders and the weighted-average number
of common shares outstanding during the periods presented.
Income per diluted common share includes additional dilution
from potential common stock, such as stock issuable pursuant to
the exercise of stock options outstanding.
Comprehensive
Income
The Company accounts for comprehensive income in accordance with
the accounting standards for comprehensive income, which
establishes the accounting rules for reporting and displaying
comprehensive income and its components in a full set of
general-purpose financial statements. The standard requires that
all components of comprehensive income be reported in a
financial statement that is displayed with the same prominence
as other financial statements.
53
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Recently
Adopted Accounting Standards
In June 2009, a new accounting standard was issued that
establishes the hierarchy of Generally Accepted Accounting
Principles (GAAP) that are to be used as the source
of authoritative accounting principles recognized by the
Financial Accounting Standards Board (FASB) for
non-governmental entities in preparation of financial statements
in conformity with GAAP in the United States. This standard was
effective for interim and annual periods ending after
September 15, 2009. The adoption of this standard by the
Company did not have a material effect on its financial
position, results of operations or cash flows.
In August 2009, a new accounting standard was issued for
measuring liabilities at fair value. This standard provides
clarification that, in circumstances in which a quoted price in
an active market for the identical liability is not available, a
reporting entity is required to measure fair value using one or
more of the following methods: (1) a valuation technique
that uses (a) the quoted price of the identical liability
when traded as an asset or (b) quoted prices for similar
liabilities or similar liabilities when traded as assets;
and/or
(2) a valuation technique that is consistent with GAAP.
This standard also clarifies that when estimating the fair value
of a liability, a reporting entity is not required to adjust to
include inputs relating to the existence of transfer
restrictions on that liability. The adoption of this standard
did not have a material effect on the Companys financial
position, results of operations or cash flows.
In April 2009, a new accounting standard was issued to provide
greater clarity about the credit and noncredit component of an
other-than-temporary
impairment event and to more effectively communicate when an
other-than-temporary
impairment event has occurred. This standard applies to debt
securities. This standard was effective for periods ending after
June 15, 2009. The adoption of this standard did not have a
material effect on the Companys financial position,
results of operations or cash flows.
In April 2009, a new accounting standard was issued to require
disclosures about fair value of financial instruments in interim
as well as in annual financial statements. This standard was
effective for periods ending after June 15, 2009. The
adoption of this standard did not have a material effect on the
Companys financial position, results of operations or cash
flows.
In the second quarter of 2009, the Company implemented the newly
issued subsequent events accounting standard. This standard
establishes general standards of accounting for and disclosure
of events that occur after the balance sheet date, but before
financial statements are issued. The adoption of this standard
did not impact the Companys financial position or results
of operations. The Company evaluated all events or transactions
that occurred after December 31, 2009 up through
February 26, 2010, the date the Company issued these
financial statements. During this period, the Company did not
have any material recognizable subsequent events which have not
been disclosed.
In December 2008, a new accounting standard was issued relating
to the employers disclosures about postretirement benefit
plan assets. This requirement amends the previous accounting
standard to provide guidance on employers disclosures
about plan assets of a defined benefit pension or other
postretirement plan. This new standard is effective for
financial statements issued for fiscal years ending after
December 15, 2009. The provisions of this new standard are
not required for earlier periods presented and early adoption is
permitted. The adoption of this standard did not have an effect
on the Companys financial position, results of operations
or cash flows.
Recently
Issued Accounting Standards
In June 2009, a new accounting standard was issued relating to
the consolidation of variable interest entities. This statement
addresses (1) the effects on certain provisions on existing
accounting standards as a result of the elimination of the
qualifying special-purpose entity concept and
(2) constituent concerns about the application of certain
key provisions of existing accounting standards, including those
in which the accounting and disclosures under existing
accounting standards do not always provide timely and useful
information about an enterprises involvement in a variable
interest entity. This standard is effective for periods
beginning after November 15, 2009.
54
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The adoption of this standard will not have a material effect on
its financial position, results of operations or cash flows.
In October 2009, a new accounting consensus was issued for
multiple-deliverable revenue arrangements. This consensus amends
existing revenue recognition accounting standards. This
consensus provides accounting principles and application
guidance on whether multiple deliverables exist, how the
arrangement should be separated and the consideration allocated.
This guidance eliminates the requirement to establish the fair
value of undelivered products and services and instead provides
for separate revenue recognition based upon managements
estimate of the selling price for an undelivered item when there
is no other means to determine the fair value of that
undelivered item. Previously the existing accounting consensus
required that the fair value of the undelivered item be the
price of the item either sold in a separate transaction between
unrelated third parties or the price charged for each item when
the item is sold separately by the vendor. Under the existing
accounting consensus, if the fair value of all of the elements
in the arrangement was not determinable, then revenue was
deferred until all of the items were delivered or fair value was
determined. This new approach is effective prospectively for
revenue arrangements entered into or materially modified in
fiscal years beginning on or after June 15, 2010. The
Company is in the process of evaluating whether the adoption of
this standard will have a material effect on its financial
position, results of operations or cash flows.
In October 2009, a new accounting consensus was issued for
certain revenue arrangements that include software elements.
This consensus amends the existing accounting guidance for
revenue arrangements that contain tangible products and
software. This consensus requires that tangible products which
contain software components and non-software components that
function together to deliver the tangible products essential
functionality are no longer within the scope of the software
revenue guidance. This new approach is effective prospectively
for revenue arrangements entered into or materially modified in
fiscal years beginning on or after June 15, 2010. The
Company is in the process of evaluating whether the adoption of
this standard will have a material effect on its financial
position, results of operations or cash flows.
|
|
3
|
Out-of-Period
Adjustments
|
During 2008, the Company identified errors originating in
periods prior to the three months ended June 28, 2008. The
errors primarily related to (i) an overstatement of the
Companys income tax expense of $16 million as a
result of errors in recording its income tax provision during
the period from 2000 to March 29, 2008 and (ii) an
understatement of amortization expense of $9 million for
certain capitalized software. The Company incorrectly calculated
its provision for income taxes by tax-effecting its tax
liability utilizing a U.S. tax rate of 35% instead of an
Irish tax rate of approximately 10%. In addition, the Company
incorrectly accounted for Irish-based capitalized software and
the related amortization expense as U.S. Dollar-denominated
instead of Euro-denominated, resulting in an understatement of
amortization expense and cumulative translation adjustment.
The Company identified and corrected the errors in the three
months ended June 28, 2008, which had the effect of
increasing cost of sales by $9 million; reducing gross
profit and income from operations before income tax by
$9 million; reducing the provision for income taxes by
$16 million and increasing net income by $8 million.
For the year ended December 31, 2008, the errors had the
effect of reducing the Companys effective tax rate by
4.0 percentage points. In addition, the
out-of-period
adjustments had the following effect on the consolidated balance
sheet as of June 28, 2008: increased the gross carrying
value of capitalized software by $46 million; increased
accumulated amortization for capitalized software by
$36 million; reduced deferred tax liabilities by
$14 million and increased accumulated other comprehensive
income by $17 million.
The Company did not believe that the prior period errors,
individually or in the aggregate, were material to any
previously issued annual or quarterly financial statements. In
addition, the Company did not believe that the adjustments
described above to correct the cumulative effect of the errors
in the three months ended June 28, 2008 were material to
the three months ended June 28, 2008 or to the full year
results for 2008. As a result, the Company did not restate its
previously issued annual financial statements or interim
financial data.
55
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Inventories are classified as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31, 2009
|
|
|
December 31, 2008
|
|
|
Raw materials
|
|
$
|
57,223
|
|
|
$
|
59,957
|
|
Work in progress
|
|
|
15,419
|
|
|
|
12,899
|
|
Finished goods
|
|
|
106,024
|
|
|
|
100,195
|
|
|
|
|
|
|
|
|
|
|
Total inventories
|
|
$
|
178,666
|
|
|
$
|
173,051
|
|
|
|
|
|
|
|
|
|
|
|
|
5
|
Property,
Plant and Equipment
|
Property, plant and equipment consist of the following (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
Land and land improvements
|
|
$
|
20,688
|
|
|
$
|
9,735
|
|
Buildings and leasehold improvements
|
|
|
159,071
|
|
|
|
123,278
|
|
Production and other equipment
|
|
|
245,785
|
|
|
|
222,361
|
|
Construction in progress
|
|
|
12,347
|
|
|
|
16,693
|
|
|
|
|
|
|
|
|
|
|
Total property, plant and equipment
|
|
|
437,891
|
|
|
|
372,067
|
|
Less: accumulated depreciation and amortization
|
|
|
(226,965
|
)
|
|
|
(200,479
|
)
|
|
|
|
|
|
|
|
|
|
Property, plant and equipment, net
|
|
$
|
210,926
|
|
|
$
|
171,588
|
|
|
|
|
|
|
|
|
|
|
During 2009, 2008 and 2007, the Company retired and disposed of
approximately $7 million, $9 million and
$4 million of property, plant and equipment, respectively,
most of which was fully depreciated and no longer in use. Gains
and losses on disposal were immaterial.
Effective January 1, 2009, the Company implemented the
newly issued accounting standard for business combinations. This
standard requires an acquiring company to measure all assets
acquired and liabilities assumed, including contingent
considerations and all contractual contingencies, at fair value
as of the acquisition date. In addition, an acquiring company is
required to capitalize IPR&D and either amortize it over
the life of the product or write it off if the project is
abandoned or impaired. This accounting standard is applicable to
acquisitions completed after January 1, 2009. Previous
standards generally required post-acquisition adjustments
related to business combination deferred tax asset valuation
allowances and liabilities for uncertain tax positions to be
recorded as an increase or decrease to goodwill. This new
accounting standard does not permit this accounting and
generally requires any such changes to be recorded in current
period income tax expense. Thus, all changes to valuation
allowances and liabilities for uncertain tax positions
established in acquisition accounting, whether the business
combination was accounted for under previous standards or under
the newly issued accounting standard, will be recognized in
current period income tax expense.
In February 2009, the Company acquired all of the remaining
outstanding capital stock of Thar Instruments, Inc.
(Thar), a privately-held global leader in the
design, development and manufacture of analytical and
preparative supercritical fluid chromatography and supercritical
fluid extraction (SFC) systems, for $36 million
in cash, including the assumption of $4 million of debt.
Thar was acquired to add its environmentally-friendly SFC
technology to the Companys product line and to leverage
the Companys distribution channels. The Company had
previously made a $4 million equity investment in Thar in
June 2007. Immediately prior to the acquisition date, the
Company remeasured the fair value of its original equity
investment in Thar, resulting in an acquisition date fair
56
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
value of $4 million. Thus, there was no gain or loss
recognized in the statement of operations as a result of
remeasuring the Companys equity interest in Thar to fair
value prior to the business combination.
The acquisition of Thar was accounted for under the newly issued
accounting standard for business combinations and the results of
Thar have been included in the consolidated results of the
Company from the acquisition date. The purchase price of the
acquisition was allocated to tangible and intangible assets and
assumed liabilities based on their estimated fair values. The
Company has allocated $24 million of the purchase price to
intangible assets comprised of customer relationships,
non-compete agreements, acquired technology, IPR&D and
other purchased intangibles. The Company is amortizing the
customer relationships and acquired technology over
15 years. The non-compete agreements and other purchased
intangibles are being amortized over five years. These
intangible assets are being amortized over a weighted-average
period of 13 years. Included in intangible assets is a
trademark in the amount of $4 million, which has been
assigned an indefinite life. Also included in intangible assets
are IPR&D intangibles in the amount of $1 million,
which will be amortized over an estimated useful life of
15 years once the projects have been completed and
commercialized. The excess purchase price of $22 million
has been accounted for as goodwill. The sellers also have
provided the Company with customary representations, warranties
and indemnification, which would be settled in the future if and
when the contractual representation or warranty condition
occurs. The goodwill is not deductible for tax purposes. Since
the acquisition date, Thar added $17 million of sales to
the consolidated statements of operations for the year ended
December 31, 2009. Thars impact on the Companys
net income since the acquisition date for the year ended
December 31, 2009 was not significant.
In accordance with the accounting standards for fair value
measurements and disclosures, the Company measured the
non-financial assets and non-financial liabilities that were
acquired through the acquisition of Thar at fair value. The fair
value of these non-financial assets and non-financial
liabilities were determined using Level 3 inputs. The
following table presents the fair values, as determined by the
Company, of 100% of the assets and liabilities owned and
recorded in connection with the Thar acquisition (in thousands):
|
|
|
|
|
Cash
|
|
$
|
364
|
|
Accounts receivable
|
|
|
3,863
|
|
Inventory
|
|
|
3,508
|
|
Other assets
|
|
|
4,421
|
|
Goodwill
|
|
|
22,382
|
|
Intangible assets
|
|
|
23,500
|
|
|
|
|
|
|
Total assets acquired
|
|
|
58,038
|
|
|
|
|
|
|
Accrued expenses and other current liabilities
|
|
|
5,499
|
|
Debt
|
|
|
3,899
|
|
Deferred tax liability
|
|
|
8,658
|
|
|
|
|
|
|
Cash consideration paid
|
|
$
|
39,982
|
|
|
|
|
|
|
In December 2008, the Company acquired the net assets of
Analytical Products Group, Inc. (APG), a provider of
environmental testing products for quality control and
proficiency testing used in environmental laboratories, for
$5 million in cash. This acquisition was accounted for
under the purchase method of accounting and the results of APG
have been included in the consolidated results of the Company
from the acquisition date. The purchase price of the acquisition
was allocated to tangible and intangible assets and assumed
liabilities based on their estimated fair values. The Company
has allocated $3 million of the purchase price to
intangible assets comprised of non-compete agreements, acquired
technology, customer relationships and tradename. These
intangible assets are being amortized over a weighted-average
period of ten years. The excess purchase price of
$1 million after this allocation has been accounted for as
goodwill. The goodwill is deductible for tax purposes.
In July 2008, the Company acquired the net assets of VTI
Corporation (VTI), a manufacturer of sorption
analysis and thermogravimetric analysis instruments, for
$3 million in cash. This acquisition was accounted for
under the purchase method of accounting and the results of VTI
have been included in the consolidated results of the
57
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Company from the acquisition date. The purchase price of the
acquisition was allocated to tangible and intangible assets and
assumed liabilities based on their estimated fair values. The
Company has allocated $1 million of the purchase price to
intangible assets comprised of a non-compete agreement and
acquired technology. These intangible assets are being amortized
over a weighted-average period of nine years. The excess
purchase price of $2 million after this allocation has been
accounted for as goodwill. The goodwill is deductible for tax
purposes.
In October 2007, the Company acquired certain net assets and
customer lists from a South Korean distributor of thermal
analysis products for a total of $2 million in cash. This
acquisition was accounted for under the purchase method of
accounting and the results of operations have been included in
the consolidated results of the Company from the acquisition
date.
In August 2007, the Company acquired all of the outstanding
capital stock of Calorimetry Sciences Corporation
(CSC), a privately-held company that designs,
develops and manufactures highly sensitive calorimeters, for
$7 million in cash, including the assumption of
$1 million of liabilities. This acquisition was accounted
for under the purchase method of accounting and the results of
operations of CSC have been included in the consolidated results
of the Company from the acquisition date.
The pro forma effect of the ongoing operations for Waters, Thar,
APG, VTI, CSC and other acquisitions as though these
acquisitions had occurred at the beginning of the periods
covered by this report is immaterial.
|
|
7
|
Goodwill
and Other Intangibles
|
The carrying amount of goodwill was $293 million,
$268 million and $273 million at December 31,
2009, 2008 and 2007, respectively. The increase in goodwill in
2009 is primarily due to the Companys acquisition of Thar,
which increased goodwill by $22 million (Note 6). In
addition, currency translation adjustments increased goodwill by
$3 million in 2009. The decrease in goodwill in 2008 is
attributable to an $8 million decrease due to currency
translation being partially offset by the $3 million of
goodwill from the Companys acquisitions of VTI and APG.
The Companys intangible assets included in the
consolidated balance sheets are detailed as follows
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31, 2009
|
|
|
December 31, 2008
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
Gross
|
|
|
|
|
|
Average
|
|
|
Gross
|
|
|
|
|
|
Average
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Amortization
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Amortization
|
|
|
|
Amount
|
|
|
Amortization
|
|
|
Period
|
|
|
Amount
|
|
|
Amortization
|
|
|
Period
|
|
|
Purchased intangibles
|
|
$
|
136,604
|
|
|
$
|
61,751
|
|
|
|
10 years
|
|
|
$
|
113,526
|
|
|
$
|
51,662
|
|
|
|
10 years
|
|
Capitalized software
|
|
|
217,102
|
|
|
|
122,920
|
|
|
|
5 years
|
|
|
|
184,434
|
|
|
|
109,876
|
|
|
|
4 years
|
|
Licenses
|
|
|
9,637
|
|
|
|
8,328
|
|
|
|
8 years
|
|
|
|
9,345
|
|
|
|
7,235
|
|
|
|
9 years
|
|
Patents and other intangibles
|
|
|
24,185
|
|
|
|
12,364
|
|
|
|
8 years
|
|
|
|
20,918
|
|
|
|
9,798
|
|
|
|
8 years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
387,528
|
|
|
$
|
205,363
|
|
|
|
7 years
|
|
|
$
|
328,223
|
|
|
$
|
178,571
|
|
|
|
7 years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
During the year ended December 31, 2009, the Company
acquired $24 million of purchased intangibles as a result
of the acquisition of Thar. During 2008, the gross carrying
value of capitalized software and related accumulated
amortization increased by $46 million and $36 million,
respectively, primarily as a result of an
out-of-period
adjustment (Note 3). During the year ended
December 31, 2008, the Company acquired $4 million of
purchased intangibles as a result of the acquisitions of VTI and
APG. In addition, the gross carrying value of intangible assets
increased by $4 million in 2009 and decreased by
$25 million in 2008 due to the effect of foreign currency
translation. The gross carrying value of accumulated
amortization for intangible assets increased by $3 million
in 2009 and decreased by $17 million in 2008 due to the
effect of foreign currency translation.
For the years ended December 31, 2009, 2008 and 2007,
amortization expense for intangible assets was $25 million,
$36 million and $26 million, respectively. Included in
amortization expense for the year ended December 31, 2008
is a $9 million
out-of-period
adjustment related to capitalized software. Amortization expense
for intangible assets is estimated to be approximately
$30 million for each of the next five years.
58
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
In February 2010, the Company issued and sold five-year senior
unsecured notes at an interest rate of 3.75% with a face value
of $100 million. This debt matures in February 2015. The
Company plans to use the proceeds from the issuance of these
senior unsecured notes to repay other outstanding debt amounts
and for general corporate purposes. Interest on both issuances
of the senior unsecured notes are payable semi-annually in
February and August of each year. The Company may redeem some or
all of the notes at any time in an amount not less than 10% of
the aggregate principal amount outstanding, plus accrued and
unpaid interest, plus the applicable make-whole amount. These
notes require that the Company comply with an interest coverage
ratio test of not less than 3.50:1 and a leverage ratio test of
not more than 3.50:1 for any period of four consecutive fiscal
quarters, respectively. In addition, these notes include
negative covenants that are similar to the existing credit
agreement. These notes also contain certain customary
representations and warranties, affirmative covenants and events
of default.
In March 2008, the Company entered into a new credit agreement
(the 2008 Credit Agreement) that provided for a
$150 million term loan facility. In January 2007, the
Company entered into a credit agreement (the 2007 Credit
Agreement) that provides for a $500 million term loan
facility and $600 million in revolving facilities, which
include both a letter of credit and a swingline subfacility.
Both credit agreements were to mature on January 11, 2012
and required or require no scheduled prepayments before that
date. The outstanding portions of the revolving facilities have
been classified as short-term liabilities in the consolidated
balance sheets due to the fact that the Company utilizes the
revolving line of credit to fund its working capital needs. It
is the Companys intention to pay the outstanding revolving
line of credit balance during the subsequent twelve months
following the respective period end date.
In October 2008, the Company utilized cash balances associated
with the effective liquidation of certain foreign legal entities
into the U.S. to voluntarily prepay the $150 million
term loan under the 2008 Credit Agreement. The Company prepaid
the term loan in order to reduce interest expense and there was
no penalty for prepaying the term loan. The repayment of the
term loan effectively terminated all lending arrangements under
the 2008 Credit Agreement.
The interest rates applicable to the 2007 Credit Agreement are,
at the Companys option, equal to either the base rate
(which is the higher of the prime rate or the federal funds rate
plus
1
/
2
%)
or the applicable 1, 2, 3, 6, 9 or 12 month LIBOR rate, in
each case, plus an interest rate margin based upon the
Companys leverage ratio, which can range between
33 basis points and 72.5 basis points for LIBOR rate
loans and range between zero basis points and 37.5 basis
points for base rate loans. The 2007 Credit Agreement requires
that the Company comply with an interest coverage ratio test of
not less than 3.50:1 and a leverage ratio test of not more than
3.25:1 for any period of four consecutive fiscal quarters,
respectively. In addition, the 2007 Credit Agreement includes
negative covenants that are customary for investment grade
credit facilities. The 2007 Credit Agreement also contains
certain customary representations and warranties, affirmative
covenants and events of default. As of December 31, 2009,
the Company was in compliance with all such covenants.
As of December 31, 2009, the Company had a total of
$620 million borrowed under the 2007 Credit Agreement and
an amount available to borrow of $479 million after
outstanding letters of credit. At December 31, 2009,
$500 million of the total debt was classified as long-term
debt and $120 million classified as short-term debt in the
consolidated balance sheet. As of December 31, 2008, the
Company had $500 million borrowed under the 2007 Credit
Agreement and an amount available to borrow of $599 million
after outstanding letters of credit. At December 31, 2008,
$500 million of the total debt was classified as long-term
debt in the consolidated balance sheet. The weighted-average
interest rates applicable to these borrowings were 0.78% and
2.43% at December 31, 2009 and 2008, respectively.
The Company and its foreign subsidiaries also had available
short-term lines of credit totaling $88 million at both
December 31, 2009 and 2008. At December 31, 2009 and
2008, related short-term borrowings were $12 million at a
weighted-average interest rate of 1.97% and $36 million at
a weighted-average interest rate of 2.18%, respectively.
59
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Income tax data for the years ended December 31, 2009, 2008
and 2007 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
The components of income from operations before income taxes are
as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Domestic
|
|
$
|
64,942
|
|
|
$
|
(6,728
|
)
|
|
$
|
1,638
|
|
Foreign
|
|
|
321,710
|
|
|
|
378,920
|
|
|
|
321,554
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
386,652
|
|
|
$
|
372,192
|
|
|
$
|
323,192
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
The current and deferred components of the provision for income
taxes on operations are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Current
|
|
$
|
59,472
|
|
|
$
|
64,837
|
|
|
$
|
62,126
|
|
Deferred
|
|
|
3,867
|
|
|
|
(15,124
|
)
|
|
|
(7,006
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
63,339
|
|
|
$
|
49,713
|
|
|
$
|
55,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The jurisdictional components of the provision for income taxes
on operations are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
24,080
|
|
|
$
|
1,687
|
|
|
$
|
10,239
|
|
State
|
|
|
3,757
|
|
|
|
2,422
|
|
|
|
1,700
|
|
Foreign
|
|
|
35,502
|
|
|
|
45,604
|
|
|
|
43,181
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
63,339
|
|
|
$
|
49,713
|
|
|
$
|
55,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The differences between income taxes computed at the
|
|
|
|
|
|
|
|
|
|
|
|
|
United States statutory rate and the provision for income taxes
are summarized as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Federal tax computed at U.S. statutory income tax rate
|
|
$
|
135,328
|
|
|
$
|
130,267
|
|
|
$
|
113,117
|
|
State income tax, net of federal income tax benefit
|
|
|
2,442
|
|
|
|
1,575
|
|
|
|
1,105
|
|
Net effect of foreign operations
|
|
|
(73,351
|
)
|
|
|
(82,200
|
)
|
|
|
(59,395
|
)
|
Other, net
|
|
|
(1,080
|
)
|
|
|
71
|
|
|
|
293
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Provision for income taxes
|
|
$
|
63,339
|
|
|
$
|
49,713
|
|
|
$
|
55,120
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
60
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
The tax effects of temporary differences and carryforwards which
give rise to deferred tax assets and deferred tax (liabilities)
are summarized as follows:
|
|
|
|
|
|
|
|
|
Deferred tax assets:
|
|
|
|
|
|
|
|
|
Net operating losses and credits
|
|
$
|
83,515
|
|
|
$
|
100,795
|
|
Depreciation and capitalized software
|
|
|
7,462
|
|
|
|
5,846
|
|
Amortization
|
|
|
|
|
|
|
776
|
|
Stock-based compensation
|
|
|
24,858
|
|
|
|
19,580
|
|
Deferred compensation
|
|
|
17,598
|
|
|
|
23,262
|
|
Revaluation of equity investments
|
|
|
6,159
|
|
|
|
11,336
|
|
Inventory
|
|
|
2,960
|
|
|
|
2,185
|
|
Accrued liabilities and reserves
|
|
|
11,746
|
|
|
|
13,463
|
|
Other
|
|
|
9,316
|
|
|
|
10,938
|
|
|
|
|
|
|
|
|
|
|
|
|
|
163,614
|
|
|
|
188,181
|
|
Valuation allowance
|
|
|
(83,683
|
)
|
|
|
(82,978
|
)
|
|
|
|
|
|
|
|
|
|
Deferred tax asset, net of valuation allowance
|
|
|
79,931
|
|
|
|
105,203
|
|
Deferred tax liabilities:
|
|
|
|
|
|
|
|
|
Depreciation and capitalized software
|
|
|
(9,060
|
)
|
|
|
(5,526
|
)
|
Amortization
|
|
|
(12,014
|
)
|
|
|
(5,686
|
)
|
Indefinite lived intangibles
|
|
|
(18,764
|
)
|
|
|
(17,660
|
)
|
Other
|
|
|
(197
|
)
|
|
|
(159
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
(40,035
|
)
|
|
|
(29,031
|
)
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets
|
|
$
|
39,896
|
|
|
$
|
76,172
|
|
|
|
|
|
|
|
|
|
|
Net deferred tax assets of $21 million and $30 million
are included in other current assets and $19 million and
$46 million are included in other assets at
December 31, 2009 and 2008, respectively.
The Companys deferred tax assets associated with net
operating loss, tax credit carryforwards and alternative minimum
tax credits are comprised of the following at December 31,
2009: less than $1 million benefit of U.S. federal and
state net operating loss carryforwards that begin to expire in
2020 and 2010, respectively; $71 million in foreign tax
credits, which begin to expire in 2010; $11 million in
research and development credits that begin to expire in 2010;
and $1 million ($3 million pre-tax) in foreign net
operating losses, $1 million ($2 million pre-tax) of
which do not expire under current law, the remainder of which
begin to expire in 2010. The Company has excluded the benefit of
$14 million ($38 million pre-tax) of U.S. federal
and state net operating loss carryforwards from the deferred tax
asset balance at December 31, 2009. This amount represents
an excess tax benefit, as the term is defined in the
accounting standard for stock-based compensation, which will be
recognized as a reduction to the Companys accrued income
taxes and an addition to its additional paid-in capital when it
is realized in the Companys tax returns.
As of December 31, 2009, the Company has provided a
deferred tax valuation allowance of $84 million,
principally against foreign tax credits ($71 million),
certain foreign net operating losses and other deferred tax
assets. The benefit relating to foreign tax credits and these
other deferred tax assets, if realized, will be credited to
additional paid-in capital.
The income tax benefits associated with non-qualified stock
option compensation expense recognized for tax purposes and
credited to additional paid-in capital were $5 million,
$7 million and $17 million for the years ended
December 31, 2009, 2008 and 2007, respectively.
61
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
At December 31, 2009, there were unremitted earnings of
foreign subsidiaries of approximately $1.4 billion. The
Company has not provided for U.S. income taxes or foreign
withholding taxes on these earnings as it is the Companys
current intention to permanently reinvest these earnings outside
the U.S.
