UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 10-Q
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þ
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QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the quarterly period ended April 2, 2011
or
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o
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TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
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For the transition period from
to
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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
(Registrant’s telephone number, including area code)
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
þ
No
o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§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).
þ
Yes
o
No
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.
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Large accelerated filer
þ
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Accelerated filer
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Non-accelerated filer
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Smaller reporting company
o
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(Do not check if smaller reporting company)
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Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of
the Act). Yes
o
No
þ
Indicate the number of shares outstanding of the registrant’s common stock as of April
29, 2011: 91,638,667
WATERS CORPORATION AND SUBSIDIARIES
QUARTERLY REPORT ON FORM 10-Q
INDEX
WATERS CORPORATION AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(unaudited)
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April 2, 2011
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December 31, 2010
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ASSETS
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Current assets:
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Cash and cash equivalents
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$
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296,860
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$
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308,498
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Short-term investments
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742,189
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637,921
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Accounts receivable, less allowances for doubtful accounts and
sales returns of $7,844 and $6,196 at April 2, 2011 and
December 31, 2010, respectively
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349,397
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358,237
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Inventories
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223,882
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204,300
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Other current assets
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71,006
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77,685
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Total current assets
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1,683,334
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1,586,641
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Property, plant and equipment, net
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216,989
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215,060
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Intangible assets, net
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191,432
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181,316
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Goodwill
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293,517
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291,657
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Other assets
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61,890
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52,996
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Total assets
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$
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2,447,162
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$
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2,327,670
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LIABILITIES AND STOCKHOLDERS’ EQUITY
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Current liabilities:
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Notes payable and debt
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$
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390,346
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$
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66,055
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Accounts payable
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67,404
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64,406
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Accrued employee compensation
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28,669
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52,831
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Deferred revenue and customer advances
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133,781
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106,445
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Accrued income taxes
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23,132
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11,909
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Accrued warranty
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11,934
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11,272
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Other current liabilities
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60,963
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72,932
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Total current liabilities
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716,229
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385,850
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Long-term liabilities:
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Long-term debt
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400,000
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700,000
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Long-term portion of retirement benefits
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75,742
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72,624
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Long-term income tax liability
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78,855
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77,764
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Other long-term liabilities
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25,542
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22,635
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Total long-term liabilities
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580,139
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873,023
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Total liabilities
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1,296,368
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1,258,873
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Commitments and contingencies (Notes 4, 5 and 9)
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Stockholders’ equity:
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Preferred stock, par value $0.01 per share, 5,000 shares
authorized, none issued at April 2, 2011 and
December 31, 2010
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—
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—
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Common stock, par value $0.01 per share, 400,000 shares
authorized, 151,661 and 151,054 shares issued, 91,532 and
91,848 shares outstanding at April 2, 2011 and
December 31, 2010, respectively
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1,517
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1,511
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Additional paid-in capital
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996,675
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970,068
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Retained earnings
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2,712,968
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2,618,479
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Treasury stock, at cost, 60,129 and 59,206 shares at April 2, 2011
and December 31, 2010, respectively
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(2,582,645
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(2,509,466
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Accumulated other comprehensive income (loss)
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22,279
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(11,795
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Total stockholders’ equity
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1,150,794
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1,068,797
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Total liabilities and stockholders’ equity
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$
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2,447,162
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$
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2,327,670
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The accompanying notes are an integral part of the interim consolidated financial statements.
1
WATERS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
(IN THOUSANDS, EXCEPT PER SHARE DATA)
(unaudited)
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Three Months Ended
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April 2, 2011
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April 3, 2010
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Product sales
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$
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303,336
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$
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253,042
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Service sales
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124,267
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114,658
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Total net sales
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427,603
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367,700
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Cost of product sales
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115,901
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97,405
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Cost of service sales
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53,928
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48,527
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Total cost of sales
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169,829
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145,932
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Gross profit
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257,774
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221,768
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Selling and administrative expenses
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117,124
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106,693
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Research and development expenses
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22,254
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20,076
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Purchased intangibles amortization
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2,501
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2,642
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Operating income
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115,895
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92,357
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Interest expense
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(4,083
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(2,614
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Interest income
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713
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329
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Income from operations before income taxes
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112,525
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90,072
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Provision for income taxes
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18,036
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14,554
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Net income
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$
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94,489
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$
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75,518
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Net income per basic common share
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$
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1.03
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$
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0.81
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Weighted-average number of basic common shares
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91,649
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93,629
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Net income per diluted common share
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$
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1.01
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$
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0.79
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Weighted-average number of diluted common shares and
equivalents
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93,313
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95,223
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The accompanying notes are an integral part of the interim consolidated financial statements.
2
WATERS CORPORATION AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(IN THOUSANDS)
(unaudited)
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Three Months Ended
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April 2, 2011
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April 3, 2010
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Cash flows from operating activities:
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Net income
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$
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94,489
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$
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75,518
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Adjustments to reconcile net income to net cash provided by
operating activities:
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Provisions for doubtful accounts on accounts receivable
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1,022
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904
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Provisions on inventory
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3,224
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2,648
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Stock-based compensation
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7,015
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6,031
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Deferred income taxes
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(1,479
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(1,950
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Depreciation
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8,640
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8,441
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Amortization of intangibles
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7,520
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6,544
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Change in operating assets and liabilities, net of acquisitions:
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Decrease (increase) in accounts receivable
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17,730
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(6,230
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Increase in inventories
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(17,353
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(16,134
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Decrease (increase) in other current assets
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2,278
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(4,679
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Increase in other assets
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(1,755
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(4,222
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(Decrease) increase in accounts payable and other current
liabilities
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(26,836
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13,720
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Increase in deferred revenue and customer advances
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23,856
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23,732
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Increase (decrease) in other liabilities
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4,410
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(1,168
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Net cash provided by operating activities
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122,761
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103,155
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Cash flows from investing activities:
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Additions to property, plant, equipment and software
capitalization
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(16,839
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(10,165
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Purchase of short-term investments
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(432,189
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(216,748
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Maturity of short-term investments
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327,921
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110,726
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Net cash used in investing activities
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(121,107
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(116,187
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Cash flows from financing activities:
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Proceeds from debt issuances
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242,126
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213,273
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Payments on debt
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(217,835
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(132,663
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Payments of debt issuance costs
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(1,169
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(1,473
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Proceeds from stock plans
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14,083
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8,852
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Purchase of treasury shares
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(73,179
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)
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(105,019
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Excess tax benefit related to stock option plans
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5,832
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2,182
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Proceeds from (payments for) debt swaps and other derivative
contracts
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2,892
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(3,631
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Net cash used in financing activities
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(27,250
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(18,479
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Effect of exchange rate changes on cash and cash equivalents
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13,958
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(12,588
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Decrease in cash and cash equivalents
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(11,638
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(44,099
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Cash and cash equivalents at beginning of period
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308,498
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341,111
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Cash and cash equivalents at end of period
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$
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296,860
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$
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297,012
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The accompanying notes are an integral part of the interim consolidated financial statements.
3
WATERS CORPORATION AND SUBSIDIARIES
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1 Basis of Presentation and Summary of Significant Accounting Policies
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 Company’s instruments and are typically purchased by customers as part of the instrument
system.
The Company’s interim fiscal quarter typically ends on the thirteenth Saturday of each quarter.
Since the Company’s fiscal year end is December 31, the first and fourth fiscal quarters will not
consist of thirteen complete weeks. The Company’s first fiscal quarters for 2011 and 2010 ended on
April 2, 2011 and April 3, 2010, respectively.
The accompanying unaudited interim consolidated financial statements have been prepared in
accordance with the instructions to Form 10-Q and do not include all of the information and note
disclosures required by generally accepted accounting principles (“GAAP”) in the United States of
America. The consolidated financial statements include the accounts of the Company and its
subsidiaries, most of which are wholly owned. All material inter-company balances and transactions
have been eliminated.
The preparation of consolidated financial statements in conformity with 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 at the dates of the financial
statements. Actual amounts may differ from these estimates under different assumptions or
conditions.
It is management’s opinion that the accompanying interim consolidated financial statements reflect
all adjustments (which are normal and recurring) that are necessary for a fair statement of the
results for the interim periods. The interim consolidated financial statements should be read in
conjunction with the consolidated financial statements included in the Company’s annual report on
Form 10-K for the year ended December 31, 2010, as filed with the Securities and Exchange
Commission on February 25, 2011.
Fair Value Measurements
In accordance with the accounting standards for fair value measurements and disclosures, certain of
the Company’s assets and liabilities are measured at fair value on a recurring basis as of April 2,
2011 and December 31, 2010. 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 for which there is little or
no market data, which require the reporting entity to develop its own assumptions.
4
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
The following table represents the Company’s assets and liabilities measured at fair value on a
recurring basis at April 2, 2011 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
|
|
Markets
|
|
|
Other
|
|
|
Significant
|
|
|
|
|
|
|
|
|
for Identical
|
|
|
Observable
|
|
|
Unobservable
|
|
|
|
|
Total at
|
|
|
Assets
|
|
|
Inputs
|
|
|
Inputs
|
|
|
|
|
April 2, 2011
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents
|
|
$
|
96,753
|
|
|
$
|
—
|
|
|
$
|
96,753
|
|
|
$
|
—
|
|
|
Short-term investments
|
|
|
742,189
|
|
|
|
—
|
|
|
|
742,189
|
|
|
|
—
|
|
|
Waters 401(k) Restoration Plan assets
|
|
|
21,850
|
|
|
|
—
|
|
|
|
21,850
|
|
|
|
—
|
|
|
Foreign currency exchange contract
agreements
|
|
|
987
|
|
|
|
—
|
|
|
|
987
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
861,779
|
|
|
$
|
—
|
|
|
$
|
861,779
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency exchange contract
agreements
|
|
$
|
283
|
|
|
$
|
—
|
|
|
$
|
283
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
283
|
|
|
$
|
—
|
|
|
$
|
283
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The following table represents the Company’s assets and liabilities measured at fair value on a
recurring basis at December 31, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Quoted Prices
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
in Active
|
|
|
Significant
|
|
|
|
|
|
|
|
|
|
|
|
Markets
|
|
|
Other
|
|
|
Significant
|
|
|
|
|
Total at
|
|
|
for Identical
|
|
|
Observable
|
|
|
Unobservable
|
|
|
|
|
December 31,
|
|
|
Assets
|
|
|
Inputs
|
|
|
Inputs
|
|
|
|
|
2010
|
|
|
(Level 1)
|
|
|
(Level 2)
|
|
|
(Level 3)
|
|
|
Assets:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash equivalents
|
|
$
|
87,975
|
|
|
$
|
—
|
|
|
$
|
87,975
|
|
|
$
|
—
|
|
|
Short-term investments
|
|
|
637,921
|
|
|
|
—
|
|
|
|
637,921
|
|
|
|
—
|
|
|
Waters 401(k) Restoration Plan assets
|
|
|
19,988
|
|
|
|
—
|
|
|
|
19,988
|
|
|
|
—
|
|
|
Foreign currency exchange contract
agreements
|
|
|
424
|
|
|
|
—
|
|
|
|
424
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
746,308
|
|
|
$
|
—
|
|
|
$
|
746,308
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Foreign currency exchange contract
agreements
|
|
$
|
626
|
|
|
$
|
—
|
|
|
$
|
626
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
626
|
|
|
$
|
—
|
|
|
$
|
626
|
|
|
$
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The Company’s 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 Company’s cash equivalents, short-term investments,
401(k) restoration plan assets and foreign currency exchange contracts 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 April 2, 2011 and December 31, 2010.