Effective on January 1, 2007, the Company adopted a new
accounting interpretation standard relating to income taxes
which prescribed the methodology by which a company must
measure, report, present and disclose in its financial
statements the effects of any uncertain tax return reporting
positions that a company has taken or expects to take. This
accounting standard requires financial statement reporting of
the expected future tax consequences of uncertain tax return
reporting positions on the presumption that all relevant tax
authorities possess full knowledge of those tax reporting
positions, as well as all of the pertinent facts and
circumstances, but it prohibits any discounting of any of the
related tax effects for the time value of money. This standard
also mandates expanded financial statement disclosure about
uncertainty in income tax reporting positions. The Company
recorded the effect of adopting this standard with a
$4 million charge to beginning retained earnings in the
consolidated balance sheet as of January 1, 2007.
The following is a summary of the activity in the Companys
unrecognized tax benefits for the years ended December 31,
2009, 2008 and 2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Balance at the beginning of the period
|
|
$
|
77,295
|
|
|
$
|
68,463
|
|
|
$
|
62,418
|
|
Change in tax positions of the current year
|
|
|
629
|
|
|
|
8,832
|
|
|
|
6,045
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at the end of the period
|
|
$
|
77,924
|
|
|
$
|
77,295
|
|
|
$
|
68,463
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the years ended December 31, 2009 and 2008, the Company
recorded increases of $1 million and $9 million,
respectively, in unrecognized tax benefits via the income tax
provision. In 2009, the Company recorded approximately
$5 million of tax benefit relating to the reversal of a
$5 million tax provision which was originally recorded in
2008 relating to the reorganization of certain foreign legal
entities. The recognition of this tax benefit in 2009 was a
result of changes in income tax regulations promulgated by the
U.S. Treasury in February 2009. If all of the
Companys unrecognized tax benefits accrued as of
December 31, 2009 were to become recognizable in the
future, the Company would record a total reduction of
approximately $78 million in the income tax provision.
The Companys accounting policy is to record estimated
interest and penalties related to the potential underpayment of
income taxes, net of related tax effects, as a component of the
income tax provision. For each of the years ended
December 31, 2009, 2008 and 2007, the Company included
$1 million ($2 million pre-tax) of such interest
expense, net of related tax benefits, and no income tax penalty
expense in the income tax provision. As of December 31,
2009 and 2008, the Company had accrued $7 million
($10 million pre-tax) and $5 million ($8 million
pre-tax), respectively, of such estimated interest expense, net
of related tax benefits. As of both December 31, 2009 and
2008, the Company had no income tax penalty expense accrued.
The Companys uncertain tax positions are taken with
respect to income tax return reporting periods beginning after
December 31, 1999, which are the periods that generally
remain open to income tax audit examination by the various
income tax authorities. As of December 31, 2009, the
Company expects that a tax audit of one of the Companys
U.K. affiliates tax returns for 2003, 2004 and 2005 will
be settled before December 31, 2010. As of
December 31, 2009, the Company does not expect the
settlement of that audit to have a material effect on its
consolidated financial statements. In addition, the Company has
monitored and will continue to monitor the lapsing of statutes
of limitations on potential tax assessments for related changes
in the measurement of unrecognized tax benefits, related net
interest and penalties, and deferred tax assets and liabilities.
Other than the aforementioned tax audit, as of December 31,
2009, the Company does not expect to record any material changes
in the measurement of unrecognized tax benefits, related net
interest and penalties or deferred tax assets and liabilities
due to the settlement of tax audit examinations or to the
lapsing of statutes of limitations on potential tax assessments
within the next twelve months.
62
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The Companys effective tax rates for years ended
December 31, 2009, 2008 and 2007 were 16.4%, 13.4% and
17.1%, respectively. Included in the income tax provision for
2009 is approximately $5 million of tax benefit relating to
the reversal of a $5 million provision which was originally
recorded in 2008 relating to the reorganization of certain
foreign legal entities. The recognition of this tax benefit in
2009 was a result of changes in income tax regulations
promulgated by the U.S. Treasury in February 2009. The
$5 million tax benefit decreased the Companys
effective tax rate by 1.2 percentage points in 2009. The
one-time provision increased the Companys effective tax
rate by 1.4 percentage points in 2008. In addition, the
effective tax rate for 2008 included a $16 million benefit
resulting from
out-of-period
adjustments related to software capitalization amortization. The
out-of-period
adjustments had the effect of reducing the Companys
effective tax rate by 4.0 percentage points in 2008. The
2007 tax provision includes a $4 million tax benefit
associated with a one-time contribution into the Waters Employee
Investment Plan. The remaining changes in the effective tax
rates for 2009, 2008 and 2007 are primarily attributable to
changes in income in jurisdictions with different effective tax
rates.
The Company is involved in various litigation matters arising in
the ordinary course of business. The Company believes the
outcome, if the plaintiff ultimately prevails, will not have a
material impact on the Companys financial position.
The Company has been engaged in ongoing patent litigation with
Agilent Technologies GmbH in France and Germany. In January
2009, the French appeals court affirmed that the Company had
infringed the Agilent Technologies GmbH patent and a judgment
was issued against the Company. The Company has appealed this
judgment. In 2008, the Company recorded a $7 million
provision and, in the first quarter of 2009, the Company made a
payment of $6 million for damages and fees estimated to be
incurred in connection with the French litigation case. The
accrued patent litigation expense is in other current
liabilities in the consolidated balance sheets at
December 31, 2009 and 2008. No provision has been made for
the German patent litigation and the Company believes the
outcome, if the plaintiff ultimately prevails, will not have a
material impact on the Companys financial position.
|
|
11
|
Other
Commitments and Contingencies
|
Lease agreements, expiring at various dates through 2026, cover
buildings, office equipment and automobiles. Rental expense was
$34 million, $30 million and $23 million during
the years ended December 31, 2009, 2008 and 2007,
respectively. Future minimum rents payable as of
December 31, 2009 under non-cancelable leases with initial
terms exceeding one year are as follows (in thousands):
|
|
|
|
|
2010
|
|
$
|
24,039
|
|
2011
|
|
|
19,031
|
|
2012
|
|
|
14,259
|
|
2013
|
|
|
8,934
|
|
2014 and thereafter
|
|
|
17,705
|
|
The Company licenses certain technology and software from third
parties, which expire at various dates through 2010. Fees paid
for licenses were less than $1 million for each of the
years ended December 31, 2009, 2008 and 2007. Future
minimum license fees payable under existing license agreements
as of December 31, 2009 are immaterial for the years ended
December 31, 2010 and thereafter.
From time to time, the Company and its subsidiaries are involved
in various litigation matters arising in the ordinary course of
business. The Company believes it has meritorious arguments in
its current litigation matters and any outcome, either
individually or in the aggregate, will not be material to the
Companys financial position or results of operations.
The Company enters into standard indemnification agreements in
its ordinary course of business. Pursuant to these agreements,
the Company indemnifies, holds harmless and agrees to reimburse
the indemnified party for
63
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
losses suffered or incurred by the indemnified party, generally
the Companys business partners or customers, in connection
with patent, copyright or other intellectual property
infringement claims by any third party with respect to its
current products, as well as claims relating to property damage
or personal injury resulting from the performance of services by
the Company or its subcontractors. The maximum potential amount
of future payments the Company could be required to make under
these indemnification agreements is unlimited. Historically, the
Companys costs to defend lawsuits or settle claims
relating to such indemnity agreements have been minimal and
management accordingly believes the estimated fair value of
these agreements is immaterial.
|
|
12
|
Stock-Based
Compensation
|
In May 2003, the Companys shareholders approved the
Companys 2003 Equity Incentive Plan (2003
Plan). As of December 31, 2009, the 2003 Plan has
3.0 million shares available for granting in the form of
incentive or non-qualified stock options, stock appreciation
rights (SARs), restricted stock, restricted stock
units or other types of awards. The Company issues new shares of
common stock upon exercise of stock options or restricted stock
unit conversion. Under the 2003 Plan, the exercise price for
stock options may not be less than the fair market value of the
underlying stock at the date of grant. The 2003 Plan is
scheduled to terminate on March 4, 2013. Options generally
will expire no later than 10 years after the date on which
they are granted and will become exercisable as directed by the
Compensation Committee of the Board of Directors and generally
vest in equal annual installments over a five-year period. A SAR
may be granted alone or in conjunction with an option or other
award. Shares of restricted stock and restricted stock units may
be issued under the 2003 Plan for such consideration as is
determined by the Compensation Committee of the Board of
Directors. No award of restricted stock may have a restriction
period of less than three years except as may be recommended by
the Compensation Committee of the Board of Directors, or with
respect to any award of restricted stock which provides solely
for a performance-based risk of forfeiture so long as such award
has a restriction period of at least one year. As of
December 31, 2009, the Company had stock options,
restricted stock and restricted stock unit awards outstanding.
In February 2009, the Company adopted its 2009 Employee Stock
Purchase Plan under which eligible employees may contribute up
to 15% of their earnings toward the quarterly purchase of the
Companys common stock. The plan makes available
0.9 million shares of the Companys common stock,
which includes the remaining shares available under the 1996
Employee Stock Purchase Plan. As of December 31, 2009,
0.9 million shares have been issued under both the 2009 and
1996 Employee Stock Purchase Plans. Each plan period lasts three
months beginning on January 1, April 1, July 1 and
October 1 of each year. The purchase price for each share of
stock is the lesser of 90% of the market price on the first day
of the plan period or 100% of the market price on the last day
of the plan period. Stock-based compensation expense related to
this plan was $1 million, $1 million and less than
$1 million for each of the years ended December 31,
2009, 2008 and 2007.
The Company accounts for stock-based compensation costs in
accordance with the accounting standards for stock-based
compensation, which requires that all share-based payments to
employees be recognized in the statements of operations based on
their fair values. The Company recognizes the expense using the
straight-line attribution method. The stock-based compensation
expense recognized in the consolidated statements of operations
is based on awards that ultimately are expected to vest;
therefore, the amount of expense has been reduced for estimated
forfeitures. This accounting standard requires forfeitures to be
estimated at the time of grant and revised, if necessary, in
subsequent periods if actual forfeitures differ from those
estimates. Forfeitures were estimated based on historical
experience. If actual results differ significantly from these
estimates, stock-based compensation expense and the
Companys results of operations could be materially
impacted. In addition, if the Company employs different
assumptions in the application of this accounting standard, the
compensation expense that the Company records in the future
periods may differ significantly from what the Company has
recorded in the current period.
64
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The consolidated statements of operations for the years ended
December 31, 2009, 2008 and 2007 include the following
stock-based compensation expense related to stock option awards,
restricted stock, restricted stock unit awards and the employee
stock purchase plan (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Cost of sales
|
|
$
|
2,767
|
|
|
$
|
2,980
|
|
|
$
|
3,352
|
|
Selling and administrative expenses
|
|
|
21,941
|
|
|
|
23,164
|
|
|
|
21,225
|
|
Research and development expenses
|
|
|
3,547
|
|
|
|
4,638
|
|
|
|
4,278
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
|
|
$
|
28,255
|
|
|
$
|
30,782
|
|
|
$
|
28,855
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
As of both December 31, 2009 and 2008, the Company has
capitalized stock-based compensation costs of less than
$1 million in inventory in the consolidated balance sheets.
As of December 31, 2009 and 2008, the Company has
capitalized stock-based compensation costs of $3 million
and $2 million, respectively, in capitalized software in
the consolidated balance sheets.
Stock
Option Plans
In determining the fair value of the stock options, the Company
makes a variety of assumptions and estimates, including
volatility measures, expected yields and expected stock option
lives. The fair value of each option grant was estimated on the
date of grant using the Black-Scholes option pricing model. The
Company uses implied volatility on its publicly traded options
as the basis for its estimate of expected volatility. The
Company believes that implied volatility is the most appropriate
indicator of expected volatility because it is generally
reflective of historical volatility and expectations of how
future volatility will differ from historical volatility. The
expected life assumption for grants is based on historical
experience for the population of non-qualified stock optionees.
The risk-free interest rate is the yield currently available on
U.S. Treasury zero-coupon issues with a remaining term
approximating the expected term used as the input to the
Black-Scholes model. The relevant data used to determine the
value of the stock options granted in 2009, 2008 and 2007 are as
follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Issued and Significant Assumptions Used to Estimate
Option Fair Values
|
|
2009
|
|
2008
|
|
2007
|
|
Options issued in thousands
|
|
|
608
|
|
|
|
583
|
|
|
|
516
|
|
Risk-free interest rate
|
|
|
2.9
|
%
|
|
|
2.1
|
%
|
|
|
3.8
|
%
|
Expected life in years
|
|
|
6.0
|
|
|
|
6.0
|
|
|
|
6.0
|
|
Expected volatility
|
|
|
.305
|
|
|
|
.557
|
|
|
|
.291
|
|
Expected dividends
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-average Exercise Price and Fair Values of Options on
the Date of Grant
|
|
2009
|
|
2008
|
|
2007
|
|
Exercise price
|
|
$
|
58.46
|
|
|
$
|
42.91
|
|
|
$
|
75.29
|
|
Fair value
|
|
$
|
20.65
|
|
|
$
|
22.69
|
|
|
$
|
27.33
|
|
During 2009, 2008 and 2007, the total intrinsic value of the
stock options exercised (i.e., the difference between the market
price at exercise and the price paid by the employee to exercise
the options) was $13 million, $26 million and
$98 million, respectively. The total cash received from the
exercise of these stock options was $16 million,
$25 million and $89 million for the years ended
December 31, 2009, 2008 and 2007, respectively.
As of December 31, 2009, 2008 and 2007, there were
$36 million, $41 million and $51 million of total
unrecognized compensation costs related to unvested stock option
awards. These costs are expected to be recognized over a
weighted-average period of 3.4 years.
65
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The following table details the weighted-average remaining
contractual life of options outstanding at December 31,
2009 by range of exercise prices (in thousands, except per share
data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted
|
|
|
Remaining
|
|
|
|
|
|
Weighted
|
|
Exercise
|
|
Number of Shares
|
|
|
Average
|
|
|
Contractual Life of
|
|
|
Number of Shares
|
|
|
Average
|
|
Price Range
|
|
Outstanding
|
|
|
Exercise Price
|
|
|
Options Outstanding
|
|
|
Exercisable
|
|
|
Exercise Price
|
|
|
$21.05 to $38.99
|
|
|
2,513
|
|
|
$
|
32.65
|
|
|
|
3.7
|
|
|
|
2,373
|
|
|
$
|
32.29
|
|
$39.00 to $59.99
|
|
|
3,086
|
|
|
$
|
48.76
|
|
|
|
7.0
|
|
|
|
1,811
|
|
|
$
|
47.14
|
|
$60.00 to $80.97
|
|
|
1,258
|
|
|
$
|
74.52
|
|
|
|
3.7
|
|
|
|
954
|
|
|
$
|
73.46
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,857
|
|
|
$
|
47.58
|
|
|
|
5.2
|
|
|
|
5,138
|
|
|
$
|
45.17
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table summarizes stock option activity for the
plans (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted Average
|
|
|
|
Number of Shares
|
|
|
Price per Share
|
|
|
Exercise Price
|
|
|
Outstanding at December 31, 2008
|
|
|
6,835
|
|
|
$
|
21.05 to $80.97
|
|
|
$
|
45.44
|
|
Granted
|
|
|
608
|
|
|
$
|
38.09 to $59.44
|
|
|
$
|
58.46
|
|
Exercised
|
|
|
(514
|
)
|
|
$
|
21.39 to $49.31
|
|
|
$
|
30.84
|
|
Cancelled
|
|
|
(72
|
)
|
|
$
|
47.12 to $72.06
|
|
|
$
|
55.81
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at December 31, 2009
|
|
|
6,857
|
|
|
$
|
21.05 to $80.97
|
|
|
$
|
47.58
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The aggregate intrinsic value of the outstanding stock options
at December 31, 2009 was $114 million. Options
exercisable at December 31, 2009, 2008 and 2007 were
5.1 million, 4.9 million and 4.7 million,
respectively. The weighted-average exercise prices of options
exercisable at December 31, 2009, 2008 and 2007 were
$45.17, $43.18 and $40.77, respectively. The weighted-average
remaining contractual life of the exercisable outstanding stock
options at December 31, 2009 was 4.0 years.
At December 31, 2009, the Company had 6.8 million
stock options which are vested and expected to vest. The
intrinsic value, weighted-average price and remaining
contractual life of the vested and expected to vest stock
options were $114 million, $47.51 and 5.2 years,
respectively, at December 31, 2009.
Restricted
Stock
During each of the years ended December 31, 2009, 2008 and
2007, the Company granted eight thousand shares of restricted
stock. The restrictions on these shares lapse at the end of a
three-year period. The Company has recorded less than
$1 million of compensation expense in each of the years
ended December 31, 2009, 2008 and 2007 related to the
restricted stock grants. The weighted-average fair value on the
grant date of the restricted stock for 2009, 2008 and 2007 was
$38.09, $76.75 and $48.88, respectively. As of December 31,
2009, the Company has 24 thousand unvested shares of restricted
stock outstanding with a total of less than $1 million of
unrecognized compensation costs. These costs are expected to be
recognized over a weighted-average period of 1.5 years.
66
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Restricted
Stock Units
The following table summarizes the unvested restricted stock
unit award activity (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
Shares
|
|
|
Price
|
|
|
Unvested at December 31, 2008
|
|
|
597
|
|
|
$
|
53.43
|
|
Granted
|
|
|
371
|
|
|
$
|
35.29
|
|
Vested
|
|
|
(154
|
)
|
|
$
|
52.00
|
|
Forfeited
|
|
|
(31
|
)
|
|
$
|
48.79
|
|
|
|
|
|
|
|
|
|
|
Unvested at December 31, 2009
|
|
|
783
|
|
|
$
|
45.30
|
|
|
|
|
|
|
|
|
|
|
Restricted stock units are generally issued annually in February
and vest in equal annual installments over a five-year period.
The amount of compensation costs recognized for the years ended
December 31, 2009, 2008 and 2007 on the restricted stock
units expected to vest were $10 million, $8 million
and $5 million, respectively. As of December 31, 2009,
there were $25 million of total unrecognized compensation
costs related to the restricted stock unit awards that are
expected to vest. These costs are expected to be recognized over
a weighted-average period of 3.2 years.
Basic and diluted EPS calculations are detailed as follows (in
thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2009
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
Net Income
|
|
|
Shares
|
|
|
Per Share
|
|
|
|
(Numerator)
|
|
|
(Denominator)
|
|
|
Amount
|
|
|
Net income per basic common share
|
|
$
|
323,313
|
|
|
|
95,797
|
|
|
$
|
3.37
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of dilutive stock option, restricted stock and restricted
stock unit securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
|
|
|
|
|
|
|
939
|
|
|
|
|
|
Exercised and cancellations
|
|
|
|
|
|
|
126
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
323,313
|
|
|
|
96,862
|
|
|
$
|
3.34
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2008
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
Net Income
|
|
|
Shares
|
|
|
Per Share
|
|
|
|
(Numerator)
|
|
|
(Denominator)
|
|
|
Amount
|
|
|
Net income per basic common share
|
|
$
|
322,479
|
|
|
|
99,199
|
|
|
$
|
3.25
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of dilutive stock option, restricted stock and restricted
stock unit securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
|
|
|
|
|
|
|
1,161
|
|
|
|
|
|
Exercised and cancellations
|
|
|
|
|
|
|
195
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
322,479
|
|
|
|
100,555
|
|
|
$
|
3.21
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
67
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31, 2007
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
Net Income
|
|
|
Shares
|
|
|
Per Share
|
|
|
|
(Numerator)
|
|
|
(Denominator)
|
|
|
Amount
|
|
|
Net income per basic common share
|
|
$
|
268,072
|
|
|
|
100,500
|
|
|
$
|
2.67
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Effect of dilutive stock option, restricted stock and restricted
stock unit securities:
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding
|
|
|
|
|
|
|
1,445
|
|
|
|
|
|
Exercised and cancellations
|
|
|
|
|
|
|
560
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
268,072
|
|
|
|
102,505
|
|
|
$
|
2.62
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the years ended December 31, 2009, 2008 and 2007, the
Company had 3.3 million, 1.3 million and
0.9 million stock option securities that were antidilutive,
respectively, due to having higher exercise prices than the
average price during the period. These securities were not
included in the computation of diluted EPS. The effect of
dilutive securities was calculated using the treasury stock
method.
Comprehensive income details follow (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Net income
|
|
$
|
323,313
|
|
|
$
|
322,479
|
|
|
$
|
268,072
|
|
Foreign currency translation
|
|
|
19,405
|
|
|
|
(53,704
|
)
|
|
|
26,276
|
|
Net appreciation (depreciation) and realized gains (losses) on
derivative instruments
|
|
|
2,766
|
|
|
|
(798
|
)
|
|
|
(18,031
|
)
|
Income tax (expense) benefit
|
|
|
(968
|
)
|
|
|
279
|
|
|
|
6,311
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net appreciation (depreciation) and realized gains (losses) on
derivative instruments, net of tax
|
|
|
1,798
|
|
|
|
(519
|
)
|
|
|
(11,720
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net foreign currency adjustments
|
|
|
21,203
|
|
|
|
(54,223
|
)
|
|
|
14,556
|
|
Unrealized losses on investments before income taxes
|
|
|
(38
|
)
|
|
|
(191
|
)
|
|
|
(1,294
|
)
|
Income tax benefit
|
|
|
13
|
|
|
|
67
|
|
|
|
453
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Unrealized losses on investments, net of tax
|
|
|
(25
|
)
|
|
|
(124
|
)
|
|
|
(841
|
)
|
Retirement liability adjustment, net of tax
|
|
|
2,977
|
|
|
|
(20,466
|
)
|
|
|
8,852
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss)
|
|
|
24,155
|
|
|
|
(74,813
|
)
|
|
|
22,567
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
$
|
347,468
|
|
|
$
|
247,666
|
|
|
$
|
290,639
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. employees are eligible to participate in the Waters
Employee Investment Plan, a 401(k) defined contribution plan,
after one month of service. Employees may contribute from 1% to
30% of eligible pay on a pre-tax basis. Prior to the amendments
described below, which became effective on January 1, 2008,
the Company made matching contributions of 50% for contributions
up to 6% of eligible pay after one year of service. Employees
are 100% vested in employee and Company matching contributions.
For the years ended December 31, 2009, 2008 and 2007, the
Companys matching contributions amounted to
$10 million, $10 million and $4 million,
respectively.
U.S. employees were eligible to participate in the Waters
Retirement Plan, a defined benefit, cash balance plan, after one
year of service. Annually, the Company credited each
employees account as a percentage of eligible pay based on
years of service. In addition, each employees account is
credited with interest at the end of each year based
68
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
on the employees account balance at the beginning of such
year. The interest rate is the one-year constant maturity
Treasury bond yield in effect as of the first business day in
November preceding such year plus 0.5%, limited to a minimum
interest crediting rate of 5% and a maximum interest crediting
rate of 10%. An employee does not vest until the completion of
three years of service, at which time the employee becomes 100%
vested. The Company maintains an unfunded supplemental executive
retirement plan, the Waters Retirement Restoration Plan, which
is non-qualified and restores the benefits under the Waters
Retirement Plan that are limited by IRS benefit and compensation
maximums.
In September 2007, the Companys Board of Directors
approved various amendments to freeze the pay credit accruals
under the Waters Retirement Plan and the Waters Retirement
Restoration Plan (collectively, the U.S. Pension
Plans) effective December 31, 2007. In accordance
with accounting standards for retirement benefits, the Company
recorded a curtailment gain of $1 million. In addition, the
Company re-measured the U.S. Pension Plans
liabilities in September 2007 and the Company reduced the
projected benefit obligation liability by $7 million with a
corresponding adjustment, net of tax, to accumulated other
comprehensive income as a result of the curtailment reducing the
accrual for future service.
The Companys Board of Directors also approved a
$13 million payment that was contributed to the Waters
Employee Investment Plan in the first quarter of 2008. The
$13 million of expense was reduced by a curtailment gain of
$1 million, relating to various amendments to freeze the
pay credit accrual, resulting in $12 million of expense
recorded in the consolidated statements of operations in the
year ending December 31, 2007 with $3 million included
in cost of sales, $7 million included in selling and
administrative expenses and $2 million included in research
and development expenses. In addition, effective January 1,
2008, the Companys Board of Directors increased the
employer matching contribution in the Waters Employee Investment
Plan to 100% for contributions up to 6% of eligible pay, an
increase of 3%, and eliminated the one-year service requirement
to be eligible for matching contributions.
The Company also sponsors other employee benefit plans in the
U.S., including a retiree healthcare plan, which provides
reimbursement for medical expenses and is contributory. There
are various
non-U.S. retirement
plans sponsored by the Company. The eligibility and vesting of
the
non-U.S. plans
are generally consistent with local laws and regulations.
The net periodic pension cost is made up of several components
that reflect different aspects of the Companys financial
arrangements as well as the cost of benefits earned by
employees. These components are determined using the projected
unit credit actuarial cost method and are based on certain
actuarial assumptions. The Companys accounting policy is
to reflect in the projected benefit obligation all benefit
changes to which the Company is committed as of the current
valuation date; use a market-related value of assets to
determine pension expense; amortize increases in prior service
costs on a straight-line basis over the expected future service
of active participants as of the date such costs are first
recognized; and amortize cumulative actuarial gains and losses
in excess of 10% of the larger of the market-related value of
plan assets and the projected benefit obligation over the
expected future service of active participants.
69
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Summary data for the U.S. Pension Plans, the
U.S. retiree healthcare plan and the Companys
non-U.S. retirement
plans are presented in the following tables, using the
measurement dates of December 31, 2009 and 2008,
respectively.
The summary of the projected benefit obligations at
December 31, 2009 and 2008 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Projected benefit obligation, January 1
|
|
$
|
98,336
|
|
|
$
|
6,348
|
|
|
$
|
23,806
|
|
|
$
|
92,311
|
|
|
$
|
5,416
|
|
|
$
|
21,716
|
|
Service cost
|
|
|
55
|
|
|
|
868
|
|
|
|
1,726
|
|
|
|
91
|
|
|
|
691
|
|
|
|
1,502
|
|
Interest cost
|
|
|
6,215
|
|
|
|
363
|
|
|
|
886
|
|
|
|
5,944
|
|
|
|
329
|
|
|
|
885
|
|
Employee rollovers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,402
|
|
|
|
|
|
|
|
|
|
Actuarial losses (gains)
|
|
|
5,946
|
|
|
|
70
|
|
|
|
428
|
|
|
|
2,227
|
|
|
|
230
|
|
|
|
(626
|
)
|
Disbursements
|
|
|
(2,434
|
)
|
|
|
(381
|
)
|
|
|
(499
|
)
|
|
|
(3,639
|
)
|
|
|
(318
|
)
|
|
|
(673
|
)
|
Currency impact
|
|
|
|
|
|
|
|
|
|
|
170
|
|
|
|
|
|
|
|
|
|
|
|
1,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Projected benefit obligation, December 31
|
|
$
|
108,118
|
|
|
$
|
7,268
|
|
|
$
|
26,517
|
|
|
$
|
98,336
|
|
|
$
|
6,348
|
|
|
$
|
23,806
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The summary of the accumulated benefit obligations at
December 31, 2009 and 2008 is as follows
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
2008
|
|
|
|
|
U.S.
|
|
|
|
|
|
U.S.
|
|
|
|
|
U.S.
|
|
Retiree
|
|
Non-U.S.
|
|
U.S.
|
|
Retiree
|
|
Non-U.S.
|
|
|
Pension
|
|
Healthcare
|
|
Pension
|
|
Pension
|
|
Healthcare
|
|
Pension
|
|
|
Plans
|
|
Plan
|
|
Plans
|
|
Plans
|
|
Plan
|
|
Plans
|
|
Accumulated benefit obligation
|
|
$
|
107,912
|
|
|
|
|
*
|
|
$
|
21,322
|
|
|
$
|
98,022
|
|
|
|
|
*
|
|
$
|
18,140
|
|
The summary of the fair value of the plan assets at
December 31, 2009 and 2008 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Fair value of assets, January 1
|
|
$
|
58,456
|
|
|
$
|
2,083
|
|
|
$
|
10,069
|
|
|
$
|
79,544
|
|
|
$
|
2,134
|
|
|
$
|
11,283
|
|
Actual return on plan assets
|
|
|
17,100
|
|
|
|
602
|
|
|
|
241
|
|
|
|
(23,310
|
)
|
|
|
(368
|
)
|
|
|
(95
|
)
|
Company contributions
|
|
|
9,401
|
|
|
|
212
|
|
|
|
747
|
|
|
|
4,459
|
|
|
|
175
|
|
|
|
1,011
|
|
Employee contributions
|
|
|
|
|
|
|
568
|
|
|
|
|
|
|
|
|
|
|
|
460
|
|
|
|
|
|
Disbursements
|
|
|
(2,434
|
)
|
|
|
(381
|
)
|
|
|
(499
|
)
|
|
|
(3,639
|
)
|
|
|
(318
|
)
|
|
|
(673
|
)
|
Employee rollovers
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
1,402
|
|
|
|
|
|
|
|
|
|
Currency impact
|
|
|
|
|
|
|
|
|
|
|
509
|
|
|
|
|
|
|
|
|
|
|
|
(1,457
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of assets, December 31
|
|
$
|
82,523
|
|
|
$
|
3,084
|
|
|
$
|
11,067
|
|
|
$
|
58,456
|
|
|
$
|
2,083
|
|
|
$
|
10,069
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
70
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The summary of the funded status of the plans at
December 31, 2009 and 2008 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Projected benefit obligation
|
|
$
|
(108,118
|
)
|
|
$
|
(7,268
|
)
|
|
$
|
(26,517
|
)
|
|
$
|
(98,336
|
)
|
|
$
|
(6,348
|
)
|
|
$
|
(23,806
|
)
|
Fair value of plan assets
|
|
|
82,523
|
|
|
|
3,084
|
|
|
|
11,067
|
|
|
|
58,456
|
|
|
|
2,083
|
|
|
|
10,069
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Projected benefit obligation in excess of fair value of plan
assets
|
|
$
|
(25,595
|
)
|
|
$
|
(4,184
|
)
|
|
$
|
(15,450
|
)
|
|
$
|
(39,880
|
)
|
|
$
|
(4,265
|
)
|
|
$
|
(13,737
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The summary of the amounts recognized in the consolidated
balance sheets for the plans at December 31, 2009 and 2008
is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Long-term assets
|
|
$
|
|
|
|
$
|
|
|
|
$
|
1,782
|
|
|
$
|
|
|
|
$
|
|
|
|
$
|
2,589
|
|
Current liabilities
|
|
|
(57
|
)
|
|
|
|
|
|
|
(90
|
)
|
|
|
(54
|
)
|
|
|
|
|
|
|
(56
|
)
|
Long-term liabilities
|
|
|
(25,538
|
)
|
|
|
(4,184
|
)
|
|
|
(17,142
|
)
|
|
|
(39,826
|
)
|
|
|
(4,265
|
)
|
|
|
(16,270
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net amount recognized at December 31
|
|
$
|
(25,595
|
)
|
|
$
|
(4,184
|
)
|
|
$
|
(15,450
|
)
|
|
$
|
(39,880
|
)
|
|
$
|
(4,265
|
)
|
|
$
|
(13,737
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The summary of the components of net periodic pension costs for
the plans for the years ended December 31, 2009, 2008 and
2007 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Service cost
|
|
$
|
55
|
|
|
$
|
300
|
|
|
$
|
1,726
|
|
|
$
|
91
|
|
|
$
|
231
|
|
|
$
|
1,502
|
|
|
$
|
7,122
|
|
|
$
|
260
|
|
|
$
|
1,224
|
|
Interest cost
|
|
|
6,215
|
|
|
|
363
|
|
|
|
886
|
|
|
|
5,944
|
|
|
|
329
|
|
|
|
885
|
|
|
|
5,271
|
|
|
|
277
|
|
|
|
815
|
|
Return on plan assets
|
|
|
(6,704
|
)
|
|
|
(149
|
)
|
|
|
(354
|
)
|
|
|
(6,128
|
)
|
|
|
(156
|
)
|
|
|
(432
|
)
|
|
|
(5,427
|
)
|
|
|
(127
|
)
|
|
|
(400
|
)
|
Net amortization:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prior service (cost) or credit
|
|
|
148
|
|
|
|
(54
|
)
|
|
|
|
|
|
|
148
|
|
|
|
(54
|
)
|
|
|
|
|
|
|
(55
|
)
|
|
|
(53
|
)
|
|
|
|
|
Net actuarial loss (gain)
|
|
|
459
|
|
|
|
|
|
|
|
44
|
|
|
|
86
|
|
|
|
|
|
|
|
(27
|
)
|
|
|
613
|
|
|
|
|
|
|
|
20
|
|
Curtailment gain
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(466
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic pension cost
|
|
$
|
173
|
|
|
$
|
460
|
|
|
$
|
2,302
|
|
|
$
|
141
|
|
|
$
|
350
|
|
|
$
|
1,928
|
|
|
$
|
7,058
|
|
|
$
|
357
|
|
|
$
|
1,659
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
71
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The summary of the amounts included in accumulated other
comprehensive income (loss) in stockholders equity for the
plans at December 31, 2009 and 2008 is as follows (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Net loss
|
|
$
|
(31,955
|
)
|
|
$
|
(358
|
)
|
|
$
|
(1,050
|
)
|
|
$
|
(36,863
|
)
|
|
$
|
(740
|
)
|
|
$
|
(699
|
)
|
Prior service (cost) or credit
|
|
|
|
|
|
|
267
|
|
|
|
|
|
|
|
(148
|
)
|
|
|
321
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
(31,955
|
)
|
|
$
|
(91
|
)
|
|
$
|
(1,050
|
)
|
|
$
|
(37,011
|
)
|
|
$
|
(419
|
)
|
|
$
|
(699
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The summary of the amounts included in accumulated other
comprehensive income expected to be included in next years
net periodic benefit cost for the plans at December 31,
2009 is as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Net loss
|
|
$
|
(1,050
|
)
|
|
$
|
|
|
|
$
|
(11
|
)
|
Prior service cost
|
|
|
|
|
|
|
54
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
(1,050
|
)
|
|
$
|
54
|
|
|
$
|
(11
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The plans investment asset mix is as follow at
December 31, 2009 and 2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
|
|
U.S.
|
|
|
|
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Retiree
|
|
|
Non-U.S.
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Equity securities
|
|
|
67
|
%
|
|
|
62
|
%
|
|
|
0
|
%
|
|
|
61
|
%
|
|
|
41
|
%
|
|
|
0
|
%
|
Debt securities
|
|
|
31
|
%
|
|
|
23
|
%
|
|
|
2
|
%
|
|
|
35
|
%
|
|
|
21
|
%
|
|
|
0
|
%
|
Cash and cash equivalents
|
|
|
2
|
%
|
|
|
15
|
%
|
|
|
53
|
%
|
|
|
4
|
%
|
|
|
38
|
%
|
|
|
54
|
%
|
Other
|
|
|
0
|
%
|
|
|
0
|
%
|
|
|
45
|
%
|
|
|
0
|
%
|
|
|
0
|
%
|
|
|
46
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
100
|
%
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The plans investment policies include the following asset
allocation guidelines:
|
|
|
|
|
|
|
|
|
|
|
|
|
U.S. Pension and U.S.
|
|
Non-U.S.
|
|
|
|
Retiree Healthcare Plans
|
|
Pension Plans
|
|
|
|
Policy Target
|
|
|
Range
|
|
Policy Target
|
|
|
Equity securities
|
|
|
65
|
%
|
|
40% - 80%
|
|
|
0
|
%
|
Debt securities
|
|
|
25
|
%
|
|
20% - 60%
|
|
|
0
|
%
|
Cash and cash equivalents
|
|
|
0
|
%
|
|
0% - 20%
|
|
|
50
|
%
|
Other
|
|
|
10
|
%
|
|
0% - 10%
|
|
|
50
|
%
|
The asset allocation policy for the U.S. Pension Plans and
U.S. retiree healthcare plan was developed in consideration
of the following long-term investment objectives: achieving a
return on assets consistent with the investment policy,
achieving portfolio returns which exceed the average return for
similarly invested funds and maximizing portfolio returns with
at least a return of 2.5% above the one-year constant maturity
Treasury bond yield over reasonable measurement periods and
based on reasonable market cycles.
72
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The fair value of the Companys retirement plan assets are
as follows at December 31, 2009 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
Market for
|
|
|
Other
|
|
|
Significant
|
|
|
|
Total at
|
|
|
Identical
|
|
|
Observable
|
|
|
Unobservable
|
|
|
|
December 31,
|
|
|
Assets
|
|
|
Inputs
|
|
|
Inputs
|
|
|
|
2009
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
U.S. Pension Plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mutual funds(a)
|
|
$
|
71,636
|
|
|
$
|
71,636
|
|
|
$
|
|
|
|
$
|
|
|
Common stocks(b)
|
|
|
3,660
|
|
|
|
3,660
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
1,810
|
|
|
|
|
|
|
|
1,810
|
|
|
|
|
|
Hedge funds(d)
|
|
|
5,417
|
|
|
|
|
|
|
|
|
|
|
|
5,417
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total U.S. Pension Plans
|
|
|
82,523
|
|
|
|
75,296
|
|
|
|
1,810
|
|
|
|
5,417
|
|
U.S. Retiree Healthcare Plan:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mutual funds(e)
|
|
|
2,629
|
|
|
|
2,629
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
455
|
|
|
|
|
|
|
|
455
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total U.S. Retiree Healthcare Plan
|
|
|
3,084
|
|
|
|
2,629
|
|
|
|
455
|
|
|
|
|
|
Non-U.S.
Pension Plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
5,890
|
|
|
|
5,890
|
|
|
|
|
|
|
|
|
|
Mutual funds(f)
|
|
|
175
|
|
|
|
175
|
|
|
|
|
|
|
|
|
|
Bank and insurance investment contracts(g)
|
|
|
5,002
|
|
|
|
|
|
|
|
|
|
|
|
5,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Non-U.S.
Pension Plans
|
|
|
11,067
|
|
|
|
6,065
|
|
|
|
|
|
|
|
5,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fair value of retirement plan assets
|
|
$
|
96,674
|
|
|
$
|
83,990
|
|
|
$
|
2,265
|
|
|
$
|
10,419
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The fair value of the Companys retirement plan assets are
as follows at December 31, 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
Market for
|
|
|
Other
|
|
|
Significant
|
|
|
|
Total at
|
|
|
Identical
|
|
|
Observable
|
|
|
Unobservable
|
|
|
|
December 31,
|
|
|
Assets
|
|
|
Inputs
|
|
|
Inputs
|
|
|
|
2008
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
U.S. Pension Plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mutual funds(h)
|
|
$
|
43,693
|
|
|
$
|
43,693
|
|
|
$
|
|
|
|
$
|
|
|
Common stocks(b)
|
|
|
8,722
|
|
|
|
8,722
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
2,182
|
|
|
|
|
|
|
|
2,182
|
|
|
|
|
|
Hedge funds(d)
|
|
|
3,859
|
|
|
|
|
|
|
|
|
|
|
|
3,859
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total U.S. Pension Plans
|
|
|
58,456
|
|
|
|
52,415
|
|
|
|
2,182
|
|
|
|
3,859
|
|
U.S. Retiree Healthcare Plan:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Mutual funds(i)
|
|
|
1,290
|
|
|
|
1,290
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
793
|
|
|
|
|
|
|
|
793
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total U.S. Retiree Healthcare Plan
|
|
|
2,083
|
|
|
|
1,290
|
|
|
|
793
|
|
|
|
|
|
Non-U.S.
Pension Plans:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents(c)
|
|
|
5,462
|
|
|
|
5,462
|
|
|
|
|
|
|
|
|
|
Bank and insurance investment contracts(g)
|
|
|
4,607
|
|
|
|
|
|
|
|
|
|
|
|
4,607
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
Non-U.S.
Pension Plans
|
|
|
10,069
|
|
|
|
5,462
|
|
|
|
|
|
|
|
4,607
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total fair value of retirement plan assets
|
|
$
|
70,608
|
|
|
$
|
59,167
|
|
|
$
|
2,975
|
|
|
$
|
8,466
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
73
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
(a)
|
|
The mutual fund balance in the U.S. Pension Plans are invested
in the following categories: 38% in the common stock of
large-cap U.S. Companies, 27% in the common stock of
international growth companies, and 35% in fixed income bonds
issued by U.S. companies and by the U.S. Government and its
Agencies.
|
|
(b)
|
|
Represents primarily amounts invested in common stock of
technology, healthcare, financial, energy and consumer staples
and discretionary U.S. companies.
|
|
(c)
|
|
Primarily represents money market funds held with various
financial institutions.
|
|
(d)
|
|
Hedge fund invests in both short and long term U.S. common
stocks. Management of the hedge funds has the ability to shift
investments from value to growth strategies, from large to small
capitalization stocks and from a net long position to a net
short position.
|
|
(e)
|
|
The mutual fund balance in the U.S. Retiree Healthcare Plan is
invested in the following categories: 61% in the common stock of
large-cap U.S. Companies, 12% in the common stock of
international growth companies and 27% in fixed income bonds of
U.S. companies and U.S. Government.
|
|
(f)
|
|
The mutual funds balance in the
Non-U.S.
Pension Plans is invested in international bonds.
|
|
(g)
|
|
Amount represents bank and insurance guaranteed investment
contracts.
|
|
(h)
|
|
The mutual fund balance in the U.S. Pension Plans are invested
in the following categories: 29% in the common stock of
large-cap U.S. Companies, 24% in the common stock of
international growth companies and 47% in fixed income bonds
issued by U.S. companies and by the U.S. Government and its
Agencies.
|
|
(i)
|
|
The mutual fund balance in the U.S. Retiree Healthcare Plan is
invested in the following categories: 57% in the common stock of
large-cap U.S. Companies, 9% in the common stock of
international growth companies and 34% in fixed income bonds of
U.S. companies and U.S. Government.
|
The following table summarizes the changes in fair value of the
Level 3 retirement plan assets for the years ended
December 31, 2009 and 2008 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Insurance
|
|
|
|
|
|
|
|
|
|
Guaranteed
|
|
|
|
|
|
|
|
|
|
Investment
|
|
|
|
Total
|
|
|
Hedge Funds
|
|
|
Contracts
|
|
|
Fair value of assets, December 31, 2007
|
|
$
|
7,462
|
|
|
$
|
3,429
|
|
|
$
|
4,033
|
|
Net purchases (sales) and appreciation (depreciation)
|
|
|
1,004
|
|
|
|
430
|
|
|
|
574
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of assets, December 31, 2008
|
|
$
|
8,466
|
|
|
$
|
3,859
|
|
|
$
|
4,607
|
|
Net purchases (sales) and appreciation (depreciation)
|
|
|
1,953
|
|
|
|
1,558
|
|
|
|
395
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fair value of assets, December 31, 2009
|
|
$
|
10,419
|
|
|
$
|
5,417
|
|
|
$
|
5,002
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Within the equity portfolio of the U.S. retirement plans,
investments are diversified among market capitalization and
investment strategy. The Company targets a 20% allocation of its
U.S. retirement plans equity portfolio to be invested
in financial markets outside of the United States. The Company
does not invest in its own stock within the U.S. retirement
plans assets.
The weighted-average assumptions used to determine the benefit
obligation in the consolidated balance sheets at
December 31, 2009, 2008 and 2007 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
|
U.S.
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
Non-U.S.
|
|
|
Discount rate
|
|
|
5.95
|
%
|
|
|
4.05
|
%
|
|
|
6.38
|
%
|
|
|
3.65
|
%
|
|
|
6.40
|
%
|
|
|
4.12
|
%
|
Increases in compensation levels
|
|
|
4.75
|
%
|
|
|
2.94
|
%
|
|
|
4.75
|
%
|
|
|
3.21
|
%
|
|
|
4.75
|
%
|
|
|
3.24
|
%
|
74
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
The weighted-average assumptions used to determine the pension
cost at December 31, 2009, 2008 and 2007 are as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
2008
|
|
2007
|
|
|
U.S.
|
|
Non-U.S.
|
|
U.S.
|
|
Non-U.S.
|
|
U.S.
|
|
Non-U.S.
|
|
Discount rate
|
|
|
6.38
|
%
|
|
|
3.65
|
%
|
|
|
6.40
|
%
|
|
|
4.12
|
%
|
|
|
5.94
|
%
|
|
|
3.84
|
%
|
Return on assets
|
|
|
7.95
|
%
|
|
|
3.34
|
%
|
|
|
8.00
|
%
|
|
|
4.03
|
%
|
|
|
7.97
|
%
|
|
|
3.80
|
%
|
Increases in compensation levels
|
|
|
4.75
|
%
|
|
|
3.21
|
%
|
|
|
4.75
|
%
|
|
|
3.24
|
%
|
|
|
4.75
|
%
|
|
|
2.99
|
%
|
To develop the expected long-term rate of return on assets
assumption, the Company considered the historical returns and
the future expectations for returns for each asset class, as
well as the target asset allocation of the pension portfolio and
historical expenses paid by the plan. A one-quarter percentage
point increase in the discount rate would decrease the
Companys net periodic benefit cost for the Waters
Retirement Plan by less than $1 million. A one-quarter
percentage point increase in the assumed long-term rate of
return would decrease the Companys net periodic benefit
cost for the Waters Retirement Plan by less than $1 million.
During fiscal year 2010, the Company expects to contribute
approximately $3 million to $5 million to the
Companys defined benefit plans.
Estimated future benefit payments as of December 31, 2009
are as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-U.S.
|
|
|
|
|
U.S. Pension and
|
|
Pension
|
|
|
|
|
Retiree Healthcare Plans
|
|
Plans
|
|
Total
|
|
2010
|
|
$
|
3,894
|
|
|
$
|
755
|
|
|
$
|
4,649
|
|
2011
|
|
|
4,804
|
|
|
|
853
|
|
|
|
5,657
|
|
2012
|
|
|
5,028
|
|
|
|
601
|
|
|
|
5,629
|
|
2013
|
|
|
5,319
|
|
|
|
898
|
|
|
|
6,217
|
|
2014
|
|
|
6,786
|
|
|
|
1,275
|
|
|
|
8,061
|
|
2015 - 2019
|
|
|
46,617
|
|
|
|
7,823
|
|
|
|
54,440
|
|
|
|
16
|
Business
Segment Information
|
The accounting standard for segment reporting establishes
standards for reporting information about operating segments in
annual financial statements and requires selected information
for those segments to be presented in interim financial reports
of public business enterprises. It also establishes standards
for related disclosures about products and services, geographic
areas and major customers. The Companys business
activities, for which financial information is available, are
regularly reviewed and evaluated by the chief operating decision
makers. As a result of this evaluation, the Company determined
that it has two operating segments: Waters Division and TA
Division.
Waters Division is primarily in the business of designing,
manufacturing, distributing and servicing LC and MS instruments,
columns and other chemistry consumables that can be integrated
and used along with other analytical instruments. TA Division is
primarily in the business of designing, manufacturing,
distributing and servicing thermal analysis, rheometry and
calorimetry instruments. The Companys two divisions are
its operating segments and each has similar economic
characteristics; product processes; products and services; types
and classes of customers; methods of distribution and regulatory
environments. Because of these similarities, the two segments
have been aggregated into one reporting segment for financial
statement purposes. Please refer to the consolidated financial
statements for financial information regarding the one
reportable segment of the Company.
75
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
Net sales for the Companys products and services are as
follows for the years ended December 31, 2009, 2008 and
2007 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Product net sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
Waters instrument systems
|
|
$
|
699,014
|
|
|
$
|
767,122
|
|
|
$
|
742,045
|
|
Chemistry
|
|
|
243,629
|
|
|
|
243,855
|
|
|
|
223,593
|
|
TA instrument systems
|
|
|
109,335
|
|
|
|
128,909
|
|
|
|
121,954
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total product net sales
|
|
|
1,051,978
|
|
|
|
1,139,886
|
|
|
|
1,087,592
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service net sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
Waters service
|
|
|
408,482
|
|
|
|
398,409
|
|
|
|
356,544
|
|
TA service
|
|
|
38,240
|
|
|
|
36,829
|
|
|
|
28,912
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total service net sales
|
|
|
446,722
|
|
|
|
435,238
|
|
|
|
385,456
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net sales
|
|
$
|
1,498,700
|
|
|
$
|
1,575,124
|
|
|
$
|
1,473,048
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Geographic sales information is presented below (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31
|
|
2009
|
|
|
2008
|
|
|
2007
|
|
|
Net Sales:
|
|
|
|
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
459,541
|
|
|
$
|
476,301
|
|
|
$
|
473,322
|
|
Europe
|
|
|
495,646
|
|
|
|
545,620
|
|
|
|
511,973
|
|
Japan
|
|
|
164,120
|
|
|
|
151,685
|
|
|
|
134,757
|
|
Asia
|
|
|
283,224
|
|
|
|
291,639
|
|
|
|
246,587
|
|
Other
|
|
|
96,169
|
|
|
|
109,879
|
|
|
|
106,409
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total consolidated sales
|
|
$
|
1,498,700
|
|
|
$
|
1,575,124
|
|
|
$
|
1,473,048
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Other category includes Canada, Latin America and Puerto
Rico. Net sales are attributable to geographic areas based on
the region of destination. None of the Companys individual
customers accounts for more than 3% of annual Company sales.
Long-lived assets information is presented below (in thousands):
|
|
|
|
|
|
|
|
|
December 31
|
|
2009
|
|
|
2008
|
|
|
Long-lived assets:
|
|
|
|
|
|
|
|
|
United States
|
|
$
|
167,449
|
|
|
$
|
129,324
|
|
Europe
|
|
|
34,285
|
|
|
|
33,243
|
|
Japan
|
|
|
1,590
|
|
|
|
1,943
|
|
Asia
|
|
|
6,587
|
|
|
|
5,679
|
|
Other
|
|
|
1,015
|
|
|
|
1,399
|
|
|
|
|
|
|
|
|
|
|
Total long-lived assets
|
|
$
|
210,926
|
|
|
$
|
171,588
|
|
|
|
|
|
|
|
|
|
|
The Other category includes Canada, Latin America and Puerto
Rico. Long-lived assets exclude goodwill, other intangible
assets and other assets.
76
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
17
|
Unaudited
Quarterly Results
|
The Companys unaudited quarterly results are summarized
below (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
|
|
|
Second
|
|
|
Third
|
|
|
Fourth
|
|
|
|
|
2009
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Total
|
|
|
Net sales
|
|
$
|
333,052
|
|
|
$
|
362,837
|
|
|
$
|
373,963
|
|
|
$
|
428,848
|
|
|
$
|
1,498,700
|
|
Cost of sales
|
|
|
127,454
|
|
|
|
144,154
|
|
|
|
153,143
|
|
|
|
170,131
|
|
|
|
594,882
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
205,598
|
|
|
|
218,683
|
|
|
|
220,820
|
|
|
|
258,717
|
|
|
|
903,818
|
|
Selling and administrative expenses
|
|
|
99,159
|
|
|
|
109,583
|
|
|
|
102,675
|
|
|
|
109,986
|
|
|
|
421,403
|
|
Research and development expenses
|
|
|
18,332
|
|
|
|
19,722
|
|
|
|
19,310
|
|
|
|
19,790
|
|
|
|
77,154
|
|
Purchased intangibles amortization
|
|
|
2,616
|
|
|
|
2,683
|
|
|
|
2,723
|
|
|
|
2,637
|
|
|
|
10,659
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
85,491
|
|
|
|
86,695
|
|
|
|
96,112
|
|
|
|
126,304
|
|
|
|
394,602
|
|
Interest expense
|
|
|
(3,130
|
)
|
|
|
(2,649
|
)
|
|
|
(2,864
|
)
|
|
|
(2,343
|
)
|
|
|
(10,986
|
)
|
Interest income
|
|
|
908
|
|
|
|
595
|
|
|
|
785
|
|
|
|
748
|
|
|
|
3,036
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations before income taxes
|
|
|
83,269
|
|
|
|
84,641
|
|
|
|
94,033
|
|
|
|
124,709
|
|
|
|
386,652
|
|
Provision for income tax expense
|
|
|
9,922
|
|
|
|
14,734
|
|
|
|
18,097
|
|
|
|
20,586
|
|
|
|
63,339
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
73,347
|
|
|
$
|
69,907
|
|
|
$
|
75,936
|
|
|
$
|
104,123
|
|
|
$
|
323,313
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per basic common share
|
|
$
|
0.75
|
|
|
$
|
0.73
|
|
|
$
|
0.80
|
|
|
$
|
1.10
|
|
|
$
|
3.37
|
|
Weighted-average number of basic common shares
|
|
|
97,304
|
|
|
|
96,147
|
|
|
|
95,235
|
|
|
|
94,516
|
|
|
|
95,797
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
0.75
|
|
|
$
|
0.72
|
|
|
$
|
0.79
|
|
|
$
|
1.08
|
|
|
$
|
3.34
|
|
Weighted-average number of diluted common shares and equivalents
|
|
|
97,927
|
|
|
|
96,996
|
|
|
|
96,513
|
|
|
|
96,111
|
|
|
|
96,862
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
77
NOTES TO
CONSOLIDATED FINANCIAL
STATEMENTS (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
|
|
|
Second
|
|
|
Third
|
|
|
Fourth
|
|
|
|
|
2008
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Quarter
|
|
|
Total
|
|
|
Net sales
|
|
$
|
371,712
|
|
|
$
|
398,771
|
|
|
$
|
386,310
|
|
|
$
|
418,331
|
|
|
$
|
1,575,124
|
|
Cost of sales
|
|
|
155,451
|
|
|
|
175,232
|
|
|
|
158,520
|
|
|
|
172,063
|
|
|
|
661,266
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross profit
|
|
|
216,261
|
|
|
|
223,539
|
|
|
|
227,790
|
|
|
|
246,268
|
|
|
|
913,858
|
|
Selling and administrative expenses
|
|
|
105,837
|
|
|
|
111,935
|
|
|
|
107,463
|
|
|
|
101,464
|
|
|
|
426,699
|
|
Research and development expenses
|
|
|
19,786
|
|
|
|
22,228
|
|
|
|
19,946
|
|
|
|
19,628
|
|
|
|
81,588
|
|
Purchased intangibles amortization
|
|
|
2,272
|
|
|
|
2,352
|
|
|
|
2,349
|
|
|
|
2,317
|
|
|
|
9,290
|
|
Litigation provision
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
6,527
|
|
|
|
6,527
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating income
|
|
|
88,366
|
|
|
|
87,024
|
|
|
|
98,032
|
|
|
|
116,332
|
|
|
|
389,754
|
|
Interest expense
|
|
|
(11,157
|
)
|
|
|
(9,807
|
)
|
|
|
(10,570
|
)
|
|
|
(6,987
|
)
|
|
|
(38,521
|
)
|
Interest income
|
|
|
6,913
|
|
|
|
4,952
|
|
|
|
6,028
|
|
|
|
3,066
|
|
|
|
20,959
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Income from operations before income taxes
|
|
|
84,122
|
|
|
|
82,169
|
|
|
|
93,490
|
|
|
|
112,411
|
|
|
|
372,192
|
|
Provision for income tax expense (benefit)
|
|
|
15,647
|
|
|
|
(979
|
)
|
|
|
21,987
|
|
|
|
13,058
|
|
|
|
49,713
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income
|
|
$
|
68,475
|
|
|
$
|
83,148
|
|
|
$
|
71,503
|
|
|
$
|
99,353
|
|
|
$
|
322,479
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per basic common share
|
|
$
|
0.68
|
|
|
$
|
0.83
|
|
|
$
|
0.72
|
|
|
$
|
1.01
|
|
|
$
|
3.25
|
|
Weighted-average number of basic common shares
|
|
|
100,401
|
|
|
|
99,586
|
|
|
|
98,891
|
|
|
|
98,029
|
|
|
|
99,199
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
0.67
|
|
|
$
|
0.82
|
|
|
$
|
0.71
|
|
|
$
|
1.01
|
|
|
$
|
3.21
|
|
Weighted-average number of diluted common shares and equivalents
|
|
|
101,983
|
|
|
|
101,035
|
|
|
|
100,566
|
|
|
|
98,821
|
|
|
|
100,555
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company experiences an increase in sales in the fourth
quarter, as a result of purchasing habits on capital goods of
customers that tend to exhaust their spending budgets by
calendar year end. Selling and administrative expenses are
typically higher in the second and third quarters over the first
quarter in each year as the Companys annual payroll merit
increases take effect. Selling and administrative expenses will
vary in the fourth quarter in relation to performance in the
quarter and for the year. In the first quarter of 2009, the
Company recorded approximately $5 million of tax benefit
relating to the reversal of a $5 million tax provision
which was originally recorded in the third quarter of 2008
relating to the reorganization of certain foreign legal entities
(Note 9). In the second quarter of 2008, the Company
recorded
out-of-period
adjustments related to capitalized software amortization and the
income tax provision (Note 3). In the fourth quarter of
2008, the Company recorded a $7 million provision related
to ongoing litigation (Note 10).