5
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
Fair Value of Other Financial Instruments
The Company’s cash, accounts receivable, accounts payable and debt are recorded at cost, which
approximates fair value. The carrying value and fair value of the Company’s fixed interest rate
debt is $400 million and $388 million, respectively, at April 2, 2011. The carrying value and fair
value of the Company’s fixed interest rate debt is $200 million and $203 million, respectively, at
December 31, 2010.
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 standards for
derivative instruments and hedging activities, which establishes the 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 Company’s 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 Company’s financial position and performance.
The Company currently uses derivative instruments to manage exposures to foreign currency and
interest rate risks. The Company’s 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 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.
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 April 2, 2011 and December 31, 2010, the Company held
forward foreign exchange contracts with notional amounts totaling $148 million and $136 million,
respectively. At April 2, 2011 and December 31, 2010, the Company had assets of $1 million and less
than $1 million, respectively, in other current assets in the consolidated balance sheets related
to the foreign currency exchange contracts. At April 2, 2011 and December 31, 2010, the Company had
liabilities of less than $1 million and $1 million, respectively, in other current liabilities in
the consolidated balance sheets related to the foreign currency exchange contracts. For the three
months ended April 2, 2011, the Company recorded cumulative net pre-tax gains of $4 million, which
consists of realized gains of $3 million relating to closed forward contracts and $1 million of
unrealized gains relating to open forward contracts. For the three months ended April 3, 2010, the
Company recorded cumulative net pre-tax losses of $2 million, which consists of realized losses of
$4 million relating to closed forward contracts and $2 million of unrealized gains relating to open
forward contracts.
Stockholders’ Equity
The Company repurchased $67 million and $101 million of the Company’s outstanding common stock
during the three months ended April 2, 2011 and April 3, 2010, respectively. In February 2011, the
Company’s Board of Directors authorized the Company to repurchase up to $500 million of its
outstanding common stock over a two-year period. During the three months ended April 2, 2011, the
Company repurchased 0.2 million shares at a cost of $17 million under this program.
6
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
In February 2009, the Company’s Board of Directors authorized the Company to repurchase up to $500
million of its outstanding common stock over a two-year period. During the three months ended April
2, 2011 and April 3, 2010, the Company repurchased 0.7 million and 1.7 million shares at a cost of
$50 million and $101 million, respectively, under this program. As of April 2, 2011, the Company
repurchased an aggregate of 8.2 million shares of its common stock under the now expired February
2009 program for an aggregate cost of $499 million.
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 Company’s 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 Company’s accrued warranty liability for the
three months ended April 2, 2011 and April 3, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
|
|
|
|
|
|
|
Balance at
|
|
|
|
|
Beginning
|
|
|
Accruals for
|
|
|
Settlements
|
|
|
End of
|
|
|
|
|
of Period
|
|
|
Warranties
|
|
|
Made
|
|
|
Period
|
|
|
Accrued warranty liability:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 2, 2011
|
|
$
|
11,272
|
|
|
$
|
2,603
|
|
|
$
|
(1,941
|
)
|
|
$
|
11,934
|
|
|
April 3, 2010
|
|
$
|
10,109
|
|
|
$
|
1,409
|
|
|
$
|
(1,476
|
)
|
|
$
|
10,042
|
|
Subsequent Events
The Company did not have any material subsequent events.
2 Inventories
Inventories are classified as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
April 2, 2011
|
|
|
December 31, 2010
|
|
|
Raw materials
|
|
$
|
72,077
|
|
|
$
|
63,475
|
|
|
Work in progress
|
|
|
20,878
|
|
|
|
17,301
|
|
|
Finished goods
|
|
|
130,927
|
|
|
|
123,524
|
|
|
|
|
|
|
|
|
|
|
Total inventories
|
|
$
|
223,882
|
|
|
$
|
204,300
|
|
|
|
|
|
|
|
|
|
3 Goodwill and Other Intangibles
The carrying amount of goodwill was $294 million and $292 million at April 2, 2011 and December 31,
2010, respectively. Currency translation adjustments increased goodwill by $2 million.
7
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
The Company’s intangible assets included in the consolidated balance sheets are detailed as follows
(in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
April 2, 2011
|
|
|
December 31, 2010
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
|
|
|
|
|
|
Weighted-
|
|
|
|
|
Gross
|
|
|
|
|
|
|
Average
|
|
|
Gross
|
|
|
|
|
|
|
Average
|
|
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Amortization
|
|
|
Carrying
|
|
|
Accumulated
|
|
|
Amortization
|
|
|
|
|
Amount
|
|
|
Amortization
|
|
|
Period
|
|
|
Amount
|
|
|
Amortization
|
|
|
Period
|
|
|
Purchased intangibles
|
|
$
|
136,270
|
|
|
$
|
74,460
|
|
|
10 years
|
|
$
|
134,723
|
|
|
$
|
70,832
|
|
|
10 years
|
|
Capitalized software
|
|
|
253,481
|
|
|
|
139,826
|
|
|
5 years
|
|
|
229,850
|
|
|
|
127,056
|
|
|
5 years
|
|
Licenses
|
|
|
6,619
|
|
|
|
5,803
|
|
|
6 years
|
|
|
9,877
|
|
|
|
8,971
|
|
|
7 years
|
|
Patents and other
intangibles
|
|
|
31,333
|
|
|
|
16,182
|
|
|
8 years
|
|
|
28,931
|
|
|
|
15,206
|
|
|
8 years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
$
|
427,703
|
|
|
$
|
236,271
|
|
|
7 years
|
|
$
|
403,381
|
|
|
$
|
222,065
|
|
|
7 years
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
The gross carrying value of intangible assets and accumulated amortization for intangible assets
increased by $17 million and $10 million, respectively, in the three months ended April 2, 2011 due
to the effect of foreign currency translation. Amortization expense for intangible assets was $8
million and $7 million for the three months ended April 2, 2011 and April 3, 2010, respectively.
Amortization expense for intangible assets is estimated to be approximately $40 million per year
for 2012 and 2013 and is estimated to increase to approximately $45 million per year for the years
2014 through 2016.
4 Debt
The Company issued and sold the following senior unsecured notes during the three months ended
April 2, 2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Face Value
|
|
|
|
|
|
Senior Notes
|
|
Issue Date
|
|
Term
|
|
Interest Rate
|
|
|
(in millions)
|
|
|
Maturity Date
|
|
|
Series C
|
|
March 2011
|
|
5 years
|
|
|
2.50
|
%
|
|
$
|
50
|
|
|
March 2016
|
|
Series D
|
|
March 2011
|
|
7 years
|
|
|
3.22
|
%
|
|
$
|
100
|
|
|
March 2018
|
|
Series E
|
|
March 2011
|
|
10 years
|
|
|
3.97
|
%
|
|
$
|
50
|
|
|
March 2021
|
The Company used the proceeds from the issuance of these senior unsecured notes to repay $140
million of the term loan under the 2007 Credit Agreement and other outstanding debt, and for
general corporate purposes. Interest on the issuances of senior unsecured notes is payable
semi-annually in March and September of each year. The Company may prepay all or some of the senior
notes at any time in an amount not less than 10% of the aggregate principal amount outstanding,
plus the applicable make-whole amount. In the event of a change in control (as defined in the note
purchase agreements) of the Company, the Company may be required to prepay the senior notes at a
price equal to 100% of the principal amount thereof, plus accrued and unpaid interest. 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 customary negative covenants, certain customary
representations and warranties, affirmative covenants and events of default.
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. The 2007 Credit Agreement matures in
January 2012 and requires no scheduled prepayments before that date. The interest rates applicable
to the 2007 Credit Agreement are, at the Company’s 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 a credit margin based upon the Company’s 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 and customary representations and warranties, affirmative
covenants and events of default.
8
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
As of April 2, 2011, the Company was in compliance with all debt covenants.
At April 2, 2011 and December 31, 2010, the Company had the following outstanding debt (in
thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
April 2, 2011
|
|
|
December 31, 2010
|
|
|
Lines of credit
|
|
$
|
10,346
|
|
|
$
|
11,055
|
|
|
2007 Credit Agreement, due January 2012
|
|
|
380,000
|
|
|
|
55,000
|
|
|
|
|
|
|
|
|
|
|
Total notes payable and debt
|
|
|
390,346
|
|
|
|
66,055
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Senior unsecured notes — Series A — 3.75%, due February 2015
|
|
|
100,000
|
|
|
|
100,000
|
|
|
Senior unsecured notes — Series B — 5.00%, due February 2020
|
|
|
100,000
|
|
|
|
100,000
|
|
|
Senior unsecured notes — Series C — 2.50%, due March 2016
|
|
|
50,000
|
|
|
|
—
|
|
|
Senior
unsecured notes — Series D — 3.22%, due March 2018
|
|
|
100,000
|
|
|
|
—
|
|
|
Senior unsecured notes — Series E — 3.97%, due March 2021
|
|
|
50,000
|
|
|
|
—
|
|
|
2007 Credit Agreement, due January 2012
|
|
|
—
|
|
|
|
500,000
|
|
|
|
|
|
|
|
|
|
|
Total long-term debt
|
|
|
400,000
|
|
|
|
700,000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total debt
|
|
$
|
790,346
|
|
|
$
|
766,055
|
|
|
|
|
|
|
|
|
|
As of April 2, 2011 and December 31, 2010, the Company had a total amount available to borrow of
$579 million and $543 million, respectively, after outstanding letters of credit. The
weighted-average interest rates applicable to the senior notes and 2007 Credit Agreement borrowings
were 2.30% and 1.69% at April 2, 2011 and December 31, 2010, respectively. The increase in the
weighted-average interest rate for the Company’s long-term debt is primarily due to a higher rate
paid on the fixed-rate debt.