78
SELECTED
FINANCIAL DATA
The following table sets forth selected historical consolidated
financial and operating data for the periods indicated. The
statement of operations and balance sheet data is derived from
audited financial statements for the years 2009, 2008, 2007,
2006 and 2005. The Companys financial statements as of
December 31, 2009 and 2008, and for each of the three years
in the period ended December 31, 2009 are included in
Item 8, Financial Statements and Supplemental Data, in
Part II of this
Form 10-K.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
In thousands, except per share and employees data
|
|
2009*
|
|
|
2008*
|
|
|
2007*
|
|
|
2006*
|
|
|
2005
|
|
|
STATEMENT OF OPERATIONS DATA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net sales
|
|
$
|
1,498,700
|
|
|
$
|
1,575,124
|
|
|
$
|
1,473,048
|
|
|
$
|
1,280,229
|
|
|
$
|
1,158,236
|
|
Income from operations before income taxes
|
|
$
|
386,652
|
|
|
$
|
372,192
|
|
|
$
|
323,192
|
|
|
$
|
262,959
|
|
|
$
|
274,563
|
|
Net income
|
|
$
|
323,313
|
|
|
$
|
322,479
|
|
|
$
|
268,072
|
|
|
$
|
222,200
|
|
|
$
|
201,975
|
|
Net income per basic common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per basic common share
|
|
$
|
3.37
|
|
|
$
|
3.25
|
|
|
$
|
2.67
|
|
|
$
|
2.16
|
|
|
$
|
1.77
|
|
Weighted-average number of basic common shares
|
|
|
95,797
|
|
|
|
99,199
|
|
|
|
100,500
|
|
|
|
102,691
|
|
|
|
114,023
|
|
Net income per diluted common share:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
3.34
|
|
|
$
|
3.21
|
|
|
$
|
2.62
|
|
|
$
|
2.13
|
|
|
$
|
1.74
|
|
Weighted- average number of diluted common shares and equivalents
|
|
|
96,862
|
|
|
|
100,555
|
|
|
|
102,505
|
|
|
|
104,240
|
|
|
|
115,945
|
|
BALANCE SHEET AND OTHER DATA:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash, cash equivalents and short-term investments
|
|
$
|
630,257
|
|
|
$
|
428,522
|
|
|
$
|
693,014
|
|
|
$
|
514,166
|
|
|
$
|
493,588
|
|
Working capital, including current maturities of debt**
|
|
$
|
777,808
|
|
|
$
|
666,796
|
|
|
$
|
578,628
|
|
|
$
|
313,846
|
|
|
$
|
309,101
|
|
Total assets
|
|
$
|
1,907,931
|
|
|
$
|
1,622,898
|
|
|
$
|
1,881,055
|
|
|
$
|
1,617,313
|
|
|
$
|
1,428,931
|
|
Long-term debt
|
|
$
|
500,000
|
|
|
$
|
500,000
|
|
|
$
|
500,000
|
|
|
$
|
500,000
|
|
|
$
|
500,000
|
|
Stockholders equity**
|
|
$
|
848,949
|
|
|
$
|
661,005
|
|
|
$
|
586,076
|
|
|
$
|
362,383
|
|
|
$
|
283,632
|
|
Employees
|
|
|
5,216
|
|
|
|
5,033
|
|
|
|
4,956
|
|
|
|
4,687
|
|
|
|
4,503
|
|
|
|
|
*
|
|
As a result of the adoption of the stock-based compensation
accounting standard as of January 1, 2006, all share-based
payments to employees have been recognized in the statements of
operations based on their fair values. The Company adopted the
modified prospective transition method permitted under the
standard and, consequently, has not adjusted results from prior
years. Stock-based compensation expense was $28 million,
$31 million, $29 million and $29 million for the
years ended December 31, 2009, 2008, 2007 and 2006,
respectively.
|
**
|
|
As result of the adoption of the newly issued accounting
standard for employers accounting for defined benefit pension
and other postretirement plans as of December 31, 2006, the
Company is required to recognize the underfunded status of the
Companys retirement plans as a liability in the
consolidated balance sheets. Prior to 2006, a significant
portion of the Companys retirement contribution accrual
was classified in other current liabilities and included in
working capital. Beginning in 2006, in accordance with this
standard, the majority of the retirement contribution accrual is
included in the long-term retirement liability. Also, the
adoption of this standard had the following after-tax effect on
stockholders equity: increased $3 million in 2009,
decreased $20 million in 2008, increased $9 million in
2007 and decreased $2 million in 2006.
|
**
|
|
As a result of the adoption of newly issued accounting standard
for income tax uncertainty as of January 1, 2007, the
Company is required to measure, report, present and disclose in
its financial statements the effects of any uncertain tax return
reporting positions that a company has taken or expects to take.
Prior to January 1, 2007, these amounts were included in
accrued income taxes in current liabilities. On January 1,
2007, the Company recorded the effect of adopting this new
standard with a $4 million charge to beginning retained
earnings and a $58 million reclassification from accrued
income taxes, which was included in working capital, to the
long-term income tax liability in the consolidated balance sheet.
|
79
|
|
Item 9:
|
Changes
in and Disagreements with Accountants on Accounting and
Financial Disclosure
|
None.
|
|
Item 9A:
|
Controls
and Procedures
|
Evaluation
of Disclosure Controls and Procedures
The Companys chief executive officer and chief financial
officer (principal executive and principal financial officer),
with the participation of management, evaluated the
effectiveness of the Companys disclosure controls and
procedures (as defined in
Rules 13a-15(e)
and
15d-15(e)
under the Exchange Act) as of the end of the period covered by
this annual report on
Form 10-K.
Based on this evaluation, the Companys chief executive
officer and chief financial officer concluded that the
Companys disclosure controls and procedures were effective
as of December 31, 2009 (1) to ensure that information
required to be disclosed by the Company, including its
consolidated subsidiaries, in the reports that it files or
submits under the Exchange Act is accumulated and communicated
to the Companys management, including its chief executive
officer and chief financial officer, to allow timely decisions
regarding the required disclosure and (2) to provide
reasonable assurance that information required to be disclosed
by the Company in the reports that it files or submits under the
Exchange Act is recorded, processed, summarized and reported
within the time periods specified in the SECs rules and
forms.
Managements
Annual Report on Internal Control Over Financial
Reporting
See Managements Report on Internal Control Over Financial
Reporting in Item 8 on page 39 of this
Form 10-K.
Report of
the Independent Registered Public Accounting Firm
See the report of PricewaterhouseCoopers LLP in Item 8 on
page 40 of this
Form 10-K.
Changes
in Internal Control Over Financial Reporting
No change was identified in the Companys internal control
over financial reporting (as defined in
Rules 13a-15(f)
and
15d-15(f)
under the Exchange Act) during the quarter ended
December 31, 2009 that has materially affected, or is
reasonably likely to materially affect, the Companys
internal control over financial reporting.
|
|
Item 9B:
|
Other
Information
|
None.
PART III
|
|
Item 10:
|
Directors,
Executive Officers and Corporate Governance
|
Information regarding the Companys directors is contained
in the definitive proxy statement for the 2010 Annual Meeting of
Stockholders under the headings Election of
Directors, Directors and Executive Officers
and Report of the Audit Committee of the Board of
Directors. Information regarding compliance with
Section 16(a) of the Exchange Act is contained in the
Companys definitive proxy statement for the 2010 Annual
Meeting of Stockholders under the heading
Section 16(A) Beneficial Ownership Reporting
Compliance. Information regarding the Companys Audit
Committee and Audit Committee Financial Expert is contained in
the definitive proxy statement for the 2010 Annual Meeting of
Stockholders under the heading Report of the Audit
Committee of the Board of Directors and Directors
Meetings and Board Committees. Such information is
incorporated herein by reference. Information regarding the
Companys executive officers is contained in Part I of
this
Form 10-K.
The Company has adopted a Code of Business Conduct and Ethics
(the Code) that applies to all of the Companys
employees (including its executive officers) and directors and
that is in compliance with Item 406 of
Regulation S-K.
The Code has been distributed to all employees of the Company.
In addition, the Code is available on the Companys
website,
www.waters.com
, under the caption
Governance. The Company intends to satisfy the
disclosure requirement regarding any amendment to, or waiver of
a provision of, the Code applicable to any
80
executive officer or director by posting such information on
such website. The Company shall also provide to any person
without charge, upon request, a copy of the Code. Any such
request must be made in writing to the Secretary of the Company,
c/o Waters
Corporation, 34 Maple Street, Milford, MA 01757.
The Companys corporate governance guidelines and the
charters of the audit committee, compensation committee, and
nominating and corporate governance committee of the Board of
Directors are available on the Companys website,
www.waters.com
, under the caption Governance. The Company
shall provide to any person without charge, upon request, a copy
of any of the foregoing materials. Any such request must be made
in writing to the Secretary of the Company,
c/o Waters
Corporation, 34 Maple Street, Milford, MA 01757.
The Company has not made any material changes to the procedures
by which security holders may recommend nominees to the
Companys Board of Directors.
|
|
Item 11:
|
Executive
Compensation
|
This information is contained in the Companys definitive
proxy statement for the 2010 Annual Meeting of Stockholders
under the heading Compensation of Directors and Executive
Officers and Compensation and Management Development
Committee Interlocks and Insider Participation and
Compensation and Management Development Committee
Report. Such information is incorporated herein by
reference.
|
|
Item 12:
|
Security
Ownership of Certain Beneficial Owners and Management and
Related Stockholder Matters
|
Except for the Equity Compensation Plan information set forth
below, this information is contained in the Companys
definitive proxy statement for the 2010 Annual Meeting of
Stockholders under the heading Security Ownership of
Certain Beneficial Owners and Management. Such information
is incorporated herein by reference.
Equity
Compensation Plan Information
The following table provides information as of December 31,
2009 about the Companys common stock that may be issued
upon the exercise of options, warrants, and rights under its
existing equity compensation plans (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
A
|
|
|
B
|
|
|
C
|
|
|
|
|
|
|
|
|
|
Number of Securities
|
|
|
|
Number of Securities
|
|
|
|
|
|
Remaining Available for
|
|
|
|
to be Issued Upon
|
|
|
Weighted-Average
|
|
|
Future Issuance Under
|
|
|
|
Exercise of
|
|
|
Exercise Price of
|
|
|
Equity Compensation
|
|
|
|
Outstanding Options,
|
|
|
Outstanding Options,
|
|
|
Plans (excluding securities
|
|
|
|
Warrants and Rights
|
|
|
Warrants and Rights
|
|
|
reflected in column (A))
|
|
|
Equity compensation plans approved by security holders
|
|
|
6,857
|
|
|
$
|
47.58
|
|
|
|
3,029
|
|
Equity compensation plans not approved by security holders
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
6,857
|
|
|
$
|
47.58
|
|
|
|
3,029
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
See Note 12, Stock-Based Compensation, in the Notes to
Consolidated Financial Statements for a description of the
material features of the Companys equity compensation
plans.
|
|
Item 13:
|
Certain
Relationships and Related Transactions and Director
Independence
|
This information is contained in the Companys definitive
proxy statement for the 2010 Annual Meeting of Stockholders
under the heading Directors and Executive Officers,
Directors Meetings and Board Committees and
Corporate Governance. Such information is
incorporated herein by reference.
81
|
|
Item 14:
|
Principal
Accountant Fees and Services
|
This information is contained in the Companys definitive
proxy statement for the 2010 Annual Meeting of Stockholders
under the heading Ratification of Independent Registered
Public Accounting Firm and Report of the Audit
Committee of the Board of Directors. Such information is
incorporated herein by reference.
PART IV
|
|
Item 15:
|
Exhibits,
Financial Statement Schedules
|
(a) Documents filed as part of this report:
(1) Financial Statements:
The consolidated financial statements of the Company and its
subsidiaries are filed as part of this
Form 10-K
and are set forth on pages 41 to 78. The report of
PricewaterhouseCoopers LLP, an independent registered public
accounting firm, dated February 26, 2010, is set forth on
page 40 of this
Form 10-K.
(2) Financial Statement Schedule:
None.
(3) Exhibits:
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Document
|
|
|
3
|
.1
|
|
Second Amended and Restated Certificate of Incorporation of
Waters Corporation.(1)
|
|
3
|
.11
|
|
Certificate of Amendment of Second Amended and Restated
Certificate of Incorporation of Waters Corporation, as amended
May 12, 1999.(4)
|
|
3
|
.12
|
|
Certificate of Amendment of Second Amended and Restated
Certificate of Incorporation of Waters Corporation, as amended
July 27, 2000.(7)
|
|
3
|
.13
|
|
Certificate of Amendment of Second Amended and Restated
Certificate of Incorporation of Waters Corporation, as amended
May 25, 2001.(9)
|
|
3
|
.21
|
|
Amended and Restated Bylaws of Waters Corporation dated as of
December 13, 2006.(18)
|
|
4
|
.1
|
|
Rights Agreement dated August 9, 2002, between the Waters
Corporation and Equiserve Trust Co.(11)
|
|
4
|
.2
|
|
Amendment to Rights Agreement, dated as of March 4, 2005,
between Waters Corporation and The Bank of New York as Rights
Agent.(16)
|
|
10
|
.3
|
|
Waters Corporation Second Amended and Restated 1996 Long-Term
Performance Incentive Plan.(6)(*)
|
|
10
|
.4
|
|
Waters Corporation 1996 Employee Stock Purchase Plan.(2)(*)
|
|
10
|
.5
|
|
Amended and Restated Waters Corporation 1996 Non-Employee
Director Deferred Compensation Plan, Effective January 1,
2008.(22)(*)
|
|
10
|
.6
|
|
Waters Corporation Amended and Restated 1996 Non-Employee
Director Stock Option Plan.(6)(*)
|
|
10
|
.10
|
|
Waters Corporation Retirement Plan.(3)(*)
|
|
10
|
.17
|
|
First Amendment to the Waters Corporation 2003 Equity Incentive
Plan.(13)(*)
|
|
10
|
.27
|
|
Form of Director Stock Option Agreement under the Waters
Corporation Amended 2003 Equity Incentive Plan.(14)(*)
|
|
10
|
.28
|
|
Form of Director Restricted Stock Agreement under the Waters
Corporation Amended 2003 Equity Incentive Plan.(14)(*)
|
|
10
|
.29
|
|
Form of Executive Officer Stock Option Agreement under the
Waters Corporation Amended 2003 Equity Incentive Plan.(14)(*)
|
|
10
|
.31
|
|
First Amendment to the Waters Corporation Second Amended and
Restated 1996 Long-Term Performance Incentive Plan.(10)(*)
|
|
10
|
.32
|
|
Form of Amendment to Stock Option Agreement under the Waters
Corporation Second Amended and Restated 1996 Long Term
Performance Incentive Plan.(15)(*)
|
82
|
|
|
|
|
Exhibit
|
|
|
Number
|
|
Description of Document
|
|
|
10
|
.34
|
|
Waters Corporation 2003 Equity Incentive Plan.(12)(*)
|
|
10
|
.35
|
|
Form of Executive Officer Stock Option Agreement under the
Waters Corporation Second Amended and Restated 1996 Long-Term
Performance Incentive Plan.(15)(*)
|
|
10
|
.36
|
|
2008 Waters Corporation Management Incentive Plan.(22)(*)
|
|
10
|
.38
|
|
Second Amendment to the Waters Corporation 2003 Equity Incentive
Plan.(17)(*)
|
|
10
|
.41
|
|
December 1999 Amendment to the Waters Corporation 1996 Employee
Stock Purchase Plan.(5)(*)
|
|
10
|
.42
|
|
March 2000 Amendment to the Waters Corporation 1996 Employee
Stock Purchase Plan.(5)(*)
|
|
10
|
.43
|
|
June 1999 Amendment to the Waters Corporation 1996 Employee
Stock Purchase Plan.(8)(*)
|
|
10
|
.44
|
|
July 2000 Amendment to the Waters Corporation 1996 Employee
Stock Purchase Plan.(8)(*)
|
|
10
|
.46
|
|
Second Amendment to the Waters Corporation Second Amended and
Restated 1996 Long-Term Performance Incentive Plan.(18)(*)
|
|
10
|
.47
|
|
Five Year Credit Agreement, dated January 11, 2007 among Waters
Corporation, Waters Technologies Ireland Limited, JP Morgan
Chase Bank, N.A., JP Morgan Europe and other Lenders party
thereto.(18)
|
|
10
|
.48
|
|
Third Amendment to the Waters Corporation 2003 Equity Incentive
Plan.(18)(*)
|
|
10
|
.49
|
|
Amended and Restated Waters Retirement Restoration Plan,
Effective January 1, 2008.(22)(*)
|
|
10
|
.50
|
|
Amended and Restated Waters 401(k) Restoration Plan, Effective
January 1, 2008.(19)(*)
|
|
10
|
.53
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and Mark T. Beaudouin.(20)(*)
|
|
10
|
.54
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and Douglas A. Berthiaume.(20)(*)
|
|
10
|
.55
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and Arthur G. Caputo.(20)(*)
|
|
10
|
.56
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and William J. Curry.(20)(*)
|
|
10
|
.57
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and John Ornell.(20)(*)
|
|
10
|
.58
|
|
Change of Control/Severance Agreement, dated as of February 27,
2008 between Waters Corporation and Elizabeth B. Rae.(20)(*)
|
|
10
|
.59
|
|
Term Credit Agreement, dated as of March 25, 2008 among Waters
Corporation, JP Morgan Chase Bank, N.A. and other lenders party
thereto.(21)
|
|
10
|
.60
|
|
Waters Corporation 2009 Employee Stock Purchase Plan (23)(*)
|
|
10
|
.61
|
|
Note Purchase Agreement, dated February 1, 2010 between Waters
Corporation and the purchases named therein.
|
|
21
|
.1
|
|
Subsidiaries of Waters Corporation.
|
|
23
|
.1
|
|
Consent of PricewaterhouseCoopers LLP, an independent registered
public accounting firm.
|
|
31
|
.1
|
|
Chief Executive Officer Certification Pursuant to 18 U.S.C.
Section 1350, as Adopted Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
|
31
|
.2
|
|
Chief Financial Officer Certification Pursuant to 18 U.S.C.
Section 1350, as Adopted Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002.
|
|
32
|
.1
|
|
Chief Executive Officer Certification Pursuant to 18 U.S.C.
Section 1350, as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
|
32
|
.2
|
|
Chief Financial Officer Certification Pursuant to 18 U.S.C.
Section 1350, as Adopted Pursuant to Section 906 of the
Sarbanes-Oxley Act of 2002.
|
|
101
|
|
|
The following materials from Waters Corporations Quarterly
Report on Form 10-K for the year ended December 31, 2009,
formatted in XBRL (Extensible Business Reporting Language): (i)
the Consolidated Balance Sheets, (ii) the Consolidated
Statements of Operations, (iii) the Consolidated Statements of
Cash Flows, and (iv) Condensed Notes to Consolidated Financial
Statements, tagged as blocks of text.(**)
|
83
|
|
|
(1)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 29, 1996 (File
No. 001-14010).
|
|
(2)
|
|
Incorporated by reference to Exhibit B of the
Registrants 1996 Proxy Statement (File
No. 001-14010).
|
|
(3)
|
|
Incorporated by reference to the Registrants Registration
Statement on
Form S-1
(File
No. 333-96934).
|
|
(4)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated August 11, 1999 (File
No. 001-14010).
|
|
(5)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 30, 2000 (File
No. 001-14010).
|
|
(6)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated May 8, 2000 (File
No. 001-14010).
|
|
(7)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated August 8, 2000 (File
No. 001-14010).
|
|
(8)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 27, 2001 (File
No. 001-14010).
|
|
(9)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 28, 2002 (File
No. 001-14010).
|
|
(10)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated August 12, 2002 (File
No. 001-14010).
|
|
(11)
|
|
Incorporated by reference to the Registrants Report on
Form 8-A12B/A
dated August 27, 2002 (File
No. 001-14010).
|
|
(12)
|
|
Incorporated by reference to the Registrants Report on
Form S-8
dated November 20, 2003 (File
No. 333-110613).
|
|
(13)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 12, 2004 (File
No. 001-14010).
|
|
(14)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated November 10, 2004 (File
No. 001-14010).
|
|
(15)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 15, 2005 (File
No. 001-14010).
|
|
(16)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated May 6, 2005 (File
No. 001-14010).
|
|
(17)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated August 5, 2005 (File
No. 001-14010).
|
|
(18)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated March 1, 2007 (File
No. 001-14010).
|
|
(19)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated November 2, 2007 (File
No. 001-14010).
|
|
(20)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated February 29, 2008 (File
No. 001-14010).
|
|
(21)
|
|
Incorporated by reference to the Registrants Report on
Form 10-Q
dated May 2, 2008 (File
No. 001-14010).
|
|
(22)
|
|
Incorporated by reference to the Registrants Report on
Form 10-K
dated February 27, 2009 (File
No. 001-14010).
|
|
(23)
|
|
Incorporated by reference to the Registrants Report on
Form S-8
dated July 10, 2009 (File
No. 333-160507).
|
|
(*)
|
|
Management contract or compensatory plan required to be filed as
an Exhibit to this
Form 10-K.
|
|
(**)
|
|
This exhibit shall not be deemed filed for purposes
of Section 18 of the Exchange Act, or otherwise subject to
the liability of that section, nor shall it be deemed
incorporated by reference into any filing under the Securities
Act of 1933, as amended, or the Exchange Act, whether made
before or after the date hereof and irrespective of any general
incorporation language in any filing, except to the extent the
Company specifically incorporates it by reference.
|
|
(b)
|
|
See Item 15 (a) (3) above.
|
|
(c)
|
|
Not Applicable.
|
84
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the
Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Waters Corporation
John Ornell
Vice President, Finance and
Administration and Chief Financial Officer
Date: February 26, 2010
Pursuant to the requirements of the Securities Exchange Act of
1934, this report has been signed by the following persons on
behalf of the registrant and in the capacities indicated on
February 26, 2010.
|
|
|
|
|
|
|
|
/s/
Douglas
A. Berthiaume
Douglas
A. Berthiaume
|
|
Chairman of the Board of Directors, President and Chief
Executive Officer (principal executive officer)
|
|
|
|
/s/
John
Ornell
John
Ornell
|
|
Vice President, Finance and Administration and Chief Financial
Officer (principal financial officer and principal
accounting officer)
|
|
|
|
/s/
Joshua
Bekenstein
Joshua
Bekenstein
|
|
Director
|
|
|
|
/s/
Dr. Michael
J. Berendt
Dr. Michael
J. Berendt
|
|
Director
|
|
|
|
/s/
Edward
Conard
Edward
Conard
|
|
Director
|
|
|
|
/s/
Dr. Laurie
H. Glimcher
Dr. Laurie
H. Glimcher
|
|
Director
|
|
|
|
/s/
Christopher
A. Kuebler
Christopher
A. Kuebler
|
|
Director
|
|
|
|
/s/
William
J. Miller
William
J. Miller
|
|
Director
|
|
|
|
/s/
JoAnn
A. Reed
JoAnn
A. Reed
|
|
Director
|
|
|
|
/s/
Thomas
P. Salice
Thomas
P. Salice
|
|
Director
|
85
Exhibit 10.61
Conformed Copy
Waters Corporation
$200,000,000
3.75% Senior Guaranteed Notes, Series A, due February 1, 2015
and
5.00% Senior Guaranteed Notes, Series B, due February 1, 2020
Note Purchase Agreement
Dated February 1, 2010
Table of Contents
|
|
|
|
|
|
|
Section
|
|
Heading
|
|
Page
|
|
|
|
|
|
|
|
|
Section 1.
|
|
Authorization of Notes
|
|
|
1
|
|
|
|
|
|
|
|
|
Section 2.
|
|
Sale and Purchase of Notes
|
|
|
1
|
|
|
|
|
|
|
|
|
Section 3.
|
|
Closings
|
|
|
2
|
|
|
|
|
|
|
|
|
Section 4.
|
|
Conditions to Closings
|
|
|
2
|
|
|
|
|
|
|
|
|
Section 4.1.
|
|
Representations and Warranties
|
|
|
2
|
|
Section 4.2.
|
|
Performance; No Default
|
|
|
2
|
|
Section 4.3.
|
|
Compliance Certificates
|
|
|
3
|
|
Section 4.4.
|
|
Opinions of Counsel
|
|
|
3
|
|
Section 4.5.
|
|
Purchase Permitted By Applicable Law, Etc.
|
|
|
3
|
|
Section 4.6.
|
|
Sale of Other Notes
|
|
|
3
|
|
Section 4.7.
|
|
Payment of Special Counsel Fees
|
|
|
4
|
|
Section 4.8.
|
|
Private Placement Number
|
|
|
4
|
|
Section 4.9.
|
|
Changes in Corporate Structure
|
|
|
4
|
|
Section 4.10.
|
|
Funding Instructions
|
|
|
4
|
|
Section 4.11.
|
|
Guarantee Agreement
|
|
|
4
|
|
Section 4.12.
|
|
First Closing Consummated
|
|
|
4
|
|
Section 4.13.
|
|
Proceedings and Documents
|
|
|
4
|
|
|
|
|
|
|
|
|
Section 5.
|
|
Representations and Warranties of the Company
|
|
|
4
|
|
|
|
|
|
|
|
|
Section 5.1.
|
|
Organization; Power and Authority
|
|
|
4
|
|
Section 5.2.
|
|
Authorization, Etc.
|
|
|
5
|
|
Section 5.3.
|
|
Disclosure
|
|
|
5
|
|
Section 5.4.
|
|
Organization and Ownership of Shares of Subsidiaries; Affiliates
|
|
|
5
|
|
Section 5.5.
|
|
Financial Statements; Material Liabilities
|
|
|
6
|
|
Section 5.6.
|
|
Compliance with Laws, Other Instruments, Etc.
|
|
|
6
|
|
Section 5.7.
|
|
Governmental Authorizations, Etc.
|
|
|
7
|
|
Section 5.8.
|
|
Litigation; Observance of Agreements, Statutes and Orders
|
|
|
7
|
|
Section 5.9.
|
|
Taxes
|
|
|
7
|
|
Section 5.10.
|
|
Title to Property; Leases
|
|
|
8
|
|
Section 5.11.
|
|
Licenses, Permits, Etc.
|
|
|
8
|
|
Section 5.12.
|
|
Compliance with ERISA
|
|
|
8
|
|
Section 5.13.
|
|
Private Offering by the Company
|
|
|
9
|
|
Section 5.14.
|
|
Use of Proceeds; Margin Regulations
|
|
|
9
|
|
Section 5.15.
|
|
Existing Debt; Future Liens
|
|
|
9
|
|
Section 5.16.
|
|
Foreign Assets Control Regulations, Etc.
|
|
|
10
|
|
Section 5.17.
|
|
Status under Certain Statutes
|
|
|
10
|
|
|
|
|
|
|
|
|
Section
|
|
Heading
|
|
Page
|
|
|
|
|
|
|
|
|
Section 5.18.