The Company and its foreign subsidiaries also had available short-term lines of credit totaling
$102 million and $111 million at April 2, 2011 and December 31, 2010, respectively, for the purpose
of short-term borrowing and issuance of commercial guarantees. At April 2, 2011 and December 31,
2010, the weighted-average interest rates applicable to the short-term borrowings were 2.11% and
2.10%, respectively.
5 Income Taxes
The Company accounts for its uncertain tax return reporting positions in accordance with the
accounting standards for income taxes, which require financial statement reporting of the expected
future tax consequences of uncertain tax reporting positions on the presumption that all concerned
tax authorities possess full knowledge of the reporting positions, as well as all of the pertinent
facts and circumstances, but prohibit any discounting of unrecognized tax benefits associated with
uncertain reporting positions for the time value of money.
The following is a summary of the activity in the Company’s unrecognized tax benefits for the three
months ended April 2, 2011 and April 3, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Balance at the beginning of the period
|
|
$
|
71,523
|
|
|
$
|
77,924
|
|
|
Realization of uncertain pre-acquisition tax benefits
|
|
|
—
|
|
|
|
(1,500
|
)
|
|
Increase in other uncertain tax benefits
|
|
|
1,374
|
|
|
|
1,052
|
|
|
|
|
|
|
|
|
|
|
Balance at the end of the period
|
|
$
|
72,897
|
|
|
$
|
77,476
|
|
|
|
|
|
|
|
|
|
For the three months ended April 3, 2010, the Company recorded approximately $2 million of tax
benefit in the income tax provision related to the resolution of a pre-acquisition tax exposure.
The Company’s 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 concerned income tax authorities. The Company continuously monitors 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. As of April 2, 2011, the Company does not expect to record any material
changes in the measurement of any other unrecognized tax benefits, related net interest and
penalties or deferred tax assets and liabilities due to
9
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
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’s effective tax rates for the three months ended April 2, 2011 and April 3, 2010 were
16.0% and 16.2%, respectively. Included in the income tax provision for the three months ended
April 3, 2010 is the aforementioned $2 million of tax benefit related to the resolution of a
pre-acquisition tax exposure. This tax benefit decreased the Company’s effective tax rate by 1.7
percentage points in the three months ended April 3, 2010. The remaining difference between the
effective tax rates for the three months ended April 2, 2011 as compared to the three months ended
April 3, 2010 was primarily attributable to differences in the proportionate amounts of pre-tax
income recognized in jurisdictions with different effective tax rates.
6 Stock-Based Compensation
The Company maintains various shareholder-approved, stock-based compensation plans which allow for
the issuance of incentive or non-qualified stock options, stock appreciation rights, restricted
stock or other types of awards (e.g. restricted stock units).
The Company accounts for stock-based compensation costs in accordance with the accounting standards
for stock-based compensation, which require 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. The stock-based
compensation accounting standards require 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 Company’s results of operations
could be materially impacted. In addition, if the Company employs different assumptions in the
application of this 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 consolidated statements of operations for the three months ended April 2, 2011 and April 3,
2010 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):
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Cost of sales
|
|
$
|
696
|
|
|
$
|
625
|
|
|
Selling and administrative expenses
|
|
|
5,466
|
|
|
|
4,657
|
|
|
Research and development expenses
|
|
|
853
|
|
|
|
749
|
|
|
|
|
|
|
|
|
|
|
Total stock-based compensation
|
|
$
|
7,015
|
|
|
$
|
6,031
|
|
|
|
|
|
|
|
|
|
As of both April 2, 2011 and December 31, 2010, the Company has capitalized stock-based
compensation costs of less than $1 million in inventory in the consolidated balance sheets. As of
both April 2, 2011 and December 31, 2010, the Company has capitalized stock-based compensation
costs of $3 million in capitalized software in the consolidated balance sheets.
Stock Options
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 during the three months ended April 2, 2011 and April 3, 2010 are as follows:
10
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Options Issued and Significant
Assumptions Used to Estimate Option Fair
Values
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Options issued in thousands
|
|
|
32
|
|
|
|
32
|
|
|
Risk-free interest rate
|
|
|
2.1
|
%
|
|
|
3.0
|
%
|
|
Expected life in years
|
|
|
6
|
|
|
|
6
|
|
|
Expected volatility
|
|
|
0.290
|
|
|
|
0.293
|
|
|
Expected dividends
|
|
|
—
|
|
|
|
—
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average Exercise Price and Fair
Value of Options on the Date of Grant
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Exercise price
|
|
$
|
78.10
|
|
|
$
|
61.63
|
|
|
Fair value
|
|
$
|
25.25
|
|
|
$
|
21.40
|
|
The following table summarizes stock option activity for the plans for the three months ended April
2, 2011 (in thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
Number of Shares
|
|
|
Price per Share
|
|
Exercise Price
|
|
|
Outstanding at December 31, 2010
|
|
|
5,560
|
|
|
$21.39 to $80.97
|
|
$
|
50.19
|
|
|
Granted
|
|
|
32
|
|
|
$
|
78.10
|
|
$
|
78.10
|
|
|
Exercised
|
|
|
(334
|
)
|
|
$21.39 to $77.94
|
|
$
|
39.69
|
|
|
Canceled
|
|
|
(24
|
)
|
|
$36.25 to $80.97
|
|
$
|
80.87
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Outstanding at April 2, 2011
|
|
|
5,234
|
|
|
$21.39 to $79.05
|
|
$
|
50.89
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Restricted Stock
During the three months ended April 2, 2011, the Company granted twelve thousand shares of
restricted stock. The fair value of these awards on the grant date was $78.10 per share. The
restrictions on these shares lapse at the end of a three-year period.
Restricted Stock Units
The following table summarizes the unvested restricted stock unit award activity for the three
months ended April 2, 2011 (in thousands, except for per share amounts):
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares
|
|
|
Weighted-Average Price
|
|
|
Unvested at December 31, 2010
|
|
|
752
|
|
|
$
|
49.64
|
|
|
Granted
|
|
|
173
|
|
|
$
|
79.00
|
|
|
Vested
|
|
|
(249
|
)
|
|
$
|
48.11
|
|
|
Forfeited
|
|
|
(3
|
)
|
|
$
|
52.62
|
|
|
|
|
|
|
|
|
|
|
|
Unvested at April 2, 2011
|
|
|
673
|
|
|
$
|
57.74
|
|
|
|
|
|
|
|
|
|
|
Restricted stock units are generally granted annually in February and vest in equal annual
installments over a five-year period.
11
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
7 Earnings Per Share
Basic and diluted earnings per share (“EPS”) calculations are detailed as follows (in thousands,
except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended April 2, 2011
|
|
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
|
Net Income
|
|
|
Shares
|
|
|
Per Share
|
|
|
|
|
(Numerator)
|
|
|
(Denominator)
|
|
|
Amount
|
|
|
Net income per basic common share
|
|
$
|
94,489
|
|
|
|
91,649
|
|
|
$
|
1.03
|
|
|
Effect of dilutive stock option, restricted
stock and restricted stock unit securities
|
|
|
|
|
|
|
1,664
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
94,489
|
|
|
|
93,313
|
|
|
$
|
1.01
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended April 3, 2010
|
|
|
|
|
|
|
|
|
Weighted-Average
|
|
|
|
|
|
|
|
Net Income
|
|
|
Shares
|
|
|
Per Share
|
|
|
|
|
(Numerator)
|
|
|
(Denominator)
|
|
|
Amount
|
|
|
Net income per basic common share
|
|
$
|
75,518
|
|
|
|
93,629
|
|
|
$
|
0.81
|
|
|
Effect of dilutive stock option, restricted
stock and restricted stock unit securities
|
|
|
|
|
|
|
1,594
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net income per diluted common share
|
|
$
|
75,518
|
|
|
|
95,223
|
|
|
$
|
0.79
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended April 2, 2011, the Company had 0.7 million stock options that were
antidilutive due to having higher exercise prices than the Company’s average stock price during the
period. For the three months ended April 3, 2010, the Company had 1.9 million stock options that
were antidilutive. These securities were not included in the computation of diluted EPS. The effect
of dilutive securities was calculated using the treasury stock method.
8 Comprehensive Income
Comprehensive income is detailed as follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
April 2,
|
|
|
April 3,
|
|
|
|
|
2011
|
|
|
2010
|
|
|
Net income
|
|
$
|
94,489
|
|
|
$
|
75,518
|
|
|
Foreign currency translation
|
|
|
32,106
|
|
|
|
(23,410
|
)
|
|
Unrealized gains on investments
before income taxes
|
|
|
2,488
|
|
|
|
41
|
|
|
Income tax expense
|
|
|
(871
|
)
|
|
|
(14
|
)
|
|
|
|
|
|
|
|
|
|
Unrealized gains on investments, net of tax
|
|
|
1,617
|
|
|
|
27
|
|
|
Retirement liability adjustment, net of tax
|
|
|
351
|
|
|
|
129
|
|
|
|
|
|
|
|
|
|
|
Other comprehensive income (loss)
|
|
|
34,074
|
|
|
|
(23,254
|
)
|
|
|
|
|
|
|
|
|
|
Comprehensive income
|
|
$
|
128,563
|
|
|
$
|
52,264
|
|
|
|
|
|
|
|
|
|
12
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
9 Retirement Plans
The Company sponsors various retirement plans. The summary of the components of net periodic
pension costs for the plans for the three months ended April 2, 2011 and April 3, 2010 is as
follows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
|
|
U.S.
|
|
|
U.S. Retiree
|
|
|
Non-U.S.
|
|
|
U.S.
|
|
|
U.S. Retiree
|
|
|
Non-U.S.
|
|
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
Pension
|
|
|
Healthcare
|
|
|
Pension
|
|
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Plans
|
|
|
Plan
|
|
|
Plans
|
|
|
Service cost
|
|
$
|
—
|
|
|
$
|
134
|
|
|
$
|
480
|
|
|
$
|
15
|
|
|
$
|
96
|
|
|
$
|
424
|
|
|
Interest cost
|
|
|
1,554
|
|
|
|
94
|
|
|
|
265
|
|
|
|
1,585
|
|
|
|
103
|
|
|
|
256
|
|
|
Expected return on plan
assets
|
|
|
(1,880
|
)
|
|
|
(69
|
)
|
|
|
(75
|
)
|
|
|
(1,785
|
)
|
|
|
(53
|
)
|
|
|
(79
|
)
|
|
Net amortization:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prior service credit
|
|
|
—
|
|
|
|
(13
|
)
|
|
|
—
|
|
|
|
—
|
|
|
|
(13
|
)
|
|
|
—
|
|
|
Net actuarial loss
(gain)
|
|
|
433
|
|
|
|
—
|
|
|
|
7
|
|
|
|
262
|
|
|
|
—
|
|
|
|
(13
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net periodic pension cost
|
|
$
|
107
|
|
|
$
|
146
|
|
|
$
|
677
|
|
|
$
|
77
|
|
|
$
|
133
|
|
|
$
|
588
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
For the three months ended April 2, 2011, the Company contributed less than $1 million to the
Company’s U.S. pension plans. During fiscal year 2011, the Company expects to contribute a total of
approximately $4 million to $5 million to the Company’s defined benefit plans.
10 Business Segment Information
The Company’s business activities, for which discrete 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 Company’s 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.
Net sales for the Company’s products and services are as follows for the three months ended April
2, 2011 and April 3, 2010 (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Product net sales:
|
|
|
|
|
|
|
|
|
|
Waters instrument systems
|
|
$
|
197,511
|
|
|
$
|
158,567
|
|
|
Chemistry
|
|
|
73,722
|
|
|
|
66,678
|
|
|
TA instrument systems
|
|
|
32,103
|
|
|
|
27,797
|
|
|
|
|
|
|
|
|
|
|
Total product sales
|
|
|
303,336
|
|
|
|
253,042
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Service net sales:
|
|
|
|
|
|
|
|
|
|
Waters service
|
|
|
113,407
|
|
|
|
105,008
|
|
|
TA service
|
|
|
10,860
|
|
|
|
9,650
|
|
|
|
|
|
|
|
|
|
|
Total service sales
|
|
|
124,267
|
|
|
|
114,658
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total net sales
|
|
$
|
427,603
|
|
|
$
|
367,700
|
|
|
|
|
|
|
|
|
|
13
CONDENSED NOTES TO CONSOLIDATED FINANCIAL STATEMENTS — (Continued)
11 Recent Accounting Standard Changes and Developments
Recently Adopted Accounting Standards
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 management’s 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
adoption of this standard in the three months ended April 2, 2011 did not have a material effect on
the Company’s financial position, results of operations or cash flows.
Also 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
adoption of this standard in the three months ended April 2, 2011 did not have a material effect on
the Company’s financial position, results of operations or cash flows.
14
Item 2:
Management’s Discussion and Analysis of Financial Condition and Results of Operations
Business and Financial Overview
The Company has two operating segments: the Waters Division and the TA Division (“TA
®
”).
The Waters Division’s 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. TA products and services primarily consist of thermal analysis, rheometry and
calorimetry instrument systems and service sales. The Company’s products are used by
pharmaceutical, life science, biochemical, industrial, food safety, academic and government
customers. These customers use the Company’s products to detect, identify, monitor and measure the
chemical, physical and biological composition of materials and to predict the suitability of fine
chemicals, polymers and viscous liquids in consumer goods and healthcare products.
The Company’s sales were $428 million and $368 million, an increase of 16% for the three months
ended April 2, 2011 (the “2011 Quarter”) and April 3, 2010 (the “2010 Quarter”), respectively. In
the 2011 Quarter, as compared with the 2010 Quarter, instrument system sales increased 23%, while
new and recurring sales of chemistry consumables and services increased 9%. This overall increase
in sales is attributable to increased spending by the Company’s pharmaceutical and industrial
customers on LC, MS and TA products. The sales growth is also attributable to an increase in demand
for the recently launched ACQUITY UPLC
®
H-Class, Xevo
®
Q-Tof
TM
and
Xevo
®
TQ-S instrument systems, which had minimal sales in the 2010 Quarter. Sales growth
of these new instrument systems was achieved in all major regions of the world. The effect of
foreign currency translation increased sales by 2% in the 2011 Quarter.
During the 2011 Quarter, sales increased 22% in Asia (including Japan), 12% in Europe, 8% in the
U.S. and 43% in the rest of the world as compared with the 2010 Quarter. The effect of foreign
currency translation increased sales by 4% in Asia and by 3% in the rest of the world, while
foreign currency translation did not impact European sales. The significant increase in sales in
Asia for the 2011 Quarter is primarily due to continued strong sales growth in China and India.
Japan’s sales grew 10% due to the effect of foreign currency translation. Japan’s sales have
historically approximated 11% of the Company’s total annualized sales and, while the 2011 Quarter
sales were in-line with the Company’s expectations, there can be no assurance that the recent
disasters in Japan will not have a negative impact on the future sales, manufacturing supply-chain
and the overall financial performance of the Company.
In the 2011 Quarter, sales to pharmaceutical customers increased 20% and combined sales to
industrial and environmental customers increased 18% as compared with the 2010 Quarter. These
increases were primarily a result of increased spending on instrument systems, chemistry
consumables and services by the Company’s customers and the sales from the recently launched
ACQUITY UPLC H-Class, Xevo Q-Tof and Xevo TQ-S instrument systems. Combined global sales to
government and academic customers were 4% higher in the 2011 Quarter.
Operating income was $116 million and $92 million in the 2011 Quarter and 2010 Quarter,
respectively. The overall increase in operating income in 2011 as compared to 2010 was primarily
from the increases in sales volumes.
Net income per diluted share was $1.01 and $0.79 in the 2011 Quarter and 2010 Quarter,
respectively. This increase in net income per diluted share was primarily attributable to the
higher sales volume, the leveraging of the lower operating expense growth, lower weighted-average
shares and equivalents and favorable foreign currency translation.
Net cash provided by operating activities was $123 million and $103 million in the 2011 Quarter and
2010 Quarter, respectively. The $20 million increase was primarily a result of higher net income in
the 2011 Quarter. Net cash provided by operating activities was also impacted by the timing of
receipts from customers and payments to vendors, as well as the payment of the 2010 management
incentive plans.
Within cash flows used in investing activities, capital expenditures related to property, plant,
equipment and software capitalization were $17 million and $10 million in the 2011 Quarter and 2010
Quarter, respectively.
Within cash flows used in financing activities, the Company received $14 million and $9 million of
proceeds from stock plans in the 2011 Quarter and 2010 Quarter, respectively. Fluctuations in these
amounts were primarily attributable to changes in the Company’s stock price and the expiration of
stock option grants. In February 2011, the Company’s Board of Directors authorized the Company to
repurchase up to $500 million of its outstanding common
15
stock over a two-year period. The Company repurchased $67 million and $101 million of the Company’s
outstanding common stock in the 2011 Quarter and 2010 Quarter, respectively, under the February
2011 authorization and previously announced stock repurchase programs.
The Company issued and sold senior unsecured notes with a total face value of $200 million in both
the 2011 Quarter and 2010 Quarter. The Company used the proceeds from the issuances of these senior
unsecured notes to repay other outstanding debt and for general corporate purposes. As a result of
these debt issuances, the Company’s weighted-average interest rates have increased in the 2011
Quarter due to higher rates paid on this fixed-rate debt.
Results of Operations
Net Sales
Product sales were $303 million and $253 million for the 2011 Quarter and the 2010 Quarter,
respectively, an increase of 20%. The increase in product sales in the 2011 Quarter as compared to
the 2010 Quarter was primarily due to higher demand from the Company’s pharmaceutical and
industrial customers and the strong uptake in sales from the ACQUITY UPLC H-Class, Xevo Q-Tof and
Xevo TQ-S instrument systems, which had minimal sales in the 2010 Quarter. Service sales were $124
million and $115 million in the 2011 Quarter and the 2010 Quarter, respectively, an increase of 8%.
The increase in service sales in the 2011 Quarter as compared to the 2010 Quarter was primarily
attributable to increased sales of service plans and billings to a higher installed base of
customers.
Waters Division Sales
Waters Division sales increased 16% in the 2011 Quarter as compared to the 2010 Quarter. The effect
of foreign currency translation impacted the Waters Division across all product lines, resulting in
an increase in total sales of 2% in the 2011 Quarter.
Waters instrument system sales (LC and MS) increased 25% in the 2011 Quarter. The increase in
instrument systems sales was primarily attributable to higher demand from the Company’s
pharmaceutical, industrial, academic and government customers and the adoption and uptake in sales
from the ACQUITY UPLC H-Class, Xevo Q-Tof and Xevo TQ-S instrument systems. Chemistry consumables
sales increased 11% in the 2011 Quarter and were driven primarily by higher demand for chemistry
consumable products, including increased sales of ACQUITY UPLC lines of columns. Waters Division
service sales increased 8% in the 2011 Quarter due to increased sales of service plans and billings
to a higher installed base of customers. Waters Division sales by product line in the 2011 Quarter
were approximately 51% for instrument systems, 19% for chemistry consumables and 30% for service.
Waters Division sales by product line in the 2010 Quarter were approximately 48% for instrument
systems, 20% for chemistry consumables and 32% for service.
In the 2011 Quarter, as compared to the 2010 Quarter, the Waters Division sales in Asia increased
22%, Europe sales increased 12%, U.S. sales increased 9% and the rest of the world sales increased
43%. The increase in Asia’s sales is primarily due to strong sales growth in China and India. The
effects of foreign currency translation increased Asia’s sales by 5% and the rest of world sales by
2% in the 2011 Quarter. The effects of foreign currency translation were neutral on the European
sales.
TA Division Net Sales
TA’s sales were 15% higher in the 2011 Quarter as compared to the 2010 Quarter. The increase was
primarily a result of higher demand for instrument systems from TA’s industrial customers due to
improved economic conditions. Instrument system sales increased 15% in the 2011 Quarter and
represented 75% of TA’s sales in the 2011 Quarter as compared to 74% in the 2010 Quarter. TA
service sales increased 13% in the 2011 Quarter, primarily due to increased sales of service plans
and billings to a higher installed base of customers. Geographically, TA’s sales increased in each
territory.