|
|
Environmental Matters
|
|
|
10
|
|
Section 5.19.
|
|
Guarantors
|
|
|
11
|
|
|
|
|
|
|
|
|
Section 6.
|
|
Representations of the Purchasers
|
|
|
11
|
|
|
|
|
|
|
|
|
Section 6.1.
|
|
Purchase for Investment
|
|
|
11
|
|
Section 6.2.
|
|
Source of Funds
|
|
|
12
|
|
|
|
|
|
|
|
|
Section 7.
|
|
Information as to Company
|
|
|
13
|
|
|
|
|
|
|
|
|
Section 7.1.
|
|
Financial and Business Information
|
|
|
13
|
|
Section 7.2.
|
|
Officers Certificate
|
|
|
16
|
|
Section 7.3.
|
|
Visitation
|
|
|
16
|
|
|
|
|
|
|
|
|
Section 8.
|
|
Payment and Prepayment of the Notes
|
|
|
17
|
|
|
|
|
|
|
|
|
Section 8.1.
|
|
Maturity
|
|
|
17
|
|
Section 8.2.
|
|
Optional Prepayments with Make-Whole Amount
|
|
|
17
|
|
Section 8.3.
|
|
Allocation of Partial Prepayments
|
|
|
17
|
|
Section 8.4.
|
|
Maturity; Surrender, Etc.
|
|
|
17
|
|
Section 8.5.
|
|
Purchase of Notes
|
|
|
17
|
|
Section 8.6.
|
|
Make-Whole Amount
|
|
|
18
|
|
Section 8.7.
|
|
Change in Control
|
|
|
19
|
|
|
|
|
|
|
|
|
Section 9.
|
|
Affirmative Covenants
|
|
|
20
|
|
|
|
|
|
|
|
|
Section 9.1.
|
|
Compliance with Law
|
|
|
20
|
|
Section 9.2.
|
|
Payment of Taxes and Claims
|
|
|
20
|
|
Section 9.3.
|
|
Corporate Existence, Etc.
|
|
|
20
|
|
Section 9.4.
|
|
Books and Records; Compliance
|
|
|
21
|
|
Section 9.5.
|
|
Guarantee Requirement
|
|
|
21
|
|
|
|
|
|
|
|
|
Section 10.
|
|
Negative Covenants
|
|
|
21
|
|
|
|
|
|
|
|
|
Section 10.1.
|
|
Transactions with Affiliates
|
|
|
21
|
|
Section 10.2.
|
|
Merger, Consolidation, Etc.
|
|
|
21
|
|
Section 10.3.
|
|
Line of Business
|
|
|
22
|
|
Section 10.4.
|
|
Terrorism Sanctions Regulations
|
|
|
22
|
|
Section 10.5.
|
|
Liens
|
|
|
22
|
|
Section 10.6.
|
|
Subsidiary Debt
|
|
|
23
|
|
Section 10.7.
|
|
Sale and Leaseback Transactions
|
|
|
23
|
|
Section 10.8.
|
|
Certain Restrictive Agreements
|
|
|
23
|
|
Section 10.9.
|
|
Leverage Ratio
|
|
|
24
|
|
Section 10.10.
|
|
Interest Coverage Ratio
|
|
|
24
|
|
|
|
|
|
|
|
|
Section 11.
|
|
Events of Default
|
|
|
24
|
|
|
|
|
|
|
|
|
Section 12.
|
|
Remedies on Default, Etc.
|
|
|
26
|
|
|
|
|
|
|
|
|
-ii-
|
|
|
|
|
|
|
Section
|
|
Heading
|
|
Page
|
|
|
|
|
|
|
|
|
Section 12.1.
|
|
Acceleration
|
|
|
26
|
|
Section 12.2.
|
|
Other Remedies
|
|
|
27
|
|
Section 12.3.
|
|
Rescission
|
|
|
27
|
|
Section 12.4.
|
|
No Waivers or Election of Remedies, Expenses, Etc.
|
|
|
27
|
|
|
|
|
|
|
|
|
Section 13.
|
|
Registration; Exchange; Substitution of Notes
|
|
|
27
|
|
|
|
|
|
|
|
|
Section 13.1.
|
|
Registration of Notes
|
|
|
27
|
|
Section 13.2.
|
|
Transfer and Exchange of Notes
|
|
|
28
|
|
Section 13.3.
|
|
Replacement of Notes
|
|
|
28
|
|
|
|
|
|
|
|
|
Section 14.
|
|
Payments on Notes
|
|
|
28
|
|
|
|
|
|
|
|
|
Section 14.1.
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Place of Payment
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28
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Section 14.2.
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Home Office Payment
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29
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Section 15.
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Expenses, Etc.
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29
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Section 15.1.
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Transaction Expenses
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29
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Section 15.2.
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Survival
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29
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Section 16.
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Survival of Representations and Warranties; Entire Agreement
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30
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Section 17.
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Amendment and Waiver
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30
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Section 17.1.
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Requirements
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30
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Section 17.2.
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Solicitation of Holders of Notes
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30
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Section 17.3.
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Binding Effect, etc.
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31
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Section 17.4.
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Notes Held by Company, etc.
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31
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Section 18.
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Notices
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31
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Section 19.
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Reproduction of Documents
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32
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Section 20.
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Confidential Information
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32
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Section 21.
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Substitution of Purchaser
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33
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Section 22.
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Miscellaneous
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33
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Section 22.1.
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Successors and Assigns
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33
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Section 22.2.
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Payments Due on Non-Business Days
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33
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Section 22.3.
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Accounting Terms
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34
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Section 22.4.
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Severability
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34
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Section 22.5.
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Construction, etc.
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34
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Section 22.6.
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Counterparts
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35
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Section 22.7.
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Governing Law
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35
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Section 22.8.
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Jurisdiction and Process; Waiver of Jury Trial
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35
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-iii-
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Section
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Heading
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Page
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Section 22.9.
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Release of Guarantors
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36
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Signature
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A-1
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-iv-
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Schedule A
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Information Relating to Purchasers
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Schedule B
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Defined Terms
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Schedule C
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List of Guarantors at Closing
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Schedule
5.3
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Disclosure Materials
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Schedule
5.4
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Subsidiaries of the Company and Ownership of Subsidiary Stock
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Schedule
5.15
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Existing Debt
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Exhibit
1-A
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Form of
3.75%
Senior Guaranteed Note, Series A, due February 1, 2015
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Exhibit 1-B
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Form of 5.00% Senior Guaranteed Note, Series B, due February 1, 2020
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Exhibit
4.4(a)
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Form of Opinion of Special Counsel for the Obligors
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Exhibit
4.4(b)
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Form of Opinion of Special Counsel for the Purchasers
|
-v-
Waters Corporation
34 Maple Street
Milford, MA 01757
3.75% Senior Guaranteed Notes, Series A, due February 1, 2015
and
5.00% Senior Guaranteed Notes, Series B, due February 1, 2020
February 1, 2010
To Each of the Purchasers Listed in
Schedule A Hereto
:
Ladies and Gentlemen:
Waters Corporation, a Delaware corporation (the
Company
), agrees with each of the purchasers
whose names appear at the end hereof (each, a
Purchaser
and, collectively, the
Purchasers
) as
follows:
Section 1.
|
|
Authorization of Notes
.
|
The Company will authorize the issue and sale of: (i) $100,000,000 aggregate principal amount
of its 3.75% Senior Guaranteed Notes, Series A, due February
1, 2015
(the
Series A
Notes
), and (ii) $100,000,000 aggregate principal amount of its 5.00% Senior Guaranteed Notes,
Series B, due February
1, 2020
(the
Series B Notes
and, together with the Series A
Notes, the
Notes
, such term to include any such notes of any series issued in substitution
therefor pursuant to Section 13). Each series of Notes issued hereunder is sometimes referred to
as a
series
of Notes. The Series A Notes and the Series B Notes shall be substantially in the
forms set out in Exhibits 1-A and 1-B, respectively. Certain capitalized and other terms used in
this Agreement are defined in Schedule B; and references to a Schedule or an Exhibit are,
unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.
Section 2.
|
|
Sale and Purchase of Notes
.
|
Subject to the terms and conditions of this Agreement, the Company will issue and sell to each
Purchaser and each Purchaser will purchase from the Company, at the respective Closings provided
for in Section 3, Notes of the series and in the principal amount specified opposite such
Purchasers name in Schedule A with respect to such Closing at the purchase price of 100% of the
principal amount thereof. The Purchasers obligations hereunder are several and not joint
obligations and no Purchaser shall have any liability to any Person for the performance or
non-performance of any obligation by any other Purchaser hereunder.
1
The performance and payment of all obligations of the Company hereunder and under the Notes
shall be guaranteed by the Guarantors pursuant to the Guarantee Agreement.
The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the
offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, IL 60603, at 10:00 a.m.,
Chicago time, at a closing (i) with respect to the Series A Notes, on February 1, 2010 or on such
other Business Day thereafter on or prior to February 4, 2010 as may be agreed upon by the Company
and the Purchasers (the
First Closing
) and (ii) with respect to the Series B Notes, on March 1,
2010 or on such other Business Day thereafter on or prior to March 4, 2010 as may be agreed upon by
the Company and the Purchasers (the
Second Closing
and, together with the First Closing, a
Closing
and, collectively, the
Closings
). At each Closing the Company will deliver to each
Purchaser the Notes of the respective series to be purchased by such Purchaser at the related
Closing in the form of a single Note (or such greater number of Notes in denominations of at least
$250,000 as such Purchaser may request) for each series dated the date of the related Closing and
registered in such Purchasers name (or in the name of its nominee), against delivery by such
Purchaser to the Company or its order of immediately available funds in the amount of the purchase
price therefor by wire transfer of immediately available funds for the account of the Company to
account number 000-15056-8 at HSBC Bank USA, N.A., 452 Fifth Avenue, New York, New York 10018-2706,
SWIFT MRMDUS33, ABA 021-001-088, Account Name: Waters Corporation. If at any Closing the Company
shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the
conditions specified in Section 4 with respect to such Closing shall not have been fulfilled to
such Purchasers satisfaction, such Purchaser shall, at its election, be relieved of all further
obligations under this Agreement, without thereby waiving any rights such Purchaser may have by
reason of such failure or such nonfulfillment.
Section 4.
|
|
Conditions to Closings
.
|
Each Purchasers obligation to purchase and pay for the Notes to be sold to such Purchaser at
each Closing is subject to the fulfillment to such Purchasers satisfaction, prior to or at each
Closing, of the following conditions:
Section 4.1. Representations and Warranties
. The representations and warranties of the
Company in this Agreement and of the Guarantors in the Guarantee Agreement shall be correct in all
material respects when made and at the time of each Closing except that, in the case of each of
Schedules 5.3, 5.4, and 5.15, such Schedules, or any of them, individually, may be amended by the
Company
provided
that each such amendment shall relate to any act, omission, facts or other
circumstance which occurred subsequent to the date of this Agreement (or, in the case of Schedule
5.15, subsequent to December 31, 2009) and prior to the date of the related Closing, and no such
amendment, individually, or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
Section 4.2. Performance; No Default
. Each Obligor shall have performed and complied with all
agreements and conditions contained in this Agreement or the Guarantee
2
Agreement, as the case may
be, required to be performed or complied with by it prior to or at each Closing and after giving
effect to the issue and sale of the Notes (and the application of the proceeds thereof as
contemplated by Section 5.14) no Default or Event of Default shall have occurred and be continuing.
Neither the Company nor any Subsidiary shall have entered into any transaction since the date of
the Memorandum that would have been prohibited by Section 10.1, 10.5, 10.6 or 10.7 had such
Sections applied since such date.
Section 4.3. Compliance Certificates
.
(a)
Officers Certificate
. Each Obligor shall have delivered to such Purchaser an Officers
Certificate, dated the date of the related Closing, certifying that the conditions specified in
Sections 4.1, 4.2 and 4.9 have been fulfilled.
(b)
Secretarys Certificate
. Each Obligor shall have delivered to such Purchaser a certificate
of its Secretary or Assistant Secretary, dated the date of the related Closing, certifying as to
the resolutions attached thereto and other corporate proceedings relating to the authorization,
execution and delivery of the Notes, this Agreement and the Guarantee Agreement, as the case may
be.
Section 4.4. Opinions of Counsel
. Such Purchaser shall have received opinions in form and
substance satisfactory to such Purchaser, dated the date of the related Closing (a) from Morgan,
Lewis & Bockius LLP and Bingham McCutchen LLP, respective counsel for the Obligors, covering the
matters set forth in Exhibits 4.4(a)(1) and 4.4(a)(2), respectively, and covering such other
matters incident to the transactions contemplated hereby as such Purchaser or its counsel may
reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the
Purchasers) and (b) from Chapman and Cutler LLP, the Purchasers special counsel in connection with
such transactions, substantially in the form set forth in Exhibit 4.4(b) and covering such other
matters incident to such transactions as such Purchaser may reasonably request.
Section 4.5. Purchase Permitted By Applicable Law, Etc
. On the date of each Closing such
Purchasers purchase of Notes shall (a) be permitted by the laws and regulations of each
jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section
1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies
without restriction as to the character of the particular investment, (b) not violate any
applicable law or regulation (including, without limitation, Regulation T, U or X of the Board) and
(c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable
law or regulation, which law or regulation was not in effect on the date hereof. If requested by
such Purchaser, such Purchaser shall have received an Officers Certificate certifying as to such
matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine
whether such purchase is so permitted.
Section 4.6. Sale of Other Notes
. Contemporaneously with each Closing the Company shall sell
to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at
such Closing as specified in Schedule A.
3
Section 4.7. Payment of Special Counsel Fees
. Without limiting the provisions of Section
15.1, the Company shall have paid on or before each Closing the reasonable fees, charges and
disbursements of the Purchasers special counsel referred to in Section 4.4 to the extent reflected
in a statement of such counsel rendered to the Company at least one Business Day prior to the
Closing.
Section 4.8. Private Placement Number
. A Private Placement Number issued by Standard & Poors
CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for each series of
Notes.
Section 4.9. Changes in Corporate Structure
. No Obligor shall have changed its jurisdiction
of incorporation or organization, as applicable, or been a party to any merger or consolidation or
succeeded to all or any substantial part of the liabilities of any other entity, at any time
following the date of the most recent financial statements referred to in Section 5.5 except in a
transaction wherein, the resulting entities shall be organized under the laws of the United States
or any state thereof and such transaction would have been permitted under Section 10.2.
Section 4.10. Funding Instructions
. At least three Business Days prior to the date of each
Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on
letterhead of the Company confirming the information specified in Section 3 including (i) the name
and address of the transferee bank, (ii) such transferee banks ABA number and (iii) the account
name and number into which the purchase price for the Notes is to be deposited.
Section 4.11. Guarantee Agreement
. The Guarantee Agreement shall have been executed and
delivered by each Guarantor as of the date of the First Closing and such Guarantee Agreement shall
be in full force and effect on the date of each Closing.
Section 4.12. First Closing Consummated
. In the case of the Second Closing, all of the
transactions contemplated herein with respect to the First Closing shall have been consummated in
accordance with the terms and provisions hereof.
Section 4.13. Proceedings and Documents
. All corporate and other proceedings in connection
with the transactions contemplated by this Agreement and all documents and instruments incident to
such transactions shall be satisfactory to such Purchaser and its special counsel, and such
Purchaser and its special counsel shall have received all such counterpart originals or certified
or other copies of such documents as such Purchaser or such special counsel may reasonably request.
Section 5.
|
|
Representations and Warranties of the Company
.
,
|
The Company represents and warrants to each Purchaser that:
Section 5.1. Organization; Power and Authority
. The Company is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
4
incorporation, and is
duly qualified as a foreign corporation and is in good standing in each jurisdiction in which such
qualification is required by law, other than those jurisdictions as to which the failure to be so
qualified or in good standing could not, individually or in the aggregate, reasonably be expected
to have a Material Adverse Effect. The Company has the corporate power and authority to own or
hold under lease the properties it purports to own or hold under lease, to transact the business it
transacts and proposes to transact, except where the failure to have such corporate power or
authority could not reasonably be expected to have a Material Adverse Effect. The Company has the
corporate power and authority to execute and deliver this Agreement and the Notes and to perform
the provisions hereof and thereof.
Section 5.2. Authorization, Etc
. This Agreement and the Notes have been duly authorized by
all necessary corporate action on the part of the Company, and this Agreement constitutes, and upon
execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except as such
enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws affecting the enforcement of creditors rights generally and (ii) general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law).
Section 5.3. Disclosure
. The Company, through its agents, J.P. Morgan Securities Inc. and
Banc of America Securities LLC, has delivered to each Purchaser a copy of a Private Placement
Memorandum, dated November 2009 (the
Memorandum
), relating to the transactions contemplated
hereby. The Memorandum fairly describes, in all material respects, the general nature of the
business and principal properties of the Company and its Subsidiaries. This Agreement, the
Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on
behalf of the Company in connection with the transactions contemplated hereby and identified in
Schedule 5.3 and the financial statements described in Section 5.5 (this Agreement, the Memorandum
and such documents, certificates or other writings, and such financial statements delivered to each
Purchaser prior to December 18, 2009 being referred to, collectively, as the
Disclosure
Documents
), taken as a whole, do not contain any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein not misleading in light of the
circumstances under which they were made
provided,
that with respect to projected financial
information, the Company represents only that such information was prepared in good faith based
upon assumptions believed to be reasonable at the time. Except as disclosed in the Disclosure
Documents, since December 31, 2008, there has been no change in the financial condition,
operations, business, properties or prospects of the Company or any Subsidiary except changes that
individually or in the aggregate could not reasonably be expected to have a Material
Adverse Effect. There is no fact known to the Company that could reasonably be expected to have a
Material Adverse Effect that has not, been set forth herein or in the Disclosure Documents.
Section 5.4. Organization and Ownership of Shares of Subsidiaries; Affiliates
. (a) Schedule
5.4 contains (except as noted therein) complete and correct lists (i) of the Companys
Subsidiaries, showing, as to each Subsidiary, the correct name thereof, the jurisdiction of its
organization, the percentage of shares of each class of its capital stock or similar equity
interests outstanding owned by the Company and each other Subsidiary and
5
whether such Subsidiary is
a Guarantor, (ii) to the knowledge of the Company, of the Companys Affiliates, other than
Subsidiaries, and (iii) of the Companys directors and senior officers.
(b) All of the outstanding shares of capital stock or similar equity interests of each
Subsidiary shown in Schedule 5.4 as being owned by the Company and its Subsidiaries have been
validly issued, are, in the case of Domestic Subsidiaries, fully paid and nonassessable and, in all
cases, are owned by the Company or another Subsidiary free and clear of any Lien other than a Lien
which would not be prohibited by Section 10.5.
(c) Each Subsidiary identified in Schedule 5.4 is a corporation or other legal entity duly
organized, validly existing and in good standing under the laws of its jurisdiction of
organization, and is duly qualified as a foreign corporation or other legal entity and is in good
standing in each jurisdiction in which such qualification is required by law, other than those
jurisdictions as to which the failure to be so qualified or in good standing could not,
individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. Each
such Subsidiary has the corporate or other power and authority to own or hold under lease the
properties it purports to own or hold under lease and to transact the business it transacts and
proposes to transact except where the failure to have such corporate or other power and authority
could not, individually or in the aggregate, reasonably be expected to have a Material Adverse
Effect.
(d) No Subsidiary is a party to, or otherwise subject to any Material legal, Material
regulatory, contractual or other restriction (other than this Agreement, the agreements listed on
Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting
the ability of such Subsidiary to pay dividends out of profits or make any other similar
distributions of profits to the Company or any of its Subsidiaries that owns outstanding shares of
capital stock or similar equity interests of such Subsidiary except for restrictions contained in
agreements or contracts which would be permitted by the provisions of Section 10.8.
Section 5.5. Financial Statements; Material Liabilities
. The Company has delivered to each
Purchaser copies of the financial statements of the Company and its consolidated Subsidiaries for
the fiscal year ended December 31, 2008 and for the fiscal quarter ended October 3, 2009. All of
said financial statements (including in each case the related schedules and notes) fairly present
in all material respects the consolidated financial position of the Company and its consolidated
Subsidiaries as of the respective dates specified in such financial statements and the consolidated
results of their operations and cash flows for the respective periods so specified and have been
prepared in accordance with GAAP consistently applied throughout the periods involved except as set
forth in the notes thereto (subject, in the case of any interim financial statements, to normal
year-end adjustments). The Company and its Subsidiaries do not have any Material liabilities
(relating to joint ventures, special purpose vehicles or other off-balance sheet liabilities which
relate to the incurrence or guarantee, directly or indirectly, by the Company or any Subsidiary of
any Debt) that are not disclosed on such financial statements or otherwise disclosed in the
Disclosure Documents.
Section 5.6. Compliance with Laws, Other Instruments, Etc
. The execution, delivery and
performance by the Company of this Agreement and the Notes will not (i) contravene, result in any
breach of, or constitute a default under, or result in the creation of any Lien in respect of
6
any
property of the Company or any Subsidiary under, any indenture, mortgage, deed of trust, loan,
purchase or credit agreement, lease, corporate charter or by-laws, or any other agreement or
instrument to which the Company or any Subsidiary is bound or by which the Company or any
Subsidiary or any of their respective properties may be bound or affected, (ii) conflict with or
result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or
ruling of any court, arbitrator or Governmental Authority applicable to the Company or any
Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any
Governmental Authority applicable to the Company or any Subsidiary, except in the case of any such
event relating to any Subsidiary which is not an Obligor described in any of clause (i), (ii) or
(iii) above, so long as any such event could not individually, or in the aggregate, reasonably be
expected to have a Material Adverse Effect.
Section 5.7. Governmental Authorizations, Etc
. No consent, approval or authorization of, or
registration, filing or declaration with, any Governmental Authority is required in connection with
the execution, delivery or performance by the Company of this Agreement or the Notes other than
filings that the Company may be required to make pursuant to the disclosure requirements of the
Securities Act, which filings, if any, shall be made on a timely basis by the Company.
Section 5.8. Litigation; Observance of Agreements, Statutes and Orders
. (a) There are no
actions, suits, investigations or proceedings pending or, to the knowledge of the Company,
threatened against or affecting the Company or any Subsidiary or any property of the Company or any
Subsidiary in any court or before any arbitrator of any kind or before or by any Governmental
Authority that, individually or in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(b) Neither the Company nor any Subsidiary is in default under any term of any agreement or
instrument to which it is a party or by which it is bound, or any order, judgment, decree or ruling
of any court, arbitrator or Governmental Authority or is in violation of any applicable law,
ordinance, rule or regulation (including without limitation Environmental Laws or the USA Patriot
Act) of any Governmental Authority, which default or violation, individually or in the aggregate,
could reasonably be expected to have a Material Adverse Effect.
Section 5.9. Taxes
. The Company and each Subsidiary has timely filed or caused to be filed
all tax returns and reports required to have been filed by the Company and each Subsidiary as the
case may be and the Company and each Subsidiary have paid or caused to be paid all taxes required
to be paid by such Person except (a) taxes that are being contested in good faith by appropriate
proceedings and for which the Company or such Subsidiary, as applicable, has set aside on its books
adequate reserves or (b) to the extent that the failure to make any such filing or payment could
not reasonably be expected to result in a Material Adverse Effect. To the knowledge of the
Company, the charges, accruals and reserves on the books of the Company and its Subsidiaries in
respect of Federal, State or other taxes for all fiscal periods are adequate in all material
respects. The Federal income tax liabilities of the Company and its Subsidiaries have been finally
determined (whether by reason of completed audits or the statute of limitations having run) for all
fiscal years up to and including the fiscal year ended December 31, 1998.
7
Section 5.10. Title to Property; Leases
. The Company and its Subsidiaries have good and
sufficient title to their respective properties that individually or in the aggregate are Material,
including all such properties reflected in the most recent audited balance sheet referred to in
Section 5.5 or purported to have been acquired by the Company or any Subsidiary after said date
(except as sold or otherwise disposed of in the ordinary course of business), in each case free and
clear of Liens prohibited by Section 10.5 of this Agreement. All leases that individually or in
the aggregate are Material are valid and subsisting and are in full force and effect in all
material respects except where the failure to be so valid and subsisting and in full force and
effect could not reasonable be expected, individually or in the aggregate, to have a Material
Adverse Effect.
Section 5.11. Licenses, Permits, Etc
. (a) The Company and its Subsidiaries own or possess all
licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service
marks, trademarks and trade names, or rights thereto, without known conflict with the rights of
others, except where the failure to own or possess any of the foregoing could not reasonably be
expected, individually or in the aggregate, to have a Material Adverse Effect.
(b) To the knowledge of the Company, no product of the Company or any of its Subsidiaries
infringes any license, permit, franchise, authorization, patent, copyright, proprietary software,
service mark, trademark, trade name or other right owned by any other Person except any such
infringement which could not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
(c) To the knowledge of the Company, there is no violation by any Person of any right of the
Company or any of its Subsidiaries with respect to any patent, copyright, proprietary software,
service mark, trademark, trade name or other right owned or used by the Company or any of its
Subsidiaries except any such violation which could not, individually or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
Section 5.12. Compliance with ERISA
. (a) The Company and each ERISA Affiliate have operated
and administered each
Plan in compliance with all applicable laws except for such instances of noncompliance as have not
resulted in and could not reasonably be expected to result in a Material Adverse Effect.
(b) No ERISA Event has occurred or is reasonably expected to occur that, when taken together
with all other such ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect.
(c) The present value of all accumulated benefit obligations under each Plan (based on the
assumptions used for purposes of Statement of Financial Accounting Standards No. 87, as amended, or
any successor standard) did not, as of the date of the most recent financial statements reflecting
such amounts, exceed the fair market value of the assets of such Plan by an amount that could
reasonably be expected to result in a Material Adverse Effect, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market value of
8
the assets of
all such underfunded Plans by an amount that could reasonably be expected to result in a Material
Adverse Effect.
(d) The execution and delivery of this Agreement and the issuance and sale of the Notes
hereunder will not involve any transaction that is subject to the prohibitions of section 406 of
ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of
the Code. The representation by the Company to each Purchaser in the first sentence of this
Section 5.12(d) is made in reliance upon and subject to the accuracy of such Purchasers
representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the
Notes to be purchased by such Purchaser.
Section 5.13. Private Offering by the Company
. Neither the Company nor anyone acting on its
behalf has offered the Notes or any similar securities for sale to, or solicited any offer to buy
any of the same from, or otherwise approached or negotiated in respect thereof with, any person
other than the Purchasers and not more than 70 other Institutional Investors, each of which has
been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on
its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes
to the registration requirements of Section 5 of the Securities Act or to the registration
requirements of any securities or blue sky laws of any applicable jurisdiction.
Section 5.14. Use of Proceeds; Margin Regulations
. The Company will apply the proceeds of the
sale of the Notes for general corporate purposes of the Company and its Subsidiaries, including
repayment of Debt. No part of the proceeds from the sale of the Notes hereunder will be used,
directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning
of Regulation U of the Board (12 CFR 221), or for the purpose of buying or carrying or trading in
any securities under such circumstances as to involve the Company in a violation of Regulation X of
said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said
Board (12 CFR 220). Margin stock does not constitute more than 5.00% of the value of the
consolidated assets of the Company and its Subsidiaries and the Company does
not have any present intention that margin stock will constitute more than 5.00% of the value of
such assets. For the purposes of making the calculation pursuant to the preceding sentence, to the
extent consistent with Regulation U, Treasury Stock shall be deemed not to be an asset of the
Company and its Subsidiaries. As used in this Section, the terms
margin stock
and
purpose of
buying or carrying
shall have the meanings assigned to them in said Regulation U.
Section 5.15. Existing Debt; Future Liens
. (a) Except as described therein, Schedule 5.15
sets forth a complete and correct list of all outstanding Debt of the Company and its Subsidiaries
as of November 28, 2009 (including a description of the obligors and obligees, principal amount
outstanding and collateral therefor, if any, and Guaranty thereof, if any and the aggregate
committed amount of any facility) which, individually, relates to a committed or outstanding
principal amount of not less than $20,000,000, since which date there has been no Material change
in the amounts (except for changes in outstanding amounts under revolving credit facilities which
do not exceed the aggregate committed amount thereunder), interest rates, sinking funds,
installment payments or maturities of the Debt of the Company or its Subsidiaries. Neither the
Company nor any Subsidiary is in default and no waiver of default is currently in
9
effect, in the
payment of any principal or interest on any Debt of the Company or such Subsidiary which,
individually, relates to a committed or outstanding principal amount of not less than $20,000,000
and no event or condition exists with respect to any such Debt of the Company or any Subsidiary
that would permit (or that with notice or the lapse of time, or both, would permit) one or more
Persons to cause such Debt to become due and payable before its stated maturity or before its
regularly scheduled dates of payment.
(b) Except as disclosed in Schedule 5.15, neither the Company nor any Subsidiary has agreed or
consented to cause or permit in the future (upon the happening of a contingency or otherwise) any
of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by
Section 10.5.
(c) Neither the Company nor any Subsidiary is a party to, or otherwise subject to any
provision contained in, any instrument evidencing Debt of the Company or such Subsidiary, any
agreement relating thereto or any other agreement (including, but not limited to, its charter or
other organizational document) which limits the amount of, or otherwise imposes restrictions on the
incurring of, the Notes or any Debt of the Company which, individually, relates to an aggregate
committed or outstanding principal amount of not less than $20,000,000, except as specifically
indicated in Schedule 5.15.
Section 5.16. Foreign Assets Control Regulations, Etc
. (a) Neither the sale of the Notes by
the Company hereunder nor its use of the proceeds thereof will violate the Trading with the Enemy
Act, as amended, or any of the foreign assets control regulations of the United States Treasury
Department (31 CFR, Subtitle B, Chapter V, as amended) or any enabling legislation or executive
order relating thereto.
(b) Neither the Company nor any Subsidiary (i) is a Person described or designated in the
Specially Designated Nationals and Blocked Persons List of the Office of Foreign Assets
Control or in Section 1 of the Anti-Terrorism Order or (ii) engages in any dealings or transactions
with any such Person. The Company and its Subsidiaries are in compliance, in all material
respects, with the USA Patriot Act.
(c) No part of the proceeds from the sale of the Notes hereunder will be used, directly or
indirectly, for any payments to any governmental official or employee, political party, official of
a political party, candidate for political office, or anyone else acting in an official capacity,
in order to obtain, retain or direct business or obtain any improper advantage, in violation of the
United States Foreign Corrupt Practices Act of 1977, as amended, assuming in all cases that such
Act applies to the Company.
Section 5.17. Status under Certain Statutes
. Neither the Company nor any Subsidiary is
subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility
Holding Company Act of 2005, as amended, or the Federal Power Act, as amended.
Section 5.18. Environmental Matters
. (a) Neither the Company nor any Subsidiary has knowledge
of any claim or has received any notice of any claim, and no proceeding has been instituted raising
any claim against the Company or any of its Subsidiaries or any of their
10
respective real properties
now or formerly owned, leased or operated by any of them or other assets, alleging any damage to
the environment or violation of any Environmental Laws, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
(b) Neither the Company nor any Subsidiary has knowledge of any facts which would give rise to
any claim, public or private, of violation of Environmental Laws or damage to the environment
emanating from, occurring on or in any way related to real properties now or formerly owned, leased
or operated by any of them or to other assets or their use, except, in each case, such as could not
reasonably be expected to result in a Material Adverse Effect.
(c) Neither the Company nor any Subsidiary has stored any Hazardous Materials on real
properties now or formerly owned, leased or operated by any of them and has not disposed of any
Hazardous Materials in a manner contrary to any Environmental Laws in each case in any manner that
could reasonably be expected to result in a Material Adverse Effect; and
(d) All buildings on all real properties now owned, leased or operated by the Company or any
Subsidiary are in compliance with applicable Environmental Laws, except where failure to comply
could not reasonably be expected to result in a Material Adverse Effect.
Section 5.19. Guarantors
. The Guarantors include each Subsidiary of the Company other than
Excluded Subsidiaries and newly-acquired or created Domestic Subsidiaries that are not yet required
to become Guarantors under the definition of Guarantee Requirement. Each Subsidiary which is a
guarantor or borrower under the Primary Credit Agreement and is a Domestic Subsidiary is a
Guarantor hereunder.
Section 6.
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Representations of the Purchasers
.
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Section 6.1. Purchase for Investment
. Each Purchaser severally represents that (i) it is an
accredited investor within the meaning of Rule 501(a) under the Securities Act, (ii) its
financial condition is such that it is able to bear all economic risk of investment in the Notes,
including, a complete list of its investment therein, (iii) to its knowledge, the Company has
provided it with adequate access to financial and other information concerning the Company as it
has requested and it has had the opportunity to ask questions of and receive answers from the
Company concerning the transactions contemplated hereby and (iv) it is purchasing the Notes for its
own account or for one or more separate accounts maintained by such Purchaser or for the account of
one or more pension or trust funds and not with a view to any distribution thereof,
provided
that
the disposition of such Purchasers or their property shall at all times be within such Purchasers
or their control. Each Purchaser understands that the Notes have not been registered under the
Securities Act and may be resold only if registered, or for sale in connection with, pursuant to
the provisions of the Securities Act or if an exemption from registration is available and that the
Company is not required to register the Notes.
11
Section 6.2. Source of Funds
. Each Purchaser severally represents that at least one of the
following statements is an accurate representation as to each source of funds (a Source) to be
used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser
hereunder:
(a) the Source is an insurance company general account (as the term is defined in the
United States Department of Labors Prohibited Transaction Exemption (
PTE
) 95-60) in
respect of which the reserves and liabilities (as defined by the annual statement for life
insurance companies approved by the National Association of Insurance Commissioners (the
NAIC Annual Statement
)) for the general account contract(s) held by or on behalf of any
employee benefit plan together with the amount of the reserves and liabilities for the
general account contract(s) held by or on behalf of any other employee benefit plans
maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the
same employee organization in the general account do not exceed 10% of the total reserves
and liabilities of the general account (exclusive of separate account liabilities) plus
surplus as set forth in the NAIC Annual Statement filed with such Purchasers state of
domicile; or
(b) the Source is a separate account that is maintained solely in connection with such
Purchasers fixed contractual obligations under which the amounts payable, or credited, to
any employee benefit plan (or its related trust) that has any interest in such separate
account (or to any participant or beneficiary of such plan (including any annuitant)) are
not affected in any manner by the investment performance of the separate account; or
(c) the Source is either (i) an insurance company pooled separate account, within the
meaning of PTE 90-1 or (ii) a bank collective investment fund, within the
meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in
writing pursuant to this clause (c), no employee benefit plan or group of plans maintained
by the same employer or employee organization beneficially owns more than 10% of all assets
allocated to such pooled separate account or collective investment fund; or
(d) the Source constitutes assets of an investment fund (within the meaning of Part V
of PTE 84-14 (the
QPAM Exemption
)) managed by a qualified professional asset manager or
QPAM (within the meaning of Part V of the QPAM Exemption), no employee benefit plans
assets that are included in such investment fund, when combined with the assets of all other
employee benefit plans established or maintained by the same employer or by an affiliate
(within the meaning of Section V(c)(1) of the QPAM Exemption) of such employer or by the
same employee organization and managed by such QPAM, exceed 20% of the total client assets
managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are
satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the
definition of control in Section V(e) of the QPAM Exemption) owns a 5% or more interest in
the Company and (i) the identity of such QPAM and (ii) the names of all employee benefit
plans whose assets are included in such investment fund have been disclosed to the Company
in writing pursuant to this clause (d); or
12
(e) the Source constitutes assets of a plan(s) (within the meaning of Section IV of
PTE 96-23 (the
INHAM Exemption
)) managed by an in-house asset manager or INHAM (within
the meaning of Part IV of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of
the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled
by the INHAM (applying the definition of control in Section IV(d) of the INHAM Exemption)
owns a 5% or more interest in the Company and (i) the identity of such INHAM and (ii) the
name(s) of the employee benefit plan(s) whose assets constitute the Source have been
disclosed to the Company in writing pursuant to this clause (e); or
(f) the Source is a governmental plan; or
(g) the Source is one or more employee benefit plans, or a separate account or trust
fund comprised of one or more employee benefit plans, each of which has been identified to
the Company in writing pursuant to this clause (g); or
(h) the Source does not include assets of any employee benefit plan, other than a plan
exempt from the coverage of ERISA.
As used in this Section 6.2, the terms
employee benefit plan, governmental plan,
and
separate
account
shall have the respective meanings assigned to such terms in section 3 of ERISA.
Section 7.
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|
Information as to Company
.
|
Section 7.1. Financial and Business Information
. The Company shall deliver to each holder of
Notes that is an Institutional Investor:
(a)
Quarterly Statements
within 60 days (or such shorter period as is 15 days
greater than the period applicable to the filing of the Companys Quarterly Report on Form
10-Q (the
Form 10-Q
) with the SEC regardless of whether the Company is subject to the
filing requirements thereof) after the end of each quarterly fiscal period in each fiscal
year of the Company (other than the last quarterly fiscal period of each such fiscal year),
duplicate copies of,
(i) a consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such quarter, and
(ii) consolidated statements of income and changes in financial position (or
consolidated statements of cash flow, as the case may be) of the Company and its
consolidated Subsidiaries, for such quarter and (in the case of the second and third
quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in
the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP
13
applicable to quarterly financial statements generally, and certified by a Senior Financial
Officer as fairly presenting, in all material respects, the financial position of the
companies being reported on and their results of operations and cash flows, subject to
changes resulting from year-end adjustments,
provided
that delivery within the time period
specified above of copies of the Companys Form 10-Q prepared in compliance with the
requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of
this Section 7.1(a),
provided, further,
that the Company shall be deemed to have made such
delivery of such Form 10-Q if it shall have timely made such Form 10-Q available on EDGAR
and on its home page on the worldwide web (at the date of this Agreement located at:
http//www.waters.com
) and shall have given each Purchaser prior notice (which may include by
email to any holder of Notes which has provided to the Company an email address for such
notice under this Section 7.1(a)) of such availability on EDGAR and on its home page in
connection with each delivery (such availability and notice thereof being referred to as
Electronic Delivery
);
(b)
Annual Statements
within 105 days (or such shorter period as is 15 days greater
than the period applicable to the filing of the Companys Annual Report on Form 10-K (the
Form 10-K
) with the SEC regardless of whether the Company is subject to the filing
requirements thereof) after the end of each fiscal year of the Company, duplicate copies of
(i) a consolidated balance sheet of the Company and its consolidated
Subsidiaries as at the end of such year, and
(ii) consolidated statements of income and shareholders equity and changes in
financial position of the Company and its consolidated Subsidiaries for such year,
setting forth in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail, prepared in accordance with GAAP, and accompanied by a report thereon
of independent public accountants of recognized national standing, which opinion shall state
that such financial statements present fairly, in all material respects, the financial
position of the companies being reported upon and their results of operations and changes in
financial position and have been prepared in conformity with GAAP, and that the examination
of such accountants in connection with such financial statements has been made in accordance
with generally accepted auditing standards, and that such audit provides a reasonable basis
for such opinion in the circumstances,
provided
that the delivery within the time period specified above of the Companys Form 10-K
for such fiscal year (together with the Companys annual report to shareholders, if any,
prepared pursuant to Rule 14a-3 under the Exchange Act), prepared in accordance with the
requirements therefor and filed with the SEC, shall be deemed to satisfy the requirements of
this Section 7.1(b),
provided, further,
that the Company shall be deemed to have made such
delivery of such Form 10-K if it shall have timely made Electronic Delivery thereof;
14
(c)
SEC and Other Reports
promptly upon there becoming available, copies of all
reports on Form 10-K and Form 10-Q, and proxy materials the Company files with the SEC under
the Securities Exchange Act of 1934, as amended,
provided,
that the Company shall be deemed
to have made such delivery of such reports and materials if it shall have made timely
Electronic Delivery thereof;
(d)
Notice of Default or Event of Default
promptly, and in any event within five
days after a Responsible Officer becoming aware of the existence of any Default or Event of
Default or that any Person has given any notice or taken any action with respect to a
claimed default hereunder or that any Person has given any notice or taken any action with
respect to a claimed default of the type referred to in Section 11(f), a written notice
specifying the nature and period of existence thereof and what action the Company is taking
or proposes to take with respect thereto;
(e)
ERISA Matters
. (i) With respect to each fiscal year for which the Company or any
ERISA Affiliate shall have an aggregate Unfunded Liability of $20,000,000 or more for all of
its Plans and all Multiemployer Plans, as soon as available, and in any event within ten
months after the end of such fiscal year, a statement of Unfunded Liabilities of each such
Plan or Multiemployer Plan, certified as correct by an actuary enrolled in accordance with
regulations under ERISA and a statement of estimated Withdrawal Liability as of the most
recent plan year end as customarily
prepared by the trustees under the Multiemployer Plans to which the Company or any ERISA
Affiliate has an obligation to contribute; and
(ii) as soon as possible, and in any event within 30 days after the occurrence of each
event the Company knows is or may be a reportable event (as defined in Section 4043 of
ERISA, but excluding any reportable event with respect to which the 30-day reporting
requirement has been waived) with respect to any Plan or Multiemployer Plan with an Unfunded
Liability in excess of $20,000,000, a statement signed by the Senior Financial Officer of
the Company describing such reportable event and the action which the Company proposes to
take with respect thereto;
(f)
Notices from Governmental Authority
promptly, and in any event within 30 days of
receipt thereof, copies of any notice to the Company or any Subsidiary from any Federal or
state Governmental Authority relating to any order, ruling, statute or other law or
regulation that could reasonably be expected to have a Material Adverse Effect; and
(g)
Requested Information
with reasonable promptness, such other data and
information relating to the business, operations, affairs, financial condition, assets or
properties of the Company or any of its Subsidiaries (including, but without limitation,
actual copies of the Companys Form 10-Q and Form 10-K) or relating to the ability of the
Company to perform its obligations hereunder and under the Notes as from time to time may be
reasonably requested by any such holder of Notes.
15
Section 7.2. Officers Certificate
. Each set of financial statements delivered to a holder of
Notes pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a
Senior Financial Officer setting forth (which, in the case of Electronic Delivery of any such
financial statements, shall be by separate concurrent delivery of such certificate to each holder
of Notes):
(a)
Covenant Compliance
the information (including reasonably detailed calculations)
required in order to establish whether the Company was in compliance with the requirements
of Section 10.5 through 10.7 and Sections 10.9 and 10.10, during the quarterly or annual
period covered by the statements then being furnished (including with respect to each such
Section, where applicable, the calculations of the maximum or minimum amount, ratio or
percentage, as the case may be, permissible under the terms of such Sections, and the
calculation of the amount, ratio or percentage then in existence); and
(b)
Event of Default
(i) a statement that such Senior Financial Officer has reviewed
the relevant terms hereof, (ii) a statement that no Default or Event of Default exists or,
if any does exist, stating the nature and status thereof and describing the action the
Company has taken or proposes to take with respect thereto, and (iii) identifying the
Subsidiaries, if any, that are
Excluded Subsidiaries
under clause (c) of the definition of
such term.
Section 7.3. Visitation
. The Company shall permit the representatives of each holder of Notes
that is an Institutional Investor:
(a)
No Default
if no Default or Event of Default then exists during normal business
hours, at the expense of such holder and upon reasonable prior notice to the Company, to
visit during normal business hours the principal executive office of the Company, to discuss
the affairs, finances and accounts of the Company and its Subsidiaries with the Companys
officers, and (with the consent of the Company) its independent public accountants, and
(with the consent of the Company) to visit during normal business hours the other offices
and properties of the Company and each Subsidiary, all at such reasonable times and as often
as may be reasonably requested in writing; and
(b)
Default
if a Default or Event of Default then exists, at the expense of the
Company to visit during normal business hours and inspect any of the offices or properties
of the Company or any Subsidiary, to examine all their respective books of account, records,
reports and other papers, to make copies and extracts therefrom, and to discuss their
respective affairs, finances and accounts with their respective officers and independent
public accountants (and by this provision the Company authorizes said accountants to discuss
the affairs, finances and accounts of the Company and its Subsidiaries), all at such times
and as often as may be requested.
16
Section 8.
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Payment and Prepayment of the Notes
.
|
Section 8.1. Maturity
. As provided therein, the entire unpaid principal balance of each
series of Notes shall be due and payable on the stated maturity date of such series.
Section 8.2. Optional Prepayments with Make-Whole Amount
. The Company may, at its option,
upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes,
in an amount not less than 10% of the aggregate principal amount of the Notes then outstanding in
the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole
Amount determined for the prepayment date with respect to such principal amount. The Company will
give each holder of Notes written notice of each optional prepayment under this Section 8.2 not
less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such
notice shall specify such date (which shall be a Business Day), the aggregate principal amount of
the Notes to be prepaid on such date, the principal amount of each Note held by such holder to be
prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment
date with respect to such principal amount being prepaid, and shall be accompanied by a certificate
of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such
prepayment (calculated as if the date of such notice were the date of the prepayment), setting
forth the details of such computation. Two Business Days prior to such prepayment, the Company
shall deliver to each
holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such
Make-Whole Amount as of the specified prepayment date.
Section 8.3. Allocation of Partial Prepayments
. In the case of each partial prepayment of the
Notes pursuant to Section 8.2, the principal amount of the Notes to be prepaid shall be allocated
among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the
respective unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.4. Maturity; Surrender, Etc
.
In the case of each prepayment of Notes pursuant to
this Section 8, the principal amount of each Note to be prepaid shall mature and become due and
payable on the date fixed for such prepayment (which shall be a Business Day), together with
interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if
any. From and after such date, unless the Company shall fail to pay such principal amount when so
due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest
on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be
surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in
lieu of any prepaid principal amount of any Note.
Section 8.5. Purchase of Notes
. The Company will not and will not permit any Controlled
Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the
outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the
terms of this Agreement and the Notes or (b) pursuant to an offer to purchase made by the Company
or a Controlled Affiliate pro rata to the holders of all Notes at the time outstanding upon the
same terms and conditions. Any such offer shall provide each holder with sufficient information to
enable it to make an informed decision with respect to such offer, and shall remain open for at
least 20 Business Days. If the holders of more than 25% of the principal
17
amount of the Notes then
outstanding accept such offer, the Company shall promptly notify the remaining holders of such fact
and the expiration date for the acceptance by holders of Notes of such offer shall be extended by
the number of days necessary to give each such remaining holder at least 10 Business Days from its
receipt of such notice to accept such offer. The Company will promptly cancel all Notes acquired
by it or any Controlled Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant
to any provision of this Agreement and no Notes may be issued in substitution or exchange for any
such Notes.
Section 8.6. Make-Whole Amount
.
Make-Whole Amount
means, with respect to any Note of any series, an amount equal to the
excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the
Called Principal of such Note over the amount of such Called Principal,
provided
that the
Make-Whole Amount may in no event be less than zero. For the purposes of determining the
Make-Whole Amount, the following terms have the following meanings:
Called Principal
means, with respect to any Note of any series, the principal of such Note
that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due
and payable pursuant to Section 12.1, as the context requires.
Discounted Value
means, with respect to the Called Principal of any Note of any series, the
amount obtained by discounting all Remaining Scheduled Payments with respect to such Called
Principal from their respective scheduled due dates to the Settlement Date with respect to such
Called Principal, in accordance with accepted financial practice and at a discount factor (applied
on the same periodic basis as that on which interest on the Notes is payable) equal to the
Reinvestment Yield with respect to such Called Principal.
Reinvestment Yield
means, with respect to the Called Principal of any Note, 0.50% over the
yield to maturity implied by (i) the yields reported as of 10:00 a.m. (New York City time) on the
second Business Day preceding the Settlement Date with respect to such Called Principal, on the
display designated as Page PX1 (or such other display as may replace Page PX1) on Bloomberg
Financial Markets for the most recently issued actively traded on the run U.S. Treasury securities
having a maturity equal to the Remaining Average Life of such Called Principal as of such
Settlement Date, or
(ii) if such yields are not reported as of such time or the yields
reported as of such time are not ascertainable (including by way of interpolation), the Treasury
Constant Maturity Series Yields reported, for the latest day for which such yields have been so
reported as of the second Business Day preceding the Settlement Date with respect to such Called
Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication)
for U.S. Treasury securities having a constant maturity equal to the Remaining Average Life of such
Called Principal as of such Settlement Date.
In the case of each determination under clause (i) or clause (ii), as the case may be, of the
preceding paragraph, such implied yield will be determined, if necessary, by (a) converting U.S.
Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice
and (b) interpolating linearly between (1) the applicable U.S. Treasury security with the maturity
closest to and greater than such Remaining Average Life and (2) the applicable
18
U.S. Treasury
security with the maturity closest to and less than such Remaining Average Life. The Reinvestment
Yield shall be rounded to the number of decimal places as appears in the interest rate of the
applicable Note.
Remaining Average Life
means, with respect to any Called Principal, the number of years
(calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into
(ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining
Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to
the nearest one-twelfth year) that will elapse between the Settlement Date with respect to such
Called Principal and the scheduled due date of such Remaining Scheduled Payment.
Remaining Scheduled Payments
means, with respect to the Called Principal of any Note, all
payments of such Called Principal and interest thereon that would be due after the Settlement Date
with respect to such Called Principal if no payment of such Called Principal were made prior to its
scheduled due date,
provided
that if such Settlement Date is not a date on
which interest payments are due to be made under the terms of the Notes, then the amount of
the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to
such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or
Section 12.1.
Settlement Date
means, with respect to the Called Principal of any Note, the date on which
such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be
immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7. Change in Control
.
(a)
Notice of Change in Control
. The Company will, within five (5) Business Days after the
occurrence of any Change in Control, give written notice (the
Change of Control Notice
) of such
Change in Control to each holder of Notes. Such Change of Control Notice shall contain and
constitute an offer to prepay the Notes as described in Section 8.7(c) hereof and shall be
accompanied by the certificate described in Section 8.7(e).
(b)
Offer to Prepay Notes
. The offer to prepay Notes contemplated by paragraph (a) of this
Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section 8.3, all,
but not less than all, the Notes held by each holder (in this case only, holder in respect of any
Note registered in the name of a nominee for a disclosed beneficial owner shall mean such
beneficial owner) on a date specified in such Change of Control Notice (the
Proposed Prepayment
Date
). Such date shall be not less than 30 days and not more than 90 days after the date of such
offer.
(c)
Acceptance
. A holder of Notes may accept the offer to prepay made pursuant to this
Section 8.7 by causing a notice of such acceptance to be delivered to the Company not later than 10
days prior to the Proposed Prepayment Date. A failure by a holder of Notes to respond to an offer
to prepay made pursuant to this Section 8.3 shall be deemed to constitute a rejection of such offer
by such holder.
19
(d)
Prepayment
. Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be
at 100% of the principal amount of the Notes together with accrued and unpaid interest thereon but
without any Make-Whole Amount. The prepayment shall be made on the Proposed Prepayment Date.
(e)
Officers Certificate
. Each offer to prepay the Notes pursuant to this Section 8.7 shall
be accompanied by a certificate, executed by the Senior Financial Officer of the Company and dated
the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made
pursuant to this Section 8.7; (iii) the principal amount of each Note offered to be prepaid (which
shall be 100% of each such Note); (iv) the interest that would be due on each Note offered to be
prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.7 have
been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change
in Control.
(f)
Certain Definitions. Change in Control
means (a) the acquisition of ownership, directly
or indirectly, beneficially or of record, by any Person or group (within the meaning of the
Securities Exchange Act of 1934, as amended, and the rules of the Securities and Exchange
Commission thereunder as in effect on the date hereof) of shares representing more than 30% of the
aggregate ordinary voting power represented by the issued and outstanding capital stock of the
Company; or (b) occupation of a majority of the seats (other than vacant seats) on the board of
directors of the Company by Persons who were not (i) directors of the Company on the date hereof,
(ii) nominated by the board of directors of the Company or (iii) appointed by directors so
nominated.
Section 9.
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Affirmative Covenants
.
|
The Company covenants that so long as any of the Notes are outstanding:
Section 9.1. Compliance with Law
. Without limiting Section 10.4, the Company will, and will
cause each of its Subsidiaries to, comply with the requirements of all applicable laws, rules,
regulations and orders of any Governmental Authority (including, without limitation, all
Environmental Laws), noncompliance with which could reasonably be expected to result in a Material
Adverse Effect.
Section 9.2. Payment of Taxes and Claims
. The Company will, and will cause each of its
Subsidiaries to, pay and discharge, before the same shall become delinquent, (i) all material
taxes, assessments and governmental charges or levies imposed upon it or upon its income, profit or
property, and (ii) all material lawful claims which, if unpaid, might by law become a lien upon its
property;
provided, however,
that neither the Company nor any Subsidiary shall be required to pay
or discharge any such tax, assessment, charge or claim which is being contested in good faith and
by proper proceedings and with respect to which the Company shall have established appropriate
reserves in accordance with GAAP.
Section 9.3. Corporate Existence, Etc
. Subject to Section 10.2, the Company will at all times
preserve and maintain, and cause each Subsidiary to preserve and maintain, its legal existence and
the rights, licenses, permits, privileges and franchises material to the conduct of its
20
business,
except to the extent that failures to keep in effect such rights, licenses, permits, privileges,
franchises and, in the case of Subsidiaries only, legal existence could not, individually or in the
aggregate, reasonably be expected to result in a Material Adverse Effect,
provided
that the
foregoing shall not prohibit any merger, consolidation, liquidation or dissolution not prohibited
under Section 10.2.
Section 9.4. Books and Records; Compliance
. (a) The Company will, and will cause each of its
Subsidiaries to, keep proper books of record and account in all material respects, in which full
and correct entries shall be made of all financial transactions and the assets and business of the
Company and each Subsidiary in accordance with GAAP consistently applied.
(b) For purposes of determining compliance with the financial covenants contained in this
Agreement, any election by the Company to measure an item of Debt using fair value (as permitted by
Statement of Financial Accounting Standards No. 159 or any similar accounting standard) shall be
disregarded and such determination shall be made as if such election had not been made.
Section 9.5. Guarantee Requirement.
The Company will cause the Guarantee Requirement to be
satisfied at all times.
Section 10.
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Negative Covenants
.
|
The Company covenants that so long as any of the Notes are outstanding:
Section 10.1. Transactions with Affiliates
. The Company will not and will not permit any
Subsidiary to enter into directly or indirectly any Material transaction or Material group of
related transactions (including without limitation the purchase, lease, sale or exchange of
properties of any kind or the rendering of any service) with any Affiliate (other than the Company
or another Subsidiary), except pursuant to the reasonable requirements of the Companys or such
Subsidiarys business and upon such terms as are determined in good faith by the Company to be
reasonable.
Section 10.2. Merger, Consolidation, Etc
. (a) The Company will not merge or consolidate with
or into, or transfer or permit the transfer of all or substantially all its consolidated assets to,
any Person (including by means of one or more mergers or consolidations of or transfers of assets
by Subsidiaries), except that the Company may merge or consolidate with any US Corporation if (i)
the Company shall be the surviving corporation in such merger or consolidation, (ii) immediately
after giving effect thereto no Default shall have occurred and be continuing and (iii) the Company
shall be in compliance with the covenants set forth in Sections 10.9 and 10.10 as of and for the
most recently ended period of four fiscal quarters for which financial statements shall have been
delivered pursuant to Section 7.01, giving pro forma effect to such merger or consolidation and any
related incurrence of Debt as if they had occurred at the beginning of such period, and the holders
of the Notes shall have received a certificate of the chief financial officer of the Company
setting forth computations demonstrating such compliance.