16
Gross Profit
Gross profit for the 2011 Quarter was $258 million compared to $222 million for the 2010 Quarter,
an increase of 16%. The increase in gross profit dollars in the 2011 Quarter can be primarily
attributed to higher sales volumes. Gross profit as a percentage of sales was 60.3% in both the
2011 Quarter and 2010 Quarter as comparatively the positive effects of manufacturing cost
reductions and sales volume leverage of fixed costs were offset by the unfavorable impact of
foreign currency translation on manufacturing costs and a higher sales mix of instrument systems in
the 2011 Quarter.
Selling and Administrative Expenses
Selling and administrative expenses for the 2011 Quarter and 2010 Quarter were $117 million and
$107 million, respectively, an increase of 10%. This increase in selling and administrative
expenses is a result of headcount additions; higher merit and fringe benefit costs; higher sales
and incentive compensation costs; and foreign currency translation. As a percentage of net sales,
selling and administrative expenses were 27.4% for the 2011 Quarter and 29.0% for the 2010 Quarter.
Research and Development Expenses
Research and development expenses were $22 million and $20 million for the 2011 Quarter and 2010
Quarter, respectively, an increase of 11%. The increase in research and development expenses in the
2011 Quarter was primarily due to development costs incurred on new products.
Provision for Income Taxes
The Company’s effective tax rate decreased to 16.0% in the 2011 Quarter from 16.2% in the 2010
Quarter. Included in the income tax provision for the 2010 Quarter is a $2 million tax benefit
related to the resolution of a pre-acquisition tax exposure. This tax benefit decreased the
Company’s effective tax rate by 1.7 percentage points in the 2010 Quarter. The remaining difference
between the effective tax rates for the 2011 Quarter as compared to the 2010 Quarter was primarily
attributable to differences in pre-tax income in jurisdictions with different effective tax rates.
The Company’s effective tax rate is influenced by many significant factors including, but not
limited to, the wide range of income tax rates in jurisdictions in which the Company operates,
sales volumes and profit levels in each tax jurisdiction, changes in tax laws and policies and the
impact of foreign currency transactions and translation. As a result of variability in these
factors, the Company’s effective tax rates in the future may not be similar to the effective tax
rates in the 2011 Quarter or 2010 Quarter. A known factor that will increase the Company’s
effective tax rate in the future is that the Company’s Ireland statutory tax rate has increased to
12.5% in 2011 from the historical contractual tax rate of 10%.
Liquidity and Capital Resources
Condensed Consolidated Statements of Cash Flows (in thousands):
|
|
|
|
|
|
|
|
|
|
|
|
|
Three Months Ended
|
|
|
|
|
April 2, 2011
|
|
|
April 3, 2010
|
|
|
Net income
|
|
$
|
94,489
|
|
|
$
|
75,518
|
|
|
Depreciation and amortization
|
|
|
16,160
|
|
|
|
14,985
|
|
|
Stock-based compensation
|
|
|
7,015
|
|
|
|
6,031
|
|
|
Deferred income taxes
|
|
|
(1,479
|
)
|
|
|
(1,950
|
)
|
|
Change in accounts receivable
|
|
|
17,730
|
|
|
|
(6,230
|
)
|
|
Change in inventories
|
|
|
(17,353
|
)
|
|
|
(16,134
|
)
|
|
Change in accounts payable and other current liabilities
|
|
|
(26,836
|
)
|
|
|
13,720
|
|
|
Change in deferred revenue and customer advances
|
|
|
23,856
|
|
|
|
23,732
|
|
|
Other changes
|
|
|
9,179
|
|
|
|
(6,517
|
)
|
|
|
|
|
|
|
|
|
|
Net cash provided by operating activities
|
|
|
122,761
|
|
|
|
103,155
|
|
|
Net cash used in investing activities
|
|
|
(121,107
|
)
|
|
|
(116,187
|
)
|
|
Net cash used in financing activities
|
|
|
(27,250
|
)
|
|
|
(18,479
|
)
|
|
Effect of exchange rate changes on cash and cash equivalents
|
|
|
13,958
|
|
|
|
(12,588
|
)
|
|
|
|
|
|
|
|
|
|
Decrease in cash and cash equivalents
|
|
$
|
(11,638
|
)
|
|
$
|
(44,099
|
)
|
|
|
|
|
|
|
|
|
17
Cash Flow from Operating Activities
Net cash provided by operating activities was $123 million and $103 million in the 2011 Quarter and
2010 Quarter, respectively. The changes within net cash provided by operating activities in the
2011 Quarter as compared to the 2010 Quarter 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 the 2011 Quarter compared to the 2010 Quarter
was primarily attributable to timing of shipments and payments made by customers and
higher sales volumes in the 2011 Quarter as compared to the 2010 Quarter.
Days-sales-outstanding (“DSO”) decreased to 74 days at April 2, 2011 from 78 days at April
3, 2010.
|
|
|
|
|
•
|
|
The 2011 Quarter change in accounts payable and other current liabilities is a result
of timing of payments to vendors and payments under the 2010 management incentive plans,
offset somewhat by an increase in income taxes payable.
|
|
|
|
|
•
|
|
Net cash provided from deferred revenue and customer advances in both the 2011
Quarter and the 2010 Quarter was a result of the installed base of customers renewing
annual service contracts.
|
|
|
|
|
•
|
|
Other changes were attributable to variation in 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 $121 million and $116 million in the 2011 Quarter and
2010 Quarter, respectively. Additions to fixed assets and capitalized software were $17 million in
the 2011 Quarter and $10 million in the 2010 Quarter.
During the 2011 Quarter and 2010 Quarter, the Company purchased $432 million and $217 million of
short-term investments while $328 million and $111 million of short-term investments matured,
respectively.
Cash Used in Financing Activities
The Company issued and sold senior unsecured notes with a total face value of $200 million in both
the 2011 Quarter and 2010 Quarter. The Company used the proceeds from the issuance of these senior
unsecured notes to repay $140 million of the term loan under the 2007 Credit Agreement and other
outstanding debt, and for general corporate purposes. Interest on both issuances of senior
unsecured notes is payable semi-annually. The Company may redeem some 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 customary negative covenants. These notes also contain certain customary representations
and warranties, affirmative covenants and events of default.
During the 2011 Quarter and 2010 Quarter, the Company’s debt borrowings increased by $24 million
and $81 million, respectively. As of April 2, 2011, the Company had $400 million in outstanding
notes, $360 million borrowed under a term loan facility, $20 million borrowed under revolving
credit facilities and $10 million borrowed under various other short-term lines of credit. In the
2011 Quarter, the entire outstanding balance of the 2007 Credit Agreement, which matures in January
2012, has been classified as a current liability in the consolidated balance sheet as of April 2,
2011. The Company anticipates refinancing the 2007 Credit Agreement at market interest rates and
terms customary to investment-grade borrowers, but there can be no assurance that it will be able
to do so on such terms. As of April 2, 2011, the Company had a total amount available to borrow
under existing credit agreements of $579 million after outstanding letters of credit.
In February 2011, the Company’s Board of Directors authorized the Company to repurchase up to $500
million of its outstanding common stock over a two-year period. During the 2011 Quarter and 2010
Quarter, the Company repurchased a total of 0.9 million and 1.7 million shares at a cost of $67
million and $101 million, respectively, under the February 2011 authorization and previously
announced programs. As of April 2, 2011, the Company had purchased an aggregate of 0.2 million
shares at a cost of $17 million under the February 2011 program, leaving $483 million authorized
for future repurchases.
18
The Company received $14 million and $9 million of proceeds from the exercise of stock options and
the purchase of shares pursuant to the Company’s employee stock purchase plan in the 2011 Quarter
and 2010 Quarter, respectively.
The Company believes that the cash, cash equivalents and short-term investments of $1,039 million
at the end of the 2011 Quarter and expected cash flow from operating activities, together with
borrowing capacity from committed credit facilities, will be sufficient to service debt and fund
working capital and 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.
Contractual Obligations and Commercial Commitments
A summary of the Company’s contractual obligations and commercial commitments is included in the
Company’s annual report on Form 10-K for the year ended December 31, 2010. The Company reviewed its
contractual obligations and commercial commitments as of April 2, 2011 and determined that there
were no material changes from the ones set forth in the Form 10-K, with the exception of the
issuance of senior unsecured notes as described in Note 4, Debt, in the Condensed Notes to
Consolidated Financial Statements.
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 that it has meritorious arguments
in its current litigation matters and that any outcome, either individually or in the aggregate,
will not be material to the Company’s financial position or results of operations.
For the three months ended April 2, 2011, the Company contributed less than $1 million to the
Company’s U.S. pension plans. During fiscal year 2011, the Company expects to contribute a total of
approximately $4 million to $5 million to the Company’s defined benefit plans.
The Company has not paid any dividends and does not plan to pay any dividends in the foreseeable
future.
Critical Accounting Policies and Estimates
In the Company’s annual report on Form 10-K for the year ended December 31, 2010, the Company’s
most critical accounting policies and estimates upon which its financial status depends were
identified as those relating to revenue recognition, loss provisions on accounts receivable and
inventory, valuation of long-lived assets, intangible assets and goodwill, warranty, income taxes,
pension and other postretirement benefit obligations, litigation and stock-based compensation. The
Company reviewed its policies and determined that those policies remain the Company’s most critical
accounting policies for the 2011 Quarter. The Company did not make any changes in those policies
during the 2011 Quarter.
New Accounting Pronouncements
Refer to Note 11, Recent Accounting Standards Changes and Developments, in the Condensed Notes to
Consolidated Financial Statements.
Special Note Regarding Forward-Looking Statements
Certain of the statements in this quarterly report on Form 10-Q, including the information
incorporated by reference 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, anticipated trends in the Company’s business; geographic
breakdown of business; anticipated expenses, including interest expense and amortization expense;
the impact of the Company’s various ongoing tax audits and litigation matters; the impact of the
loss of intellectual property protection; the effect of new accounting pronouncements; use of the
Company’s debt proceeds; the impact of regulatory compliance; the Company’s expected cash flow,
borrowing capacity and debt refinancing; the Company’s contributions to defined benefit plans; the
Company’s expectations regarding the payment of dividends; and the Company’s capital spending,
sufficiency of capital and ability to fund other facility expansions to accommodate future sales
growth.
19
Many of these statements appear, in particular, under the heading “Management’s Discussion and
Analysis of Financial Condition and Results of Operations” in Part I, Item 2 of this quarterly
report on Form 10-Q. Statements that are not statements of historical fact may be deemed
forward-looking statements. 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:
|
•
|
|
Current economic conditions and uncertainties; ability to access capital in volatile market
conditions; changes in demand by the Company’s customers and various market sectors,
particularly if they should reduce capital expenditures; the effect of mergers and
acquisitions on customer demand; and ability to sustain and enhance service; the potential
negative financial impact of the Japan disasters on customer demand.
|
|
|
|
•
|
|
Negative industry trends; introduction of competing products by other companies and loss of
market share; pressures on prices from customers or resulting from competition; regulatory,
economic and competitive obstacles to new product introductions; lack of acceptance of new
products; expansion of our business in Asia; spending by certain end-markets and ability to
obtain alternative sources for components and modules.
|
|
|
|
•
|
|
Foreign exchange rate fluctuations that could adversely affect translation of the Company’s
future financial operating results and condition.
|
|
|
|
•
|
|
Increased regulatory burdens as the Company’s business evolves, especially with respect to
the U.S. Securities and Exchange Commission, U.S. Food and Drug Administration, and U.S.
Environmental Protection Agency, among others and regulatory, environmental and logistical
obstacles affecting the distribution of the Company’s products and completion of purchase
order documentation.
|
|
|
|
•
|
|
Risks associated with lawsuits, particularly involving claims for infringement of patents
and other intellectual property rights.
|
|
|
|
•
|
|
The impact and costs incurred from changes in accounting principles and practices or tax
rates (specifically, the increase in the Company’s 2011 statutory tax rate in Ireland from the
10% historical contractual tax rate to 12.5%); shifts in taxable income in jurisdictions with
different effective tax rates; and the outcome of and costs associated with ongoing and future
tax examinations or changes in respective country legislation affecting the Company’s
effective rates.
|
Certain of these and other factors are discussed in Part II, Item 1A of this quarterly report on
Form 10-Q and under the heading “Risk Factors” under Part I, Item 1A of the Company’s annual report
on Form 10-K for the year ended December 31, 2010. 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 quarterly report on Form 10-Q 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.
Item 3:
Quantitative and Qualitative Disclosures About Market Risk
There has been no material change in the Company’s market risk during the three months ended April
2, 2011. For information regarding the Company’s market risk, refer to Item 7A of Part II of the
Company’s annual report on Form 10-K for the year ended December 31, 2010, as filed with the
Securities and Exchange Commission (“SEC”) on February 25, 2011.
Item 4:
Controls and Procedures
Evaluation of Disclosure Controls and Procedures
The Company’s chief executive officer and chief financial officer (principal executive and
principal financial officer), with the participation of management, evaluated the effectiveness of
the Company’s 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 quarterly report on Form 10-Q. Based
on this evaluation, the Company’s chief executive officer and chief financial officer concluded
that the Company’s disclosure controls and procedures were effective as of April 2, 2011 (1) to
ensure that information required to be disclosed by the Company, including its consolidated
subsidiaries,
20
in the reports that it files or submits under the Exchange Act is accumulated and
communicated to the Company’s 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 SEC’s rules and forms.
Changes in Internal Controls Over Financial Reporting
There have been no changes identified in the Company’s internal control over financial reporting
(as defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the quarter ended April
2, 2011 that have materially affected, or are reasonably likely to materially affect, the Company’s
internal control over financial reporting.
Part II:
Other Information
Item 1:
Legal Proceedings
There have been no material changes in the Company’s legal proceedings during the three months
ended April 2, 2011 as described in Item 3 of Part I of the Company’s annual report on Form 10-K
for the year ended December 31, 2010, as filed with the SEC on February 25, 2011.
Item 1A:
Risk Factors
Information regarding risk factors of the Company is set forth under the heading “Risk Factors”
under Part I, Item 1A in the Company’s annual report on Form 10-K for the year ended December 31,
2010. The Company reviewed its risk factors as of April 2, 2011 and determined that there were no
material changes from the ones set forth in the form 10-K, except as reflected under “Special Note
Regarding Forward-Looking Statements” on page 19, in particular, as to the possible negative effect
on demand from Japanese customers from the recent Japan disasters. These risks are not the only
ones facing the Company. Additional risks and uncertainties not currently known to the Company or
that the Company currently deems to be immaterial also may materially adversely affect the
Company’s business, financial condition and its operating results.
Item 2:
Unregistered Sales of Equity Securities and Use of Proceeds
Purchases of Equity Securities by the Issuer
The following table provides information about purchases by the Company during the three months
ended April 2, 2011 of equity securities registered by the Company under the Exchange Act (in
thousands, except per share data):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total Number of
|
|
|
Maximum Dollar
|
|
|
|
|
|
|
|
|
|
|
|
|
Shares Purchased as
|
|
|
Value of Shares
|
|
|
|
|
|
|
|
|
|
|
|
|
Part of Publicly
|
|
|
that May Yet Be
|
|
|
|
|
Total Number of
|
|
|
Average Price Paid
|
|
|
Announced Plans or
|
|
|
Purchased Under the
|
|
|
Period
|
|
Shares Purchased
|
|
|
per Share
|
|
|
Programs (1) (2)
|
|
|
Plans or Programs
|
|
|
January 1 to January 29, 2011
|
|
|
50
|
|
|
$
|
75.98
|
|
|
|
50
|
|
|
$
|
47,364
|
|
|
January 30 to February 26, 2011
|
|
|
600
|
|
|
$
|
77.41
|
|
|
|
600
|
|
|
$
|
500,000
|
|
|
February 27 to April 2, 2011
|
|
|
197
|
|
|
$
|
84.66
|
|
|
|
197
|
|
|
$
|
483,322
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
|
|
|
847
|
|
|
$
|
79.01
|
|
|
|
847
|
|
|
$
|
483,322
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1)
|
|
The Company purchased 0.7 million shares of its outstanding common stock in the 2011 Quarter 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. As of April 2, 2011, the Company repurchased an aggregate of
8.2 million shares of its common stock under the now expired 2009 Program for an aggregate of $499 million.
|
|
|
|
(2)
|
|
The Company purchased 0.2 million shares of its outstanding common stock in the 2011 Quarter in open market transactions pursuant to a
repurchase program that was announced in February 2011 (the “2011 Program”). The 2011 Program authorized the repurchase of up to $500
million of common stock in open market transactions over a two-year period.
|
21
Item 6:
Exhibits
|
|
|
|
|
Exhibit
|
|
|
|
Number
|
|
Description of Document
|
|
10.62
|
|
Note Purchase Agreement, dated March 15, 2011 between Waters Corporation
and the purchasers named therein.
|
|
|
|
|
|
10.63
|
|
First Amendment to the Note Purchase Agreement Dated as of February 2, 2010.
|
|
|
|
|
|
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 Corporation’s Quarterly Report on Form
10-Q for the quarter ended April 2, 2011, 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.
|
|
|
|
|
|
**
|
|
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.
|
22
SIGNATURE
Pursuant to the requirements 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
|
|
|
|
/s/
John Ornell
|
|
|
|
John Ornell
|
|
|
|
Vice President, Finance and
Administration and Chief Financial Officer
|
|
|
|
Date: May 6, 2011
23
Exhibit
10.62
Conformed Copy
Waters Corporation
$200,000,000
2.50% Senior Guaranteed Notes, Series C, due March 15, 2016
3.22% Senior Guaranteed Notes, Series D, due March 15, 2018
and
3.97% Senior Guaranteed Notes, Series E, due March 15, 2021
Note Purchase Agreement
______________
Dated March 15, 2011
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
|
|
|
|
3
|
|
|
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 Amendment
|
|
|
|
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
|
|
|
|
7
|
|
|
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
|
Heading
|
|
Page
|
|
|
Section 5.17. Status under Certain Statutes
|
|
|
|
10
|
|
|
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
|
|
|
|
11
|
|
|
|
|
|
|
|
|
|
Section 7.
Information as to Company
|
|
|
|
13
|
|
|
|
|
|
|
|
|
|
Section 7.1. Financial and Business Information
|
|
|
|
13
|
|
|
Section 7.2. Officer’s Certificate
|
|
|
|
15
|
|
|
Section 7.3. Visitation
|
|
|
|
16
|
|
|
|
|
|
|
|
|
|
Section 8.
Payment and Prepayment of the Notes
|
|
|
16
|
|
|
|
|
|
|
|
|
|
Section 8.1. Maturity
|
|
|
|
16
|
|
|
Section 8.2. Optional Prepayments with Make-Whole Amount
|
|
|
16
|
|
|
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
|
|
|
|
17
|
|
|
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
|
|
|
20
|
|
|
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
|
|
|
|
23
|
|
|
Section 10.10. Interest Coverage Ratio
|
|
|
|
23
|
|
|
|
|
|
|
|
|
|
Section 11.
Events of Default
|
|
|
|
24
|
|
-ii-
|
|
|
|
|
|
|
|
Section
|
Heading
|
|
Page
|
|
|
Section 12.
Remedies on Default, Etc.
|
|
|
25
|
|
|
|
|
|
|
|
|
|
Section 12.1. Acceleration
|
|
|
|
25
|
|
|
Section 12.2. Other Remedies
|
|
|
|
26
|
|
|
Section 12.3. Rescission
|
|
|
|
26
|
|
|
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
|
|
|
|
27
|
|
|
Section 13.3. Replacement of Notes
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
Section 14.
Payments on Notes
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
Section 14.1. Place of Payment
|
|
|
|
28
|
|
|
Section 14.2. Home Office Payment
|
|
|
|
28
|
|
|
|
|
|
|
|
|
|
Section 15.
Expenses, Etc.
|
|
|
|
29
|
|
|
|
|
|
|
|
|
|
Section 15.1. Transaction Expenses
|
|
|
|
29
|
|
|
Section 15.2. Survival
|
|
|
|
29
|
|
|
|
|
|
|
|
|
|
Section 16.
Survival of Representations and Warranties; Entire Agreement
|
|
|
29
|
|
|
|
|
|
|
|
|
|
Section 17.
Amendment and Waiver
|
|
|
|
30
|
|
|
|
|
|
|
|
|
|
Section 17.1. Requirements
|
|
|
|
30
|
|
|
Section 17.2. Solicitation of Holders of Notes
|
|
|
|
30
|
|
|
Section 17.3. Binding Effect, Etc.
|
|
|
|
31
|
|
|
Section 17.4. Notes Held by Company, Etc.
|
|
|
|
31
|
|
|
|
|
|
|
|
|
|
Section 18.