21
(b) The Company will not permit any Material Subsidiary to merge or consolidate with or
into, or transfer all or substantially all its assets to, any Person, except that (i) any Material
Subsidiary may merge into or transfer all or substantially all its assets to the Company, (ii) any
Material Subsidiary may merge or consolidate with or transfer all or substantially all its assets
to any Subsidiary;
provided
that if either constituent corporation in such merger or consolidation,
or the transferor of such assets, shall be a Guarantor, then the surviving or resulting corporation
or the transferee of such assets, as the case may be, must be or at the time of such transaction
become a Guarantor and (iii) so long as, at the time of and immediately after giving effect to such
transaction, no Default shall have occurred and be continuing, any Material Subsidiary may merge or
consolidate with or transfer all or substantially all its assets to any Person other than the
Company or a Subsidiary so long as such transaction would not be prohibited by Section 10.2(a)(iii)
above. Notwithstanding the foregoing, nothing in this Section 10.2(b) shall (a) so long as, at the
time of and immediately after giving effect to such transaction, no Event of Default shall have
occurred and be continuing, prohibit the Company or any Subsidiary from (i) transferring any assets
of such Person to acquire Foreign Subsidiaries, (ii) making capital or working capital
contributions to Foreign Subsidiaries in the ordinary course of business, or (iii) selling or
otherwise disposing of assets to a Foreign Subsidiary on arms-length terms (as determined in good
faith by the Company or the applicable Subsidiary) or (b) require any Foreign Subsidiary to become
a Guarantor hereunder.
(c) The Company will not permit any Domestic Subsidiary other than Excluded Subsidiaries which
are described in clause (c) of the definition of
Excluded Subsidiaries
) to become a subsidiary of
a Foreign Subsidiary;
provided
that nothing in this Section 10.2(c) shall prevent the Company from
acquiring, directly or indirectly, any Person that at the time of and immediately after giving
effect to such acquisition would constitute a Foreign Subsidiary and would own any Domestic
Subsidiary not acquired by it in contemplation of such acquisition.
For purposes of this Section 10.2, Treasury Stock to the extent constituting Margin Stock shall be
deemed not to be an asset of the Company.
Section 10.3. Line of Business
. The Company will not fail to be engaged in the business
conducted by the Company and the Subsidiaries on the date hereof to an extent such that the
character of the business conducted by the Company and the Subsidiaries on the date hereof, taken
as a whole, shall be materially changed.
Section 10.4. Terrorism Sanctions Regulations
. The Company will not and will not permit any
Subsidiary to (a) become a Person described or designated in the Specially Designated Nationals and
Blocked Persons List of the Office of Foreign Assets Control or in Section 1 of the Anti-Terrorism
Order or (b) engage in any dealings or transactions with any such Person.
Section 10.5. Liens
. (a) The Company will not create, incur, assume or permit to exist, or
permit any Subsidiary to create, incur, assume or permit to exist, any Lien on any property or
asset now owned or hereafter acquired by it securing
Debt unless, after giving effect thereto, the sum of (without duplication) (i) all Debt secured by
all such Liens (other than any such Debt secured by Liens outstanding on the date hereof and
described on Schedule 5.15), (ii) the
22
principal amount of all Debt of Subsidiaries that are not
Guarantors permitted by Section 10.6(c) and (iii) all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Sale and Leaseback Transactions entered into at the time the
property subject thereto is acquired or within 90 days thereafter) permitted by Section 10.7, does
not at any time exceed the greater of $150,000,000 or 15% of Consolidated Net Tangible Assets. For
the purpose of this Section 10.5, Treasury Stock to the extent constituting Margin Stock shall be
deemed not to be an asset of the Company and its Subsidiaries.
(b) The Company agrees that neither it nor any of its Subsidiaries shall use any capacity
under Section 10.5(a) above to secure any amounts owed or outstanding under any Primary Credit
Agreement unless the obligations of the Company under the Notes and this Agreement and the
obligations of the Guarantors under the Guarantee Agreements are also concurrently equally and
ratably secured pursuant to documentation in form and substance reasonably satisfactory to the
Required Holders (including, but not limited to, documentation such as security agreements and
other necessary or desirable collateral agreements, an intercreditor agreement and an opinion of
independent legal counsel).
Section 10.6. Subsidiary Debt
. The Company will not permit any Subsidiary that is not a
Guarantor to create, incur, assume or permit to exist any Debt, except:
(a) Debt existing on the date hereof and set forth in Schedule 5.15 and extensions,
renewals and replacements of any such Debt that do not increase the outstanding principal
amount thereof;
(b) Debt to the Company or any other Subsidiary; and
(c) other Debt;
provided
that the sum of (without duplication) (i) the principal amount
of all Debt permitted by this clause (c), (ii) the principal amount of all Debt secured by
Liens permitted by Section 10.5(a) and (iii) all Attributable Debt in respect of Sale and
Leaseback Transactions (other than Sale and Leaseback Transactions entered into at the time
the property subject thereto is acquired or within 90 days thereafter) permitted by Section
10.7 does not at any time exceed the greater of $150,000,000 or 15% of Consolidated Net
Tangible Assets.
Section 10.7. Sale and Leaseback Transactions.
The Company will not enter into or be party
to, or permit any Subsidiary to enter into or be party to, any Sale and Leaseback Transaction
(other than any Sale and Leaseback Transaction entered into at the time the property subject
thereto is acquired or within 90 days thereafter) unless after giving effect thereto the sum of
(without duplication) (i) all Attributable Debt permitted by this Section 10.7, (ii) the principal
amount of all Debt of Subsidiaries that are not Guarantors permitted by Section 10.6(c) and (iii)
the principal amount of all Debt secured by Liens permitted by Section 10.5(i) does not exceed the
greater of $150,000,000 or 15% of Consolidated Net Tangible Assets.
Section 10.8. Certain Restrictive Agreements
. The Company will not enter into, or permit any
Subsidiary to enter into, any contract or other agreement that would limit the ability of any
Subsidiary to pay dividends or make loans or advances
to, or to repay loans or advances
23
from, the
Company or any other Subsidiary, other than (i) customary non-assignment provisions in any lease or
sale agreement relating to the assets that are the subject of such lease or sale agreement, (ii)
any restrictions binding on a Person acquired by the Company at the time of such acquisition, which
restriction is applicable solely to the Person so acquired and its subsidiaries and was not entered
into in contemplating of such acquisition, (iii) in connection with any secured Debt permitted
under Section 10.5, customary restrictions on the transfer of the Collateral securing such Debt and
(iv) in connection with any other Debt permitted under Section 10.5 or 10.6 if and so long as the
exception described in this clause (iv) is permitted pursuant to the Primary Credit Agreement.
Section 10.9. Leverage Ratio
. The Company will not permit the Leverage Ratio as of the end of
any fiscal quarter to exceed 3.50:1.00.
Section 10.10. Interest Coverage Ratio
. The Company will not permit the Interest Coverage
Ratio as of the end of any fiscal quarter for any period of four consecutive fiscal quarters to be
less than 3.50:1.00.
Section 11.
Events of Default
.
An
Event of Default
shall exist if any of the following conditions or events shall occur and
be continuing:
(a) the Company defaults in the payment of any principal or Make-Whole Amount, if any,
on any Note when the same becomes due and payable, whether at maturity or at a date fixed
for prepayment or by declaration or otherwise; or
(b) the Company defaults in the payment of any interest on any Note for more than five
Business Days after the same becomes due and payable; or
(c) (i) the Company defaults in the performance of or compliance with any term
contained in Section 7.1(d) or Sections 10.5 through 10.10, inclusive, or (ii) any Guarantor
defaults in the performance or compliance with any term of the Guarantee Agreement; or
(d) the Company defaults in the performance of or compliance with any term contained
herein (other than those referred to in Sections 11(a), (b) and (c)) and such default is not
remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual
knowledge of such default and (ii) the Company receiving written notice of such default from
any holder of a Note (any such written notice to be identified as a notice of default and
to refer specifically to this Section 11(d)); or
(e) any representation or warranty made in writing by or on behalf of an Obligor or by
any officer of an Obligor in this Agreement or the Guarantee Agreement or in any writing
furnished in connection with the transactions contemplated hereby proves to have been false
or incorrect in any material respect on the date as of which made; or
24
(f) (i) the Company or any Subsidiary is in default (as principal or as guarantor or
other surety) in the payment of any principal of or premium or make-whole amount or interest
on any Debt that is outstanding in an aggregate principal amount of at least $20,000,000
beyond any period of grace provided with respect thereto, or (ii) the Company or any
Subsidiary is in default in the performance of or compliance with any term of any evidence
of any Debt in an aggregate outstanding principal amount of at least $20,000,000 or of any
mortgage, indenture or other agreement relating thereto or any other condition exists, and
as a consequence of such default or condition such Debt has become, or has been declared (or
one or more Persons are entitled to declare such Debt to be), due and payable before its
stated maturity or before its regularly scheduled dates of payment, or (iii) as a
consequence of the occurrence or continuation of any event or condition (other than the
passage of time or the right of the holder of Debt to convert such Debt into equity
interests), (x) the Company or any Subsidiary has become obligated to purchase or repay Debt
before its regular maturity or before its regularly scheduled dates of payment in an
aggregate outstanding principal amount of at least $20,000,000, or (y) one or more Persons
have the right to require the Company or any Subsidiary so to purchase or repay such Debt;
or
(g) the Company or any Subsidiary (i) is generally not paying, or admits in writing its
inability to pay, its debts as they become due, (ii) files, or consents by answer or
otherwise to the filing against it of, a petition for relief or reorganization or
arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any
bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction,
(iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment
of a custodian, receiver, trustee or other officer with similar powers with respect to it or
with respect to any substantial part of its property, (v) is adjudicated as insolvent or to
be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or
(h) a court or Governmental Authority of competent jurisdiction enters an order
appointing, without consent by the Company or any of its Subsidiaries, a custodian,
receiver, trustee or other officer with similar powers with respect to it or with respect to
any substantial part of its property, or constituting an order for relief or approving a
petition for relief or reorganization or any other petition in bankruptcy or for liquidation
or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering
the dissolution, winding-up or liquidation of the Company or any of its Subsidiaries, or any
such petition shall be filed against the Company or any of its Subsidiaries and such
petition shall not be dismissed within 60 days; or
(i) a final judgment or judgments for the payment of money aggregating in excess of
$20,000,000 are rendered against one or more of the Company and its
Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded,
discharged or stayed pending appeal, or are not discharged within 60 days after the
expiration of such stay; or
25
(j) either (i) the PBGC shall terminate any Plan that provides benefits for employees
of the Company or any ERISA Affiliate and such Plan shall have an Unfunded Liability in an
amount in excess of $20,000,000 at such time, (ii) Withdrawal Liability shall be assessed
against the Company or any ERISA Affiliate in connection with any Multiemployer Plan
(whether under Section 4203 or Section 4205 of ERISA) and such Withdrawal Liability shall be
an amount in excess of $20,000,000 or (iii) the aggregate amount of unfunded benefit
liabilities (within the meaning of section 4001(a)(18) of ERISA) under all Plans,
determined in accordance with Title IV of ERISA, shall exceed $20,000,000 and such amount
could reasonably be expected to have a Material Adverse Effect; or
(k) the guarantee of any Guarantor under a Guarantee Agreement shall not be (or shall
be asserted by the Company or any Guarantor not to be) valid or in full force and effect.
Section 12.
Remedies on Default, Etc
.
Section 12.1. Acceleration
. (a) If an Event of Default with respect to the Company described
in Section 11(g) or (h) (other than an Event of Default described in clause (i) of Section 11(g) or
described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause
(i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become
immediately due and payable.
(b) If any other Event of Default has occurred and is continuing, any holder or holders of
more than 50% in principal amount of the Notes at the time outstanding may at any time at its or
their option, by notice or notices to the Company, declare all the Notes then outstanding to be
immediately due and payable.
(c) If any Event of Default described in Section 11(a) or (b) has occurred and is continuing,
any holder or holders of Notes at the time outstanding affected by such Event of Default may at any
time, at its or their option, by notice or notices to the Company, declare all the Notes held by it
or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by
declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes,
plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued
thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal
amount (to the full extent permitted by applicable law), shall all be immediately due and payable,
in each and every case without presentment, demand, protest or further notice, all of which are
hereby waived. The Company acknowledges, and the parties hereto agree, that each holder of a Note
has the right to maintain its investment in the Notes free
from repayment by the Company (except as herein specifically provided for) and that the
provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid
or are accelerated as a result of an Event of Default, is intended to provide compensation for the
deprivation of such right under such circumstances.
26
Section 12.2. Other Remedies
. If any Default or Event of Default has occurred and is
continuing, and irrespective of whether any Notes have become or have been declared immediately due
and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to
protect and enforce the rights of such holder by an action at law, suit in equity or other
appropriate proceeding, whether for the specific performance of any agreement contained herein or
in any Note or in any Guarantee Agreement, or for an injunction against a violation of any of the
terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law
or otherwise.
Section 12.3. Rescission
. At any time after any Notes have been declared due and payable
pursuant to Section 12.1(b) or (c), the holders of not less than 51% in principal amount of the
Notes then outstanding, by written notice to the Company, may rescind and annul any such
declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all
principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid
other than by reason of such declaration, and all interest on such overdue principal and Make-Whole
Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of
the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any
amounts which have become due solely by reason of such declaration, (c) all Events of Default and
Defaults, other than non-payment of amounts that have become due solely by reason of such
declaration, have been cured or have been waived pursuant to Section 17, and (d) no judgment or
decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No
rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of
Default or Default or impair any right consequent thereon.
Section 12.4. No Waivers or Election of Remedies, Expenses, Etc
. No course of dealing and no
delay on the part of any holder of any Note in exercising any right, power or remedy shall operate
as a waiver thereof or otherwise prejudice such holders rights, powers or remedies. No right,
power or remedy conferred by this Agreement or by any Note upon any holder thereof shall be
exclusive of any other right, power or remedy referred to herein or therein or now or hereafter
available at law, in equity, by statute or otherwise. Without limiting the obligations of the
Company under Section 15, the Company will pay to the holder of each Note on demand such further
amount as shall be sufficient to cover all costs and expenses of such holder incurred in any
enforcement or collection under this Section 12, including, without limitation, reasonable
attorneys fees, expenses and disbursements.
Section 13.
Registration; Exchange; Substitution of Notes
.
Section 13.1. Registration of Notes
. The Company shall keep at its principal executive office
a register for the registration and registration of transfers of Notes. The name and address of
each holder of one or more Notes, each transfer thereof and the name and address of each transferee
of one or more Notes shall be registered in such register. Prior to due presentment for
registration of transfer, the Person in whose name any Note shall be registered shall be deemed and
treated as the owner and holder thereof for all purposes hereof, and the Company shall not be
affected by any notice or knowledge to the contrary. The Company shall give to any holder of a
Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy
of the names and addresses of all registered holders of Notes.
27
Section 13.2. Transfer and Exchange of Notes
. Upon surrender of any Note to the Company at
the address and to the attention of the designated officer (all as specified in Section 18(iii)),
for registration of transfer or exchange (and in the case of a surrender for registration of
transfer accompanied by a written instrument of transfer duly executed by the registered holder of
such Note or such holders attorney duly authorized in writing and accompanied by the relevant
name, address and other information for notices of each transferee of such Note or part thereof),
within ten Business Days thereafter, the Company shall execute and deliver, at the Companys
expense (except as provided below), one or more new Notes (as requested by the holder thereof) in
exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the
surrendered Note. Each such new Note shall be payable to such Person as such holder may request
and shall be substantially in the form of Exhibit 1-A with respect to the Series A Notes and
Exhibit 1-B with respect to the Series B Notes. Each such new Note shall be dated and bear
interest from the date to which interest shall have been paid on the surrendered Note or dated the
date of the surrendered Note if no interest shall have been paid thereon. The Company may require
payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any
such transfer of Notes. Notes shall not be transferred in denominations of less than $250,000,
provided that if necessary to enable the registration of transfer by a holder of its entire holding
of Notes, one Note may be in a denomination of less than $250,000. Any transferee, by its
acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have
made the representation set forth in Section 6.2.
Section 13.3. Replacement of Notes
. Upon receipt by the Company at the address and to the
attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably
satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note
(which evidence shall be, in the case of an Institutional Investor, notice from such Institutional
Investor of such ownership and such loss, theft, destruction or mutilation), and
(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to
it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser
or another holder of a Note with a minimum net worth of at least
$25,000,000 or a Qualified Institutional Buyer, such Persons own unsecured agreement of
indemnity shall be deemed to be satisfactory), or
(b) in the case of mutilation, upon surrender and cancellation thereof,
within ten Business Days thereafter, the Company at its own expense shall execute and deliver, in
lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have
been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen,
destroyed or mutilated Note if no interest shall have been paid thereon.
Section 14.
Payments on Notes
.
Section 14.1. Place of Payment
. Subject to Section 14.2, payments of principal, Make-Whole
Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New
York at the principal office of JP Morgan Chase NA in such jurisdiction.
28
The Company may at any
time, by notice to each holder of a Note, change the place of payment of the Notes so long as such
place of payment shall be either the principal office of the Company in such jurisdiction or the
principal office of a bank or trust company in such jurisdiction.
Section 14.2. Home Office Payment
. So long as any Purchaser or its nominee shall be the
holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the
contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount,
if any, and interest by the method and at the address specified for such purpose below such
Purchasers name in Schedule A, or by such other method or at such other address as such Purchaser
shall have from time to time specified to the Company in writing for such purpose, without the
presentation or surrender of such Note or the making of any notation thereon, except that upon
written request of the Company made concurrently with or reasonably promptly after payment or
prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation,
reasonably promptly after any such request, to the Company at its principal executive office or at
the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to
any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will,
at its election, either endorse thereon the amount of principal paid thereon and the last date to
which interest has been paid thereon or surrender such Note to the Company in exchange for a new
Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2
to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a
Purchaser under this Agreement and that has made the same agreement relating to such Note as the
Purchasers have made in this Section 14.2.
Section 15.
Expenses, Etc
.
Section 15.1. Transaction Expenses
.
Whether or not the transactions contemplated hereby are
consummated, the Company will pay all reasonable and documented costs and expenses (including
reasonable and documented attorneys fees of a special counsel and, if reasonably required by the
Required Holders, local or
other counsel) incurred by the Purchasers and each other holder of a Note in connection with such
transactions and in connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes effective),
including, without limitation: (a) the reasonable costs and expenses incurred in enforcing or
defending (or determining whether or how to enforce or defend) any rights under this Agreement or
the Notes or in responding to any subpoena or other legal process or informal investigative demand
issued in connection with this Agreement or the Notes, or by reason of being a holder of any Note
and (b) the reasonable costs and expenses, including financial advisors fees, incurred in
connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with
any work-out or restructuring of the transactions contemplated hereby and by the Notes. The
Company will pay, and will save each Purchaser and each other holder of a Note harmless from, all
claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those,
if any, retained by a Purchaser or other holder in connection with its purchase of the Notes).
Section 15.2. Survival
.
The obligations of the Company under this Section 15 will survive the
payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this
Agreement or the Notes, and the termination of this Agreement.
29
Section 16.
Survival of Representations and Warranties; Entire Agreement
.
All representations and warranties contained herein shall survive the execution and delivery
of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion
thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent
holder of a Note, regardless of any investigation made at any time by or on behalf of such
Purchaser or any other holder of a Note. All statements contained in any certificate or other
instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed
representations and warranties of the Company under this Agreement. Subject to the preceding
sentence, this Agreement and the Notes embody the entire agreement and understanding between each
Purchaser and the Company and supersede all prior agreements and understandings relating to the
subject matter hereof.
Section 17.
Amendment and Waiver
.
Section 17.1. Requirements
.
This Agreement and the Notes may be amended, and the observance
of any term hereof or of the Notes may be waived (either retroactively or prospectively), with (and
only with) the written consent of the Company and the Required Holders, except that (a) no
amendment or waiver of any of the provisions of Section 1, 2, 3, 4, 5, 6 or 21 hereof, or any
defined term (as it is used therein), will be effective as to any Purchaser unless consented to by
such Purchaser in writing, and (b) no such amendment or waiver may, without the written consent of
the holder of each Note at the time outstanding affected thereby, (i) subject to the provisions of
Section 12 relating
to acceleration or rescission, change the amount or time of any prepayment or payment of principal
of, or reduce the rate or change the time of payment or method of computation of interest or of the
Make-Whole Amount on, the Notes, (ii) change the percentage of the principal amount of the Notes
the holders of which are required to consent to any such amendment or waiver, or (iii) amend any of
Sections 8, 11(a), 11(b), 12, 17 or 20.
Section 17.2. Solicitation of Holders of Notes
.
(a)
Solicitation.
The Company will provide each holder of the Notes (irrespective of the
amount of Notes then owned by it) with sufficient information, sufficiently far in advance of the
date a decision is required, to enable such holder to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or
of the Notes. The Company will deliver executed or true and correct copies of each amendment,
waiver or consent effected pursuant to the provisions of this Section 17 to each holder of
outstanding Notes promptly following the date on which it is executed and delivered by, or receives
the consent or approval of, the requisite holders of Notes.
(b)
Payment.
The Company will not directly or indirectly pay or cause to be paid any
remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any
security or provide other credit support, to any holder of Notes as consideration for or as an
inducement to the entering into by any holder of Notes of any waiver or amendment of any of the
terms and provisions hereof unless such remuneration is concurrently paid, or security is
concurrently granted or other credit support concurrently provided, on the same terms, ratably to
30
each holder of Notes then outstanding even if such holder did not consent to such waiver or
amendment.
(c)
Consent in Contemplation of Transfer
. Any consent made pursuant to this Section 17 by the
holder of any Note that has transferred or has agreed to transfer such Note to the Company, any
Subsidiary or any Affiliate of the Company and has provided or has agreed to provide such written
consent as a condition to such transfer shall be void and of no force or effect except solely as to
such holder, and any amendments effected or waivers granted or to be effected or granted that would
not have been or would not be so effected or granted but for such consent (and the consents of all
other holders of Notes that were acquired under the same or similar conditions) shall be void and
of no force or effect except solely as to such transferring holder.
Section 17.3. Binding Effect, etc
.
Any amendment or waiver consented to as provided in this
Section 17 applies equally to all holders of Notes and is binding upon them and upon each future
holder of any Note and upon the Company without regard to whether such Note has been marked to
indicate such amendment or waiver. No such amendment or waiver will extend to or affect any
obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or
impair any right consequent thereon. No course of dealing between the Company and the holder of
any Note nor any delay in exercising any rights hereunder or under any Note shall operate as a
waiver of any
rights of any holder of such Note. As used herein, the term this Agreement and references
thereto shall mean this Agreement as it may from time to time be amended or supplemented.
Section 17.4. Notes Held by Company, etc
.
Solely for the purpose of determining whether the
holders of the requisite percentage of the aggregate principal amount of Notes then outstanding
approved or consented to any amendment, waiver or consent to be given under this Agreement or the
Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon
the direction of the holders of a specified percentage of the aggregate principal amount of Notes
then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall
be deemed not to be outstanding.
Section 18.
Notices
.
All notices and communications provided for hereunder shall be in writing and sent (a) by
telecopy if the sender on the same day sends a confirming copy of such notice by a recognized
overnight delivery service (charges prepaid), or (b) by registered or certified mail with return
receipt requested (postage prepaid), or (c) by a recognized overnight delivery service (with
charges prepaid). Any such notice must be sent:
(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address
specified for such communications in Schedule A, or at such other address as such Purchaser
or nominee shall have specified to the Company in writing,
(ii) if to any other holder of any Note, to such holder at such address as such other
holder shall have specified to the Company in writing, or
31
(iii) if to the Company, to the Company at its address set forth at the beginning
hereof to the attention of John E. Lynch, or at such other address as the Company shall have
specified to the holder of each Note in writing.
Notices under this Section 18 will be deemed given only when actually received.
Section 19.
Reproduction of Documents
.
This Agreement and all documents relating thereto, including, without limitation, (a)
consents, waivers and modifications that may hereafter be executed, (b) documents received by any
Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates
and other information previously or hereafter furnished to any Purchaser, may be reproduced by such
Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such
Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that,
to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as
the original itself in any judicial or administrative proceeding (whether or not the original is in
existence and whether or not such reproduction was made by such Purchaser in the regular course of
business) and any enlargement, facsimile or
further reproduction of such reproduction shall likewise be admissible in evidence. This
Section 19 shall not prohibit the Company or any other holder of Notes from contesting any such
reproduction to the same extent that it could contest the original, or from introducing evidence to
demonstrate the inaccuracy of any such reproduction.
Section 20.
Confidential Information
.
For the purposes of this Section 20, Confidential Information means information delivered to
any Purchaser by or on behalf of the Company or any Subsidiary in connection with the transactions
contemplated by or otherwise pursuant to this Agreement
provided
that such term does not include
information that (a) was publicly known or otherwise known to such Purchaser prior to the time of
such disclosure not as a result of any violation of this Section 20 which violation was known by
such Purchaser, (b) subsequently becomes publicly known through no act or omission by such
Purchaser or any person acting on such Purchasers behalf, (c) otherwise becomes known to such
Purchaser other than through disclosure by the Company or any Subsidiary not as a result of any
violation of this Section 20 which violation was known by such Purchaser or (d) constitutes
financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly
available. Each Purchaser will maintain the confidentiality of such Confidential Information in
accordance with procedures adopted by such Purchaser in good faith to protect confidential
information of third parties delivered to such Purchaser, provided that such Purchaser may deliver
or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys,
trustees and affiliates (to the extent such disclosure reasonably relates to the administration of
the investment represented by its Notes), (ii) its financial advisors and other professional
advisors who agree to hold confidential the Confidential Information substantially in accordance
with the terms of this Section 20, (iii) any other holder of any Note, (iv) any Institutional
Investor to which it sells or offers to sell such Note or any part thereof or any participation
therein (if such Person has agreed in writing prior to its receipt of such Confidential Information
to be bound by the provisions of this Section 20),
32
(v) any Person from which it offers to purchase
any security of the Company (if such Person has agreed in writing prior to its receipt of such
Confidential Information to be bound by the provisions of this Section 20), (vi) any federal or
state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or,
in each case, any similar organization, or any nationally recognized rating agency that requires
access to information about such Purchasers investment portfolio, or (viii) any other Person to
which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any
law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or
other legal process, (y) in connection with any litigation to which such Purchaser is a party or
(z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may
reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement
or for the protection of the rights and remedies under such Purchasers Notes and this Agreement.
Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by
and to be entitled to the benefits of this Section 20 as though it were a party to this Agreement.
On reasonable request by the Company in connection with the delivery to any holder of a Note of
information required to be delivered to such holder under this Agreement or requested by such
holder (other
than a holder that is a party to this Agreement or its nominee), such holder will enter into
an agreement with the Company embodying the provisions of this Section 20.
Section 21.
Substitution of Purchaser
.
Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser
of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which
notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliates
agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the
accuracy with respect to it of the representations set forth in Section 6. Upon receipt of such
notice, any reference to such Purchaser in this Agreement (other than in this Section 21), shall be
deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such
Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to
such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company
of notice of such transfer, any reference to such Affiliate as a Purchaser in this Agreement
(other than in this Section 21), shall no longer be deemed to refer to such Affiliate, but shall
refer to such original Purchaser, and such original Purchaser shall again have all the rights of an
original holder of the Notes under this Agreement.
Section 22.
Miscellaneous
.
Section 22.1. Successors and Assigns
.
All covenants and other agreements contained in this
Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their
respective successors and assigns (including, without limitation, any subsequent holder of a Note)
whether so expressed or not.
Section 22.2. Payments Due on Non-Business Days
.
Anything in this Agreement or the Notes to
the contrary notwithstanding (but without limiting the requirement in Section 8.4 that the notice
of any optional prepayment specify a Business Day as the date fixed for such prepayment), any
payment of principal of or Make-Whole Amount or interest on any Note that is
33
due on a date other
than a Business Day shall be made on the next succeeding Business Day without including the
additional days elapsed in the computation of the interest payable on such next succeeding Business
Day; provided that if the maturity date of any Note is a date other than a Business Day, the
payment otherwise due on such maturity date shall be made on the next succeeding Business Day and
shall include the additional days elapsed in the computation of interest payable on such next
succeeding Business Day.