Notices
|
|
|
|
31
|
|
|
|
|
|
|
|
|
|
Section 19.
Reproduction of Documents
|
|
|
|
31
|
|
|
|
|
|
|
|
|
|
Section 20.
Confidential Information
|
|
|
|
32
|
|
|
|
|
|
|
|
|
|
Section 21.
Substitution of Purchaser
|
|
|
|
33
|
|
|
|
|
|
|
|
|
|
Section 22.
Miscellaneous
|
|
|
|
33
|
|
|
Section 22.1. Successors and Assigns
|
|
|
|
33
|
|
|
Section 22.2. Payments Due on Non-Business Days
|
|
|
33
|
|
|
Section 22.3. Accounting Terms
|
|
|
|
33
|
|
|
Section 22.4. Severability
|
|
|
|
34
|
|
-iii-
|
|
|
|
|
|
|
|
Section
|
Heading
|
|
Page
|
|
|
Section 22.5. Construction, Etc
|
|
|
|
34
|
|
|
Section 22.6. Counterparts
|
|
|
|
34
|
|
|
Section 22.7. Governing Law
|
|
|
|
34
|
|
|
Section 22.8. Jurisdiction and Process; Waiver of Jury Trial
|
|
|
35
|
|
|
Section 22.9. Release of Guarantors
|
|
|
|
35
|
|
|
|
|
|
|
|
|
|
Signature
|
|
|
|
1
|
|
-iv-
|
|
|
|
|
|
|
Schedule A
|
|
—
|
|
Information Relating to Purchasers
|
|
|
|
|
|
|
|
Schedule B
|
|
—
|
|
Defined Terms
|
|
|
|
|
|
|
|
Schedule C
|
|
—
|
|
List of Guarantors at Closing
|
|
|
|
|
|
|
|
Schedule
5.3
|
|
—
|
|
Disclosure Materials
|
|
|
|
|
|
|
|
Schedule
5.4
|
|
—
|
|
Subsidiaries of the Company and Ownership of Subsidiary Stock
|
|
|
|
|
|
|
|
Schedule
5.15
|
|
—
|
|
Existing Debt
|
|
|
|
|
|
|
|
Exhibit
1-A
|
|
—
|
|
Form of
2.50%
Senior Guaranteed Note, Series C, due March 15, 2016
|
|
|
|
|
|
|
|
Exhibit 1-B
|
|
—
|
|
Form of 3.22% Senior Guaranteed Note, Series D, due March 15, 2018
|
|
|
|
|
|
|
|
Exhibit 1-C
|
|
—
|
|
Form of 3.97% Senior Guaranteed Note, Series E, due March 15, 2021
|
|
|
|
|
|
|
|
Exhibit
B
|
|
—
|
|
Form of Guarantee Agreement
|
|
|
|
|
|
|
|
Exhibit
4.4(a)-1
|
|
—
|
|
Form of Opinion of Counsel for the Obligors
|
|
|
|
|
|
|
|
Exhibit
4.4(a)-2
|
|
—
|
|
Form of Opinion of Special Counsel for the Obligors
|
|
|
|
|
|
|
|
Exhibit
4.4(b)
|
|
—
|
|
Form of Opinion of Special Counsel for the Purchasers
|
-v-
Waters Corporation
34 Maple Street
Milford, MA 01757
2.50% Senior Guaranteed Notes, Series C, due March 15, 2016
3.22% Senior Guaranteed Notes, Series D, due March 15, 2018
and
3.97% Senior Guaranteed Notes, Series E, due March 15, 2021
March 15, 2011
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) $50,000,000 aggregate principal amount
of its 2.50% Senior Guaranteed Notes, Series C, due March 15, 2016 (the
“Series C Notes”
), (ii)
$100,000,000 aggregate principal amount of its 3.22% Senior Guaranteed Notes, Series D, due March
15, 2018 (the
“Series D Notes”
), and (iii) $50,000,000 aggregate principal amount of its 3.97%
Senior Guaranteed Notes, Series E, due March 15, 2021 (the
“Series E Notes”
and, together with the
Series C Notes and the Series D 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 C Notes, the Series D Notes
and the Series E Notes shall be substantially in the forms set out in Exhibits 1-A, 1-B and 1-C,
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
Purchaser’s 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
|
|
|
|
|
Waters Corporation
|
|
Note Purchase Agreement
|
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.
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.
Section 3.
Closings
.
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) on March 15, 2011 or on such other Business Day thereafter on or
prior to March 31, 2011 as may be agreed upon by the Company and the Purchasers (the
“Closing”
).
At the Closing the Company will deliver to each Purchaser the Notes of the respective series to be
purchased by such Purchaser at the Closing in the form of a single Note (or such greater number of
Notes in denominations of at least $100,000 as such Purchaser may request) for each series dated
the date of the related Closing and registered in such Purchaser’s 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 shall not have
been fulfilled to such Purchaser’s 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 Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at
the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the
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 the Closing.
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 Agreement, as the case may
be, required to be performed or complied with by it prior to or at the 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 Supplement that would
have been prohibited by Section 10.1, 10.5, 10.6 or 10.7 had such Sections applied since such date.
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Section 4.3. Compliance Certificates
.
(a)
Officer’s Certificate
. Each Obligor shall have delivered to such Purchaser an Officer’s
Certificate, dated the date of the Closing, certifying that the conditions specified in Sections
4.1, 4.2 and 4.9 have been fulfilled.
(b)
Secretary’s Certificate
. Each Obligor shall have delivered to such Purchaser a certificate
of its Secretary or Assistant Secretary, dated the date of the 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 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 the Closing such
Purchaser’s 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 Officer’s 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 the Closing the Company shall sell
to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at
the Closing as specified in Schedule A.
Section 4.7. Payment of Special Counsel Fees
. Without limiting the provisions of Section
15.1, the Company shall have paid on or before the 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.
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Section 4.8. Private Placement Number
. A Private Placement Number issued by Standard & Poor’s
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 the
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 bank’s 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 Closing and such Guarantee Agreement shall be in
full force and effect on the date of the Closing.
Section 4.12. First Amendment
. The First Amendment to Note Purchase Agreement, dated as of
the date hereof, shall have been executed and delivered by the Company and the Required Holders (as
defined therein) under that certain Note Purchase Agreement dated as of February 1, 2010 by and
among the Company and the Purchasers named therein.
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 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
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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, RBS Securities, Inc. and Barclays
Capital Inc., has delivered to each Purchaser a copy of a Company Update Document, dated October
25, 2010 (the
“Supplement”
), relating to the transactions contemplated hereby and supplementing
that certain Private Placement Memorandum dated as of December, 2009. The Supplement provides an
overview of recent corporate events and other selected Company information. This Agreement, the
Supplement (including the items listed in the Appendices to the Supplement) 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 Supplement and such documents,
certificates or other writings, and such financial statements delivered to each Purchaser prior to
November 3, 2010 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, 2009, 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 Company’s
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 whether such Subsidiary is
a Guarantor, (ii) to the knowledge of the Company, of the Company’s Affiliates, other than
Subsidiaries, and (iii) of the Company’s 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
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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, 2009 and for the fiscal quarter ended July 3, 2010. 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 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
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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, 2005.
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
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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 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
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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 Purchaser’s
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 twenty (20) 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 February 26, 2011 (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 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.
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(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 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
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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.
Representations of the Purchasers
.
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 loss 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 Purchaser’s or their property shall at all times be within such Purchaser’s
or their control. Each Purchaser understands that the Notes have not been registered under the
Securities Act and may be resold only if registered 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.
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 Labor’s 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
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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 Purchaser’s state of
domicile; or
(b) the Source is a separate account that is maintained solely in connection with such
Purchaser’s 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 plan’s
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
(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
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(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.
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 Company’s 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
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 Company’s 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
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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 Company’s 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 Company’s Form 10-K
for such fiscal year (together with the Company’s 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;
(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
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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 Company’s 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.
Section 7.2. Officer’s 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
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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 Company’s
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.
Section 8.
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
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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 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
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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 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.
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“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.
(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)
Officer’s 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
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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.
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 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.
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(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
Financial Accounting Standards Board Accounting Standards Codification No. 825 (Financial
Instruments) 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. 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 Company’s or such
Subsidiary’s 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.
(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
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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 arm’s-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, (ii) the principal amount of
all Debt of Subsidiaries that are not Guarantors permitted by Section 10.6(b) 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 $180,000,000 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
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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 to the Company or any other Subsidiary; and
(b) other Debt;
provided
that the sum of (without duplication) (i) the principal amount
of all Debt permitted by this clause (b), (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 $180,000,000 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(b) and (iii) the
principal amount of all Debt secured by Liens permitted by Section 10.5(a) does not exceed the
greater of $180,000,000 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 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.
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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
(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
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(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
(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
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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.
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
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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 holder’s 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.
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 holder’s
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 Company’s 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 C Notes, Exhibit 1-B with respect to the Series
D Notes and Exhibit 1-C with respect to the Series E 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 $100,000, provided that if necessary to enable the registration of transfer by a holder of its
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entire holding of Notes, one Note may be in a denomination of less than $100,000. 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 Person’s 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. 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
Purchaser’s 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
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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.
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.
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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
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.
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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
(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
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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 Purchaser’s 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), (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 Purchaser’s 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 Purchaser’s Notes and this Agreement. Each holder of a Note,
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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 Affiliate’s
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 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.
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(b) If the Company notify the holders of Notes that, in the Company’s 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.
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.
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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.
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.