Section 22.3. Accounting Terms
.
(a) All accounting terms used herein which are not expressly
defined in this Agreement have the meanings respectively given to them in accordance with GAAP.
Except as otherwise specifically provided herein, (i) all computations made pursuant to this
Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be
prepared in accordance with GAAP.
(b) If the Company notify the holders of Notes that, in the Companys reasonable opinion, or
if the Required Holders notify the Company that, in the Required Holders reasonable opinion, as a
result of changes in applicable GAAP after the date of this Agreement (
Subsequent Changes
), any
of the covenants contained in Sections 10.5 through 10.10, inclusive, or any of the defined terms
used therein no longer apply as intended such that such covenants are materially more or less
restrictive to the Company than as at the date of this Agreement, the Company and the holders of
Notes shall negotiate in good faith to reset or amend such covenants or defined terms so as to
negate such Subsequent Changes, or to establish alternative covenants or defined terms. Until the
Company and the Required Holders so agree to reset, amend or establish alternative covenants or
defined terms, the covenants contained in Sections 10.5 through 10.10, inclusive, together with the
relevant defined terms, shall continue to apply and compliance therewith shall be determined
assuming that the Subsequent Changes shall not have occurred (
Static GAAP
). During any period
that compliance with any covenants shall be determined pursuant to Static GAAP, the Company shall
include relevant reconciliations in reasonable detail between then applicable GAAP and Static GAAP
with respect to the applicable covenant compliance calculations contained in each certificate of a
Senior Financial Officer delivered pursuant to Section 7.2(a) during such period.
Section 22.4. Severability
.
Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by
law) not invalidate or render unenforceable such provision in any other jurisdiction.
Section 22.5. Construction, etc
.
Each covenant contained herein shall be construed (absent
express provision to the contrary) as being independent of each other covenant contained herein, so
that compliance with any one covenant shall not (absent such an express contrary provision) be
deemed to excuse compliance with any other covenant. Where any provision herein refers to action
to be taken by any Person, or which such Person is prohibited from taking, such provision shall be
applicable whether such action is taken directly or indirectly by such Person.
34
For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be
deemed to be a part hereof.
Section 22.6. Counterparts
.
This Agreement may be executed in any number of counterparts,
each of which shall be an original but all of which together shall constitute one instrument. Each
counterpart may consist of a number of copies hereof, each signed by less than all, but together
signed by all, of the parties hereto.
Section 22.7. Governing Law
.
This Agreement shall be construed and enforced in accordance
with, and the rights of the parties shall be governed by, the law of the State of New York
excluding choice-of-law principles of the law of such State that would permit the application of
the laws of a jurisdiction other than such State.
Section 22.8. Jurisdiction and Process; Waiver of Jury Trial
.
(a) The Company irrevocably
submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the
Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or
relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the
Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise,
any claim that it is not subject to the jurisdiction of any such court, any objection that it may
now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in
any such court and any claim that any such suit, action or proceeding brought in any such court has
been brought in an inconvenient forum.
(b) The Company consents to process being served by or on behalf of any holder of Notes in any
suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof
by registered or certified mail (or any substantially similar form of mail), postage prepaid,
return receipt requested, to it at its address specified in Section 18 or at such other address of
which such holder shall then have been notified pursuant to said Section. The Company agrees that
such service upon receipt (i) shall be deemed in every respect effective service of process upon it
in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by
applicable law, be taken and held to be valid personal service upon and personal delivery to it.
Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt
furnished by the United States Postal Service or any reputable commercial delivery service.
(c) Nothing in this Section 22.8 shall affect the right of any holder of a Note to serve
process in any manner permitted by law, or limit any right that the holders of any of the Notes may
have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to
enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.
(d)
The parties hereto hereby waive trial by jury in any action brought on or with respect
to this Agreement, the Notes or any other document executed in connection herewith or
therewith.
35
Section 22.9. Release of Guarantors
. Notwithstanding any contrary provision herein or in the
Notes or in any Guarantee Agreement, if the Company shall request the release under a Guarantee
Agreement of any Subsidiary to be sold or otherwise disposed of (including through the sale or
disposition of any Subsidiary owning such Subsidiary) to a Person other than the Company or a
Subsidiary in a transaction permitted under the terms of this Agreement and shall deliver to the
holders of the Notes a certificate to the effect that (i) such sale or other disposition will
comply with the terms of this Agreement and (ii) such Subsidiary shall not be a guarantor or
obligor under a Primary Credit Agreement the holders of the Notes, without further right of
consent, shall execute and deliver all such instruments, releases or other agreements, and take all
such further actions, as shall be necessary to effectuate the release of such Subsidiary at the
time of or at any time after the completion of such sale or other disposition.
* * * * *
36
If you are in agreement with the foregoing, please sign the form of agreement on a
counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a
binding agreement between you and the Company.
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Very truly yours,
Waters Corporation
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By
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/s/ John Ornell
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Name:
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John Ornell
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Title:
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Chief Financial Officer,
Vice President-Finance and
Administration, Assistant Treasurer
and Assistant Secretary
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Schedule A
(to Note Purchase Agreement)
A-1
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Hartford Life Insurance Company
Hartford Fire Insurance Company
Hartford Accident and Indemnity Company
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By:
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Hartford Investment Management Company, their Agent and
Attorney-in-Fact
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By
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/s/ Ralph D. Witt
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Name:
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Ralph D. Witt
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Title:
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Vice President
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A-2
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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The Northwestern Mutual Life Insurance
Company
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By
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/s/ Richard A. Strait
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Name:
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Richard A. Strait
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Its
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Authorized Representative
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A-3
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Massachusetts Mutual Life Insurance
Company
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By:
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Babson Capital Management LLC
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as Investment Adviser
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By
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/s/ Mark B. Ackerman
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Name:
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Mark B. Ackerman
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Title:
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Managing Director
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C.M. Life Insurance Company
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By:
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Babson Capital Management LLC
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as Investment Adviser
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By
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/s/ Mark B. Ackerman
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Name:
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Mark B. Ackerman
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Title:
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Managing Director
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MassMutual Asia Limited
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By:
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Babson Capital Management LLC
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as Investment Adviser
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By
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/s/ Mark B. Ackerman
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Name:
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Mark B. Ackerman
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Title:
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Managing Director
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A-4
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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The Lincoln National Life Insurance
Company
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By:
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Delaware Investment Advisers, a series of
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Delaware Management Business Trust,
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Attorney-In-Fact
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By
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/s/ Edward J. Brennan
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Name:
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Edward J. Brennan
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Title:
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Vice President
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Lincoln Life & Annuity Company of New
York
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By:
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Delaware Investment Advisers, a series of
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Delaware Management Business Trust,
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Attorney-In-Fact
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By
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/s/ Edward J. Brennan
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Name:
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Edward J. Brennan
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Title:
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Vice President
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A-5
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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New York Life Insurance Company
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By
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/s/ Colleen C. Cooney
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Name:
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Colleen C. Cooney
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Title:
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Assistant Vice President
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New York Life Insurance and Annuity
Corporation
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By
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New York Life Investment Management LLC,
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its Investment Manager
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By
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/s/ Colleen C. Cooney
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Name:
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Colleen C. Cooney
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Title:
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Assistant Vice President
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Forethought Life Insurance Company
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By
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New York Life Investment Management LLC,
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its Investment Manager
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By
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/s/ Colleen C. Cooney
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Name:
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Colleen C. Cooney
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Title:
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Assistant Vice President
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A-6
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Pacific Life Insurance Company
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By
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/s/ Violet Osterberg
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Name:
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Violet Osterberg
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Title:
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Assistant Vice President
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By
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/s/ Peter S. Fiek
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Name:
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Peter S. Fiek
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Title:
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Assistant Secretary
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Pacific Life & Annuity Company
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By
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/s/ Bernard J. Dougherty
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Name:
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Bernard J. Dougherty
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Title:
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Assistant Vice President
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By
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/s/ Peter S. Fiek
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Name:
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Peter S. Fiek
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Title:
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Assistant Secretary
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A-7
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Jackson National Life Insurance Company
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By:
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PPM America, Inc., as attorney in fact,
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on behalf of Jackson National Life Insurance
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Company
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By
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/s/ Curtis A. Spillers, CFA
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Name:
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Curtis A. Spillers, CFA
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Title:
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Vice President
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A-8
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Connecticut General Life Insurance
Company
Life Insurance Company of North America
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By:
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Cigna
Investments, Inc.
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(authorized agent)
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By
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/s/ David M. Cass
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Name:
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David M. Cass
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Title:
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Managing Director
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A-9
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Allianz Life Insurance Company
of North America
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By:
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Allianz of America, Inc. as the authorized
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signatory and investment manager
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By
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/s/ Gary Brown
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Name:
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Gary Brown
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Title:
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Chief Investment Officer,
Fixed Income
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A-10
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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United of Omaha Life Insurance Company
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By
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/s/ Justin P. Kavan
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Name:
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Justin P. Kavan
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Title:
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Vice President
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A-11
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Thrivent Financial for Lutherans
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By
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/s/ Alan D. Onstad
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Name:
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Alan D. Onstad
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Title:
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Senior Director
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A-12
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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The Travelers Indemnity Company
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By
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/s/ David D. Rowland
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Name:
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David D. Rowland
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Title:
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Senior Vice President
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A-13
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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American United Life Insurance Company
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By
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/s/ Kent R. Adams
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Name:
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Kent R. Adams
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Title:
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V.P. Fixed Income Securities
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The State Life Insurance Company
By: American United Life Insurance Company
Its: Agent
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By
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/s/ Kent R. Adams
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Name:
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Kent R. Adams
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Title:
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V.P. Fixed Income Securities
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Pioneer Mutual Life Insurance Company
By: American United Life Insurance Company
Its: Agent
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By
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/s/ Kent R. Adams
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Name:
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Kent R. Adams
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Title:
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V.P. Fixed Income Securities
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A-14
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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CUNA Mutual Insurance Society
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By:
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MEMBERS Capital Advisors, Inc., acting as
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Investment Advisor:
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By
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/s/ James E. McDonald, Jr.
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Name:
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James E. McDonald, Jr.
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Title:
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Director, Investments
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A-15
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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The Union Central Life Insurance Company
Ameritas Life Insurance Corp.
Acacia Life Insurance Company
By: Summit Investment Advisors Inc., as Agent
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By
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/s/ Andrew S. White
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Name:
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Andrew S. White
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Title:
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Managing Director Private Placements
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A-16
This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Southern Farm Bureau Life Insurance
Company
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By
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/s/ David Divine
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Name:
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David Divine
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Title:
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Portfolio Manager
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A-17
Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth
in the Section hereof following such term:
Affiliate
means, at any time, and with respect to any Person, any other Person that at such
time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is
under common Control with, such first Person.
Anti-Terrorism Order
means Executive Order No. 13224 of September 24, 2001, Blocking
Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support
Terrorism, 66 U.S. Fed. Reg. 49, 079 (2001), as amended.
Attributable Debt
means, in connection with any Sale and Leaseback Transaction, the present
value (discounted in accordance with GAAP at the discount rate implied in the lease) of the
obligations of the lessee for rental payments during the term of the lease.
Board
means the Board of Governors of the Federal Reserve System of the United States of
America.
Business Day
means (a) for the purposes of Section 8.6 only, any day other than a Saturday,
a Sunday or a day on which commercial banks in New York City are required or authorized to be
closed, and (b) for the purposes of any other provision of this Agreement, any day other than a
Saturday, a Sunday or a day on which commercial banks in New York, New York or Boston Massachusetts
are required or authorized to be closed.
Capital Lease
means, at any time, a lease with respect to which the lessee is required
concurrently to recognize the acquisition of an asset and the incurrence of a liability in
accordance with GAAP.
Closing
is defined in Section 3.
Code
means the Internal Revenue Code of 1986, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time.
Company
means Waters Corporation, a Delaware corporation, or any successor that becomes such
in the manner prescribed in Section 10.2.
Confidential Information
is defined in Section 20.
Control
means the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through the ownership of voting
securities, by contract or otherwise. Unless the context otherwise clearly requires, any reference
to an Affiliate is a reference to an Affiliate of the Company.
Controlled Affiliate
means any Subsidiary and any other Affiliate which is controlled by the
Company.
Consolidated Debt
means all Debt of the Company and the Subsidiaries, determined on a
consolidated basis.
Consolidated EBITDA
means, for any period, the consolidated net income (loss) of the Company
and the Subsidiaries for such period plus, to the extent deducted in computing such consolidated
net income for such
period,
the sum (without duplication) of (a) Consolidated Interest Expense, (b)
consolidated income tax expense, (c) depreciation and amortization expense, (d) stock-based
employee compensation expense related to any grant of stock options or restricted stock to the
extent deducted from such consolidated net income for such period pursuant to Statement of
Financial Accounting Standards 123 (revised 2004) and (e) extraordinary or non-recurring noncash
expenses or losses, minus, to the extent added in computing such consolidated net income for such
period, extraordinary gains, all determined on a consolidated basis.
Consolidated Interest Expense
means, for any period, the interest expense of the Company and
the consolidated Subsidiaries for such period determined on a consolidated basis in accordance with
GAAP, but excluding deferred financing fees.
Consolidated Net Tangible Assets
means the total amount of assets that would be included on
a consolidated balance sheet of the Company and the consolidated Subsidiaries (and which shall
reflect the deduction of applicable reserves) after deducting therefrom all current liabilities of
the Company and the consolidated Subsidiaries and all Intangible Assets.
Consolidated Total Assets
means the total amount of assets that would be included on a
consolidated balance sheet of the Company and the consolidated Subsidiaries.
Debt
means, with respect to any Person and without duplication, all indebtedness of such
Person for borrowed money or for the deferred purchase price of property or services, all accrued
or contingent obligations in respect of letters of credit, all capitalized lease obligations, all
indebtedness of others secured by assets of the Company or a Subsidiary, all Guaranties of Debt of
others (but excluding guarantees issued for customer advance payments) and all obligations under
Hedging Agreements. For the avoidance of doubt, Debt shall not include (i) pension liabilities
under any employee pension benefit plan and (ii) tender bid bonds, customer performance guarantees
and similar suretyship obligations issued in the ordinary course of business that are not letters
of credit and which, in each case, do not constitute a Guaranty of any Debt of others.
Default
means an event or condition the occurrence or existence of which would, with the
lapse of time or the giving of notice or both, become an Event of Default.
Default Rate
means that rate of interest that is the greater of (i) 2.00% per annum above
the rate of interest stated in clause (a) of the first paragraph of the Notes or (ii) 2.00% over
the rate of interest publicly announced by JPMorgan Chase Bank, N.A., in New York, New York as
its base or prime rate.
Domestic Subsidiary
means any Subsidiary that is incorporated under the laws of the United
States or its territories or possessions.
Electronic Delivery
is defined in Section 7.1(a).
Environmental Laws
means any and all Federal, state, local, and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions relating to pollution and the
protection of the environment or the release of any materials into the environment, including but
not limited to those related to Hazardous Materials.
ERISA
means the Employee Retirement Income Security Act of 1974, as amended from time to
time, and the rules and regulations promulgated thereunder from time to time in effect.
ERISA Affiliate
means any trade or business (whether or not incorporated) that is treated
as a single employer together with the Company under section 414 of the Code.
ERISA Event
means (a) any reportable event, as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for which the 30-day
notice period is waived); (b) the existence with respect to any Plan of an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA), whether or not waived;
(c) the filing pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of an application
for a waiver of the minimum funding standard with respect to any Plan; (d) the incurrence by the
Company or any member of an ERISA Group of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Company or any member of the ERISA Group from
the PBGC or a plan administrator of any notice relating to an intention to terminate any Plan or to
appoint a trustee to administer any Plan; (f) the incurrence by the Company or any member of the
ERISA Group of any liability with respect to the withdrawal or partial withdrawal from any
Multiemployer Plan; or (g) the receipt by the Company or any member of the ERISA Group of any
notice, or the receipt by any Multiemployer Plan from the Company or any member of the ERISA Group
of any notice, concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
ERISA Group
means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together with the Company, are
treated as a single employer under Section 414 of the Code.
Event of Default
is defined in Section 11.
Excluded Subsidiary
means at any time (a) any Foreign Subsidiary, (b) any subsidiary of a
Foreign Subsidiary and (c) any other Subsidiaries acquired or organized after the
date of Closing that, together with their own subsidiaries on a combined consolidated basis,
shall not, individually or in the aggregate for all such Subsidiaries under this clause (c), have
accounted for more than 5% of Consolidated Total Assets or more than 5% of the consolidated total
revenues of the Company and the Subsidiaries at the end of, or for the period of four fiscal
quarters ended with, the most recent fiscal quarter of the Company for which financial statements
shall have been delivered pursuant to Section 7.1(a) or (b) (or, prior to the delivery of any such
financial statements, at the end of or for the period of four fiscal quarters ended September 30,
2009).
Foreign Subsidiary
means any Subsidiary that is not incorporated under the laws of the
United States or its territories or possessions.
Form 10-K
is defined in Section 7.1(b).
Form 10-Q
is defined in Section 7.1(a).
GAAP
means generally accepted accounting principles as in effect from time to time in the
United States of America.
Governmental Authority
means
(a) the government of
(i) the United States of America or any State or other political subdivision
thereof, or
(ii) any other jurisdiction in which the Company or any Subsidiary conducts all
or any part of its business, or which asserts jurisdiction over any properties of
the Company or any Subsidiary, or
(b) any entity exercising executive, legislative, judicial, regulatory or
administrative functions of, or pertaining to, any such government.
Guarantee Agreement
means a Subsidiary Guarantee Agreement substantially in the form of
Exhibit B, and all supplements thereto made by the Guarantors for the benefit of the holders of the
Notes form time to time.
Guarantee Requirement
means, at any time, that the Guarantee Agreement (or a supplement
referred to in Section 16 thereof) shall have been executed by each Subsidiary (other than any
Excluded Subsidiary) existing at such time, shall have been delivered to the holders of the Notes
and shall be in full force and effect;
provided, however,
that in the case of a Subsidiary that
becomes subject to the Guarantee Requirement after the date of Closing, the Guarantee Requirement
shall be satisfied with respect to such Subsidiary if a supplement to the Guarantee Agreement is
executed by such Subsidiary, delivered to the holders of the Notes and in full force and effect no
later than (i) 30 days after the date on which such Subsidiary becomes subject to the Guarantee
Requirement (or such later date as is permitted in the Primary Credit Agreement
except that such later date shall in no event be more than 60 days after the date on which
such Subsidiary becomes subject to the Guarantee Requirement) or (ii) such other date as the
Required Holders may reasonably determine, but in any case no later than 60 days after the date on
which such Subsidiary becomes subject to the Guarantee Requirement.
Guarantors
means each Person listed on Schedule C and each other Person that becomes party
to a Guarantee Agreement as a Guarantor, and the permitted successors and assigns of each such
Person.
Guaranty
means, with respect to any Person, any obligation (except the endorsement in the
ordinary course of business of negotiable instruments for deposit or collection) of such Person
guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other
Person in any manner, whether directly or indirectly, including (without limitation) obligations
incurred through an agreement, contingent or otherwise, by such Person:
(a) to purchase such indebtedness or obligation or any property constituting security
therefor;
(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or
obligation, or (ii) to maintain any working capital or other balance sheet condition or any
income statement condition of any other Person or otherwise to advance or make available
funds for the purchase or payment of such indebtedness or obligation;
(c) to lease properties or to purchase properties or services primarily for the purpose
of assuring the owner of such indebtedness or obligation of the ability of any other Person
to make payment of the indebtedness or obligation; or
(d) otherwise to assure the owner of such indebtedness or obligation against loss in
respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the
indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be
direct obligations of such obligor.
Hazardous Material
means any and all pollutants, toxic or hazardous wastes or other
substances that might pose a hazard to health and safety, the removal of which may be required or
the generation, manufacture, refining, production, processing, treatment, storage, handling,
transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of
which is or shall be restricted, prohibited or penalized by any applicable law including, but not
limited to, asbestos, urea formaldehyde foam insulation, polychlorinated biphenyls, petroleum,
petroleum products, lead based paint, radon gas or similar restricted, prohibited or penalized
substances.
Hedging Agreement
means any interest rate protection agreement, foreign currency exchange
agreement or other interest or currency exchange rate hedging arrangement. The principal amount
of the obligations of any Person in respect of any Hedging Agreement at any
time shall be the maximum aggregate amount (giving effect to any netting agreements) that such
Person would be required to pay if such Hedging Agreement were terminated at such time.
holder
means, with respect to any Note, the Person in whose name such Note is registered in
the register maintained by the Company pursuant to Section 13.1.
Institutional Investor
means (a) any Purchaser of a Note, (b) any holder of a Note holding
(together with one or more of its affiliates) more than 10% of the aggregate principal amount of
the Notes then outstanding, (c) any bank, trust company, savings and loan association or other
financial institution, any pension plan, any investment company, any insurance company, any broker
or dealer, or any other similar financial institution or entity, regardless of legal form, and (d)
any Related Fund of any holder of any Note.
Intangible Assets
means all assets of the Company and the consolidated Subsidiaries that
would be treated as intangibles in conformity with GAAP on a consolidated balance sheet of the
Company and the consolidated Subsidiaries.
Interest Coverage Ratio
means, for any period, the ratio of (a) Consolidated EBITDA for such
period to (b) Consolidated Interest Expense for such period.
Leverage Ratio
means, at any time, the ratio of (a) Consolidated Debt at such time to (b)
Consolidated EBITDA for the most recent period of four consecutive fiscal quarters of the Company
ended at or prior to such time;
provided,
that in the event any Material Acquisition shall have
been completed during such period of four consecutive fiscal quarters, the Leverage Ratio shall be
computed giving pro forma effect to such Material Acquisition as if it had been completed at the
beginning of such period.
Lien
means, with respect to any asset, any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset.
Make-Whole Amount
is defined in Section 8.6.
Margin Stock
has the meaning ascribed to such term in Regulation U issued by the Board.
Material
means material in relation to the business, operations, affairs, financial
condition, assets, properties, or prospects of the Company and its Subsidiaries taken as a whole.
Material Acquisition
means (i) the acquisition by the Company or a Subsidiary of assets of
or an interest in another Person or (ii) the merger or consolidation of the Company with another
corporation, in each case if the Consolidated Total Assets of the Company after giving effect to
such acquisition, merger or consolidation are at least 5% greater than the Consolidated Total
Assets of the Company immediately prior to such acquisition, merger or consolidation.
Material Adverse Effect
means a material adverse effect on (a) the business, operations,
affairs, financial condition, assets or properties of the Company and its Subsidiaries
taken as a whole, or (b) the ability of the Company to perform its obligations under this
Agreement and the Notes, or (c) the validity or enforceability of this Agreement or the Notes.
Material Subsidiary
means each Subsidiary of the Company, other than Subsidiaries designated
by the Company from time to time that in the aggregate do not account for more than 15% of the
consolidated revenues of the Company and its Subsidiaries for the period of four fiscal quarters
most recently ended or more than 15% of the consolidated assets of the Company and its Subsidiaries
at the end of such period.
Memorandum
is defined in Section 5.3.
Multiemployer Plan
means any Plan that is a multiemployer plan (as such term is defined in
section 4001(a)(3) of ERISA).
NAIC
means the National Association of Insurance Commissioners or any successor thereto.
Notes
is defined in Section 1.
Obligor
means the Company or any Guarantor.
Obligors
means the Company and each Guarantor.
Officers Certificate
means a certificate of a Senior Financial Officer or of any other
officer of the Company or the relevant Guarantor, as the case may be, whose responsibilities extend
to the subject matter of such certificate.
PBGC
means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any
successor thereto.
Person
means an individual, partnership, corporation, limited liability company,
association, trust, unincorporated organization, business entity or Governmental Authority.
Plan
means at any time an employee pension benefit plan which is covered by Title IV of
ERISA or subject to the minimum standards under Section 412 of the Internal Revenue Code (other
than a Multiemployer Plan) and is either (a) maintained by a member of the ERISA Group for
employees of a member of the ERISA Group or (b) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes contributions and to
which a member of the ERISA Group is then making or accruing an obligation to make contributions or
has within the preceding five plan years made contributions.
Preferred Stock
means any class of capital stock of a Person that is preferred over any
other class of capital stock (or similar equity interests) of such Person as to the payment of
dividends or the payment of any amount upon liquidation or dissolution of such Person.
Primary Credit Agreement
means the Credit Agreement of the Company and Waters Technologies
Ireland Limited dated January 11, 2007, JP Morgan Chase Bank N.A., as Administrative Agent, among
others, as amended, modified, supplemented, restated, refinanced or replaced from time to time; it
being understood that in the event that any refinancing or replacement of the Primary Credit
Agreement consists of multiple facilities, (i) all such facilities with an aggregate commitment
amount in excess of $150,000,000 (or its equivalent) shall constitute the Credit Facility and (ii)
if there is no such facility which has an aggregate commitment amount in excess of $150,000,000,
then the facility with the largest commitment amount shall constitute the Credit Facility.
property
or
properties
means, unless otherwise specifically limited, real or personal
property of any kind, tangible or intangible, choate or inchoate.
PTE
is defined in Section 6.2(a).
Purchaser
is defined in the first paragraph of this Agreement.
Qualified Institutional Buyer
means any Person who is a qualified institutional buyer
within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.
Related Fund
means, with respect to any holder of any Note, any fund or entity that (i)
invests in Securities or bank loans, and (ii) is advised or managed by such holder, the same
investment advisor as such holder or by an affiliate of such holder or such investment advisor.
Required Holders
means, at any time, the holders of at least 51% in principal amount of the
Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its
Affiliates).
Responsible Officer
means any Senior Financial Officer and any other officer of the Company
(or the relevant Guarantor as the case may be) with responsibility for the administration of the
relevant portion of this Agreement (or the Guarantee, as the case may be).
Sale and Leaseback Transaction
means any arrangement whereby the Company or a Subsidiary,
directly or indirectly, shall sell or transfer any property, real or personal, used or useful in
its business, whether now owned or hereafter acquired, and thereafter rent or lease such property
or other property which it intends to use for substantially the same purpose or purposes as the
property being sold or transferred.
SEC
shall mean the Securities and Exchange Commission of the United States, or any successor
thereto.
Securities
or
Security
shall have the meaning specified in Section 2(1) of the Securities
Act.
Securities Act
means the Securities Act of 1933, as amended from time to time, and the rules
and regulations promulgated thereunder from time to time in effect.
Senior Financial Officer
means the chief financial officer, principal accounting officer,
treasurer or comptroller of the Company.
Subsidiary
means, as to any Person, any other Person in which such first Person or one or
more of its Subsidiaries or such first Person and one or more of its Subsidiaries owns sufficient
equity or voting interests to enable it or them (as a group) ordinarily, in the absence of
contingencies, to elect a majority of the directors (or Persons performing similar functions) of
such second Person. Unless the context otherwise clearly requires, any reference to a Subsidiary
is a reference to a Subsidiary of the Company.
SVO
means the Securities Valuation Office of the NAIC or any successor to such Office.
Treasury Stock
means capital stock of the Company that is owned by the Company and held in
treasury.
Unfunded Liabilities
means, (a) in the case of a single-employer Plan which is covered by
Title IV of ERISA, the amount, if any, by which the present value of all accumulated benefit
obligations accrued to the date of determination under such Plan exceeds the fair market value of
all assets of such Plan allocable to such benefits as of such date calculated in accordance with
GAAP and based on the assumptions used for purposes of Statement of Financial Accounting Standards
No. 87, as amended, or any successor standard, and (b) in the case of a Multiemployer Plan, the
Withdrawal Liability of the Company and the Subsidiaries calculated as set forth in Title IV of
ERISA.
US Corporation
means a corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia.
USA Patriot Act
means the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001.
USA Patriot Act
means United States Public Law 107-56, Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of
2001, as amended from time to time, and the rules and regulations promulgated thereunder from time
to time in effect.
Withdrawal Liability
means liability to a Multiemployer Plan as a result of a complete or
partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I of Subtitle E
of Title IV of ERISA.