* * * * *
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Note Purchase Agreement
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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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VP Finance and Administration and
CFO, Assistant Treasurer and Assistant Secretary
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Waters Corporation
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Note Purchase Agreement
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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/ Howard Stern
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Name:
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Howard Stern
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Its Authorized Representative
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Waters Corporation
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Note Purchase Agreement
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This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Hartford Life Insurance Company
Hartford Insurance Company of Illinois
Hartford Fire Insurance Company
Hartford Accident and Indemnity Company
Hartford Life and Accident Insurance
Company
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By:
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Hartford Investment Management Company
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Their Agent and Attorney-in-Fact
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By
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/s/ Ronald A. Mendel
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Name:
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Ronald A. Mendel
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Title:
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Managing Director
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Physicians Life Insurance Company
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By:
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Hartford Investment Management Company
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Its Investment Manager
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By
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/s/ Ronald A. Mendel
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Name:
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Ronald A. Mendel
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Title:
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Managing Director
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Waters Corporation
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Note Purchase Agreement
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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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Corporate 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
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LLC, 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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Vice President
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New York Life Insurance and Annuity
Corporation Institutionally Owned Life
Insurance Separate Account (BOLI 30C)
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By
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New York Life Investment Management
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LLC, 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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Vice President
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Waters Corporation
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Note Purchase Agreement
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New York Life Insurance and Annuity
Corporation Institutionally Owned Life
Insurance Separate Account (BOLI 30D)
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By
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New York Life Investment Management
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LLC, 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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Vice President
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New York Life Insurance and Annuity
Corporation Institutionally Owned Life
Insurance Separate Account (BOLI 30E)
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By
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New York Life Investment Management
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LLC, 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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Vice President
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New York Life Insurance and Annuity
Corporation Institutionally Owned Life
Insurance Separate Account (BOLI 3-2)
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By
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New York Life Investment Management
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LLC, 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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Vice President
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Waters Corporation
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Note Purchase Agreement
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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/ Patricia Eitrheim
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Name:
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Patricia Eitrheim
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Title:
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Director
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Waters Corporation
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Note Purchase Agreement
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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/ Jayson Bronchetti
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Name:
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Jayson Bronchetti
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Title:
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Vice President
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Waters Corporation
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Note Purchase Agreement
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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/ Elisabeth A. Perenick
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Name:
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Elisabeth A. Perenick
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Title:
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Managing Director
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Waters Corporation
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Note Purchase Agreement
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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
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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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Waters Corporation
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Note Purchase Agreement
|
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/ Annette M. Masterson
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Name:
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Annette M. Masterson
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Title:
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Vice President
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Waters Corporation
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Note Purchase Agreement
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This Agreement is hereby
accepted and agreed to as
of the date thereof.
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Ameritas Life Insurance Corp.
The Union Central Life Insurance Company
Acacia Life Insurance Company
First Ameritas Life Insurance Corp. of New
York
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By:
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Summit Investment Advisors Inc., as Agent
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By
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/s/ Andrew S. White
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Andrew S. White, Managing Director — Private
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Placements
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Waters Corporation
|
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Note Purchase Agreement
|
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
Investment Advisor
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By
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/s/ Allen R. Cantrell
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Name:
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Allen R. Cantrell
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Title:
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Managing Director,
Investments
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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.
Schedule B
(to Note Purchase Agreement)
“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 Financial Accounting
Standards Board Accounting Standards Codification No. 718 (Compensation — Stock Compensation), as
amended, or any successor standard or rule, 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
B-2
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
B-3
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
B-4
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
B-5
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
B-6
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.
“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.
“Officer’s 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
B-7
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.
B-8
“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.
“Supplement”
is defined in Section 5.3.
“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.
B-9
[Form of Series C Note]
Waters Corporation
2.50% Senior Guaranteed Note, Series C, Due March 15, 2016
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No. [_____]
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[Date]
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$[_______]
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PPN 941848 B#9
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For Value Received
, the undersigned,
Waters Corporation
(herein called the
“Company”
), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [____________], or registered assigns, the principal sum of
[_____________________]
Dollars
(or so much thereof as shall not have been prepaid) on
March 15, 2016, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance hereof at the rate of 2.50% per annum from the date hereof, payable
semiannually, on the fifteenth day of March and September in each year, commencing with the March
or September next succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the
continuance of an Event of Default, on such unpaid balance and on any overdue payment of any
Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 4.50% or (ii)
2.00% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time
in New York, New York as its “base” or “prime” rate, payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Series C
Note are to be made in lawful money of the United States of America at JPMorgan Chase Bank, N.A. or
at such other place as the Company shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreement referred to below.
This Series C Note is one of a series of Senior Notes (herein called the
“Notes”
) issued
pursuant to the Note Purchase Agreement, dated as of March 15, 2011 (as from time to time amended,
the
“Note Purchase Agreement”
), between the Company and the respective Purchasers named therein and
is entitled to the benefits thereof. Each holder of this Series C Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note
Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Series C Note shall
have the respective meanings ascribed to such terms in the Note Purchase Agreement.
The payment and performance of this Series C Note by the Company and the payment and
performance of the obligations of the Company under the Note Purchase Agreement are guaranteed by
the Guarantors pursuant to the Guarantee Agreements, including any supplements, amendments or
modifications thereto.
Exhibit 1-A
(to Note Purchase Agreement)
This Series C Note is a registered Series C Note and, as provided in the Note Purchase
Agreement, upon surrender of this Series C Note for registration of transfer accompanied by a
written instrument of transfer duly executed, by the registered holder hereof or such holder’s
attorney duly authorized in writing, a new Series C Note for a like principal amount will be issued
to, and registered in the name of, the transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Series C Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Series C Note is also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Series C Note may be
declared or otherwise become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Series C Note shall be construed and enforced in accordance with, and the rights of the
Company and the holder of this Series C Note 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.
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Waters Corporation
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By
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[Title]
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1-A-2
[Form of Series D Note]
Waters Corporation
3.22% Senior Guaranteed Note, Series D, Due March 15, 2018
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No. [_____]
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[Date]
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$[_______]
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PPN 941848 C*2
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For Value Received
, the undersigned,
Waters Corporation
(herein called the
“Company”
), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [____________], or registered assigns, the principal sum of
[_____________________]
Dollars
(or so much thereof as shall not have been prepaid) on
March 15, 2018, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance hereof at the rate of 3.22% per annum from the date hereof, payable
semiannually, on the fifteenth day of March and September in each year, commencing with the March
or September next succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the
continuance of an Event of Default, on such unpaid balance and on any overdue payment of any
Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 5.22% or (ii)
2.00% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time
in New York, New York as its “base” or “prime” rate, payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Series D
Note are to be made in lawful money of the United States of America at JPMorgan Chase Bank, N.A. or
at such other place as the Company shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreement referred to below.
This Series D Note is one of a series of Senior Notes (herein called the
“Notes”
) issued
pursuant to the Note Purchase Agreement, dated as of March 15, 2011 (as from time to time amended,
the
“Note Purchase Agreement”
), between the Company and the respective Purchasers named therein and
is entitled to the benefits thereof. Each holder of this Series D Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note
Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Series D Note shall
have the respective meanings ascribed to such terms in the Note Purchase Agreement.
The payment and performance of this Series D Note by the Company and the payment and
performance of the obligations of the Company under the Note Purchase Agreement are guaranteed by
the Guarantors pursuant to the Guarantee Agreements, including any supplements, amendments or
modifications thereto.
Exhibit 1-B
(to Note Purchase Agreement)
This Series D Note is a registered Series D Note and, as provided in the Note Purchase
Agreement, upon surrender of this Series D Note for registration of transfer accompanied by a
written instrument of transfer duly executed, by the registered holder hereof or such holder’s
attorney duly authorized in writing, a new Series D Note for a like principal amount will be issued
to, and registered in the name of, the transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Series D Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Series D Note is also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Series D Note may be
declared or otherwise become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Series D Note shall be construed and enforced in accordance with, and the rights of the
Company and the holder of this Series D Note 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.
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Waters Corporation
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By
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[Title]
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1-B-2
[Form of Series E Note]
Waters Corporation
3.97% Senior Guaranteed Note, Series E, Due March 15, 2021
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No. [_____]
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[Date]
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$[_______]
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PPN 941848 C@0
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For Value Received
, the undersigned,
Waters Corporation
(herein called the
“Company”
), a corporation organized and existing under the laws of the State of Delaware, hereby
promises to pay to [____________], or registered assigns, the principal sum of
[_____________________]
Dollars
(or so much thereof as shall not have been prepaid) on
March 15, 2021, with interest (computed on the basis of a 360-day year of twelve 30-day months) (a)
on the unpaid balance hereof at the rate of 3.97% per annum from the date hereof, payable
semiannually, on the fifteenth day of March and September in each year, commencing with the March
or September next succeeding the date hereof, until the principal hereof shall have become due and
payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the
continuance of an Event of Default, on such unpaid balance and on any overdue payment of any
Make-Whole Amount, at a rate per annum from time to time equal to the greater of (i) 5.97% or (ii)
2.00% over the rate of interest publicly announced by JPMorgan Chase Bank, N.A. from time to time
in New York, New York as its “base” or “prime” rate, payable semiannually as aforesaid (or, at the
option of the registered holder hereof, on demand).
Payments of principal of, interest on and any Make-Whole Amount with respect to this Series E
Note are to be made in lawful money of the United States of America at JPMorgan Chase Bank, N.A. or
at such other place as the Company shall have designated by written notice to the holder of this
Note as provided in the Note Purchase Agreement referred to below.
This Series E Note is one of a series of Senior Notes (herein called the
“Notes”
) issued
pursuant to the Note Purchase Agreement, dated as of March 15, 2011 (as from time to time amended,
the
“Note Purchase Agreement”
), between the Company and the respective Purchasers named therein and
is entitled to the benefits thereof. Each holder of this Series E Note will be deemed, by its
acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Section 20 of
the Note Purchase Agreement and (ii) made the representation set forth in Section 6.2 of the Note
Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Series E Note shall
have the respective meanings ascribed to such terms in the Note Purchase Agreement.
The payment and performance of this Series E Note by the Company and the payment and
performance of the obligations of the Company under the Note Purchase Agreement are guaranteed by
the Guarantors pursuant to the Guarantee Agreements, including any supplements, amendments or
modifications thereto.
Exhibit 4.4
(b)
(to Note Purchase Agreement)
This Series E Note is a registered Series E Note and, as provided in the Note Purchase
Agreement, upon surrender of this Series E Note for registration of transfer accompanied by a
written instrument of transfer duly executed, by the registered holder hereof or such holder’s
attorney duly authorized in writing, a new Series E Note for a like principal amount will be issued
to, and registered in the name of, the transferee. Prior to due presentment for registration of
transfer, the Company may treat the person in whose name this Series E Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes, and the Company will
not be affected by any notice to the contrary.
This Series E Note is also subject to optional prepayment, in whole or from time to time in
part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.
If an Event of Default occurs and is continuing, the principal of this Series E Note may be
declared or otherwise become due and payable in the manner, at the price (including any applicable
Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.
This Series E Note shall be construed and enforced in accordance with, and the rights of the
Company and the holder of this Series E Note 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.
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Waters Corporation
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By
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[Title]
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1-B-2